Author: mopress

The Truth you Can’t Hide From

By Greg Moses

I once asked a

student what percent of the American population did he think was Black. “At least sixty percent!” He

said eagerly.

“Are there any other guesses?” I asked the class. How was I going to

talk this young man down?

In fact, 77 percent of voters in the Bush-Kerry-Nader

election were white. It is the most obvious reason why the election turned out the way it

did.

For white voters and their pundits, however, the stupidity of the election would be

experienced as an expectation of politics as usual. “Of course, it’s a stupid election,” they would

tell you. “Aren’t all elections stupid?” OK. But every great stupidity has its personality. And

not enough folks are talking about the personality of the white vote in the wake of this most recent

election.

In fact, the stupidity of American elections to date has been heavily imprinted

with the specific personality of white America. Imagine, for instance, any other race of a candidate

acting as stupidly as George Bush, performing as poorly, and yet–among white voters–being so well

liked.

But if you live in white America, George Bush’s stupidity is the very form of

mind necessary and sufficient to constitute political power. That’s why white folks in America could

serve up a majority for Bush, unlike Black, Latino, and Asian voters–who would not have re-elected

him.

And if I’m wrong about this, why else do you think the South was considered

untouchable all year long? The solid South is not solid without a big, fat, white vote. So among

elites who claim their latitude to bypass the American South, it sounds like a far better idea to work

around this problem. Pressures are enormous to find some other thing to talk about. Take

responsibility for transforming the white vote and do it in the South, too? Do you have any idea what

you’re talking about?

Only Howard Dean was willing to talk about the Confederate Flag

waving white voters down in Dixie. Dean is occasionally discredited on that account (for example, see

Chait’s column in today’s LA Times [Nov. 26]). Now that we are four years away from the next

Presidential election (Lord willing and the creek don’t rise) it is not yet too late in the election

cycle to raise the question–what are we going to do about the white vote? No white Democrat without

an answer is smart enough to lead.

“But white voters will dominate the electoral process

for decades,” reports Aurelio Rojas in a preview of the California vote. There, Kerry wins 47 percent

of the white vote compared to Bush’s 51. In New York, Kerry gets 49 to Bush’s 50. Compare the margins

of the Kerry losses among white voters in those progressive states to Texas, where Bush got 74 percent

–of the white vote. In none of these states (nor in Illinois for that matter) do white voters favor

Kerry, but in the blue states a significant bloc of white voters present themselves to the Democratic

Party.

A Massachusetts liberal is such a dangerous spectre to raise among white voters

(who are not Massachusetts liberals) because white voters in Massachusetts behave differently. They

actually gave a majority to Kerry.

Tom Hayden in a recent essay encourages anti-war

activists to “become more grounded in the everyday political life of their districts, organizing anti-

war coalitions including clergy, labor and inner city representatives to knock loudly on congressional

doors.” But I wonder if this outreach to “inner city representatives” doesn’t hide the political

problem that anti-war activists actually have, that is, convincing white voters to favor less

belligerent politics.

Perhaps Hayden means to say that anti-war activists should get

more grounded in their existing political base. The Congressional Black Caucus, for example, does very

well on the war issue already. The CBC and the NAACP were two groups who early on expressed “strong

opposition to war” (writes the Associated Press in 2002, archived at NathanielTurner.com). So if it

were up to “inner city representatives” there would be no need for an anti-war movement in the first

place. And if it were up to black voters, Bush would never have been elected.

So, yes,

it was a stupid American election, and many of us did stupid things along the way. Let’s not be so

stupid again as to quit working on the transformation of the white vote–especially in the South–until

we’ve made Massachusetts liberals of them all.

Back to my student. Obviously, he was an

urban youth. For him, sixty percent of life was Black life. And God bless him for not imagining

things any differently. I can still recall, after hearing several guesses from the class, that I

looked back at him and gave him Perlo’s numbers on percent Black in the USA. It was a cruel moment

for the same reason that the election was cruel. And white folks who scoff at Massachusetts liberals

should think about the eagerness that falls out of a person’s eyes when he realizes there’s no getting

around white folks in the

USA.

LINKS

NathanielTurner.com

http://www.nathanielturner.com/pol

lwaragainstiraq.htm

A Review of Amanda Bright Brownson’s Dissertation on Texas School

Funding

By Greg Moses

Portside, ILCA Online

Indymedia

ATX /

Chicago /

Houston /

LA /

NYC /

Archive

Any hour now, Texas is expecting to read

detailed “findings of fact” from the trial judge who just (and justly) ruled two weeks ago that the

state’s school funding system is flatly unconstitutional. Make no mistake, the facts are plain. And

the future of civil rights is on the line.

In a 2002 statistical review of school equity

in Texas, for example, Amanda Bright Brownson predicted exactly the court rulings that were issued in

mid-September after a six-week trial. Fully two years before the judge ruled that state funding for

education was neither adequate nor equitable, Brownson wrote that, “Issues of both equity and adequacy

must still be addressed as we try to further raise our expectations for schools and students.”

And, with the school funding lawsuit already on the docket (as she was defending her

study before a dissertation committee at the University of Texas at Austin) Brownson even hinted that a

state-mandated $1.50 cap on local property taxes might pose “capacity” problems. The judge, in

striking down the cap, agreed that the cap had reached capacity.

Furthermore, warned

Brownson, “the Legislature will have to proceed with caution if it is not going to lose ground gained

with respect to equity, as it attempts to address capacity.” And on this point, too, Brownson

predicted the structure of the three-point court ruling that now will be taken to higher courts in

Texas for review. While the judge agreed with West Orange Cove plaintiffs that the school system is

under-funded, and that the tax cap should be lifted, he also agreed with intervening districts led by

Edgewood and Alvarado, that the state’s allocation of money is inefficient (the court’s codewords for

inequitable).

Considering Brownson’s impressive run of predictions, an observer of the

school funding trial might stand vindicated for having felt that the state’s defense looked rather

desperate. We’ll get another look at the state’s logic when a formal appeal is filed.

But returning to the Brownson study; even though it presents effective findings, there are

two features of its methodology that worry me in the longer run. First, Brownson’s analysis does not

address the problem of school equity as a civil rights problem. Edgewood interveners, of course, were

more clear on this point, because Edgewood leadership has been working on the problem at least since

1968, when the first “Edgewood” case, Rodriguez vs. San Antonio, was filed in federal court. Although

the US Supreme Court denied the claims of Rodriguez, an eloquent dissenting opinion written by civil

rights legend Thurgood Marshall ended with a footnote in 1973, that suggested a legal appeal to the

Texas constitution. A decade later, the Edgewood cases were resumed, putting Marshall’s advice to good

effect.

Brownson’s study was class-based, with focus on lingering gaps between “all

students” and students who are “economically disadvantaged.” Edgewood interveners, led by attorneys

from the Mexican American Legal Defense Fund (MALDEF) also presented statistical gaps between “Anglo”

and “Hispanic” students; between “English speaking” students and those with “Limited English

Proficiency” (LEP)–terms of struggle that speak more plainly to the civil rights legacy of the school

funding struggle in Texas.

At first glance, the example of the Edgewood interveners

might suggest that Brownson’s methodologies can be easily adapted to civil rights applications.

Brownson, for instance, showed that equity gaps increase when expenses per student include costs of

educating specific populations, such as the “economically disadvantaged.” Using the same kind of

model, Edgewood interveners argued that gaps also increase if one accounts for the cost of bringing

mostly Spanish speaking students into a system of English proficiency. In one of the more thrilling

dramas of the courtroom, trial judge John Dietz took the state’s own bilingual expert, and in three

minutes’ time, got her to admit that Texas should triple its funding formula for bilingual

education.

And, just as Brownson used test scores from state-sponsored exams to

demonstrate lingering performance gaps for impoverished children, the Edgewood interveners plugged in

test scores to show gaps that separate ethnicities and language groups. So the uses made of the

Brownson models might seem to be extended easily to civil rights demographics. As long as the state

keeps pumping out standardized test scores, then inequities in education will continue to be measurable

for civil rights purposes. But this is where I think the model will break down in the longer run.

Tests are convenient measurements of “output” for anyone who needs to place numbers on a

scale. For students, teachers, parents, principals, and policy makers alike, test numbers have become

common currency. In the Texas courtroom, test numbers collected by the state posed invaluable evidence

against the state. Not only were overall passing rates on state exams introduced as evidence of

“inadequacy,” but gaps between student “subgroups” were tagged as exhibits to show inequity.

I have an amateurish hunch that the currency of “test scores” is pretty closely aligned with

the rise of the U.S. dollar (read capitalist ideology), and my suspicion is somewhat validated by

Brownson’s gloss on the history of “production functions” in education. Today’s educational

administrator is addicted to the kinds of fixes that “production functions” make possible.

What is both interesting and tragic, however, is that “production functions” were imported

from industry (capitalists) to education (capitalists in waiting) in order to satisfy a civil rights

mandate. It was the Civil Rights Act of 1964 that called for a major study of educational equity in

the United States and it was the resulting Coleman Report of 1966 that used “production functions” to

demonstrate that schools were less to blame for student performance than, say, “family and peer group

characteristics.” So it was a capital intensive statistical tool that was used to prove how academic

achievement was more or less “inherently” attributable to social conditions rather than schooling. And

all this was done in the name of civil rights.

Of course, if the plain logic of the

Coleman report’s findings were to be followed out, we would have to conclude that social revolution

rather than school reform would be a wiser mechanism for expanding the intelligence of a people. And

there is a deeper civil rights truth to this line of thought, a truth that cost many civil rights

activists their lives during the sixties and seventies. But in the muddled world of everyday politics

in America, there is an oh-so-patient assumption that social reform, if not revolution, might be

nurtured through school reform. And when you get to thinking about all the things that would be needed

for any semi-coherent social revolution, or when you consider the way th

at status quo defenders in

America simply execute civil rights leaders outright, school reform doesn’t look like such a bad place

to both work and live.

At any rate, the marriage of civil rights to test scores is a

tragic match in at least one respect over the longer term. The more that test scores are standardized,

the more the curriculum must follow standardized tests, and, consequently, the less freedom teachers

will have over time to innovate the very social changes that will be needed to stop re-inscribing the

“inherent” structure of social intelligence as we find it. As Carter G. Woodson argued in the

Miseducation of the Negro (1933), standardized education for white students is going to wind up being a

repressive education for black students. Which means to me that attempts to bring “subgroups up to

standards” through “standardized methods” is a logical prescription for intensified “miseducation,”

precisely along anti-civil-rights lines.

Texas state demographer Steve Murdoch is getting

a lot of credit for spurring the Texas court in the direction of its rulings. Murdoch argued that

trends in poverty and “diversity” (more of both coming soon) demand vigorous educational reform. But

if I’m not terribly mistaken in my memory, it was a similar nationwide demographic report from the

Hudson Institute (Workforce 2000, published in 1987) that coincided with the state’s development of

“standards” in the first place. Something at that time looked a little too slick to me, when “scare

demographics” were answered with “standards.” I didn’t believe then that “standards” represented a

sudden eruption of “good faith” among educational leaders of Texas, and I still don’t believe

it.

Consider a recent out-of-class experience. On a recent Monday morning, a guy starts

yelling at a cashier: “well if you understood English I could tell you!” The guy storms out of the

snack bar, and I feel obliged to buy something from the cashier right away. She hides herself,

however, behind a tall stack of product and equipment, avoiding eye contact as she attempts to regain

her self-respect. Her co-worker steps up to take the next pitch. According to Texas standards, we had

just witnessed a so-called “English-proficient speaker” attempting to communicate with a person of

“Limited English Proficiency” otherwise known as an LEP.

I think it was clear to

everyone in the room who had the real problem with intelligent communication that day, but in the

jargon of Texas education policy, there are lots of LEPs, like that cashier, whose relationship to

English is just this shaming, abusive accusation that “standard English” makes speakers so much smarter

and better than all the other people around. Of course, there is no educational justification for this

attitude whatsoever, which makes it all the more shameful that the confrontation that I witnessed was

played out on a campus of higher education.

The Edgewood interveners are not only

property poor, they are predominantly Hispanic. The students, therefore, are facing not only a class

struggle, economically, but their ethnicity also presents them to the Texas educational establishment

as a “special challenge.” And Brownson’s reliance on standardized test scores, a habit picked up by

MALDEF attorneys, begins to solidify (or “legitimate” if you will) a regime of standardized

instruction.

It was profoundly ironic that on Sept. 15 the trial judge in Texas

referenced the Texas Revolution against Mexico in his prepared remarks after closing arguments. He

said that even Texas rebels wanted better education for their kids. The judge was arguing that

educational commitments could not be severed from the cultural history of Texas law. Yet, the very

next day, Diez y seis de Septiembre, or Sept. 16, would be a lively day of celebration among many

Texans of Mexican descent, in commemoration of a quite different revolution—the one that freed Mexico

from Spain. Between the judge’s Sept. 15 reference to the Texas Revolution and widespread celebrations

in of the Mexican Revolution on Sept. 16 lies a borderland of cultural histories that Texas people

share.

After all, Gloria Anzaldua didn’t live for nothing, you know. Her Chicana,

mestiza, frontera sin fronteras sensibilities were Texas-born and Texas-bred, and we are not going to

bury anything she stood for. I remember a job interview once by telephone: “What do you teach?” Well

I’m teaching Gloria Anzaldua’s new book at the moment. “Hmm, I think our committee would be looking

for something a little more standard than that.” Precisely. What would be the point of teaching

borderland consciousness if your students are busy preparing for standardized Graduate Record Exams?

So Brownson did a brilliant job by anticipating the model of judgment that the judge

would eventually adopt. And the judge has wisely folded claims from Edgewood and Alvarado into the

claims of West Orange Cove. As a consequence, Texas school funding is heading in a helpful direction,

toward better and more equitable funding. So I don’t mean to shout “stop the train!” (as if the

conductor would be listening to me anyway). But I do want to suggest that some major “challenges” of

Texas education will require much more from this state than “adequate and efficient funding” or

standardized regimes of tests. If Texas is going to grow, it will also have to grow up. And this will

mean revisiting widespread assumptions about regimes of standardized instruction, the better to keep

“test scores” and “English Proficiency” from killing the spirit of civil

rights.

Notes:

(1) Amanda Bright Brownson: School Finance Reform in Post

Edgewood Texas: An Examination of Revenue Equity and Implications for Student Performance.

Dissertation (Univ. of Texas-Austin: December 2002). Posted in pdf format by Permission of the Author

at the Texas Civil Rights Review: http://texascivilrightsreview.org/phpnuke/downloadz/brownson.pdf

(2) And that cashier I referenced in the incident above? She was not Hispanic. She was

Asian.

Greg Moses is Editor of the Texas Civil Rights Review and author of Revolution of

Conscience: Martin Luther King, Jr. and the Philosophy of

Nonviolence.

“I fear that we have come full circle. After the Civil War our Government started

several “affirmative action” programs. This Court in the Civil Rights Cases and Plessy v. Ferguson

destroyed the movement toward complete equality. For almost a century no action was taken, and this

nonaction was with the tacit approval of the courts. Then we had Brown v. Board of Education and the

Civil Rights Acts of Congress, followed by numerous affirmative-action programs. Now, we have this

Court again stepping in, this time to stop affirmative-action programs of the type used by the

University of California.”

–Justice Thurgood Marshall in the Bakke case of 1978. See

more of the Marshall section of Bakke in Read More below.

U.S. Supreme

Court

UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE,
438 U.S. 265 (1978)
438 U.S.

265

[Source: Findlaw]

REGENTS OF THE UNIVERSITY OF CALIFORNIA

v. BAKKE
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

No. 76-

811.

Argued October 12, 1977
Decided June 28, 1978

MR. JUSTICE

MARSHALL.

I agree with the judgment of the Court only insofar as it permits a university

to consider the race of an applicant in making admissions decisions. I do not agree that petitioner’s

admissions program violates the Constitution. For it must be remembered that, during most of the past

200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and

pervasive forms of discrimination against the Negro. Now, when a state acts to remedy the effects of

that legacy of discrimination, I cannot believe that this same Constitution stands as a

barrier.

I

A

Three hundred and fifty years ago, the Negro was

dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into

bondage for forced labor, [438 U.S. 265, 388] the slave was deprived of all legal rights. It was

unlawful to teach him to read; he could be sold away from his family and friends at the whim of his

master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized

both master and slave. 1

The denial of human rights was etched into the American

Colonies’ first attempts at establishing self-government. When the colonists determined to seek their

independence from England, they drafted a unique document cataloguing their grievances against the King

and proclaiming as “self-evident” that “all men are created equal” and are endowed “with certain

unalienable Rights,” including those to “Life, Liberty and the pursuit of Happiness.” The self-

evident truths and the unalienable rights were intended, however, to apply only to white men. An

earlier draft of the Declaration of Independence, submitted by Thomas Jefferson to the Continental

Congress, had included among the charges against the King that

“[h]e has waged cruel war

against human nature itself, violating its most sacred rights of life and liberty in the persons of a

distant people who never offended him, captivating and carrying them into slavery in another

hemisphere, or to incur miserable death in their transportation thither.” Franklin

88.

The Southern delegation insisted that the charge be deleted; the colonists themselves

were implicated in the slave trade, and inclusion of this claim might have made it more difficult to

justify the continuation of slavery once the ties to England were severed. Thus, even as the colonists

embarked on a [438 U.S. 265, 389] course to secure their own freedom and equality, they ensured

perpetuation of the system that deprived a whole race of those rights.

The implicit

protection of slavery embodied in the Declaration of Independence was made explicit in the

Constitution, which treated a slave as being equivalent to three-fifths of a person for purposes of

apportioning representatives and taxes among the States. Art. I, 2. The Constitution also contained a

clause ensuring that the “Migration or Importation” of slaves into the existing States would be legal

until at least 1808, Art. I, 9, and a fugitive slave clause requiring that when a slave escaped to

another State, he must be returned on the claim of the master, Art. IV, 2. In their declaration of the

principles that were to provide the cornerstone of the new Nation, therefore, the Framers made it plain

that “we the people,” for whose protection the Constitution was designed, did not include those whose

skins were the wrong color. As Professor John Hope Franklin has observed, Americans “proudly accepted

the challenge and responsibility of their new political freedom by establishing the machinery and

safeguards that insured the continued enslavement of blacks.” Franklin 100.

The

individual States likewise established the machinery to protect the system of slavery through the

promulgation of the Slave Codes, which were designed primarily to defend the property interest of the

owner in his slave. The position of the Negro slave as mere property was confirmed by this Court in

Dred Scott v. Sandford, 19 How. 393 (1857), holding that the Missouri Compromise – which prohibited

slavery in the portion of the Louisiana Purchase Territory north of Missouri – was unconstitutional

because it deprived slave owners of their property without due process. The Court declared that under

the Constitution a slave was property, and “[t]he right to traffic in it, like an ordinary article of

merchandise and property, was guarantied to the citizens of the United [438 U.S. 265, 390] States . .

. .” Id., at 451. The Court further concluded that Negroes were not intended to be included as

citizens under the Constitution but were “regarded as beings of an inferior order . . . altogether

unfit to associate with the white race, either in social or political relations; and so far inferior,

that they had no rights which the white man was bound to respect . . . .” Id., at

407.

B

The status of the Negro as property was officially erased by his

emancipation at the end of the Civil War. But the long-awaited emancipation, while freeing the Negro

from slavery, did not bring him citizenship or equality in any meaningful way. Slavery was replaced by

a system of “laws which imposed upon the colored race onerous disabilities and burdens, and curtailed

their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of

little value.” Slaughter-House Cases, 16 Wall. 36, 70 (1873). Despite the passage of the Thirteenth,

Fourteenth, and Fifteenth Amendments, the Negro was systematically denied the rights those Amendments

were supposed to secure. The combined actions and inactions of the State and Federal Governments

maintained Negroes in a position of legal inferiority for another century after the Civil

War.

The Southern States took the first steps to re-enslave the Negroes. Immediately

following the end of the Civil War, many of the provisional legislatures passed Black Codes, similar to

the Slave Codes, which, among other things, limited the rights of Negroes to own or rent property and

permitted imprisonment for breach of employment contracts. Over the next several decades, the South

managed to disenfranchise the Negroes in spite of the Fifteenth Amendment by various techniques,

including poll taxes, deliberately complicated balloting processes, property and literacy

qualifications, and finally the white primary.

Congress responded to the legal

disabilities being imposed [438 U.S. 265, 391] in the Southern States by passing the Reconstruction

Acts and the Civil Rights Acts. Congress also responded to the needs of the Negroes at the end of the

Civil War by establishing the Bureau of Refugees, Freedmen, and Abandoned Lands, better known as the

Freedmen’s Bureau, to supply food, hosp
itals, land, and edu
cation to the newly freed slaves. Thus, for

a time it seemed as if the Negro might be protected from the continued denial of his civil rights and

might be relieved of the disabilities that prevented him from taking his place as a free and equal

citizen.

That time, however, was short-lived. Reconstruction came to a close, and, with

the assistance of this Court, the Negro was rapidly stripped of his new civil rights. In the words of

C. Vann Woodward: “By narrow and ingenious interpretation [the Supreme Court’s] decisions over a

period of years had whittled away a great part of the authority presumably given the government for

protection of civil rights.” Woodward 139.

The Court began by interpreting the Civil War

Amendments in a manner that sharply curtailed their substantive protections. See, e. g., Slaughter-

House Cases, supra; United States v. Reese, 92 U.S. 214 (1876); United States v. Cruikshank, 92 U.S.

542 (1876). Then in the notorious Civil Rights Cases, 109 U.S. 3 (1883), the Court strangled Congress’

efforts to use its power to promote racial equality. In those cases the Court invalidated sections of

the Civil Rights Act of 1875 that made it a crime to deny equal access to “inns, public conveyances,

theaters and other places of public amusement.” Id., at 10. According to the Court, the Fourteenth

Amendment gave Congress the power to proscribe only discriminatory action by the State. The Court ruled

that the Negroes who were excluded from public places suffered only an invasion of their social rights

at the hands of private individuals, and Congress had no power to remedy that. Id., at 24-25. “When a

man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable

concomitants of that [438 U.S. 265, 392] state,” the Court concluded, “there must be some stage in

the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special

favorite of the laws . . . .” Id., at 25. As Mr. Justice Harlan noted in dissent, however, the Civil

War Amendments and Civil Rights Acts did not make the Negroes the “special favorite” of the laws but

instead “sought to accomplish in reference to that race . . . – what had already been done in every

State of the Union for the white race – to secure and protect rights belonging to them as freemen and

citizens; nothing more.” Id., at 61.

The Court’s ultimate blow to the Civil War

Amendments and to the equality of Negroes came in Plessy v. Ferguson, 163 U.S. 537 (1896). In upholding

a Louisiana law that required railway companies to provide “equal but separate” accommodations for

whites and Negroes, the Court held that the Fourteenth Amendment was not intended “to abolish

distinctions based upon color, or to enforce social, as distinguished from political equality, or a

commingling of the two races upon terms unsatisfactory to either.” Id., at 544. Ignoring totally the

realities of the positions of the two races, the Court remarked:

“We consider the

underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced

separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is

not by reason of anything found in the act, but solely because the colored race chooses to put that

construction upon it.” Id., at 551.

Mr. Justice Harlan’s dissenting opinion recognized

the bankruptcy of the Court’s reasoning. He noted that the “real meaning” of the legislation was

“that colored citizens are so inferior and degraded that they cannot be allowed to sit in public

coaches occupied by white citizens.” Id., at 560. He expressed his fear that if like laws were enacted

in other [438 U.S. 265, 393] States, “the effect would be in the highest degree mischievous.” Id.,

at 563. Although slavery would have disappeared, the States would retain the power “to interfere with

the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, upon

the basis of race; and to place in a condition of legal inferiority a large body of American citizens .

. . .” Ibid.

The fears of Mr. Justice Harlan were soon to be realized. In the wake of

Plessy, many States expanded their Jim Crow laws, which had up until that time been limited primarily

to passenger trains and schools. The segregation of the races was extended to residential areas, parks,

hospitals, theaters, waiting rooms, and bathrooms. There were even statutes and ordinances which

authorized separate phone booths for Negroes and whites, which required that textbooks used by children

of one race be kept separate from those used by the other, and which required that Negro and white

prostitutes be kept in separate districts. In 1898, after Plessy, the Charlestown News and Courier

printed a parody of Jim Crow laws:

“`If there must be Jim Crow cars on the railroads,

there should be Jim Crow cars on the street railways. Also on all passenger boats. . . . If there are

to be Jim Crow cars, moreover, there should be Jim Crow waiting saloons at all stations, and Jim Crow

eating houses. . . . There should be Jim Crow sections of the jury box, and a separate Jim Crow dock

and witness stand in every court – and a Jim Crow Bible for colored witnesses to kiss.’” Woodward

68.

The irony is that before many years had passed, with the exception of the Jim Crow

witness stand, “all the improbable applications of the principle suggested by the editor in derision

had been put into practice – down to and including the Jim Crow Bible.” Id., at 69.

Nor

were the laws restricting the rights of Negroes limited [438 U.S. 265, 394] solely to the Southern

States. In many of the Northern States, the Negro was denied the right to vote, prevented from serving

on juries, and excluded from theaters, restaurants, hotels, and inns. Under President Wilson, the

Federal Government began to require segregation in Government buildings; desks of Negro employees were

curtained off; separate bathrooms and separate tables in the cafeterias were provided; and even the

galleries of the Congress were segregated. When his segregationist policies were attacked, President

Wilson responded that segregation was “`not humiliating but a benefit’” and that he was “`rendering

[the Negroes] more safe in their possession of office and less likely to be discriminated against.’”

Kluger 91.

The enforced segregation of the races continued into the middle of the 20th

century. In both World Wars, Negroes were for the most part confined to separate military units; it was

not until 1948 that an end to segregation in the military was ordered by President Truman. And the

history of the exclusion of Negro children from white public schools is too well known and recent to

require repeating here. That Negroes were deliberately excluded from public graduate and professional

schools – and thereby denied the opportunity to become doctors, lawyers, engineers, and the like – is

also well established. It is of course true that some of the Jim Crow laws (which the decisions of this

Court had helped to foster) were struck down by this Court in a series of decisions leading up to Brown

v. Board of Education, 347 U.S. 483 (1954). See, e. g., Morgan v. Virginia, 328 U.S. 373 (1946); Sweatt

v. Painter, 339 U.S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950). Those

decisions, however, did not automatically end segregation, nor did they move Negroes from a position of

legal inferiority to one of equality. The legacy of years of slavery and of years of second-class

citizenship in the wake of emancipation could not be so easily eliminated. [438 U.S. 265, 395]

II

The position of the Negro today in America is the tragic but inevitable

consequence of centuries of unequal treatment. Measured by any benchmark of comfort or achievement,

meaningful equality remains a distant dream for the Negro.

A Negro child today has a life

ex

pectancy which is shorter by more than five years than that of a white child. 2 The Negro child’s

mother is over three times more likely to die of complications in childbirth, 3 and the infant

mortality rate for Negroes is nearly twice that for whites. 4 The median income of the Negro family is

only 60% that of the median of a white family, 5 and the percentage of Negroes who live in families

with incomes below the poverty line is nearly four times greater than that of whites. 6

When the Negro child reaches working age, he finds that America offers him significantly

less than it offers his white counterpart. For Negro adults, the unemployment rate is twice that of

whites, 7 and the unemployment rate for Negro teenagers is nearly three times that of white teenagers.

8 A Negro male who completes four years of college can expect a median annual income of merely $110

more than a white male who has only a high school diploma. 9 Although Negroes [438 U.S. 265, 396]

represent 11.5% of the population, 10 they are only 1.2% of the lawyers and judges, 2% of the

physicians, 2.3% of the dentists, 1.1% of the engineers and 2.6% of the college and university

professors. 11

The relationship between those figures and the history of unequal

treatment afforded to the Negro cannot be denied. At every point from birth to death the impact of the

past is reflected in the still disfavored position of the Negro.

In light of the sorry

history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into

the mainstream of American life should be a state interest of the highest order. To fail to do so is to

ensure that America will forever remain a divided society.

III

I do not

believe that the Fourteenth Amendment requires us to accept that fate. Neither its history nor our past

cases lend any support to the conclusion that a university may not remedy the cumulative effects of

society’s discrimination by giving consideration to race in an effort to increase the number and

percentage of Negro doctors.

A

This Court long ago remarked

that

“in any fair and just construction of any section or phrase of these [Civil War]

amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them

all, the evil which they were designed to remedy . . . .” Slaughter-House Cases, 16 Wall., at

72.

It is plain that the Fourteenth Amendment was not intended to prohibit measures

designed to remedy the effects of the [438 U.S. 265, 397] Nation’s past treatment of Negroes. The

Congress that passed the Fourteenth Amendment is the same Congress that passed the 1866 Freedmen’s

Bureau Act, an Act that provided many of its benefits only to Negroes. Act of July 16, 1866, ch. 200,

14 Stat. 173; see supra, at 391. Although the Freedmen’s Bureau legislation provided aid for refugees,

thereby including white persons within some of the relief measures, 14 Stat. 174; see also Act of Mar.

3, 1865, ch. 90, 13 Stat. 507, the bill was regarded, to the dismay of many Congressmen, as “solely

and entirely for the freedmen, and to the exclusion of all other persons . . . .” Cong. Globe, 39th

Cong., 1st Sess., 544 (1866) (remarks of Rep. Taylor). See also id., at 634-635 (remarks of Rep.

Ritter); id., at App. 78, 80-81 (remarks of Rep. Chanler). Indeed, the bill was bitterly opposed on the

ground that it “undertakes to make the negro in some respects . . . superior . . . and gives them

favors that the poor white boy in the North cannot get.” Id., at 401 (remarks of Sen. McDougall). See

also id., at 319 (remarks of Sen. Hendricks); id., at 362 (remarks of Sen. Saulsbury); id., at 397

(remarks of Sen. Willey); id., at 544 (remarks of Rep. Taylor). The bill’s supporters defended it –

not by rebutting the claim of special treatment – but by pointing to the need for such

treatment:

“The very discrimination it makes between `destitute and suffering’ negroes,

and destitute and suffering white paupers, proceeds upon the distinction that, in the omitted case,

civil rights and immunities are already sufficiently protected by the possession of political power,

the absence of which in the case provided for necessitates governmental protection.” Id., at App. 75

(remarks of Rep. Phelps).

Despite the objection to the special treatment the bill would

provide for Negroes, it was passed by Congress. Id., at 421, 688. President Johnson vetoed this bill

and also a subsequent bill that contained some modifications; one of his principal [438 U.S. 265, 398]

objections to both bills was that they gave special benefits to Negroes. 8 Messages and Papers of the

Presidents 3596, 3599, 3620, 3623 (1897). Rejecting the concerns of the President and the bill’s

opponents, Congress overrode the President’s second veto. Cong. Globe, 39th Cong., 1st Sess., 3842,

3850 (1866).

Since the Congress that considered and rejected the objections to the 1866

Freedmen’s Bureau Act concerning special relief to Negroes also proposed the Fourteenth Amendment, it

is inconceivable that the Fourteenth Amendment was intended to prohibit all race-conscious relief

measures. It “would be a distortion of the policy manifested in that amendment, which was adopted to

prevent state legislation designed to perpetuate discrimination on the basis of race or color,”

Railway Mail Assn. v. Corsi, 326 U.S. 88, 94 (1945), to hold that it barred state action to remedy the

effects of that discrimination. Such a result would pervert the intent of the Framers by substituting

abstract equality for the genuine equality the Amendment was intended to

achieve.

B

As has been demonstrated in our joint opinion, this Court’s

past cases establish the constitutionality of race-conscious remedial measures. Beginning with the

school desegregation cases, we recognized that even absent a judicial or legislative finding of

constitutional violation, a school board constitutionally could consider the race of students in making

school-assignment decisions. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16

(1971); McDaniel v. Barresi, 402 U.S. 39, 41 (1971). We noted, moreover, that a

“flat

prohibition against assignment of students for the purpose of creating a racial balance must inevitably

conflict with the duty of school authorities to disestablish dual school systems. As we have held in

Swann, the Constitution does not compel any particular degree of [438 U.S. 265, 399] racial balance

or mixing, but when past and continuing constitutional violations are found, some ratios are likely to

be useful as starting points in shaping a remedy. An absolute prohibition against use of such a device

– even as a starting point – contravenes the implicit command of Green v. Country School Board, 391

U.S. 430 (1968), that all reasonable methods be available to formulate an effective remedy.” Board of

Education v. Swann, 402 U.S. 43, 46 (1971).

As we have observed, “[a]ny other approach

would freeze the status quo that is the very target of all desegregation processes.” McDaniel v.

Barresi, supra, at 41.

Only last Term, in United Jewish Organizations v. Carey, 430 U.S.

144 (1977), we upheld a New York reapportionment plan that was deliberately drawn on the basis of race

to enhance the electoral power of Negroes and Puerto Ricans; the plan had the effect of diluting the

electoral strength of the Hasidic Jewish community. We were willing in UJO to sanction the remedial use

of a racial classification even though it disadvantaged otherwise “innocent” individuals. In another

case last Term, Califano v. Webster, 430 U.S. 313 (1977), the Court upheld a provision in the Social

Security laws that discriminated against men because its purpose was “`the permissible one of

redressing our society’s longstanding disparate treatment of women.’” Id., at 317, quoting Califano

v. Goldfarb, 430 U.S. 199, 209 n. 8 (1977) (plurality opinion

). We thus recognized the permissibility

of remedying past societal discrimination through the use of otherwise disfavored

classifications.

Nothing in those cases suggests that a university cannot similarly act

to remedy past discrimination. 12 It is true that [438 U.S. 265, 400] in both UJO and Webster the use

of the disfavored classification was predicated on legislative or administrative action, but in neither

case had those bodies made findings that there had been constitutional violations or that the specific

individuals to be benefited had actually been the victims of discrimination. Rather, the classification

in each of those cases was based on a determination that the group was in need of the remedy because of

some type of past discrimination. There is thus ample support for the conclusion that a university can

employ race-conscious measures to remedy past societal discrimination, without the need for a finding

that those benefited were actually victims of that discrimination.

IV

While

I applaud the judgment of the Court that a university may consider race in its admissions process, it

is more than a little ironic that, after several hundred years of class-based discrimination against

Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is

permissible. In declining to so hold, today’s judgment ignores the fact that for several hundred years

Negroes have been discriminated against, not as individuals, but rather solely because of the color of

their skins. It is unnecessary in 20th-century America to have individual Negroes demonstrate that they

have been victims of racial discrimination; the racism of our society has been so pervasive that none,

regardless of wealth or position, has managed to escape its impact. The experience of Negroes in

America has been different in kind, not just in degree, from that of other ethnic groups. It is not

merely the history of slavery alone but also that a whole people were marked as inferior by the law.

And that mark has endured. The dream of America as the great melting pot has [438 U.S. 265, 401] not

been realized for the Negro; because of his skin color he never even made it into the

pot.

These differences in the experience of the Negro make it difficult for me to accept

that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary

to remedy the effects of past discrimination. In the Civil Rights Cases, supra, the Court wrote that

the Negro emerging from slavery must cease “to be the special favorite of the laws.” 109 U.S., at 25

; see supra, at 392. We cannot in light of the history of the last century yield to that view. Had the

Court in that decision and others been willing to “do for human liberty and the fundamental rights of

American citizenship, what it did . . . for the protection of slavery and the rights of the masters of

fugitive slaves,” 109 U.S., at 53 (Harlan, J., dissenting), we would not need now to permit the

recognition of any “special wards.”

Most importantly, had the Court been willing in

1896, in Plessy v. Ferguson, to hold that the Equal Protection Clause forbids differences in treatment

based on race, we would not be faced with this dilemma in 1978. We must remember, however, that the

principle that the “Constitution is color-blind” appeared only in the opinion of the lone dissenter.

163 U.S., at 559 . The majority of the Court rejected the principle of color blindness, and for the

next 60 years, from Plessy to Brown v. Board of Education, ours was a Nation where, by law, an

individual could be given “special” treatment based on the color of his skin.

It is

because of a legacy of unequal treatment that we now must permit the institutions of this society to

give consideration to race in making decisions about who will hold the positions of influence,

affluence, and prestige in America. For far too long, the doors to those positions have been shut to

Negroes. If we are ever to become a fully integrated society, one in which the color of a person’s

skin will not determine the opportunities available to him or her, we must be willing [438 U.S. 265,

402] to take steps to open those doors. I do not believe that anyone can truly look into America’s

past and still find that a remedy for the effects of that past is impermissible.

It has

been said that this case involves only the individual, Bakke, and this University. I doubt, however,

that there is a computer capable of determining the number of persons and institutions that may be

affected by the decision in this case. For example, we are told by the Attorney General of the United

States that at least 27 federal agencies have adopted regulations requiring recipients of federal funds

to take “`affirmative action to overcome the effects of conditions which resulted in limiting

participation . . . by persons of a particular race, color, or national origin.’” Supplemental Brief

for United States as Amicus Curiae 16 (emphasis added). I cannot even guess the number of state and

local governments that have set up affirmative-action programs, which may be affected by today’s

decision.

I fear that we have come full circle. After the Civil War our Government

started several “affirmative action” programs. This Court in the Civil Rights Cases and Plessy v.

Ferguson destroyed the movement toward complete equality. For almost a century no action was taken, and

this nonaction was with the tacit approval of the courts. Then we had Brown v. Board of Education and

the Civil Rights Acts of Congress, followed by numerous affirmative-action programs. Now, we have this

Court again stepping in, this time to stop affirmative-action programs of the type used by the

University of California.

[ Footnote 1 ] The history recounted here is perhaps too well

known to require documentation. But I must acknowledge the authorities on which I rely in retelling it.

J. Franklin, from Slavery to Freedom (4th ed. 1974) (hereinafter Franklin); R. Kluger, Simple Justice

(1975) (hereinafter Kluger); C. Woodward, The Strange Career of Jim Crow (3d ed. 1974) (hereinafter

Woodward).

[ Footnote 2 ] U.S. Dept. of Commerce, Bureau of the Census, Statistical

Abstract of the United States 65 (1977) (Table 94).

[ Footnote 3 ] Id., at 70 (Table

102).

[ Footnote 4 ] Ibid.

[ Footnote 5 ] U.S. Dept. of Commerce, Bureau of

the Census, Current Population Reports, Series P-60, No. 107, p. 7 (1977) (Table 1).

[

Footnote 6 ] Id., at 20 (Table 14).

[ Footnote 7 ] U.S. Dept. of Labor, Bureau of Labor

Statistics, Employment and Earnings, January 1978, p. 170 (Table 44).

[ Footnote 8 ]

Ibid.

[ Footnote 9 ] U.S. Dept. of Commerce, Bureau of the Census, Current Population

Reports, Series P-60, No. 105, p. 198 (1977) (Table 47).

[ Footnote 10 ] U.S. Dept. of

Commerce, Bureau of the Census, Statistical Abstract, supra, at 25 (Table 24).

[ Footnote

11 ] Id., at 407-408 (Table 662) (based on 1970 census).

[ Footnote 12 ] Indeed, the

action of the University finds support in the regulations promulgated under Title VI by the Department

of Health, Education, and Welfare and approved by the President, which authorize a federally funded

institution to take affirmative steps to overcome past discrimination [438 U.S. 265, 400] against

groups even where the institution was not guilty of prior discrimination. 45 CFR 80.3 (b) (6) (ii)

(1977).

“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

Court
SAN ANTONIO SCHOOL DISTRICT v. RODRIGUEZ, 411 U.S. 1 (1973)
411 U.S. 1

[Source: Findlaw]

SAN ANTONIO INDEPENDENT SCHOOL DISTRICT ET AL. v. RODRIGUEZ ET

AL.,
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF

TEXAS
No. 71-1332.

Argued October 12, 1972
Decided March 21,

1973

MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS concurs,

dissenting.

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.

I

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.

A

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]

Under

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

The

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

B

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

scheme.

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

standard.

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]

See

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]

C

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