Author: mopress

Harvey

Kronberg notes that several headlines in Texas (and apparently on television, too) announced the death

of Robin Hood after yesterday’s ruling. So while media outside the state ignored the story, media in

Texas misrepresented it. But it was not difficult to see this one coming. Most pre-ruling reports

about the trial lumped all the plaintiffs together into an anti-Robin Hood pack, without distinguishing

between property-rich plaintiffs and property-poor intervenors. “It’s broke,” was the usual depth

of analysis given to the school funding crisis. Then, after weeks of mostly empty press galleries, it

was a perfect storm of media yesterday. Should I mention the name of the television reporter who

actually closed his eyes and seemed to fall dead asleep behind the cameras? Naw, that would be too

cruel.

By Marco Portales

Thank you for joining us to celebrate Hispanic Heritage

Month at Texas A&M this year.

Many people need to be thanked for organizing the festive

activities planned between September 16 and October 15, 2004. Let’s hear an _expression of

appreciation for the organizers, the Hispanic Presidents Council, the Professional Hispanic Network,

the Aggie Memorial Student Center, Dr. James Anderson, V.P. for Institutional Diversity and Assessment,

Dr. Dean Bresgiani, V.P. for Student Affairs, and the group I represent here, MALFA, the Mexican

American/Latino Faculty Association.

Since I mentioned MALFA, I want to use this opportunity

to let all new Aggies know that, after working with the University’s administration for more than two

years, on May 28, 2004 the Board of Regents accepted President Gates’ recommendation to create MALRC,

the Mexican American/U.S. Latino Research Center. Currently a search committee is in the process of

selecting the founding director for a research center that seeks to study all aspects of the Latino

experience. Why? Because Latinos in the U.S. now number roughly 40 million people, including more

than 7 million Latinos here in Texas.

We, the Texas A&M Mexican American and Latino

faculty, are convinced that we need new knowledge and information about the largest American ethnic

group in virtually every discipline under the sun. Latinos, as we know, hail from all races and from

21 different countries. El Diez y Seis de Septiembre celebrates Mexico’s independence from Spain in

1821, but each of the other 20 Spanish-speaking countries also has its own history and stories of

independence.

On a festive day like today, ordinarily we talk about the past, about the

Diez y Seis de Septiembre, about El Grito de la Independencia promoted by Father Miguel Hidalgo in

Mexico, but, given where Latinos are today in the U.S., we need to consider the Latino Present because

that will shape our future.

When I was your age and in college more than 35 years ago, I

longed to read books written by Mexican American writers. I wanted to read books that spoke to the

world about our Latino lives and experiences in the United States. After all, Texas belonged to the

Spanish empire for 308 years before the Battle of San Jacinto ushered in The Republic of Texas in 1836.

For 308 years, the language of Texas era el Español, Spanish, and Hispanics or Latinos resided

throughout the Southwest in the areas known today as New Mexico, Arizona, California, and the southern

parts of Utah, Nevada, and Colorado. But following the 1846 to 1848 War with Mexico declared by

President Polk, all of these lands, or 55% of the land that Mexico owned was ceded to the United States

for the nominal sum of $15 million, the same amount of money that Thomas Jefferson bought the Louisiana

Purchase from France in 1803. Such was the power of Manifest Destiny, the idea that God intended the

people of the U.S. to take over Native American lands from the Atlantic to the Pacific. That story, as

we know, is known as American History; and, as all of you know well, students are required to take

courses in that area.

What we are not required to take are courses in the people who

were displaced, the people whose histories we have know about and who have had to tough it out for many

generations. Over the years, I have discovered that is why Mexican Americans and Native Americans have

not written books that are widely known. In college I read Ralph Waldo Emerson, the writer who said

that every generation writes its own books. So where are the books written by the previous generations

of Mexican Americans, I asked when I was 19.

Well, our Latino ancestors were too busy,

struggling to make a living. They did not have the luxury of writing books. When one did, such as

Americo Paredes, who finished writing George Washington Gomez when he was 25 in 1940, editors told him

they were not interested in publishing the work of a Mexican American because they felt no one would

read such books. That is why Paredes’ book was put away and not brought out until 1990, or half a

century later, a year before I arrived at Texas A&M to teach.

Today, Latinos have

definitely arrived as far as the public consciousness is concerned. But here is the important point:

we have been here all along. Partially to celebrate that fact and mainly to provide you with what I

did not have when I was your age, I have been writing some books about the Latino experience since

arriving on campus. In November the Texas A&M University Press will published my nonfiction book,

“Latino Sun, Rising: Our Spanish-speaking U.S. World.” I wrote this book to share my experiences and

to provide future generations with some life stories, the type of stories that I missed when I was

growing up. It seems to me that people can use some narratives for traction, as it were, on which each

of you students can build your own future contributions.

Our challenge essentially means

that you have to ask your professors what the Latino contribution has been. We study and study and, as

most of you know, the disciplines and areas that most of you are required to study tend to be silent

about Latinos. How can it be that Latinos have lived in Texas and in the Southwest since 1528 when

Cabeza de Vaca roamed Texas and have so little to show for it? That is 476 years. How can Spanish-

speakers live for 24 generations (count them) and not have more than a handful of known books that tell

us stories about ourselves? How many of us, for example, can name, say, 5 Latino books? Try it. You

now know George Washington Gomez by Americo Paredes. Any other ones that immediately jump to mind?

People who know the field, of course, can name titles and authors, but most Americans will find the

challenge difficult.

There are, of course, other answers to the questions we are

raising. It is difficult to change the status quo, or the way things are. Why? Because the status

quo tends to block solutions to our needs. Because power concentrations usually run on established

tracks that have not traditionally taken us into account, brought us into the picture.

That is why, as Aggies, we need to encourage you to network, to learn how to develop common

goals so that the “Hispanic Voice” repeatedly emphasizes our needs and desires.

What we

need to pursue is what I am beginning to call Integrative Research. Integrative research because

Latinos have always been part of American society. Integrative Research because we need to discover

and then articulate how we have always been here and what we have done. Integrative Research because

most of us do not know about our Latino accomplishments and the nature of the lives of previous

generations, because we have not been seen as players, participants and doers. This means that even

ancestors who have been exceptions to the rule have not often received credit for their achievements

and contributions. Let me give you a backyard example on which I will close.

I was

walking by, admiring the new Chemical Engineering building that Texas A&M is building on the north side

of campus next to where the English Department is housed in Blocker. Working on the grounds, I saw a

worker who looked at me as I passed, so I said that the building looked very attractive. Without

skipping a beat, he quipped, “Si y todos somos Mejicanos,” that is, “Yes, and all of the workers are

Mexicans.” Do you think that the workers who helped build the wonderful-looking Chemical Engineering

building will even be in the pictures that we will see when the building is dedicated? Take a look at

the ground-breaking pictures of the people credited for building the George Bush School of Public

Service and that will tell us something.

I teach an Asian American nove
l by Frank Chin

ca
lled Donald Duk (1991). In this imaginative recreation of history, Chinese American workers who were

hired to lay track for the Transcontinental Railroad from 1865 to 1869 were systematically excluded

from the American History book pictures. The Irish crews, on the other hand, the workers who “looked”

more “American” to the Public Relations-minded railroad leaders were given picture credit for building

the railroad– at the expense of the Chinese workers who were left out of the history books. Chin’s

novel attempts to rectify that fact. But how many people have read Chin’s work? Since we do not know

of that historical injustice, do we notice that the Mexican workers won’t be given much credit for

helping to build that building and others on campus?

I hope you can now see why we have

to carry out Integrative Research that will help us to include or integrate and then articulate us into

past history so that we can have a better present. By doing so, our Mexican, Mexican American and

Latino sons and daughters will gain confidence in themselves because they will know that their parents,

or people who looked like them, worked in constructing these buildings. They will have a vested

interest in Texas A&M because the energies of their parents have been invested in this campus. The

campus will not be a foreign, intimidating place, but a place that they will want to be at, and perhaps

graduate from.

If we educate our sons and daughters better, perhaps some of the

chemical engineers working in that building in 15 to 20 years will also be the offspring of those

Mexican workers. If we do not make a conscious effort to include them and other Latinos in American

society, history has shown us that we will be left out, much as I argue in “Crowding Out Latinos.”

(2000) If we do not change how Latinos are seen, we will always continue to look like new arrivals,

when, indeed, most of us have been here all along–for more than 20 generations, as we have seen. To

put more than 20 generations in perspective, we need to remember that we have only had about 6

generations of Aggies since Texas A&M was founded in 1876. And that we are only about 11 generations

or so away from the 1776 U.S. Declaration of Independence.

Thank you for your kind

attention.

Following closing arguments in the Texas school funding trial on Sept. 15, 2004,

Judge John Dietz (250th District Court of Texas) issued three rulings, an advisory, and public

comments. Copies of the documents have been provided via email from the judge’s office. After each

of the three rulings below, I have added an editor’s

note:

Rulings

Ruling 1. The Court

declares that for plaintiff districts and others, the costs of meeting the constitutional mandate of

adequacy and/or the statutory regime of accreditation, accountability, and assessment exceeds the

maximum amount of revenues that are available under the State’s current funding formulae. Therefore,

the State’s school finance system fails to provide an adequate suitable education as required by

Article VII, section 1 of the Texas Constitution.

Editor’s Note:

“Adequacy” is one of three standards (suitability,
adequacy, and efficiency) used by the Texas

Supreme Court to test the constitutional
validity of any educational system established by the

legislature. As the wording
of the ruling indicates, the “adequacy standard” determines whether

resources
provided are sufficient to ensure that a “general diffusion of knowledge” is

offered to Texas school children. The Judge here says that the legislature
has not provided enough

resources to meet its constitutional obligations. In
ruling number three below, the judge will

also rule that the system is not
sufficiently”efficient”. But it is interesting to note that

the judge did
not rule against the “suitability” of Texas education. In other words, he

seems to be satisfied that the curriculum standards offered in Texas education
are appropriate,

but need to be more widely supported with resources. I take
this to mean that Texas educators have

developed an appropriate curriculum,
and may even be doing the best they can with the resources

given them. The
failure in this regard belongs mostly to agents who are supposed to make sure

that the state gives out “adequate” resources to support its educators and
students. In other

words, it is the elected officials of Texas, not the administrators,
educators, or students who

are chiefly at fault in this judgment.

[See additional rulings, editor’s notes, and

comments from the judge in Read More below:]

Ruling 2. The Court

declares that for some of plaintiff districts and others are forced to tax at the $1.50 statutory cap

on the M&O tax rates to provide a general diffusion of knowledge and/or a statutory accreditation,

accountability, and assessment regime. These districts have lost all meaningful discretion in setting

the tax rate for their districts, thereby violating Article VIII, section 1 (e) of the Texas

Constitution.

Editor’s Note: This is the main issue that motivated the

lawsuit from the “property-rich” districts of Texas, otherwise known as the West Orange Cove

plaintiffs. They argued that because they were taxing at or near the maximum allowable rate of $1.50

(per hundred dollars of taxable property value for purposes of Maintenance and Operation) and because

they were using nearly all the resulting funds to attempt to provide basic state and federal

requirements, that they were subsequently unable to offer desired local options for enrichment and

excellence. This, they argued, meant that their local property taxes had in effect been hijacked for

state purposes, making the property tax a state tax. And a state property tax is unconstitutional in

Texas. The Judge agreed that the $1.50 limit on local taxes had resulted in an unconstitutional state

property tax.

Ruling 3. The Court declares that the State’s school

finance system is neither financially efficient nor efficient in the sense of providing for the

mandated adequate education nor the statutory regime of accreditation, accountability, and

assessment.

Editor’s Note: This is the famous “Robin Hood” ruling.

As
headlines blared the morning after the judge’s ruling, “Robin Hood” as we know
it has

been found lacking. But this does not mean that the “Robin Hood” system
has been overturned. In

fact, the judge here is saying that the state does
not yet do enough to “equalize” the funding

disparities between property rich
and property poor districts. This ruling is a victory for the

Edgewood Interveners
represented by the Mexican American Legal Defense Fund (MALDEF) and the

Alvarado

Interveners represented by “Buck” Wood and his associates. Here the judge
is

saying that the legislature needs to adopt an even more equitable “Robin
Hood” scheme. Bad news

for all fans of the Sheriff of Nottingham.

Judge’s advisory: I will

enter an injunction that state funding of public schools cease unless the legislature conforms the

school finance system to meet these constitutional standards. The effective date of the injunction

will be one year from the date I enter the order, which will be approximately October 1,

2004.

Judge’s Public Remarks (as read in court):

I have

kept this yellow sticky on my computer monitor and it is a quote from Edgewood IV, it says: The people

of Texas have themselves set the standards for their schools. The court’s responsibility is to decide

whether that standard has been satisfied, not to judge the wisdom of the policy choices of the

Legislature, or to impose a different policy of our choosing. To the best of my ability, I have tried

to follow the Supreme Court’s admonition of judicial restraint.

Texas has experienced

phenomenal growth of population over the past decade and a half. We are now the second most populous

state in the country. This growth has shown itself in our schools. Texas now has 4.4 million public

school children and we are adding approximately 80,000 students a year to our system.

There is, in our current system, unquestionably, a significant gap of more than ten points in

educational achievement between economically disadvantaged students and non-economically disadvantaged

students. This is really remarkable when you consider that over half of our public education students

in Texas are economically disadvantage. In other words, half of our students in Texas are significantly

behind in achievement compared to the other half.

The state demographer, Steve Murdock,

whose 500-page report is in evidence, has projected what happens to our Texas population if this

educational achievement gap continues on into the future. If the education gap persists on into the

year 2040, Texas average household income falls from about $54,000 presently to $47,000. If the gap

persists to 2040, the number of adult Texans without a high school diploma will rise from 18% presently

to 30%. Additionally, the population in prison, on welfare, and needing assistance will likewise rise

significantly. In other words, Texas in 2040 will have a population that is larger, poorer, less

educated, and more needy than today.

Who in Texas would choose this as our future? The

answer is no one. Not a single Texan, from Brownsville to Dalhart or El Paso to Beaumont, would pick

that as a future for Texas. Well, what can we do to keep this dismal future from becoming a reality?

The key to changing our future is to close the gap in academic achievement between the

haves and the have-nots. The state demographer projects that if we could close the gap in educational

achievement just half way by 2020, then Texans would be wealthier than today in real dollars spend more

money for our economy pay more taxes for our government.
If the education gap were completely

closed, then Texas would be wealthier and would spend less in real dollars on prisons and the needy

than it does today. The solution seems obvious; Texas
nee
ds to close the education gap. But the rub is

that it costs money to close the educational achievement gap. It doesn’t come free. So, are Texans

willing to pay the price, to make the sacrifice to close the education gap, to secure their future and

their children’s future?

Our willingness to make the sacrifice depends upon our vision

and our leadership. Throughout our history as a state, our leaders have understood the importance of

education.
Chief among the complaints of Texans, in 1836, declaring their independence from the

government of Mexico, was that the government of Mexico with its boundless resources had failed to

establish any public system of public education. It’s there in the Texas Declaration of Independence.

In our very first constitution, our founders gave the legislature a mandate to establish a system of

public education, a provision that was repeated by our leaders in the 1876 Constitution.

Are we, at this present day, to turn our back on our 168 years of heritage of Texas public

education and say that we aren’t prepared for the sacrifice? Are we to say that to close the gap is

too hard, too much money, and that we simply give up?

Are we prepared for a future in

Texas that is dismally poor, needy, and ignorant? I think not.

Again I repeat it is the

people of Texas who must set the standards, make the sacrifice, and give direction to their leaders.

And the time to speak is now. These problems only get more difficult the longer we

wait.

The lesson is this, education costs money, but ignorance costs more money.

Money invested in education benefits first the children of Texas, or in other words, our future.

It also benefits our entire economy because educated people make more money, spend more money, and pay

more taxes.

I have abundant optimism that the people of Texas are willing to pay the

price and make the sacrifices necessary for the education of our children. As Texans, we can and must

do better for our future, our children. It’s the right thing to

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

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