What Would Thurgood Marshall Do?

“Whatever the severity of the impact of insufficient food or inadequate housing on a

person’s life, they have never been considered to bear the same direct and immediate relationship to

constitutional concerns for free speech and for our political processes as education has long been

recognized to bear. Perhaps, the best evidence of this fact is the unique status which has been

accorded public education as the single public service nearly unanimously guaranteed in the

constitutions of our States.”

–Justice Thurgood Marshall, dissenting in the federal

“Edgewood” case (Rodriguez, 1973).

Failure to win this crucial civil rights battle in

federal court sent strategists back to the state constitution of Texas.

As Marshall

hinted in the final footnote of his dissent: “Of course, nothing in the Court’s decision today should

inhibit further review of state educational funding schemes under state constitutional provisions.”

Read part one of the full dissent [through II.A.] below under “Read More.”

U.S. Supreme

411 U.S. 1

[Source: Findlaw]



No. 71-1332.

Argued October 12, 1972
Decided March 21,




The Court today decides, in effect, that a State may constitutionally vary

the quality of education which it offers its children in accordance with the amount of taxable wealth

located in the school districts within which they reside. The majority’s decision represents an abrupt

departure from the mainstream of recent state and federal court decisions concerning the

unconstitutionality of state educational financing schemes dependent upon taxable local wealth. 1 More

unfortunately, though, the [411 U.S. 1, 71] majority’s holding can only be seen as a retreat from

our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a

system which deprives children in their earliest years of the chance to reach their full potential as

citizens. The Court does this despite the absence of any substantial justification for a scheme which

arbitrarily channels educational resources in accordance with the fortuity of the amount of taxable

wealth within each district.

In my judgment, the right of every American to an equal

start in life, so far as the provision of a state service as important as education is concerned, is

far too vital to permit state discrimination on grounds as tenuous as those presented by this record.

Nor can I accept the notion that it is sufficient to remit these appellees to the vagaries of the

political process which, contrary to the majority’s suggestion, has proved singularly unsuited to the

task of providing a remedy for this discrimination. 2 I, for one, am unsatisfied with the hope of an

ultimate “political” solution sometime in the indefinite future while, in the meantime, countless

children unjustifiably receive inferior educations that “may affect their hearts [411 U.S. 1, 72]

and minds in a way unlikely ever to be undone.” Brown v. Board of Education, 347 U.S. 483, 494 (1954).

I must therefore respectfully dissent.


The Court acknowledges that

“substantial interdistrict disparities in school expenditures” exist in Texas, ante, at 15, and that

these disparities are “largely attributable to differences in the amounts of money collected through

local property taxation,” ante, at 16. But instead of closely examining the seriousness of these

disparities and the invidiousness of the Texas financing scheme, the Court undertakes an elaborate

exploration of the efforts Texas has purportedly made to close the gaps between its districts in terms

of levels of district wealth and resulting educational funding. Yet, however praiseworthy Texas’

equalizing efforts, the issue in this case is not whether Texas is doing its best to ameliorate the

worst features of a discriminatory scheme but, rather, whether the scheme itself is in fact

unconstitutionally discriminatory in the face of the Fourteenth Amendment’s guarantee of equal

protection of the laws. When the Texas financing scheme is taken as a whole, I do not think it can be

doubted that it produces a discriminatory impact on substantial numbers of the school-age children of

the State of Texas.


Funds to support public education in Texas are

derived from three sources: local ad valorem property taxes; the Federal Government; and the state

government. 3 It is enlightening to consider these in order. [411 U.S. 1, 73]


Texas law, the only mechanism provided the local school district for raising new, unencumbered revenues

is the power to tax property located within its boundaries. 4 At the same time, the Texas financing

scheme effectively restricts the use of monies raised by local property taxation to the support of

public education within the boundaries of the district in which they are raised, since any such taxes

must be approved by a majority of the property-taxpaying voters of the district. 5


significance of the local property tax element of the Texas financing scheme is apparent from the fact

that it provides the funds to meet some 40% of the cost of public education for Texas as a whole. 6 Yet

the amount of revenue that any particular Texas district can raise is dependent on two factors – its

tax rate and its amount of taxable property. The first factor is determined by the property-taxpaying

voters of the district. 7 But, regardless of the enthusiasm of the local voters for public [411 U.S. 1,

74] education, the second factor – the taxable property wealth of the district – necessarily

restricts the district’s ability to raise funds to support public education. 8 Thus, even though the

voters of two Texas districts may be willing to make the same tax effort, the results for the districts

will be substantially different if one is property rich while the other is property poor. The necessary

effect of the Texas local property tax is, in short, to favor property-rich districts and to disfavor

property-poor ones.

The seriously disparate consequences of the Texas local property tax,

when that tax is considered alone, are amply illustrated by data presented to the District Court by

appellees. These data included a detailed study of a sample of 110 Texas school districts 9 for the

1967-1968 school year conducted by Professor Joel S. Berke of Syracuse University’s Educational

Finance Policy Institute. Among other things, this study revealed that the 10 richest districts

examined, each of which had more than $100,000 in taxable property per pupil, raised through local

effort an average of $610 per pupil, whereas the four poorest districts studied, each of which had less

than $10,000 in taxable property per pupil, were able [411 U.S. 1, 75] to raise only an average of

$63 per pupil. 10 And, as the Court effectively recognizes, ante, at 27, this correlation between the

amount of taxable property per pupil and the amount of local revenues per pupil holds true for the 96

districts in between the richest and poorest districts. 11

It is clear, moreover, that

the disparity of per-pupil revenues cannot be dismissed as the result of lack of local effort – that

is, lower tax rates – by property-poor districts. To the contrary, the data presented below indicate

that the poorest districts tend to have the highest tax rates and the richest districts tend to have

the lowest tax rates. 12 Yet, despite the apparent extra effort being made by the poorest districts,

they are unable even to begin to match the richest districts in te
rms of the product
ion of local

revenues. For example, the 10 richest districts studied by Professor Berke were able to produce $585

per pupil with an equalized tax rate of 31› [411 U.S. 1, 76] on $100 of equalized valuation, but the

four poorest districts studied, with an equalized rate of 70› on $100 of equalized valuation, were able

to produce only $60 per pupil. 13 Without more, this state-imposed system of educational funding

presents a serious picture of widely varying treatment of Texas school districts, and thereby of Texas

schoolchildren, in terms of the amount of funds available for public education.

Nor are

these funding variations corrected by the other aspects of the Texas financing scheme. The Federal

Government provides funds sufficient to cover only some 10% of the total cost of public education in

Texas. 14 Furthermore, while these federal funds are not distributed in Texas solely on a per-pupil

basis, appellants do not here contend that they are used in such a way as to ameliorate significantly

the widely varying consequences for Texas school districts and schoolchildren of the local property tax

element of the state financing scheme. 15

State funds provide the remaining some 50% of

the monies spent on public education in Texas. 16 Technically, they are distributed under two programs.

The first is the Available School Fund, for which provision is made in the Texas Constitution. 17 The

Available [411 U.S. 1, 77] School Fund is composed of revenues obtained from a number of sources,

including receipts from the state ad valorem property tax, one-fourth of all monies collected by the

occupation tax, annual contributions by the legislature from general revenues, and the revenues derived

from the Permanent School Fund. 18 For the 1970-1971 school year the Available School Fund contained

$296,000,000. The Texas Constitution requires that this money be distributed annually on a per capita

basis 19 to the local school districts. Obviously, such a flat grant could not alone eradicate the

funding differentials attributable to the local property tax. Moreover, today the Available School Fund

is in reality simply one facet of the second state financing program, the Minimum Foundation School

Program, 20 since each district’s annual share of the Fund is deducted from the sum to which the

district is entitled under the Foundation Program. 21

The Minimum Foundation School

Program provides funds for three specific purposes: professional salaries, current operating expenses,

and transportation expenses. 22 The State pays, on an overall basis, for approximately 80% of the cost

of the Program; the remaining 20% is distributed among the local school districts under the [411 U.S.

1, 78] Local Fund Assignment. 23 Each district’s share of the Local Fund Assignment is determined by

a complex “economic index” which is designed to allocate a larger share of the costs to property-rich

districts than to property-poor districts. 24 Each district pays its share with revenues derived from

local property taxation.

The stated purpose of the Minimum Foundation School Program is

to provide certain basic funding for each local Texas school district. 25 At the same time, the Program

was apparently intended to improve, to some degree, the financial position of property-poor districts

relative to property-rich districts, since – through the use of the economic index – an effort is made

to charge a disproportionate share of the costs of the Program to rich districts. 26 It bears noting,

however, that substantial criticism has been leveled at the practical effectiveness of the economic

index system of local cost allocation. 27 In theory, the index is designed to ascertain the relative

ability of each district to contribute to the Local Fund Assignment from local property taxes. Yet the

index is not developed simply on the basis of each district’s taxable wealth. It also takes into

account the district’s relative income from manufacturing, mining, and agriculture, its payrolls, and

its scholastic population. 28 [411 U.S. 1, 79] It is difficult to discern precisely how these

latter factors are predictive of a district’s relative ability to raise revenues through local

property taxes. Thus, in 1966, one of the consultants who originally participated in the development of

the Texas economic index adopted in 1949 told the Governor’s Committee on Public School Education:

“The Economic Index approach to evaluating local ability offers a little better measure than sheer

chance, but not much.” 29

Moreover, even putting aside these criticisms of the

economic index as a device for achieving meaningful district wealth equalization through cost

allocation, poor districts still do not necessarily receive more state aid than property-rich

districts. For the standards which currently determine the amount received from the Foundation School

Program by any particular district 30 favor property-rich districts. 31 Thus, focusing on the same [411

U.S. 1, 80] Edgewood Independent and Alamo Heights School Districts which the majority uses for

purposes of illustration, we find that in 1967-1968 property-rich Alamo Heights, 32 which raised $333

per pupil on an equalized tax rate of 85› per $100 valuation, received $225 per pupil from the

Foundation School Program, while property-poor Edgewood, 33 which raised only $26 per pupil with an

equalized tax rate of $1.05 per $100 valuation, received only $222 per pupil from the Foundation School

Program. 34 And, more recent data, which indicate that for the 1970-1971 school year Alamo Heights

received $491 per pupil from [411 U.S. 1, 81] the Program while Edgewood received only $356 per

pupil, hardly suggest that the wealth gap between the districts is being narrowed by the State Program.

To the contrary, whereas in 1967-1968 Alamo Heights received only $3 per pupil, or about 1%, more than

Edgewood in state aid, by 1970-1971 the gap had widened to a difference of $135 per pupil, or about

38%. 35 It was data of this character that prompted the District Court to observe that “the current

[state aid] system tends to subsidize the rich at the expense of the poor, rather than the other way

around.” 36 337 F. Supp. 280, 282. And even the appellants go no further here than to venture that the

Minimum Foundation School Program has “a mildly equalizing effect.” 37

Despite these

facts, the majority continually emphasizes how much state aid has, in recent years, been given [411

U.S. 1, 82] to property-poor Texas school districts. What the Court fails to emphasize is the cruel

irony of how much more state aid is being given to property-rich Texas school districts on top of their

already substantial local property tax revenues. 38 Under any view, then, it is apparent that the state

aid provided by the Foundation School Program fails to compensate for the large funding variations

attributable to the local property tax element of the Texas financing scheme. And it is these stark

differences in the treatment of Texas school districts and school children inherent in the Texas

financing scheme, not the absolute amount of state aid provided to any particular school district, that

are the crux of this case. There can, moreover, be no escaping the conclusion that the local property

tax which is dependent upon taxable district property wealth is an essential feature of the Texas

scheme for financing public education. 39


The appellants do not deny

the disparities in educational funding caused by variations in taxable district property wealth. They

do contend, however, that whatever the differences in per-pupil spending among Texas districts, there

are no discriminatory consequences for the children of the disadvantaged districts. They recognize that

what is at stake in this case is the quality of the [411 U.S. 1, 83] public education provided Texas

children in the districts in which they live. But appellants reject the suggestio

n that the quality of

education in any particular district is determined by money – beyond some minimal level of funding

which they believe to be assured every Texas district by the Minimum Foundation School Program. In

their view, there is simply no denial of equal educational opportunity to any Texas schoolchildren as a

result of the widely varying per-pupil spending power provided districts under the current financing


In my view, though, even an unadorned restatement of this contention is

sufficient to reveal its absurdity. Authorities concerned with educational quality no doubt disagree as

to the significance of variations in per-pupil spending. 40 Indeed, conflicting expert testimony was

presented to the District Court in this case concerning the effect of spending variations on

educational achievement. 41 We sit, however, not to resolve disputes over educational theory but to

enforce our Constitution. It is an inescapable fact that if one district has more funds available per

pupil than another district, the [411 U.S. 1, 84] former will have greater choice in educational

planning than will the latter. In this regard, I believe the question of discrimination in educational

quality must be deemed to be an objective one that looks to what the State provides its children, not

to what the children are able to do with what they receive. That a child forced to attend an

underfunded school with poorer physical facilities, less experienced teachers, larger classes, and a

narrower range of courses than a school with substantially more funds – and thus with greater choice in

educational planning – may nevertheless excel is to the credit of the child, not the State, cf.

Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 349 (1938). Indeed, who can ever measure for such a

child the opportunities lost and the talents wasted for want of a broader, more enriched education?

Discrimination in the opportunity to learn that is afforded a child must be our


Hence, even before this Court recognized its duty to tear down the barriers of

state-enforced racial segregation in public education, it acknowledged that inequality in the

educational facilities provided to students may be discriminatory state action as contemplated by the

Equal Protection Clause. As a basis for striking down state-enforced segregation of a law school, the

Court in Sweatt v. Painter, 339 U.S. 629, 633 -634 (1950), stated:

“[W]e cannot find

substantial equality in the educational opportunities offered white and Negro law students by the

State. In terms of number of the faculty, variety of courses and opportunity for specialization, size

of the student body, scope of the library, availability of law review and similar activities, the

[whites-only] Law School is superior. . . . It is difficult to believe that one who had a free choice

between these law schools would consider the question close.” [411 U.S. 1, 85]


also McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637 (1950). Likewise, it is

difficult to believe that if the children of Texas had a free choice, they would choose to be educated

in districts with fewer resources, and hence with more antiquated plants, less experienced teachers,

and a less diversified curriculum. In fact, if financing variations are so insignificant to educational

quality, it is difficult to understand why a number of our country’s wealthiest school districts,

which have no legal obligation to argue in support of the constitutionality of the Texas legislation,

have nevertheless zealously pursued its cause before this Court. 42

The consequences,

in terms of objective educational input, of the variations in district funding caused by the Texas

financing scheme are apparent from the data introduced before the District Court. For example, in 1968

-1969, 100% of the teachers in the property-rich Alamo Heights School District had college degrees. 43

By contrast, during the same school year only 80.02% of the teachers had college degrees in the

property poor Edgewood Independent School District. 44 Also, in 1968-1969, approximately 47% of the

teachers in the Edgewood District were on emergency teaching permits, whereas only 11% of the teachers

in Alamo Heights were on such permits. 45 This is undoubtedly a reflection of the fact that the top of

Edgewood’s teacher salary scale was [411 U.S. 1, 86] approximately 80% of Alamo Heights’. 46 And,

not surprisingly, the teacher-student ratio varies significantly between the two districts. 47 In other

words, as might be expected, a difference in the funds available to districts results in a difference

in educational inputs available for a child’s public education in Texas. For constitutional purposes,

I believe this situation, which is directly attributable to the Texas financing scheme, raises a grave

question of state-created discrimination in the provision of public education. Cf. Gaston County v.

United States, 395 U.S. 285, 293 -294 (1969).

At the very least, in view of the

substantial interdistrict disparities in funding and in resulting educational inputs shown by appellees

to exist under the Texas financing scheme, the burden of proving that these disparities do not in fact

affect the quality of children’s education must fall upon the appellants. Cf. Hobson v. Hansen, 327 F.

Supp. 844, 860-861 (DC 1971). Yet appellants made no effort in the District Court to demonstrate that

educational quality is not affected by variations in funding and in resulting inputs. And, in this

Court, they have argued no more than that the relationship is ambiguous. This is hardly sufficient to

overcome appellees’ prima facie showing of state-created discrimination between the schoolchildren of

Texas with respect to objective educational opportunity.

Nor can I accept the

appellants’ apparent suggestion that the Texas Minimum Foundation School Program effectively

eradicates any discriminatory effects otherwise resulting from the local property tax element of the

[411 U.S. 1, 87] Texas financing scheme. Appellants assert that, despite its imperfections, the

Program “does guarantee an adequate education to every child.” 48 The majority, in considering the

constitutionality of the Texas financing scheme, seems to find substantial merit in this contention,

for it tells us that the Foundation Program “was designed to provide an adequate minimum educational

offering in every school in the State,” ante, at 45, and that the Program “assur[es] a basic

education for every child,” ante, at 49. But I fail to understand how the constitutional problems

inherent in the financing scheme are eased by the Foundation Program. Indeed, the precise thrust of the

appellants’ and the Court’s remarks are not altogether clear to me.

The suggestion may

be that the state aid received via the Foundation Program sufficiently improves the position of

property-poor districts vis-a-vis property-rich districts – in terms of educational funds – to

eliminate any claim of interdistrict discrimination in available educational resources which might

otherwise exist if educational funding were dependent solely upon local property taxation. Certainly

the Court has recognized that to demand precise equality of treatment is normally unrealistic, and thus

minor differences inherent in any practical context usually will not make out a substantial equal

protection claim. See, e. g., Mayer v. City of Chicago, 404 U.S. 189, 194 -195 (1971); Draper v.

Washington, 372 U.S. 487, 495 -496 (1963); Bain Peanut Co. v. Pinson, 282 U.S. 499, 501 (1931). But, as

has already been seen, we are hardly presented here with some de minimis claim of discrimination

resulting from the play necessary in any functioning system; to the contrary, it is clear that the

Foundation Program utterly fails to [411 U.S. 1, 88] ameliorate the seriously discriminatory effects

of the local property tax. 49

Alternatively, the appellants a

nd the majority may

believe that the Equal Protection Clause cannot be offended by substantially unequal state treatment of

persons who are similarly situated so long as the State provides everyone with some unspecified amount

of education which evidently is “enough.” 50 The basis for such a novel view is far from clear. It

is, of course, true that the Constitution does not require precise equality in the treatment of all

persons. As Mr. Justice Frankfurter explained:

“The equality at which the `equal

protection’ clause aims is not a disembodied equality. The Fourteenth Amendment enjoins `the equal

protection of the laws,’ and laws are not abstract propositions. . . . The Constitution does not

require things which are different in fact or opinion to be treated in law as though they were the

same.” Tigner v. Texas, 310 U.S. 141, 147 (1940).

See also Douglas v. California, 372

U.S. 353, 357 (1963); Goesaert v. Cleary, 335 U.S. 464, 466 (1948). [411 U.S. 1, 89] But this Court

has never suggested that because some “adequate” level of benefits is provided to all, discrimination

in the provision of services is therefore constitutionally excusable. The Equal Protection Clause is

not addressed to the minimal sufficiency but rather to the unjustifiable inequalities of state action.

It mandates nothing less than that “all persons similarly circumstanced shall be treated alike.” F.

S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).

Even if the Equal Protection

Clause encompassed some theory of constitutional adequacy, discrimination in the provision of

educational opportunity would certainly seem to be a poor candidate for its application. Neither the

majority nor appellants inform us how judicially manageable standards are to be derived for determining

how much education is “enough” to excuse constitutional discrimination. One would think that the

majority would heed its own fervent affirmation of judicial self-restraint before undertaking the

complex task of determining at large what level of education is constitutionally sufficient. Indeed,

the majority’s apparent reliance upon the adequacy of the educational opportunity assured by the Texas

Minimum Foundation School Program seems fundamentally inconsistent with its own recognition that

educational authorities are unable to agree upon what makes for educational quality, see ante, at 42-43

and n. 86 and at 47 n. 101. If, as the majority stresses, such authorities are uncertain as to the

impact of various levels of funding on educational quality, I fail to see where it finds the expertise

to divine that the particular levels of funding provided by the Program assure an adequate educational

opportunity – much less an education substantially equivalent in quality to that which a higher level

of funding might provide. Certainly appellants’ mere assertion before this Court of the adequacy of

the education guaranteed by the Minimum [411 U.S. 1, 90] Foundation School Program cannot obscure the

constitutional implications of the discrimination in educational funding and objective educational

inputs resulting from the local property tax – particularly since the appellees offered substantial

uncontroverted evidence before the District Court impugning the now much-touted “adequacy” of the

education guaranteed by the Foundation Program. 51

In my view, then, it is inequality –

not some notion of gross inadequacy – of educational opportunity that raises a question of denial of

equal protection of the laws. I find any other approach to the issue unintelligible and without

directing principle. Here, appellees have made a substantial showing of wide variations in educational

funding and the resulting educational opportunity afforded to the schoolchildren of Texas. This

discrimination is, in large measure, attributable to significant disparities in the taxable wealth of

local Texas school districts. This is a sufficient showing to raise a substantial question of

discriminatory state action in violation of the Equal Protection Clause. 52 [411 U.S. 1, 91]


Despite the evident discriminatory effect of the Texas financing scheme,

both the appellants and the majority raise substantial questions concerning the precise character of

the disadvantaged class in this case. The District Court concluded that the Texas financing scheme

draws “distinction between groups of citizens depending upon the wealth of the district in which they

live” and thus creates a disadvantaged class composed of persons living in property-poor districts.

See 337 F. Supp., at 282. See also id., at 281. In light of the data introduced before the District

Court, the conclusion that the schoolchildren of property-poor districts constitute a sufficient class

for our purposes seems indisputable to me.

Appellants contend, however, that in

constitutional terms this case involves nothing more than discrimination against local school

districts, not against individuals, since on its face the state scheme is concerned only with the

provision of funds to local districts. The result of the Texas financing scheme, appellants suggest, is

merely that some local districts have more available revenues for education; others have less. In that

respect, [411 U.S. 1, 92] they point out, the States have broad discretion in drawing reasonable

distinctions between their political subdivisions. See Griffin v. County School Board of Prince Edward

County, 377 U.S. 218, 231 (1964); McGowan v. Maryland, 366 U.S. 420, 427 (1961); Salsburg v. Maryland,

346 U.S. 545, 550 -554 (1954).

But this Court has consistently recognized that where

there is in fact discrimination against individual interests, the constitutional guarantee of equal

protection of the laws is not inapplicable simply because the discrimination is based upon some group

characteristic such as geographic location. See Gordon v. Lance, 403 U.S. 1, 4 (1971); Reynolds v.

Sims, 377 U.S. 533, 565 -566 (1964); Gray v. Sanders 372 U.S. 368, 379 (1963). Texas has chosen to

provide free public education for all its citizens, and it has embodied that decision in its

constitution. 53 Yet, having established public education for its citizens, the State, as a direct

consequence of the variations in local property wealth endemic to Texas’ financing scheme, has

provided some Texas schoolchildren with substantially less resources for their education than others.

Thus, while on its face the Texas scheme may merely discriminate between local districts, the impact of

that discrimination falls directly upon the children whose educational opportunity is dependent upon

where they happen to live. Consequently, the District Court correctly concluded that the Texas

financing scheme discriminates, from a constitutional perspective, between schoolchildren on the basis

of the amount of taxable property located within their local districts.

In my Brother

STEWART’S view, however, such a description of the discrimination inherent in this case is apparently

not sufficient, for it fails to define the “kind of objectively identifiable classes” that he

evidently perceives [411 U.S. 1, 93] to be necessary for a claim to be “cognizable under the Equal

Protection Clause,” ante, at 62. He asserts that this is also the view of the majority, but he is

unable to cite, nor have I been able to find, any portion of the Court’s opinion which remotely

suggests that there is no objectively identifiable or definable class in this case. In any event, if he

means to suggest that an essential predicate to equal protection analysis is the precise identification

of the particular individuals who compose the disadvantaged class, I fail to find the source from which

he derives such a requirement. Certainly such precision is not analytically necessary. So long as the

basis of the discrimination is clearly identified, it is possible to test it against the State’s

purpose for such discrimination – whatever the standard of

equal protection analysis empl


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s