San Antonio Independent School District v. Rodriguez

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411 U.S. 1

San Antonio Independent School District v. Rodriguez (No. 71-1332)

Argued: October 12, 1972

Decided: March 21, 1973

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Syllabus

The financing of public elementary and secondary schools in Texas is a product of state and local participation. Almost half of the revenues are derived from a largely state-funded program designed to provide a basic minimum educational offering in every school. Each district supplements state aid through an ad valorem tax on property within its jurisdiction. Appellees brought this class action on behalf of school children said to be members of poor families who reside in school districts having a low property tax base, making the claim that the Texas system's reliance on local property taxation favors the more affluent and violates equal protection requirements because of substantial inter-district disparities in per-pupil expenditures resulting primarily from differences in the value of assessable property among the districts. The District Court, finding that wealth is a "suspect" classification and that education is a "fundamental" right, concluded that the system could be upheld only upon a showing, which appellants failed to make, that there was a compelling state interest for the system. The court also concluded that appellants failed even to [p2] demonstrate a reasonable or rational basis for the State's system.

Held:

1. This is not a proper case in which to examine a State's laws under standards of strict judicial scrutiny, since that test is reserved for cases involving laws that operate to the disadvantage of suspect classes or interfere with the exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution. Pp. 18-44.

(a) The Texas system does not disadvantage any suspect class. It has not been shown to discriminate against any definable class of "poor" people or to occasion discriminations depending on the relative wealth of the families in any district. And, insofar as the financing system disadvantages those who, disregarding their individual income characteristics, reside in comparatively poor school districts, the resulting class cannot be said to be suspect. Pp. 18-28.

(b) Nor does the Texas school financing system impermissibly interfere with the exercise of a "fundamental" right or liberty. Though education is one of the most important services performed by the State, it is not within the limited category of rights recognized by this Court as guaranteed by the Constitution. Even if some identifiable quantum of education is arguably entitled to constitutional protection to make meaningful the exercise of other constitutional rights, here there is no showing that the Texas system fails to provide the basic minimal skills necessary for that purpose. Pp. 29-39.

(c) Moreover, this is an inappropriate case in which to invoke strict scrutiny, since it involves the most delicate and difficult questions of local taxation, fiscal planning, educational policy, and federalism, considerations counseling a more restrained form of review. Pp. 40-44.

2. The Texas system does not violate the Equal Protection Clause of the Fourteenth Amendment. Though concededly imperfect, the system bears a rational relationship to a legitimate state purpose. While assuring a basic education for every child in the State, it permits and encourages participation in and significant control of each district's schools at the local level. Pp. 44-53.

337 F.Supp. 280, reversed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. [p3] STEWART, J., filed a concurring opinion, post, p. 59. BRENNAN, J., filed a dissenting opinion, post, p. 62. WHITE, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 63. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS, J., joined, post, p. 70. [p4]


TOP

Opinion

POWELL, J., Opinion of the Court

MR. JUSTICE POWELL delivered the opinion of the Court.

This suit attacking the Texas system of financing public education was initiated by Mexican-American parents whose children attend the elementary and secondary [p5] schools in the Edgewood Independent School District, an urban school district in San Antonio, Texas. [n1] They brought a class action on behalf of school children throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base. Named as defendants [n2] were the State Board of Education, the Commissioner of Education, the State Attorney General, and the Bexar County (San Antonio) Board of Trustees. The complaint [p6] was filed in the summer of 1968, and a three-judge court was impaneled in January, 1969. [n3] In December, 1971, [n4] the panel rendered its judgment in a per curiam opinion holding the Texas school finance system unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. [n5] The State appealed, and we noted probable jurisdiction to consider the far-reaching constitutional questions presented. 406 U.S. 966 (1972). For the reasons stated in this opinion, we reverse the decision of the District Court.

I

The first Texas State Constitution, promulgated upon Texas' entry into the Union in 1845, provided for the establishment of a system of free schools. [n6] Early in its history, Texas adopted a dual approach to the financing of its schools, relying on mutual participation by the local school districts and the State. As early as 1883, the state [p7] constitution was amended to provide for the creation of local school districts empowered to levy ad valorem taxes with the consent of local taxpayers for the "erection . . . of school buildings" and for the "further maintenance of public free schools." [n7] Such local funds as were raised were supplemented by funds distributed to each district from the State's Permanent and Available School Funds. [n8] The Permanent School Fund, its predecessor established in 1854 with $2,000,000 realized from an annexation settlement, [n9] was thereafter endowed with millions of acres of public land set aside to assure a continued source of income for school support. [n10] The Available School Fund, which received income from the Permanent School Fund as well as from a state ad valorem property tax and other designated taxes, [n11] served as the disbursing arm for most state educational funds throughout the late 1800's and first half of this century. Additionally, in 1918, an increase in state property taxes was used to finance a program providing free textbooks throughout the State. [n12]

Until recent times, Texas was a predominantly rural State, and its population and property wealth were spread [p8] relatively evenly across the State. [n13] Sizable differences in the value of assessable property between local school districts became increasingly evident as the State became more industrialized and as rural-to-urban population shifts became more pronounced. [n14] The location of commercial and industrial property began to play a significant role in determining the amount of tax resources available to each school district. These growing disparities in population and taxable property between districts were responsible in part for increasingly notable differences in levels of local expenditure for education. [n15] In due time, it became apparent to those concerned with financing public education that contributions from the Available School Fund were not sufficient to ameliorate these disparities. [n16] Prior to 1939, the Available School Fund contributed money to every school district at a rate of $17.50 per school-age child. [n17] Although the amount was increased several times in the early 1940's, [n18] [p9] the Fund was providing only $46 per student by 1945. [n19]

Recognizing the need for increased state funding to help offset disparities in local spending and to meet Texas' changing educational requirements, the state legislature, in the late 1940's, undertook a thorough evaluation of public education with an eye toward major reform. In 1947, an 18-member committee, composed of educators and legislators, was appointed to explore alternative systems in other States and to propose a funding scheme that would guarantee a minimum or basic educational offering to each child and that would help overcome inter-district disparities in taxable resources. The Committee's efforts led to the passage of the Gilmer-Aikin bills, named for the Committee's co-chairmen, establishing the Texas Minimum Foundation School Program. [n20] Today, this Program accounts for approximately half of the total educational expenditures in Texas. [n21]

The Program calls for state and local contributions to a fund earmarked specifically for teacher salaries, operating expenses, and transportation costs. The State, supplying funds from its general revenues, finances approximately 80% of the Program, and the school districts are responsible -- as a unit -- for providing the remaining 20%. The districts' share, known as the Local Fund Assignment, is apportioned among the school districts [p10] under a formula designed to reflect each district's relative taxpaying ability. The Assignment is first divided among Texas' 254 counties pursuant to a complicated economic index that takes into account the relative value of each county's contribution to the State's total income from manufacturing, mining, and agricultural activities. It also considers each county's relative share of all payrolls paid within the State and, to a lesser extent, considers each county's share of all property in the State. [n22] Each county's assignment is then divided among its school districts on the basis of each district's share of assessable property within the county. [n23] The district, in turn, finances its share of the Assignment out of revenues from local property taxation.

The design of this complex system was twofold. First, it was an attempt to assure that the Foundation Program would have an equalizing influence on expenditure levels between school districts by placing the heaviest burden on the school districts most capable of paying. Second, the Program's architects sought to establish a Local Fund Assignment that would force every school district to contribute to the education of its children, [n24] but that would not, by itself, exhaust any district's resources. [n25] Today every school district does impose a property tax from which it derives locally expendable [p11] funds in excess of the amount necessary to satisfy its Local Fund Assignment under the Foundation Program.

In the years since this program went into operation in 1949, expenditures for education -- from state as well as local sources -- have increased steadily. Between 1949 and 1967, expenditures increased approximately 500%. [n26] In the last decade alone, the total public school budget rose from $750 million to $2.1 billion, [n27] and these increases have been reflected in consistently rising per-pupil expenditures throughout the State. [n28] Teacher salaries, by far the largest item in any school's budget, have increased dramatically -- the state supported minimum salary for teachers possessing college degrees has risen from $2,400 to $6,000 over the last 20 years. [n29]

The school district in which appellees reside, the Edgewood Independent School District, has been compared throughout this litigation with the Alamo Heights Independent School District. This comparison between the least and most affluent districts in the San Antonio area serves to illustrate the manner in which the dual system of finance operates, and to indicate the extent to which substantial disparities exist despite the State's impressive progress in recent years. Edgewood is one of seven public school districts in the metropolitan area. Approximately 22,000 students are enrolled in its 25 elementary [p12] and secondary schools. The district is situated in the core-city sector of San Antonio in a residential neighborhood that has little commercial or industrial property. The residents are predominantly of Mexican-American descent: approximately 90% of the student population is Mexican-American and over 6% is Negro. The average assessed property value per pupil is $5,960 -- the lowest in the metropolitan area -- and the median family income ($4,686) is also the lowest. [n30] At an equalized tax rate of $1.05 per $100 of assessed property -- the highest in the metropolitan area -- the district contributed $26 to the education of each child for the 1967-1968 school year above its Local Fund Assignment for the Minimum Foundation Program. The Foundation Program contributed $222 per pupil for a state-local total of $248. [n31] Federal funds added another $108, for a total of $356 per pupil. [n32]

Alamo Heights is the most affluent school district in San Antonio. Its six schools, housing approximately 5,000 students, are situated in a residential community quite unlike the Edgewood District. The school population is predominantly "Anglo," having only 18% Mexican-Americans [p13] and less than 1% Negroes. The assessed property value per pupil exceeds $49,000, [n33] and the median family income is $8,001. In 1967-1968 the local tax rate of $.85 per $100 of valuation yielded $333 per pupil over and above its contribution to the Foundation Program. Coupled with the $225 provided from that Program, the district was able to supply $558 per student. Supplemented by a $36 per-pupil grant from federal sources, Alamo Heights spent $594 per pupil.

Although the 1967-1968 school year figures provide the only complete statistical breakdown for each category of aid, [n34] more recent partial statistics indicate that the previously noted trend of increasing state aid has been significant. For the 1970-1971 school year, the Foundation School Program allotment for Edgewood was $356 per pupil, a 62% increase over the 1967-1968 school year. Indeed, state aid alone in 1970-1971 equaled Edgewood's entire 1967-1968 school budget from local, state, and federal sources. Alamo Heights enjoyed a similar increase under the Foundation Program, netting $491 per pupil in 1970-1971. [n35] These recent figures [p14] also reveal the extent to which these two districts' allotments were funded from their own required contributions to the Local Fund Assignment. Alamo Heights, because of its relative wealth, was required to contribute out of its local property tax collections approximately $100 per pupil, or about 20% of its Foundation grant. Edgewood, on the other hand, paid only $8.46 per pupil, which is about 2.4% of its grant. [n36] It appears then that, at least as to these two districts, the Local Fund Assignment does reflect a rough approximation of the relative taxpaying potential of each. [n37] [p15]

Despite these recent increases, substantial inter-district disparities in school expenditures found by the District Court to prevail in San Antonio and in varying degrees throughout the State [n38] still exist. And it was [p16] these disparities, largely attributable to differences in the amounts of money collected through local property taxation, that led the District Court to conclude that Texas' dual system of public school financing violated the Equal Protection Clause. The District Court held that the Texas system discriminates on the basis of wealth in the manner in which education is provided for its people. 337 F.Supp. at 282. Finding that wealth is a "suspect" classification, and that education is a "fundamental" interest, the District Court held that the Texas system could be sustained only if the State could show that it was premised upon some compelling ate interest. Id. at 282-284. On this issue the court concluded that

[n]ot only are defendants unable to demonstrate compelling state interests . . . they fail even to establish a reasonable basis for these classifications.

Id. at 284.

Texas virtually concedes that its historically rooted dual system of financing education could not withstand the strict judicial scrutiny that this Court has found appropriate in reviewing legislative judgments that interfere with fundamental constitutional rights [n39] or that involve suspect classifications. [n40] If, as previous decisions have indicated, strict scrutiny means that the State's system is not entitled to the usual presumption of validity, that the State, rather than the complainants, must carry a "heavy burden of justification," that the State must [p17] demonstrate that its educational system has been structured with "precision," and is "tailored" narrowly to serve legitimate objectives, and that it has selected the "less drastic means" for effectuating its objectives, [n41] the Texas financing system and its counterpart in virtually every other State will not pass muster. The State candidly admits that "[n]o one familiar with the Texas system would contend that it has yet achieved perfection." [n42] Apart from its concession that educational financing in Texas has "defects" [n43] and "imperfections," [n44] the State defends the system's rationality with vigor, and disputes the District Court's finding that it lacks a "reasonable basis."

This, then, establishes the framework for our analysis. We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. If so, the judgment of the District Court should be affirmed. If not, the Texas scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose, and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.

II

The District Court's opinion does not reflect the novelty and complexity of the constitutional questions posed by appellees' challenge to Texas' system of school financing. In concluding that strict judicial scrutiny was required, [p18] that court relied on decisions dealing with the rights of indigents to equal treatment in the criminal trial and appellate processes, [n45] and on cases disapproving wealth restrictions on the right to vote. [n46] Those cases, the District Court concluded, established wealth as a suspect classification. Finding that the local property tax system discriminated on the basis of wealth, it regarded those precedents as controlling. It then reasoned, based on decisions of this Court affirming the undeniable importance of education, [n47] that there is a fundamental right to education, and that, absent some compelling state justification, the Texas system could not stand.

We are unable to agree that this case, which in significant aspects is sui generis, may be so neatly fitted into the conventional mosaic of constitutional analysis under the Equal Protection Clause. Indeed, for the several reasons that follow, we find neither the suspect classification nor the fundamental interest analysis persuasive.

A

The wealth discrimination discovered by the District Court in this case, and by several other courts that have recently struck down school financing laws in other States, [n48] is quite unlike any of the forms of wealth discrimination [p19] heretofore reviewed by this Court. Rather than focusing on the unique features of the alleged discrimination, the courts in these cases have virtually assumed their findings of a suspect classification through a simplistic process of analysis: since, under the traditional systems of financing public schools, some poorer people receive less expensive educations than other more affluent people, these systems discriminate on the basis of wealth. This approach largely ignores the hard threshold questions, including whether it makes a difference, for purposes of consideration under the Constitution, that the class of disadvantaged "poor" cannot be identified or defined in customary equal protection terms, and whether the relative -- rather than absolute -- nature of the asserted deprivation is of significant consequence. Before a State's laws and the justifications for the classifications they create are subjected to strict judicial scrutiny, we think these threshold considerations must be analyzed more closely than they were in the court below.

The case comes to us with no definitive description of the classifying facts or delineation of the disfavored class. Examination of the District Court's opinion and of appellees' complaint, briefs, and contentions at oral argument suggests, however, at least three ways in which the discrimination claimed here might be described. The Texas system of school financing might be regarded as discriminating (1) against "poor" persons whose incomes fall below some identifiable level of poverty or who might be characterized as functionally "indigent," [n49] or [p20] (2) against those who are relatively poorer than others [n50] or (3) against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts. [n51] Our task must be to ascertain whether, in fact, the Texas system has been shown to discriminate on any of these possible bases and, if so, whether the resulting classification may be regarded as suspect.

The precedents of this Court provide the proper starting point. The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity, they were completely unable to pay for some desired benefit, and, as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. In Griffin v. Illinois, [p21] 351 U.S. 12 (1956), and its progeny, [n52] the Court invalidated state laws that prevented an indigent criminal defendant from acquiring a transcript, or an adequate substitute for a transcript, for use at several stages of the trial and appeal process. The payment requirements in each case were found to occasion de facto discrimination against those who, because of their indigency, were totally unable to pay for transcripts. And the Court in each case emphasized that no constitutional violation would have been shown if the State had provided some "adequate substitute" for a full stenographic transcript. Britt v. North Carolina, 404 U.S. 226, 228 (1971); Gardner v. California, 393 U.S. 367 (1969); Draper v. Washington, 372 U.S. 487 (1963); Eskridge v. Washington Prison Board, 357 U.S. 214 (1958).

Likewise, in Douglas v. California, 372 U.S. 353 (1963), a decision establishing an indigent defendant's right to court-appointed counsel on direct appeal, the Court dealt only with defendants who could not pay for counsel from their own resources and who had no other way of gaining representation. Douglas provides no relief for those on whom the burdens of paying for a criminal defense are, relatively speaking, great but not insurmountable. Nor does it deal with relative differences in the quality of counsel acquired by the less wealthy.

Williams v. Illinois, 399 U.S. 235 (1970), and Tate v. Short, 401 U.S. 395 (1971), struck down criminal penalties that subjected indigents to incarceration simply because [p22] of their inability to pay a fine. Again, the disadvantaged class was composed only of persons who were totally unable to pay the demanded sum. Those cases do not touch on the question whether equal protection is denied to persons with relatively less money on whom designated fines impose heavier burdens. The Court has not held that fines must be structured to reflect each person's ability to pay in order to avoid disproportionate burdens. Sentencing judges may, and often do, consider the defendant's ability to pay, but, in such circumstances, they are guided by sound judicial discretion, rather than by constitutional mandate.

Finally, in Bullock v. Carter, 405 U.S. 134 (1972), the Court invalidated the Texas filing fee requirement for primary elections. Both of the relevant classifying facts found in the previous cases were present there. The size of the fee, often running into the thousands of dollars and, in at least one case, as high as $8,900, effectively barred all potential candidates who were unable to pay the required fee. As the system provided "no reasonable alternative means of access to the ballot" (id. at 149), inability to pay occasioned an absolute denial of a position on the primary ballot.

Only appellees' first possible basis for describing the class disadvantaged by the Texas school financing system -- discrimination against a class of definably "poor" persons -- might arguably meet the criteria established in these prior cases. Even a cursory examination, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here. First, in support of their charge that the system discriminates against the "poor," appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any [p23] designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts. A recent and exhaustive study of school districts in Connecticut concluded that

[i]t is clearly incorrect . . . to contend that the "poor" live in "poor" districts. . . . Thus, the major factual assumption of Serrano -- that the educational financing system discriminates against the "poor" -- is simply false in Connecticut. [n53]

Defining "poor" families as those below the Bureau of the Census "poverty level," [n54] the Connecticut study found, not surprisingly, that the poor were clustered around commercial and industrial areas -- those same areas that provide the most attractive sources of property tax income for school districts. [n55] Whether a similar pattern would be discovered in Texas is not known, but there is no basis on the record in this case for assuming that the poorest people -- defined by reference to any level of absolute impecunity -- are concentrated in the poorest districts.

Second, neither appellees nor the District Court addressed the fact that, unlike each of the foregoing cases, lack of personal resources has not occasioned an absolute deprivation of the desired benefit. The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer quality education than that available to children in districts having more assessable wealth. Apart from the unsettled and disputed question whether the quality of education may be determined by the amount of money [p24] expended for it, [n56] a sufficient answer to appellees' argument is that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages. [n57] Nor, indeed, in view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense. Texas asserts that the Minimum Foundation Program provides an "adequate" education for all children in the State. By providing 12 years of free public school education, and by assuring teachers, books, transportation, and operating funds, the Texas Legislature has endeavored to

guarantee, for the welfare of the state as a whole, that all people shall have at least an adequate program of education. This is what is meant by "A Minimum Foundation Program of Education." [n58]

The State repeatedly asserted in its briefs in this Court that it has fulfilled this desire, and that it now assures "every child in every school district an adequate education." [n59] No proof was offered at trial persuasively discrediting or refuting the State's assertion. [p25]

For these two reasons -- the absence of any evidence that the financing system discriminates against any definable category of "poor" people or that it results in the absolute deprivation of education -- the disadvantaged class is not susceptible of identification in traditional terms. [n60]

As suggested above, appellees and the District Court may have embraced a second or third approach, the second of which might be characterized as a theory of relative or comparative discrimination based on family income. Appellees sought to prove that a direct correlation exists between the wealth of families within each district and the expenditures therein for education. That is, along a continuum, the poorer the family, the lower the dollar amount of education received by the family's children.

The principal evidence adduced in support of this comparative discrimination claim is an affidavit submitted by Professor Joel S. Berke of Syracuse University's Educational Finance Policy Institute. The District Court, relying in major part upon this affidavit and apparently accepting the substance of appellees' theory, [p26] noted, first, a positive correlation between the wealth of school districts, measured in terms of assessable property per pupil, and their levels of per-pupil expenditures. Second, the court found a similar correlation between district wealth and the personal wealth of its residents, measured in terms of median family income. 337 F.Supp. at 282 n. 3.

If, in fact, these correlations could be sustained, then it might be argued that expenditures on education -- equated by appellees to the quality of education -- are dependent on personal wealth. Appellees' comparative discrimination theory would still face serious unanswered questions, including whether a bare positive correlation or some higher degree of correlation [n61] is necessary to provide a basis for concluding that the financing system is designed to operate to the peculiar disadvantage of the comparatively poor, [n62] and whether a class of this size and diversity could ever claim the special protection accorded "suspect" classes. These questions need not be addressed in this case, however, since appellees' proof fails to support their allegations or the District Court's conclusions.

Professor Berke's affidavit is based on a survey of approximately 10% of the school districts in Texas. His findings, previously set out in the margin, [n63] show only [p27] that the wealthiest few districts in the sample have the highest median family incomes and spend the most on education, and that the several poorest districts have the lowest family incomes and devote the least amount of money to education. For the remainder of the districts -- 96 districts composing almost 90% of the sample -- the correlation is inverted, i.e., the districts that spend next to the most money on education are populated by families having next to the lowest median family incomes, while the districts spending the least have the highest median family incomes. It is evident that, even if the conceptual questions were answered favorably to appellees, no factual basis exists upon which to found a claim of comparative wealth discrimination. [n64]

This brings us, then, to the third way in which the classification scheme might be defined -- district wealth discrimination. Since the only correlation indicated by the evidence is between district property wealth and expenditures, it may be argued that discrimination might be found without regard to the individual income characteristics of district residents. Assuming a perfect correlation between district property wealth and expenditures from top to bottom, the disadvantaged class might be [p28] viewed as encompassing every child in every district except the district that has the most assessable wealth and spends the most on education. [n65] Alternatively, as suggested in MR. JUSTICE MARSHALL's dissenting opinion, post at 96, the class might be defined more restrictively to include children in districts with assessable property which falls below the state-wide average, or median, or below some other artificially defined level.

However described, it is clear that appellees' suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts. [n66] The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.

We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. [p29] But in recognition of the fact that this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention. [n67] They also assert that the State's system impermissibly interferes with the exercise of a "fundamental" right, and that, accordingly, the prior decisions of this Court require the application of the strict standard of judicial review. Graham v. Richardson, 403 U.S. 365, 375-376 (1971); Kramer v. Union School District, 395 U.S. 621 (1969); Shapiro v. Thompson, 394 U.S. 618 (1969). It is this question -- whether education is a fundamental right, in the sense that it is among the rights and liberties protected by the Constitution -- which has so consumed the attention of courts and commentators in recent years. [n68]

B

In Brown v. Board of Education, 347 U.S. 483 (1954), a unanimous Court recognized that "education is perhaps the most important function of state and local governments." Id. at 493. What was said there in the context of racial discrimination has lost none of its vitality with the passage of time:

Compulsory school attendance laws and the great expenditures for education both demonstrate our [p30] recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

Ibid. This theme, expressing an abiding respect for the vital role of education in a free society, may be found in numerous opinions of Justices of this Court writing both before and after Brown was decided. Wisconsin v. Yoder, 406 U.S. 205, 213 (BURGER, C.J.), 237, 238-239 (WHITE, J.), (1972); Abington School Dist. v. Schempp, 374 U.S. 203, 230 (1963) (BRENNAN, J.); McCollum v. Board of Education, 333 U.S. 203 212 (1948) (Frankfurter, J.); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923); Interstate Consolidated Street R. Co. v. Massachusetts, 207 U.S. 79 (1907).

Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that "the grave significance of education both to the individual and to our society" cannot be doubted. [n69] But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. Mr. Justice [p31] Harlan, dissenting from the Court's application of strict scrutiny to a law impinging upon the right of interstate travel, admonished that "[v]irtually every state statute affects important rights." Shapiro v. Thompson, 394 U.S. at 655, 661. In his view, if the degree of judicial scrutiny of state legislation fluctuated, depending on a majority's view of the importance of the interest affected, we would have gone "far toward making this Court a ‘super-legislature.'" Ibid. We would, indeed, then be assuming a legislative role, and one for which the Court lacks both authority and competence. But MR. JUSTICE STEWART s response in Shapiro to Mr. Justice Harlan's concern correctly articulates the limits of the fundamental rights rationale employed in the Court's equal protection decisions:

The Court today does not "pick out particular human activities, characterize them as ‘fundamental,' and give them added protection. . . ." To the contrary, the Court simply recognizes, as it must, an established constitutional right, and gives to that right no less protection than the Constitution itself demands.

Id. at 642. (Emphasis in original.)

MR. JUSTICE STEWART's statement serves to underline what the opinion of the Court in Shapiro makes clear. In subjecting to strict judicial scrutiny state welfare eligibility statutes that imposed a one-year durational residency requirement as a precondition to receiving AFDC benefits, the Court explained:

[I]n moving from State to State . . . appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.

Id. at 634. (Emphasis in original.) [p32] The right to interstate travel had long been recognized as a right of constitutional significance, [n70] and the Court's decision, therefore, did not require an ad hoc determination as to the social or economic importance of that right. [n71]

Lindsey v. Normet, 405 U.S. 56 (1972), decided only last Term, firmly reiterates that social importance is not the critical determinant for subjecting state legislation to strict scrutiny. The complainants in that case, involving a challenge to the procedural limitations imposed on tenants in suits brought by landlords under Oregon's Forcible Entry and Wrongful Detainer Law, urged the Court to examine the operation of the statute under "a more stringent standard than mere rationality." Id. at 73. The tenants argued that the statutory limitations implicated "fundamental interests which are particularly important to the poor," such as the "‘need for decent shelter'" and the "‘right to retain peaceful possession of one's home." Ibid. MR. JUSTICE WHITE's analysis, in his opinion for the Court, is instructive:

We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access [p33] to dwellings of a particular quality or any recognition of the right of a tenant to occupy the real property of his landlord beyond the term of his lease, without the payment of rent. . . . Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial, functions.

Id. at 74. (Emphasis supplied.)

Similarly, in Dandridge v. Williams, 397 U.S. 471 (1970), the Court's explicit recognition of the fact that the "administration of public welfare assistance . . . involves the most basic economic needs of impoverished human beings," id. at 485, [n72] provided no basis for departing from the settled mode of constitutional analysis of legislative classifications involving questions of economic and social policy. As in the case of housing, the central importance of welfare benefits to the poor was not an adequate foundation for requiring the State to justify its law by showing some compelling state interest. See also Jefferson v. Hackney, 406 U.S. 535 (1972); Richardson v. Belcher, 404 U.S. 78 (1971).

The lesson of these cases in addressing the question now before the Court is plain. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is "fundamental" is not to be found in comparisons of the relative societal significance of education, as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. [p34] Eisenstadt v. Baird, 405 U.S. 438 (1972); [n73] Dunn v. Blumstein, 405 U.S. 330 (1972); [n74] Police Dept. of Chicago v. Mosley, 408 U.S. 92 (197); [n75] Skinner v. Oklahoma, 316 U.S. 535 (1942). [n76] [p35]

Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not, alone, cause this Court to depart from the usual standard for reviewing a State's social and economic legislation. It is appellees' contention, however, that education is distinguishable from other services and benefits provided by the State, because it bears a peculiarly close relationship to other rights and liberties accorded protection under the Constitution. Specifically, they insist that education is itself a fundamental personal right, because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote. In asserting a nexus between speech and education, appellees urge that the right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively. The "marketplace of ideas" is an empty forum for those lacking basic communicative tools. Likewise, they argue that the corollary right to receive information [n77] becomes little more than a hollow privilege when the recipient has not been taught to read, assimilate, and utilize available knowledge.

A similar line of reasoning is pursued with respect to the right to vote. [n78] Exercise of the franchise, it is contended, cannot be divorced from the educational foundation [p36] of the voter. The electoral process, if reality is to conform to the democratic ideal, depends on an informed electorate: a voter cannot cast his ballot intelligently unless his reading skills and thought processes have been adequately developed.

We need not dispute any of these propositions. The Court has long afforded zealous protection against unjustifiable governmental interference with the individual's rights to speak and to vote. Yet we have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice. That these may be desirable goals of a system of freedom of expression and of a representative form of government is not to be doubted. [n79] These are indeed goals to be pursued by a people whose thoughts and beliefs are freed from governmental interference. But they are not values to be implemented by judicial intrusion into otherwise legitimate state activities.

Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures [p37] in Texas provide an education that falls short. Whatever merit appellees' argument might have if a State's financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where -- as is true in the present case -- no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.

Furthermore, the logical limitations on appellees' nexus theory are difficult to perceive. How, for instance, is education to be distinguished from the significant personal interests in the basics of decent food and shelter? Empirical examination might well buttress an assumption that the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process, and that they derive the least enjoyment from the benefits of the First Amendment. [n80] If so, appellees' thesis would cast serious doubt on the authority of Dandridge v. Williams, supra, and Lindsey v. Normet, supra.

We have carefully considered each of the arguments supportive of the District Court's finding that education is a fundamental right or liberty, and have found those arguments unpersuasive. In one further respect, we find this a particularly inappropriate case in which to subject state action to strict judicial scrutiny. The present case, in another basic sense, is significantly different from any of the cases in which the Court has [p38] applied strict scrutiny to state or federal legislation touching upon constitutionally protected rights. Each of our prior cases involved legislation which "deprived," "infringed," or "interfered" with the free exercise of some such fundamental personal right or liberty. See Skinner v. Oklahoma, supra, at 536; Shapiro v. Thompson, supra at 634; Dunn v. Blumstein, supra, at 338-343. A critical distinction between those cases and the one now before us lies in what Texas is endeavoring to do with respect to education. MR. JUSTICE BRENNAN, writing for the Court in Katzenbach v. Morgan, 384 U.S. 641 (1966), expresses well the salient point: [n81]

This is not a complaint that Congress . . . has unconstitutionally denied or diluted anyone's right to vote, but rather that Congress violated the Constitution by not extending the relief effected [to others similarly situated]. . . .

[The federal law in question] does not restrict or deny the franchise, but, in effect, extends the franchise to persons who otherwise would be denied it by state law. . . . We need only decide whether the challenged limitation on the relief effected . . . was permissible. In deciding that question, the principle that calls for the closest scrutiny of distinctions in laws denying fundamental rights . . . is [p39] inapplicable; for the distinction challenged by appellees is presented only as a limitation on a reform measure aimed at eliminating an existing barrier to the exercise of the franchise. Rather, in deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a "statute is not invalid under the Constitution because it might have gone farther than it did," . . . that a legislature need not "strike at all evils at the same time," . . . and that "reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. . . ."

Id. at 656-657. (Emphasis in original.) The Texas system of school financing is not unlike the federal legislation involved in Katzenbach in this regard. Every step leading to the establishment of the system Texas utilizes today -- including the decisions permitting localities to tax and expend locally, and creating and continuously expanding state aid -- was implemented in an effort to extend public education and to improve its quality. [n82] Of course, every reform that benefits some more than others may be criticized for what it fails to accomplish. But we think it plain that, in substance, the thrust of the Texas system is affirmative and reformatory, and, therefore, should be scrutinized under judicial principles sensitive to the nature of the State's efforts and to the rights reserved to the States under the Constitution. [n83] [p40]

C

It should be clear, for the reasons stated above and in accord with the prior decisions of this Court, that this is not a case in which the challenged state action must be subjected to the searching judicial scrutiny reserved for laws that create suspect classifications or impinge upon constitutionally protected rights.

We need not rest our decision, however, solely on the inappropriateness of the strict scrutiny test. A century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review, which requires only that the State's system be shown to bear some rational relationship to legitimate state purposes. This case represents far more than a challenge to the manner in which Texas provides for the education of its children. We have here nothing less than a direct attack on the way in which Texas has chosen to raise and disburse state and local tax revenues. We are asked to condemn the State's judgment in conferring on political subdivisions the power to tax local property to supply revenues for local interests. In so doing, appellees would have the Court intrude in an area in which it has traditionally deferred to state legislatures. [n84] This Court has often admonished against such interferences with the State's fiscal policies under the Equal Protection Clause:

The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized. . . . [T]he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. . . . [p41] It has . . . been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. . . .

Madden v. Kentucky, 309 U.S. 83, 87-88 (1940). See also Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973); Wisconsin v. J. C. Penney Co., 311 U.S. 435, 445 (1940).

Thus, we stand on familiar ground when we continue to acknowledge that the Justices of this Court lack both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues. Yet we are urged to direct the States either to alter drastically the present system or to throw out the property tax altogether in favor of some other form of taxation. No scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause. [n85] [p42]

In addition to matters of fiscal policy, this case also involves the most persistent and difficult questions of educational policy, another area in which this Court's lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels. Education, perhaps even more than welfare assistance, presents a myriad of "intractable economic, social, and even philosophical problems." Dandridge v. Williams, 397 U.S. at 487. The very complexity of the problems of financing and managing a state-wide public school system suggests that "there will be more than one constitutionally permissible method of solving them," and that, within the limits of rationality, "the legislature's efforts to tackle the problems" should be entitled to respect. Jefferson v. Hackney, 406 U.S. at 546-547. On even the most basic questions in this area, the scholars and educational experts are divided. Indeed, one of the major [p43] sources of controversy concerns the extent to which there is a demonstrable correlation between educational expenditures and the quality of education [n86] -- an assumed correlation underlying virtually every legal conclusion drawn by the District Court in this case. Related to the questioned relationship between cost and quality is the equally unsettled controversy as to the proper goals of a system of public education. [n87] And the question regarding the most effective relationship between state boards of education and local school boards, in terms of their respective responsibilities and degrees of control, is now undergoing searching reexamination. The ultimate wisdom as to these and related problems of education is not likely to be divined for all time even by the scholars who now so earnestly debate the issues. In such circumstances, the judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions. [p44]

It must be remembered, also, that every claim arising under the Equal Protection Clause has implications for the relationship between national and state power under our federal system. Questions of federalism are always inherent in the process of determining whether a State's laws are to be accorded the traditional presumption of constitutionality, or are to be subjected instead to rigorous judicial scrutiny. While

[t]he maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this Court examines state action, [n88]

it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State.

The foregoing considerations buttress our conclusion that Texas' system of public school finance is an inappropriate candidate for strict judicial scrutiny. These same considerations are relevant to the determination whether that system, with its conceded imperfections, nevertheless bears some rational relationship to a legitimate state purpose. It is to this question that we next turn our attention.

III

The basic contours of the Texas school finance system have been traced at the outset of this opinion. We will now describe in more detail that system and how it operates, as these facts bear directly upon the demands of the Equal Protection Clause.

Apart from federal assistance, each Texas school receives its funds from the State and from its local school [p45] district. On a state-wide average, a roughly comparable amount of funds is derived from each source. [n89] The State's contribution, under the Minimum Foundation Program, was designed to provide an adequate minimum educational offering in every school in the State. Funds are distributed to assure that there will be one teacher -- compensated at the state supported minimum salary -- for every 25 students. [n90] Each school district's other supportive personnel are provided for: one principal for every 30 teachers; [n91] one "special service" teacher -- librarian, nurse, doctor, etc. -- for every 20 teachers; [n92] superintendents, vocational instructors, counselors, and educators for exceptional children are also provided. [n93] Additional funds are earmarked for current operating expenses, for student transportation, [n94] and for free textbooks. [n95]

The program is administered by the State Board of Education and by the Central Education Agency, which also have responsibility for school accreditation [n96] and for monitoring the statutory teacher-qualification standards. [n97] As reflected by the 62 increase in funds allotted to the Edgewood School District over the last three years, [n98] the State's financial contribution to education is steadily increasing. None of Texas' school districts, however, [p46] has been content to rely alone on funds from the Foundation Program.

By virtue of the obligation to fulfill its Local Fund Assignment, every district must impose an ad valorem tax on property located within its borders. The Fund Assignment was designed to remain sufficiently low to assure that each district would have some ability to provide a more enriched educational program. [n99] Every district supplements its Foundation grant in this manner. In some districts, the local property tax contribution is insubstantial, as in Edgewood, where the supplement was only $26 per pupil in 1967. In other districts, the local share may far exceed even the total Foundation grant. In part, local differences are attributable to differences in the rates of taxation or in the degree to which the market value for any category of property varies from its assessed value. [n100] The greatest inter-district disparities, however, are attributable to differences in the amount of assessable property available within any district. Those districts that have more property, or more valuable property, have a greater capability for supplementing state funds. In large measure, these additional local revenues are devoted to paying higher salaries to more teachers. Therefore, the primary distinguishing attributes of schools in property-affluent districts are lower pupil-teacher ratios and higher salary schedules. [n101] [p47]

This, then, is the basic outline of the Texas school financing structure. Because of differences in expenditure levels occasioned by disparities in property tax income, appellees claim that children in less affluent districts have been made the subject of invidious discrimination. The District Court found that the State had failed even "to establish a reasonable basis" for a system that results in different levels of per-pupil expenditure. 337 F.Supp. at 284. We disagree.

In its reliance on state, as well as local, resources, the Texas system is comparable to the systems employed [p48] in virtually every other State. [n102] The power to tax local property for educational purposes has been recognized in Texas at least since 1883. [n103] When the growth of commercial and industrial centers and accompanying shifts in population began to create disparities in local resources, Texas undertook a program calling for a considerable investment of state funds.

The "foundation grant" theory upon which Texas legislators and educators based the Gilmer-Aikin bills was a product of the pioneering work of two New York educational reformers in the 1920's, George D. Strayer and Robert M. Haig. [n104] Their efforts were devoted to establishing a means of guaranteeing a minimum state-wide educational program without sacrificing the vital element of local participation. The Strayer-Haig thesis [p49] represented an accommodation between these two competing forces. As articulated by Professor Coleman:

The history of education since the industrial revolution shows a continual struggle between two forces: the desire by members of society to have educational opportunity for all children and the desire of each family to provide the best education it can afford for its own children. [n105]

The Texas system of school finance is responsive to these two forces. While assuring a basic education for every child in the State, it permits and encourages a large measure of participation in and control of each district's schools at the local level. In an era that has witnessed a consistent trend toward centralization of the functions of government, local sharing of responsibility for public education has survived. The merit of local control was recognized last Term in both the majority and dissenting opinions in Wright v. Council of the City of Emporia, 407 U.S. 451 (1972). MR. JUSTICE STEWART stated there that "[d]irect control over decisions vitally affecting the education of one's children is a need that is strongly felt in our society." Id. at 469. THE CHIEF JUSTICE, in his dissent, agreed that

[l]ocal control is not only vital to continued public support of the schools, but it is of overriding importance from an educational standpoint as well.

Id. at 478.

The persistence of attachment to government at the lowest level where education is concerned reflects the depth of commitment of its supporters. In part, local control means, as Professor Coleman suggests, the freedom to devote more money to the education of one's children. Equally important, however, is the opportunity [p50] it offers for participation in the decisionmaking process that determines how those local tax dollars will be spent. Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimentation, innovation, and a healthy competition for educational excellence. An analogy to the Nation-State relationship in our federal system seems uniquely appropriate. Mr. Justice Brandeis identified as one of the peculiar strengths of our form of government each State's freedom to "serve as a laboratory; and try novel social and economic experiments." [n106] No area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does public education.

Appellees do not question the propriety of Texas' dedication to local control of education. To the contrary, they attack the school financing system precisely because, in their view, it does not provide the same level of local control and fiscal flexibility in all districts. Appellees suggest that local control could be preserved and promoted under other financing systems that resulted in more equality in educational expenditures. While it is no doubt true that reliance on local property taxation for school revenues provides less freedom of choice with respect to expenditures for some districts than for others, [n107] [p51] the existence of "some inequality" in the manner in which the State's rationale is achieved is not alone a sufficient basis for striking down the entire system. McGowan v. Maryland, 366 U.S. 420, 425-426 (1961). It may not be condemned simply because it imperfectly effectuates the State's goals. Dandridge v. Williams, 397 U.S. at 485. Nor must the financing system fail because, as appellees suggest, other methods of satisfying the State's interest, which occasion "less drastic" disparities in expenditures, might be conceived. Only where state action impinges on the exercise of fundamental constitutional rights or liberties must it be found to have chosen the least restrictive alternative. Cf. Dunn v. Blumstein, 405 U.S. at 343; Shelton v. Tucker, 364 U.S. 479, 488 (1960). It is also well to remember that even those districts that have reduced ability to make free decisions with respect to how much they spend on education still retain, under the present system, a large measure of authority as to how available funds will be allocated. They further enjoy the power to make numerous other decisions with respect to the operation of the schools. [n108] The people of Texas may be [p52] justified in believing that other systems of school financing, which place more of the financial responsibility in the hands of the State, will result in a comparable lessening of desired local autonomy. That is, they may believe [p53] that along with increased control of the purse strings at the state level will go increased control over local policies. [n109]

Appellees further urge that the Texas system is unconstitutionally arbitrary because it allows the availability of local taxable resources to turn on "happenstance." They see no justification for a system that allows, as they contend, the quality of education to fluctuate on the basis of the fortuitous positioning of the boundary lines of political subdivisions and the location of valuable commercial and industrial property. But any scheme of [p54] local taxation -- indeed the very existence of identifiable local governmental units -- requires the establishment of jurisdictional boundaries that are inevitably arbitrary. It is equally inevitable that some localities are going to be blessed with more taxable assets than others. [n110] Nor is local wealth a static quantity. Changes in the level of taxable wealth within any district may result from any number of events, some of which local residents can and do influence. For instance, commercial and industrial enterprises may be encouraged to locate within a district by various actions -- public and private.

Moreover, if local taxation for local expenditures were an unconstitutional method of providing for education, then it might be an equally impermissible means of providing other necessary services customarily financed largely from local property taxes, including local police and fire protection, public health and hospitals, and public utility facilities of various kinds. We perceive no justification for such a severe denigration of local property taxation and control as would follow from appellees' contentions. It has simply never been within the constitutional prerogative of this Court to nullify state-wide measures for financing public services merely because the burdens or benefits thereof fall unevenly depending upon the relative wealth of the political subdivisions in which citizens live.

In sum, to the extent that the Texas system of school financing results in unequal expenditures between children [p55] who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory. Texas has acknowledged its shortcomings, and has persistently endeavored -- not without some success -- to ameliorate the differences in levels of expenditures without sacrificing the benefits of local participation. The Texas plan is not the result of hurried, ill-conceived legislation. It certainly is not the product of purposeful discrimination against any group or class. On the contrary, it is rooted in decades of experience in Texas and elsewhere, and, in major part, is the product of responsible studies by qualified people. In giving substance to the presumption of validity to which the Texas system is entitled, Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911), it is important to remember that, at every stage of its development, it has constituted a "rough accommodation" of interests in an effort to arrive at practical and workable solutions. Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 (1913). One also must remember that the system here challenged is not peculiar to Texas or to any other State. In its essential characteristics, the Texas plan for financing public education reflects what many educators for a half century have thought was an enlightened approach to a problem for which there is no perfect solution. We are unwilling to assume for ourselves a level of wisdom superior to that of legislators, scholars, and educational authorities in 50 States, especially where the alternatives proposed are only recently conceived and nowhere yet tested. The constitutional standard under the Equal Protection Clause is whether the challenged state action rationally furthers a legitimate state purpose or interest. McGinnis v. Royster, 410 U.S. 263, 270 (1973). We hold that the Texas plan abundantly satisfies this standard. [p56]

IV

In light of the considerable attention that has focused on the District Court opinion in this case and on its California predecessor, Serrano v. Priest, 5 Cal.3d 584, 487 P.2d 1241 (1971), a cautionary postscript seems appropriate. It cannot be questioned that the constitutional judgment reached by the District Court and approved by our dissenting Brothers today would occasion in Texas and elsewhere an unprecedented upheaval in public education. Some commentators have concluded that, whatever the contours of the alternative financing programs that might be devised and approved, the result could not avoid being a beneficial one. But, just as there is nothing simple about the constitutional issues involved in these cases, there is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education. Those who have devoted the most thoughtful attention to the practical ramifications of these cases have found no clear or dependable answers, and their scholarship reflects no such unqualified confidence in the desirability of completely uprooting the existing system.

The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education. Unless there is to be a substantial increase in state expenditures on education across the board -- an event the likelihood of which is open to considerable question [n111] -- these groups stand to [p57] realize gains in terms of increased per-pupil expenditures only if they reside in districts that presently spend at relatively low levels, i.e., in those districts that would benefit from the redistribution of existing resources. Yet recent studies have indicated that the poorest families are not invariably clustered in the most impecunious school districts. [n112] Nor does it now appear that there is any more than a random chance that racial minorities are concentrated in property-poor districts. [n113] Additionally, [p58] several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers, [n114] a result that would exacerbate, rather than ameliorate, existing conditions in those areas.

These practical considerations, of course, play no role in the adjudication of the constitutional issues presented here. But they serve to highlight the wisdom of the traditional limitations on this Court's function. The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States, and we do no violence to the values of federalism and separation of powers by staying our hand. We hardly need add that this Court's action today is not to be viewed as placing its judicial imprimatur on the status quo. The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative thinking as to public education, its methods, and its funding is necessary to assure both a higher level of quality and greater uniformity of opportunity. These matters merit the continued attention of the scholars who already [p59] have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.

Reversed.

1.

Not all of the children of these complainants attend public school. One family's children are enrolled in private school "because of the condition of the schools in the Edgewood Independent School District." Third Amended Complaint, App. 14.

2.

The San Antonio Independent School District, whose name this case still bears, was one of seven school districts in the San Antonio metropolitan area that were originally named as defendants. After a pretrial conference, the District Court issued an order dismissing the school districts from the case. Subsequently, the San Antonio Independent School District joined in the plaintiffs' challenge to the State's school finance system and filed an amicus curiae brief in support of that position in this Court.

3.

A three-judge court was properly convened, and there are no questions as to the District Court's jurisdiction or the direct appealability of its judgment. 28 U.S.C. §§ 1253 2281.

4.

The trial was delayed for two years to permit extensive pretrial discovery and to allow completion of a pending Texas legislative investigation concerning the need for reform of its public school finance system. 337 F.Supp. 280, 285 n. 11 (WD Tex.1971).

5.

337 F.Supp. 280. The District Court stayed its mandate for two years to provide Texas an opportunity to remedy the inequities found in its financing program. The court, however, retained jurisdiction to fashion its own remedial order if the State failed to offer an acceptable plan. Id. at 286.

6.

Tex.Const., Art. X, § 1 (1845):

A general diffusion of knowledge being essential to the preservation of the rights and liberties of the people, it shall be the duty of the Legislature of this State to make suitable provision for the support and maintenance of public schools.

Id. § 2:

The Legislature shall as early as practicable establish free schools throughout the State, and shall furnish means for their support, by taxation on property. . . .

7.

Tex.Const. of 1876, Art. 7, § 3, as amended, Aug. 14, 1883.

8.

Id. Art. 7, §§ 3, 4, 5.

9.

3 Gammel's Laws of Texas 1847-1854, p. 1461. See Tex.Const. Art. 7, §§ 1, 2, 5 (interpretive commentaries); 1 Report of Governor's Committee on Public School Education, The Challenge and the Chance 27 (1969) (hereinafter Governor's Committee Report).

10.

Tex.Const., Art. 7, § 5 (see also the interpretive commentary); 5 Governor's Committee Report 11-12.

11.

The various sources of revenue for the Available School Fund are cataloged in A Report of the Adequacy of Texas Schools, prepared by Texas State Board of Education, 7-15 (1938) (hereinafter Texas State Bd. of Educ.).

12.

Tex.Const., Art. 7, § 3, as amended, Nov. 5, 1918 (see interpretive commentary).

13.

l Governor's Committee Report 35; Texas State Bd. of Educ., supra, n. 11, at 5-7; J. Coons, W. Clune, & S. Sugarman, Private Wealth and Public Education 48-49 (1970); E. Cubberley, School Funds and Their Apportionment 21-27 (1905).

14.

By 1940, one-half of the State's population was clustered in its metropolitan centers. 1 Governor's Committee Report 35.

15.

Gilmer-Aikin Committee, To Have What We Must 13 (1948).

16.

R. Still, The Gilmer-Aikin Bills 11-13 (1950); Texas State Bd. of Educ., supra, n. 11.

17.

Still, supra, n. 16, at 12. It should be noted that, during this period, the median per-pupil expenditure for all schools with an enrollment of more than 200 was approximately $50 per year. During this same period, a survey conducted by the State Board of Education concluded that,

in Texas, the best educational advantages offered by the State at present may be had for the median cost of $52.67 per year per pupil in average daily attendance.

Texas State Bd. of Educ., supra, n. 11, at 56.

18.

General Laws of Texas, 46th Legis., Reg.Sess.1939, c. 7, pp. 274-275 ($22.50 per student); General & Spec.Laws of Texas, 48th Legis., Reg.Sess.1943, c. 161, pp. 262-263 ($25 per student).

19.

General & Spec.Laws of Texas, 49th Legis., Reg.Sess.1945, c. 52, pp. 74-75; Still, supra, n. 16, at 12.

20.

For a complete history of the adoption in Texas of a foundation program, see Still, supra, n. 16. See also 5 Governor's Committee Report 14; Texas Research League, Public School Finance Problems in Texas 9 (Interim Report 1972).

21.

For the 1970-1971 school year, this state aid program accounted for 48% of all public school funds. Local taxation contributed 41.1%, and 10.9% was provided in federal funds. Texas Research League, supra, n. 20, at 9.

22.

5 Governor's Committee Report 44-48.

23.

At present, there are 1,161 school districts in Texas. Texas Research League, supra, n. 20, at 12.

24.

In 1948, the Gilmer-Aikin Committee found that some school districts were not levying any local tax to support education. Gilmer-Aikin Committee, supra, n. 15, at 16. The Texas State Board of Education Survey found that over 400 common and independent school districts were levying no local property tax in 1935-1936. Texas State Bd. of Educ., supra, n. 11, at 392.

25.

Gilmer-Aikin Committee, supra, n. 15, at 15.

26.

1 Governor's Committee Report 51-53.

27.

Texas Research League, supra, n. 20, at 2.

28.

In the years between 1949 and 1967, the average per-pupil expenditure for all current operating expenses increased from $206 to $493. In that same period, capital expenditures increased from $44 to $102 per pupil. 1 Governor's Committee Report 53-54.

29.

Acts 1949, 51st Legis., p. 625, c. 334, Art. 4, Tex.Educ.Code Ann. § 16.302 (1972); see generally 3 Governor's Committee Report 113-146; Berke, Carnevale, Morgan & White, The Texas School Finance Case: A Wrong in Search of a Remedy, 1 J. of L.Educ. 659, 681-682 (1972).

30.

The family income figures are based on 1960 census statistics.

31.

The Available School Fund, technically, provides a second source of state money. That Fund has continued as in years past (see text accompanying nn. 16-19, supra) to distribute uniform per-pupil grants to every district in the State. In 1968, this Fund allotted $98 per pupil. However, because the Available School Fund contribution is always subtracted from a district's entitlement under the Foundation Program, it plays no significant role in educational finance today.

32.

While federal assistance has an ameliorating effect on the difference in school budgets between wealthy and poor districts, the District Court rejected an argument made by the State in that court that it should consider the effect of the federal grant in assessing the discrimination claim. 337 F.Supp. at 284. The State has not renewed that contention here.

33.

A map of Bexar County included in the record shows that Edgewood and Alamo Heights are among the smallest districts in the county, and are of approximately equal size. Yet, as the figures above indicate, Edgewood's student population is more than four times that of Alamo Heights. This factor obviously accounts for a significant percentage of the differences between the two districts in per-pupil property values and expenditures. If Alamo Heights had as many students to educate as Edgewood does (22,000) its per pupil assessed property value would be approximately $11,100 rather than $49,000, and its per-pupil expenditures would therefore have been considerably lower.

34.

The figures quoted above vary slightly from those utilized in the District Court opinion. 337 F.Supp. at 282. These trivial differences are apparently a product of that court's reliance on slightly different statistical data than we have relied upon.

35.

Although the Foundation Program has made significantly greater contributions to both school districts over the last several years, it is apparent that Alamo Heights has enjoyed a larger gain. The sizable difference between the Alamo Heights and Edgewood grants is due to the emphasis in the State's allocation formula on the guaranteed minimum salaries for teachers. Higher salaries are guaranteed to teachers having more years of experience and possessing more advanced degrees. Therefore, Alamo Heights, which has a greater percentage of experienced personnel with advanced degrees, receives more state support. In this regard, the Texas Program is not unlike that presently in existence in a number of other States. Coons, Clune & Sugarman, supra, n. 13, at 63-125. Because more dollars have been given to districts that already spend more per pupil, such Foundation formulas have been described as "anti-equalizing." Ibid. The formula, however, is anti-equalizing only if viewed in absolute terms. The percentage disparity between the two Texas districts is diminished substantially by state aid. Alamo Heights derived in 1967-1968 almost 13 times as much money from local taxes as Edgewood did. The state aid grants to each district in 1970-1971 lowered the ratio to approximately two to one, i.e., Alamo Heights had a little more than twice as much money to spend per pupil from its combined state and local resources.

36.

Texas Research League, supra, n. 20, at 13.

37.

The Economic Index, which determines each county's share of the total Local Fund Assignment, is based on a complex formula conceived in 1949 when the Foundation Program was instituted. See text, supra at 9-10. It has frequently been suggested by Texas researchers that the formula be altered in several respects to provide a more accurate reflection of local taxpaying ability, especially of urban school districts. 5 Governor's Committee Report 48; Texas Research League, Texas Public School Finance: A Majority of Exceptions 31-32 (2d Interim Report 1972); Berke, Carnevale, Morgan White, supra, n. 29, at 680-681.

38.

The District Court relied on the findings presented in an affidavit submitted by Professor Berke of Syracuse University. His sampling of 110 Texas school districts demonstrated a direct correlation between the amount of a district's taxable property and it level of per-pupil expenditures. But his study found only a partial correlation between a district's median family income and per-pupil expenditures. The study also shows, in the relatively few districts at the extremes, an inverse correlation between percentage of minorities and expenditures.

         Categorized by Equalized Property Values,

       Median Family Income, and State-Local Revenue

       

        Market Value     Median               State &

         of Taxable      Family    Per Cent    Local

          Property       Income    Minority   Revenues

       Per Pupil        From 1960   Pupils    Per Pupil

       Above $100,000    $5,900       8%       $815

         (10 districts)

       $100,000-$50,000  $4,425      32%       $544

         (26 districts)

       $50,00$30,000     $4,900      23%       $483

         (30 districts)

       $30,000-$10,000   $5,050      31%       $462

         (40 districts)

       Below $10,000     $3,325      79%       $305

         (4 districts)

Although the correlations with respect to family income and race appear only to exist at the extremes, and although the affiant's methodology has been questioned (see Goldstein, Inter-district Inequalities in School Financing: A Critical Analysis of Serrano v. Priest and its Progeny, 120 U.Pa.L.Rev. 504, 523-525, nn. 67, 71 (1972)), insofar as any of these correlations is relevant to the constitutional thesis presented in this case, we may accept its basic thrust. But see infra at 25-27. For a defense of the reliability of the affidavit, see Berke, Carnevale, Morgan & White, supra, n. 29.

39.

E.g., Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972); Dunn v. Blumstein, 405 U.S. 330 (1972); Shapiro v. Thompson, 394 U.S. 618 (1969).

40.

E.g., Graham v. Richardson, 403 U.S. 365 (1971); Loving v. Virginia, 388 U.S. 1 (1967); McLaughlin v. Florida, 379 U.S. 184 (1964).

41.

See Dunn v. Blumstein, supra, at 343, and the cases collected therein.

42.

Brief for Appellants 11.

43.

Ibid.

44.

Tr. of Oral Arg. 3; Reply Brief for Appellants 2.

45. E.g., Griffin v. Illinois, 351 U.S. 12 (1956); Douglas v. California, 372 U.S. 353 (1963).

46.

Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); McDonald v. Board of Election Comm'rs, 394 U.S. 802 (1969); Bullock v. Carter, 405 U.S. 134 (1972); Goosby v. Osser, 409 U.S. 512 (1973).

47.

See cases cited in text, infra at 29-30.

48.

Serrano v. Priest, 5 Cal.3d 584, 487 P.2d 1241 (1971); Van Dusartz v. Hatfield, 334 F.Supp. 870 (Minn.1971); Robinson v. Cahill, 118 N.J.Super. 223, 287 A.2d 187 (1972); Milliken v. Green, 389 Mich. 1, 203 N.W.2d 457 (1972), rehearing granted, Jan., 1973.

49.

In their complaint, appellees purported to represent a class composed of persons who are "poor" and who reside in school districts having a "low value of . . . property." Third Amended Complaint, App. 15. Yet appellees have not defined the term "poor" with reference to any absolute or functional level of impecunity. See text, infra at 22-23. See also Brief for Appellees 1, 3; Tr. of Oral Arg. 221.

50.

Appellees' proof at trial focused on comparative differences in family incomes between residents of wealthy and poor districts. They endeavored, apparently, to show that there exists a direct correlation between personal family income and educational expenditures. See text, infra at 25-27. The District Court may have been relying on this notion of relative discrimination based on family wealth. Citing appellees' statistical proof, the court emphasized that "those districts most rich in property also have the highest median family income . .while the poor property districts are poor in income. . . ." 337 F.Supp. at 282.

51.

At oral argument, and in their brief, appellees suggest that description of the personal status of the residents in districts that spend less on education is not critical to their case. In their view, the Texas system is impermissibly discriminatory even if relatively poor districts do not contain poor people. Brief for Appellees 43-44; Tr. of Oral Arg. 20-21. There are indications in the District Court opinion that it adopted this theory of district discrimination. The opinion repeatedly emphasizes the comparative financial status of districts, and, early in the opinion, it describes appellees' class as being composed of "all . . . children throughout Texas who live in school districts with low property valuations." 337 F.Supp. at 281.

52.

Mayer v. City of Chicago, 404 U.S. 189 (1971); Williams v. Oklahoma City, 395 U.S. 458 (1969); Gardner v. California, 393 U.S. 367 (1969); Roberts v. LaVallee, 389 U.S. 40 (1967); Long v. District Court of Iowa, 385 U.S. 192 (1966); Draper v. Washington, 372 U.S. 487 (1963); Eskridge v. Washington Prison Board, 357 U.S. 214 (1958).

53.

Note, A Statistical Analysis of the School Finance Decisions: On Winning Battles and Losing Wars, 81 Yale L.J. 1303, 1328-1329 (1972).

54.

Id. at 1324 and n. 102

55.

Id. at 1328

56.

Each of appellees' possible theories of wealth discrimination is founded on the assumption that the quality of education varies directly with the amount of funds expended on it, and that, therefore, the difference in quality between two schools can be determined simplistically by looking at the difference in per-pupil expenditures. This is a matter of considerable dispute among educators and commentators. See nn. 86 and 101, infra.

57.

E.g., Bullock v. Carter, 405 U.S. at 137, 149; Mayer v. City of Chicago, 404 U.S. at 194; Draper v. Washington, 372 U.S. at 495-496; Douglas v. California, 372 U.S. at 367.

58.

Gilmer-Aikin Committee, supra, n. 15, at 13. Indeed, even though local funding has long been a significant aspect of educational funding, the State has always viewed providing an acceptable education as one of its primary functions. See Texas State Bd. of Educ., supra, n. 11, at 1, 7.

59.

Brief for Appellants 35; Reply Brief for Appellants 1.

60.

An educational financing system might be hypothesized, however, in which the analogy to the wealth discrimination cases would be considerably closer. If elementary and secondary education were made available by the State only to those able to pay a tuition assessed against each pupil, there would be a clearly defined class of "poor" people -- definable in terms of their inability to pay the prescribed sum -- who would be absolutely precluded from receiving an education. That case would present a far more compelling set of circumstances for judicial assistance than the case before us today. After all, Texas has undertaken to do a good deal more than provide an education to those who can afford it. It has provided what it considers to be an adequate base education for all children, and has attempted, though imperfectly, to ameliorate by state funding and by the local assessment program the disparities in local tax resources.

61.

Also it should be recognized that median income statistics may not define with any precision the status of individual families within any given district. A more dependable showing of comparative wealth discrimination would also examine factors such as the average income, the mode, and the concentration of poor families in any district.

62.

Cf. Jefferson v. Hackney, 406 U.S. 535, 547-549 (1972); Ely, Legislative and Administrative Motivation in Constitutional Law 79 Yale L.J. 1205, 1258-1259 (1970); Simon, The School Finance Decisions: Collective Bargaining and Future Finance Systems, 82 Yale L.J. 409, 439-440 (1973).

63.

Supra at 15 n. 38.

64.

Studies in other States have also questioned the existence of any dependable correlation between a district's wealth measured in terms of assessable property and the collective wealth of families residing in the district measured in terms of median family income. Ridenour & Ridenour, Serrano v. Priest: Wealth and Kansas School Finance, 20 Kan.L.Rev. 213, 225 (1972) ("it can be argued that there exists in Kansas almost an inverse correlation: districts with highest income per pupil have low assessed value per pupil, and districts with high assessed value per pupil have low income per pupil"); Davis, Taxpaying Ability: A Study of the Relationship Between Wealth and Income in California Counties, in The Challenge of Change in School Finance, 10th Nat. Educational Assn. Conf. on School Finance 199 (1967). Note, 81 Yale L.J., supra, n. 53. See also Goldstein, supra, n. 38, at 522-527.

65.

Indeed, this is precisely how the plaintiffs in Serrano v. Priest defined the class they purported to represent:

Plaintiff children claim to represent a class consisting of all public school pupils in California, "except children in that school district . . . which . . . affords the greatest educational opportunity of all school districts within California."

5 Cal.3d at 589, 487 P.2d at 1244. See also Van Dusartz v. Hatfield, 334 F.Supp. at 873.

66.

Appellees, however, have avoided describing the Texas system as one resulting merely in discrimination between districts per se, since this Court has never questioned the State's power to draw reasonable distinctions between political subdivisions within its borders. Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 230-231 (1964); McGowan v. Maryland, 366 U.S. 420, 427 (1961); Salsbury v. Maryland, 346 U.S. 545, 552 (1954).

67.

E.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); United States v. Kras, 409 U.S. 434 (1973). See MR. JUSTICE MARSHALL's dissenting opinion, post at 121.

68.

See Serrano v. Priest, supra; Van Dusartz v. Hatfield, supra; Robinson v. Cahill, 118 N.J.Super. 223, 287 A.2d 187 (1972); Coons, Clune & Sugarman, supra, n. 13, at 339-393; Goldstein, supra, n. 38, at 534-541; Vieira, Unequal Educational Expenditures: Some Minority Views on Serrano v. Priest, 37 Mo.L.Rev. 617, 618-624 (1972); Comment, Educational Financing, Equal Protection of the Laws, and the Supreme Court, 70 Mich.L.Rev. 1324, 1335-1342 (1972); Note, The Public School Financing Cases: Inter-district Inequalities and Wealth Discrimination, 14 Ariz.L.Rev. 88, 120-124 (1972).

69.

337 F.Supp. at 283.

70.

E.g., United States v. Guest, 383 U.S. 745, 757-759 (1966); Oregon v. Mitchell, 400 U.S. 112, 229, 237-238 (1970) (opinion of BRENNAN, WHITE, and MARSHALL, JJ.).

71.

After Dandridge v. Williams, 397 U.S. 471 (1970), there could be no lingering question about the constitutional foundation for the Court's holding in Shapiro. In Dandridge, the Court applied the rational basis test in reviewing Maryland's maximum family grant provision under its AFDC program. A federal district court held the provision unconstitutional, applying a stricter standard of review. In the course of reversing the lower court, the Court distinguished Shapiro properly on the ground that, in that case, "the Court found state interference with the constitutionally protected freedom of interstate travel." Id. at 484 n. 16.

72.

The Court refused to apply the strict scrutiny test despite its contemporaneous recognition in Goldberg v. Kelly, 397 U.S. 254, 264 (1970) that "welfare provides the means to obtain essential food, clothing, housing, and medical care."

73.

In Eisenstadt, the Court struck down a Massachusetts statute that prohibited the distribution of contraceptive devices, finding that the law failed "to satisfy even the more lenient equal protection standard." 405 U.S. at 447 n. 7. Nevertheless, in dictum, the Court recited the correct form of equal protection analysis:

[I]f we were to conclude that the Massachusetts statute impinges upon fundamental freedoms under Griswold [v. Connecticut, 381 U.S. 479 (1965)], the statutory classification would have to be not merely rationally related to a valid public purpose, but necessary to the achievement of a compelling state interest.

Ibid. (emphasis in original).

74.

Dunn fully canvasses this Court's voting rights cases, and explains that

this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.

405 U.S. at 336 (emphasis supplied). The constitutional underpinnings of the right to equal treatment in the voting process can no longer be doubted, even though, as the Court noted in Harper v. Virginia Bd. of Elections, 383 U.S. at 665, "the right to vote in state elections is nowhere expressly mentioned." See Oregon v. Mitchell, 400 U.S. at 135, 138-44 (DOUGLAS, J.), 229, 241-242 (BRENNAN, WHITE, and MARSHALL, JJ.); Bullock v. Carter, 405 U.S. at 140-144; Kramer v. Union School District, 395 U.S. 621, 625-630 (1969); Williams v. Rhodes, 393 U.S. 23, 29, 30-31 (1968); Reynolds v. Sims, 377 U.S. 533, 554-562 (1964); Gray v. Sanders, 372 U.S. 368, 379-381 (1963).

75.

In Mosley, the Court struck down a Chicago anti-picketing ordinance that exempted labor picketing from its prohibitions. The ordinance was held invalid under the Equal Protection Clause after subjecting it to careful scrutiny and finding that the ordinance was not narrowly drawn. The stricter standard of review was appropriately applied, since the ordinance was one "affecting First Amendment interests." 408 U.S. at 101.

76.

Skinner applied the standard of close scrutiny to a state law permitting forced sterilization of "habitual criminals." Implicit in the Court's opinion is the recognition that the right of procreation is among the rights of personal privacy protected under the Constitution. See Roe v. Wade, 410 U.S. 113, 152 (1973).

77.

See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389-390 (1969); Stanley v.Georgia, 394 U.S. 557, 564 (1969); Lamont v. Postmaster General, 381 U.S. 301, 306-307 (1965).

78.

Since the right to vote, per se, is not a constitutionally protected right, we assume that appellees' references to that right are simply shorthand references to the protected right, implicit in our constitutional system, to participate in state elections on an equal basis with other qualified voters whenever the State has adopted an elective process for determining who will represent any segment of the State's population. See n. 74, supra.

79.

The States have often pursued their entirely legitimate interest in assuring "intelligent exercise of the franchise," Katzenbach v. Morgan, 384 U.S. 641, 655 (1966), through such devices as literacy tests and age restrictions on the right to vote. See ibid.; Oregon v. Mitchell, 400 U.S. 112 (1970). And, where those restrictions have been found to promote intelligent use of the ballot without discriminating against those racial and ethnic minorities previously deprived of an equal educational opportunity, this Court has upheld their use. Compare Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959), with Oregon v. Mitchell, supra, at 133 (Black, J.), 135, 144-147 (DOUGLAS, J.), 152, 216-217 (Harlan, J.), 229, 231-236 (BRENNAN, WHITE, and MARSHALL, JJ.), 281, 282-284 (STEWART, J.), and Gaston County v. United States, 395 U.S. 285 (1969).

80.

See Schoettle, The Equal Protection Clause in Public Education, 71 Col.L.Rev. 1355, 1389-1390 (1971); Vieira, supra, n. 68, at 622-623; Comment, Tenant Interest Representation: Proposal for a National Tenants' Association, 47 Tex.L.Rev. 1160, 1172-1173, n. 61 (1969).

81.

Katzenbach v. Morgan involved a challenge by registered voters in New York City to a provision of the Voting Rights Act of 1965 that prohibited enforcement of a state law calling for English literacy tests for voting. The law was suspended as to residents from Puerto Rico who had completed at least six years of education at an "American-flag" school in that country even though the language of instruction was other than English. This Court upheld the questioned provision of the 1965 Act over the claim that it discriminated against those with a sixth-grade education obtained in non-English-speaking schools other than the ones designated by the federal legislation.

82.

Cf. Meyer v. Nebraska, 262 U.S. 390"] 262 U.S. 390 (1923); 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Hargrave v. Kirk, 313 F.Supp. 944 (MD Fla.1970), vacated, 401 U.S. 476 (1971).

83.

See Schilb v. Kuebel, 404 U.S. 357 (1971); McDonald v. Board of Election Comm'rs, 394 U.S. 802 (1969).

84.

See, e.g., Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232 (1890); Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 508-509 (1937); Allied Stores of Ohio v. Bowers, 358 U.S. 522 (1959).

85.

Those who urge that the present system be invalidated offer little guidance as to what type of school financing should replace it. The most likely result of rejection of the existing system would be state-wide financing of all public education with funds derived from taxation of property or from the adoption or expansion of sale and income taxes. See Simon, supra, n. 62. The authors of Private Wealth and Public Education, supra, >GO>n. 13, at 201-242, suggest an alternative scheme, known as "district power equalizing." In simplest terms, the State would guarantee that, at any particular rate of property taxation the district would receive a stated number of dollars regardless of the district's tax base. To finance the subsidies to "poorer" districts, funds would be taken away from the "wealthier" districts that, because of their higher property values, collect more than the stated amount at any given rate. This is not the place to weigh the arguments for and against "district power equalizing," beyond noting that commentators are in disagreement as to whether it is feasible, how it would work, and indeed whether it would violate the equal protection theory underlying appellees' case. President's Commission on School Finance, Schools, People & Money 32-33 (1972); Bateman & Brown, Some Reflections on Serrano v. Priest, 49 J. Urban L. 701, 706-708 (1972); Brest, Book Review, 23 Stan.L.Rev. 591, 594-596 (1971); Goldstein, supra, >GO>n. 38, at 542-543; Wise, School Finance Equalization Lawsuits: A Model Legislative Response, 2 Yale Rev. of L. & Soc.Action 123, 125 (1971); Silard & White, Intrastate Inequalities in Public Education: The Case for Judicial Relief Under the Equal Protection Clause, 1970 Wis.L.Rev. 7, 29-30.

86.

The quality-cost controversy has received considerable attention. Among the notable authorities on both sides are the following: C. Jencks, Inequality (1972); C. Silberman, Crisis in the Classroom (1970); U.S. Office of Education, Equality of Educational Opportunity (1966) (the Coleman Report); On Equality of Educational Opportunity (F. Mosteller 8 D. Moynihan eds.1972); J. Guthrie, G. Kleindorfer, H. Levin R. Stout, Schools and Inequality (1971); President's Commission on School Finance, supra, n. 85; Swanson, The Cost-Quality Relationship, in The Challenge of Change in School Finance, 10th Nat. Educational Assn. Conf. on School Finance 151 (1967).

87.

See the results of the Texas Governor's Committee's state-wide survey on the goals of education in that State. 1 Governor's Committee Report 59-68. See also Goldstein, supra, n. 38, at 519-522; Schoettle, supra, n. 80, authorities cited in n. 86, supra.

88.

Allied Stores of Ohio v. Bowers, 358 U.S. 522, 530, 532 (1959) (BRENNAN, J., concurring); Katzenbach v. Morgan, 384 U.S. at 659, 661 (Harlan, J., dissenting).

89.

In 1970 Texas expended approximately $2.1 billion for education and a little over $1 billion came from the Minimum Foundation Program. Texas Research League, supra, n. 20, at 2

90.

Tex.Educ.Code Ann. § 16.13 (1972).

91.

Id. § 16.18.

92.

Id., § 16.15.

93.

Id. §§ 16.16, 16.17, 16.19.

94.

Id., §§ 16.45, 16.51-16.63.

95.

Id. §§ 12.01-12.04.

96.

Id. § 11.26(5).

97.

Id. § 16.301 et seq.

98.

See supra at 13-14.

99.

Gilmer-Aikin Committee, supra, n. 15, at 15.

100.

There is no uniform state-wide assessment practice in Texas. Commercial property, for example, might be assessed at 30% of market value in one county and at 50% in another. 5 Governor' Committee Report 25-26; Berke, Carnevale, Morgan & White, supra, n. 29, at 666-667, n. 16.

101.

Texas Research League, supra, n. 20, at 18. Texas, in this regard, is not unlike most other States. One commentator has observed that "disparities in expenditures appear to be largely explained by variations in teacher salaries." Simon, supra, n. 62, at 413.

As previously noted, see text accompanying n. 86, supra, the extent to which the quality of education varies with expenditure per pupil is debated inconclusively by the most thoughtful students of public education. While all would agree that there is a correlation up to the point of providing the recognized essentials in facilities and academic opportunities, the issues of greatest disagreement include the effect on the quality of education of pupil-teacher ratios and of higher teacher salary schedules. E.g., Office of Education, supra, n. 86, at 316-319. The state funding in Texas is designed to assure, on the average, one teacher for every 25 students, which is considered to be a favorable ratio by most standards. Whether the minimum salary of $6,000 per year is sufficient in Texas to attract qualified teachers may be more debatable, depending in major part upon the location of the school district. But there appear to be few empirical data that support the advantage of any particular pupil-teacher ratio or that document the existence of a dependable correlation between the level of public school teachers' salaries and the quality of their classroom instruction. An intractable problem in dealing with teachers' salaries is the absence, up to this time, of satisfactory techniques for judging their ability or performance. Relatively few school systems have merit plans of any kind, with the result that teachers' salaries are usually increased across the board in a way which tends to reward the least deserving on the same basis as the most deserving. Salaries are usually raised automatically on the basis of length of service and according to predetermined "steps," extending over 10- to 12-year periods.

102.

President's Commission on School Finance, supra, n. 85, at 9. Until recently, Hawaii was the only State that maintained a purely state-funded educational program. In 1968, however, that State amended its educational finance statute to permit counties to collect additional funds locally and spend those amounts on its schools. The rationale for that recent legislative choice is instructive on the question before the Court today:

Under existing law, counties are precluded from doing anything in this area, even to spend their own funds if they so desire. This corrective legislation is urgently needed in order to allow counties to go above and beyond the State's standards and provide educational facilities as good as the people of the counties want and are willing to pay for. Allowing local communities to go above and beyond established minimums to provide for their people encourages the best features of democratic government.

Haw.Sess.Laws 1968, Act 38, § 1.

103.

See text accompanying n. 7, supra.

104.

G. Strayer & R. Haig, The Financing of Education in the State of New York (1923). For a thorough analysis of the contribution of these reformers and of the prior and subsequent history of educational finance, see Coons, Clune & Sugarman, supra, n. 13, at 39-95.

105.

J. Coleman, Foreword to Strayer & Haig, supra, at vii.

106.

New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 311 (1932) (Brandeis, J., dissenting).

107.

MR. JUSTICE WHITE suggests in his dissent that the Texas system violates the Equal Protection Clause because the means it has selected to effectuate its interest in local autonomy fail to guarantee complete freedom of choice to every district. He places special emphasis on the statutory provision that establishes a maximum rate of $1.50 per $100 valuation at which a local school district may tax for school maintenance. Tex.Educ.Code Ann. § 20.04(d) (1972). The maintenance rate in Edgewood when this case was litigated in the District Court was $.55 per $100, barely one-third of the allowable rate. (The tax rate of $1.05 per $100, see supra at 12, is the equalized rate for maintenance and for the retirement of bonds.) Appellees do not claim that the ceiling presently bars desired tax increases in Edgewood or in any other Texas district. Therefore, the constitutionality of that statutory provision is not before us, and must await litigation in a case in which it is properly presented. Cf. Hargrave v. Kirk, 313 F.Supp. 944 (MD Fla.1970), vacated, 401 U.S. 476 (1971).

108.

MR. JUSTICE MARSHALL states in his dissenting opinion that the State's asserted interest in local control is a "mere sham,"post, at 130, and that it has been offered not as a legitimate justification, but "as an excuse . . . for inter-district inequality." Id. at 126. In addition to asserting that local control would be preserved and possibly better served under other systems -- a consideration that we find irrelevant for the purpose of deciding whether the system may be said to be supported by a legitimate and reasonable basis -- the dissent suggests that Texas' lack of good faith may be demonstrated by examining the extent to which the State already maintains considerable control. The State, we are told, regulates "the most minute details of local public education," ibid., including textbook selection, teacher qualifications, and the length of the school day. This assertion, that genuine local control does not exist in Texas, simply cannot be supported. It is abundantly refuted by the elaborate statutory division of responsibilities set out in the Texas Education Code. Although policy decisionmaking and supervision in certain areas are reserved to the State, the day-to-day authority over the "management and control" of all public elementary and secondary schools is squarely placed on the local school boards. Tex.Educ.Code Ann. §§ 17.01, 23.26 (1972). Among the innumerable specific powers of the local school authorities are the following: the power of eminent domain to acquire land for the construction of school facilities, id. §§ 17.26, 23.26; the power to hire and terminate teachers and other personnel, id. §§ 13.101-13.103; the power to designate conditions of teacher employment and to establish certain standards of educational policy, id. § 13.901; the power to maintain order and discipline, id. § 21.305, including the prerogative to suspend students for disciplinary reasons, id. § 21.301; the power to decide whether to offer a kindergarten program, id. §§ 21.131-21.135, or a vocational training program, id. § 21.111, or a program of special education for the handicapped, id. § 11.16; the power to control the assignment and transfer of students, id. §§ 21.074-21.080; and the power to operate and maintain a school bus program, id. § 16.52. See also Pervis v. LaMarque Ind. School Dist., 328 F.Supp. 638, 642-643 (SD Tex.1971), reversed, 466 F.2d 1054 (CA5 1972); Nichols v. Aldine Ind. School Dist., 356 S.W.2d 182 (Tex.Civ.App. 1962). Local school boards also determine attendance zones, location of new schools, closing of old ones, school attendance hours (within limits), grading and promotion policies subject to general guidelines, recreational and athletic policies, and a myriad of other matters in the routine of school administration. It cannot be seriously doubted that, in Texas, education remains largely a local function, and that the preponderating bulk of all decisions affecting the schools is made and executed at the local level, guaranteeing the greatest participation by those most directly concerned.

109.

This theme -- that greater state control over funding will lead to greater state power with respect to local educational programs and policies -- is a recurrent one in the literature on financing public education. Professor Simon, in his thoughtful analysis of the political ramifications of this case, states that one of the most likely consequences of the District Court's decision would be an increase in the centralization of school finance and an increase in the extent of collective bargaining by teacher unions at the state level. He suggests that the subjects for bargaining may include many "non-salary" items, such as teaching loads, class size, curricular and program choices, questions of student discipline, and selection of administrative personnel -- matters traditionally decided heretofore at the local level. Simon, supra, n. 62 (434-436). See, e.g., Coleman, The Struggle for Control of Education, in Education and Social Policy: Local Control of Education 64, 77-79 (C. Bowers, I. Housego & D. Dyke eds.1970); J. Conant, The Child, The Parent, and The State 27 (1959) ("Unless a local community, through its school board, has some control over the purse, there can be little real feeling in the community that the schools are in fact, local schools. . . ."); Howe, Anatomy of a Revolution, in Saturday Review 84, 88 (Nov. 20, 1971) ("It is an axiom of American politics that control and power follow money. . . ."); R. Hutchinson, State-Administered Locally Shared Taxes 21 (1931) ("[S]tate administration of taxation is the first step toward state control of the functions supported by these taxes. . . ."). Irrespective of whether one regards such prospects as detrimental or whether he agrees that the consequence is inevitable, it certainly cannot be doubted that there is a rational basis for this concern on the part of parents, educators, and legislators.

110.

This Court has never doubted the propriety of maintaining political subdivisions within the States and has never found in the Equal Protection Clause any per se rule of "territorial uniformity." McGowan v. Maryland, 366 U.S. at 427. See also Griffin v. County School Board of Prince Edward County, 377 U.S. at 230-231; Salsbury v. Maryland, 346 U.S. 545 (1954). Cf. Board of Education of Muskogee v. Oklahoma, 409 F.2d 665, 668 (CA10 1969).

111.

Any alternative that calls for significant increases in expenditures for education, whether financed through increases in property taxation or through other sources of tax dollars, such as income and sales taxes, is certain to encounter political barriers. At a time when nearly every State and locality is suffering from fiscal undernourishment, and with demands for services of all kinds burgeoning and with weary taxpayers already resisting tax increases, there is considerable reason to question whether a decision of this Court nullifying present state taxing systems would result in a marked increase in the financial commitment to education. See Senate Select Committee on Equal Educational Opportunity, 92d Cong., 2d Sess., Toward Equal Educational Opportunity 339-345 (Comm.Print 1972); Berke & Callahan, Serrano v. Priest: Milestone or Millstone for School Finance, 21 J.Pub.L. 23, 25-26 (1972); Simon, supra, n. 62, at 420-421. In Texas, it has been calculated that $2.4 billion of additional school funds would be required to bring all schools in that State up to the present level of expenditure of all but the wealthiest districts -- an amount more than double that currently being spent on education. Texas Research League, supra, n. 20, at 16-18. An amicus curiae brief filed on behalf of almost 30 States, focusing on these practical consequences, claims with some justification that "each of the undersigned states . . . would suffer severe financial stringency." Brief of Amici Curiae in Support of Appellants 2 (filed by Montgomery County, Md. et al.).

112.

See Note, supra, n. 53. See also authorities cited n. 114, infra.

113.

See Goldstein, supra, n. 38, at 526; Jencks, supra, n. 86, at 27; U.S. Comm'n on Civil Rights, Inequality in School Financing: The Role of the Law 37 (1972). Coons, Clune & Sugarman, supra, n. 13, at 356-357, n. 47, have noted that, in California, for example, "[f]ifty-nine percent . . . of minority students live in districts above the median [average valuation per pupil.]" In Bexar County, the largest district by far -- the San Antonio Independent School District -- is above the local average in both the amount of taxable wealth per pupil and in median family income. Yet 72% of its students are Mexican-Americans. And, in 1967-1968, it spent only a very few dollars less per pupil than the North East and North Side Independent School Districts, which have only 7% and 18% Mexican-American enrollment respectively. Berke, Carnevale, Morgan & White, supra, n. 29, at 673.

114.

See Senate Select Committee on Equal Educational Opportunity, 92d Cong., 2d Sess., Issues in School Finance 129 (Comm.Print 1972) (monograph entitled Inequities in School Finance prepared by Professors Berke and Callahan); U.S. Office of Education, Finances of Large-City School Systems: A Comparative Analysis (1972) (HEW publication); U.S. Comm'n on Civil Rights, supra, n. 113 at 33-36; Simon, supra, n. 62, at 410-411, 418.


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Concurrence

STEWART, J., Concurring Opinion

MR. JUSTICE STEWART, concurring.

The method of financing public schools in Texas, as in almost every other State, has resulted in a system of public education that can fairly be described as chaotic and unjust. [n1] It does not follow, however, and I cannot find, that this system violates the Constitution of the United States. I join the opinion and judgment of the Court because I am convinced that any other course would mark an extraordinary departure from principled adjudication under the Equal Protection Clause of the Fourteenth Amendment. The uncharted directions of such a departure are suggested, I think, by the imaginative dissenting opinion my Brother MARSHALL has filed today.

Unlike other provisions of the Constitution, the Equal Protection Clause confers no substantive rights and creates no substantive liberties. [n2] The function of the Equal Protection Clause, rather, is simply to measure the validity of classifications created by state laws. [p60]

There is hardly a law on the books that does not affect some people differently from others. But the basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and objectively identifiable classes. [n3] And, with respect to such legislation, it has long been settled that the Equal Protection Clause is offended only by laws that are invidiously discriminatory -- only by classifications that are wholly arbitrary or capricious. See, e.g., Rinaldi v. Yeager, 384 U.S. 305. This settled principle of constitutional law was compendiously stated in Mr. Chief Justice Warren's opinion for the Court in McGowan v. Maryland, 366 U.S. 420, 425-426, in the following words:

Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.

This doctrine is no more than a specific application of one of the first principles of constitutional adjudication -- the basic presumption of the constitutional validity of a duly enacted state or federal law. See Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.L.Rev. 129 (1893). [p61]

Under the Equal Protection Clause, this presumption of constitutional validity disappears when a State has enacted legislation whose purpose or effect is to create classes based upon criteria that, in a constitutional sense, are inherently "suspect." Because of the historic purpose of the Fourteenth Amendment, the prime example of such a "suspect" classification is one that is based upon race. See, e.g., Brown v. Board of Education, 347 U.S. 483; McLaughlin v. Florida, 379 U.S. 184. But there are other classifications that, at least in some settings, are also "suspect" -- for example, those based upon national origin, [n4] alienage, [n5] indigency, [n6] or illegitimacy. [n7]

Moreover, quite apart from the Equal Protection Clause, a state law that impinges upon a substantive right or liberty created or conferred by the Constitution is, of course, presumptively invalid, whether or not the law's purpose or effect is to create any classifications. For example, a law that provided that newspapers could be published only by people who had resided in the State for five years could be superficially viewed as invidiously discriminating against an identifiable class in violation of the Equal Protection Clause. But, more basically, such a law would be invalid simply because it abridged the freedom of the press. Numerous cases in this Court illustrate this principle. [n8] [p62]

In refusing to invalidate the Texas system of financing its public schools, the Court today applies with thoughtfulness and understanding the basic principles I have so sketchily summarized. First, as the Court points out, the Texas system has hardly created the kind of objectively identifiable classes that are cognizable under the Equal Protection Clause. [n9] Second, even assuming the existence of such discernible categories, the classifications are in no sense based upon constitutionally "suspect" criteria. Third, the Texas system does not rest "on grounds wholly irrelevant to the achievement of the State's objective." Finally, the Texas system impinges upon no substantive constitutional rights or liberties. It follows, therefore, under the established principle reaffirmed in Mr. Chief Justice Warren's opinion for the Court in McGowan v. Maryland, supra, that the judgment of the District Court must be reversed.

1. See New York Times, Mar. 11, 1973, p. 1, col. 1.

2. There is one notable exception to the above statement: it has been established in recent years that the Equal Protection Clause confers the substantive right to participate on an equal basis with other qualified voters whenever the State has adopted an electoral process for determining who will represent any segment of the State's population. See, e.g., Reynolds v. Sims, 377 U.S. 533; Kramer v. Union School District, 395 U.S. 621; Dunn v. Blumstein, 405 U.S. 330, 336. But there is no constitutional right to vote, as such. Minor v. Happersett, 21 Wall. 162. If there were such a right, both the Fifteenth Amendment and the Nineteenth Amendment would have been wholly unnecessary.

3. But see Bullock v. Carter, 405 U.S. 134.

4. See Oyama v. California, 332 U.S. 633, 644-646.

5. See Graham v. Richardson, 403 U.S. 365, 372.

6. See Griffin v. Illinois, 351 U.S. 12. "Indigency" means actual or functional indigency; it does not mean comparative poverty vis-a-vis comparative affluence. See James v. Valtierra, 402 U.S. 137.

7. See Gomez v. Perez, 409 U.S. 535; Weber v. Aetna Casualty & Surety Co., 406 U.S. 164.

8. See, e.g., Police Dept. of Chicago v. Mosley, 408 U.S. 92 (free speech); Shapiro v. Thompson, 394 U.S. 618 (freedom of interstate travel); Williams v. Rhodes, 393 U.S. 23 (freedom of association); Skinner v. Oklahoma, 316 U.S. 535 ("liberty" conditionally protected by Due Process Clause of Fourteenth Amendment).

9. See Katzenbach v. Morgan, 384 U.S. 641, 660 (Harlan, J., dissenting).


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Dissent

BRENNAN, J., Dissenting Opinion

MR. JUSTICE BRENNAN, dissenting.

Although I agree with my Brother WHITE that the Texas statutory scheme is devoid of any rational basis, and, for that reason, is violative of the Equal Protection Clause, I also record my disagreement with the Court's rather distressing assertion that a right may be deemed "fundamental" for the purposes of equal protection analysis only if it is "explicitly or implicitly guaranteed by the Constitution." Ante at 33-34. As my Brother MARSHALL convincingly demonstrates, our prior cases stand for the proposition that "fundamentality" is, in large measure, a function of the right's importance in terms of the effectuation of those rights which are in fact, constitutionally guaranteed. Thus,

[a]s the nexus between the specific constitutional guarantee and the nonconstitutional [p63] interest draws closer, the nonconstitutional interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly.

Post at 102-103.

Here, there can be no doubt that education is inextricably linked to the right to participate in the electoral process and to the rights of free speech and association guaranteed by the First Amendment. See post at 111-115. This being so, any classification affecting education must be subjected to strict judicial scrutiny, and since even the State concedes that the statutory scheme now before us cannot pass constitutional muster under this stricter standard of review, I can only conclude that the Texas school-financing scheme is constitutionally invalid.


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Dissent

WHITE, J., Dissenting Opinion

MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, dissenting.

The Texas public schools are financed through a combination of state funding, local property tax revenue, and some federal funds. [n1] Concededly, the system yields wide disparity in per-pupil revenue among the various districts. In a typical year, for example, the Alamo Heights district had total revenues of $594 per pupil, while the Edgewood district had only $356 per pupil. [n2] The majority and the State concede, as they must, the existence [p64] of major disparities in spendable funds. But the State contends that the disparities do not invidiously discriminate against children and families in districts such as Edgewood, because the Texas scheme is designed

to provide an adequate education for all, with local autonomy to go beyond that as individual school districts desire and are able. . . . It leaves to the people of each district the choice whether to go beyond the minimum and, if so, by how much. [n3]

The majority advances this rationalization:

While assuring a basic education for every child in the State, it permits and encourages a large measure of participation in and control of each district's schools at the local level.

I cannot disagree with the proposition that local control and local decisionmaking play an important part in our democratic system of government. Cf. James v. Valtierra, 402 U.S. 137 (1971). Much may be left to local option, and this case would be quite different if it were true that the Texas system, while insuring minimum educational expenditures in every district through state funding, extended a meaningful option to all local districts to increase their per-pupil expenditures, and so to improve their children's education to the extent that increased funding would achieve that goal. The system would then arguably provide a rational and sensible method of achieving the stated aim of preserving an area for local initiative and decision.

The difficulty with the Texas system, however, is that it provides a meaningful option to Alamo Heights and like school districts, but almost none to Edgewood and those other districts with a low per-pupil real estate tax base. In these latter districts, no matter how desirous parents are of supporting their schools with greater revenues, it is impossible to do so through the use of the [p65] real estate property tax. In these districts, the Texas system utterly fails to extend a realistic choice to parents because the property tax, which is the only revenue-raising mechanism extended to school districts, is practically and legally unavailable. That this is the situation may be readily demonstrated.

Local school districts in Texas raise their portion of the Foundation School Program -- the Local Fund Assignment -- by levying ad valorem taxes on the property located within their boundaries. In addition, the districts are authorized, by the state constitution and by statute, to levy ad valorem property taxes in order to raise revenues to support educational spending over and above the expenditure of Foundation School Program funds.

Both the Edgewood and Alamo Heights districts are located in Bexar County, Texas. Student enrollment in Alamo Heights is 5,432, in Edgewood 22,862. The per-pupil market value of the taxable property in Alamo Heights is $49,078, in Edgewood $5,960. In a typical, relevant year, Alamo Heights had a maintenance tax rate of $1.20 and a debt service (bond) tax rate of 20¢ per $100 assessed evaluation, while Edgewood had a maintenance rate of 52¢ and a bond rate of 67¢. These rates, when applied to the respective tax bases, yielded Alamo Heights $1,433,473 in maintenance dollars and $236,074 in bond dollars, and Edgewood $223,034 in maintenance dollars and $279,023 in bond dollars. As is readily apparent, because of the variance in tax bases between the districts, results, in terms of revenues, do not correlate with effort, in terms of tax rate. Thus, Alamo Heights, with a tax base approximately twice the size of Edgewood's base, realized approximately six times as many maintenance dollars as Edgewood by using a tax rate only approximately two and one-half times larger. Similarly, Alamo Heights realized slightly fewer bond [p66] dollars by using a bond tax rate less than one-third of that used by Edgewood.

Nor is Edgewood's revenue-raising potential only deficient when compared with Alamo Heights. North East District has taxable property with a per-pupil market value of approximately $31,000, but total taxable property approximately four and one-half times that of Edgewood. Applying a maintenance rate of $1, North East yielded $2,818,148. Thus, because of its superior tax base, North East was able to apply a tax rate slightly less than twice that applied by Edgewood and yield more than 10 times the maintenance dollars. Similarly, North East, with a bond rate of 45¢, yielded $1,249,159 -- more than four times Edgewood's yield with two-thirds the rate.

Plainly, were Alamo Heights or North East to apply the Edgewood tax rate to its tax base, it would yield far greater revenues than Edgewood is able to yield applying those same rates to its base. Conversely, were Edgewood to apply the Alamo Heights or North East rates to its base, the yield would be far smaller than the Alamo Heights or North East yields. The disparity is, therefore, currently operative, and its impact on Edgewood is undeniably serious. It is evident from statistics in the record that show that, applying an equalized tax rate of 85¢ per $100 assessed valuation, Alamo Heights was able to provide approximately $330 per pupil in local revenues over and above the Local Fund Assignment. In Edgewood, on the other hand, with an equalized tax rate of $1.05 per $100 of assessed valuation, $26 per pupil was raised beyond the Local Fund Assignment. [n4] As previously noted, in Alamo Heights, [p67] total per-pupil revenues from local, state, and federal funds was $594 per pupil, in Edgewood $356. [n5]

In order to equal the highest yield in any other Bexar County district, Alamo Heights would be required to tax at the rate of 68¢ per $100 of assessed valuation. Edgewood would be required to tax at the prohibitive rate of $5.76 per $100. But state law places a $1.50 per $100 ceiling on the maintenance tax rate, a limit that would surely be reached long before Edgewood attained an equal yield. Edgewood is thus precluded in law, as well a in fact, from achieving a yield even close to that of some other district.

The Equal Protection Clause permits discriminations between classes, but requires that the classification bear some rational relationship to a permissible object sought to be attained by the statute. It is not enough that the Texas system before us seeks to achieve the valid, rational purpose of maximizing local initiative; the means chosen by the State must also be rationally related to the end sought to be achieved. As the Court stated just last Term in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172 (1972):

The tests to determine the validity of state statutes under the Equal Protection Clause have been variously expressed, but this Court requires, at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose. Morey v. Doud, 354 U.S. 457 (1957); Williamson v. Lee Optical Co., 348 U.S. 483 (1955); Gulf, Colorado & Santa Fe R. Co. v. Ellis, 165 U.S. 150 (1897); Yick Wo v. Hopkins, 118 U.S. 356 (1886). [p68]

Neither Texas nor the majority heeds this rule. If the State aims at maximizing local initiative and local choice, by permitting school districts to resort to the real property tax if they choose to do so, it utterly fails in achieving its purpose in districts with property tax bases so low that there is little if any opportunity for interested parents, rich or poor, to augment school district revenues. Requiring the State to establish only that unequal treatment is in furtherance of a permissible goal, without also requiring the State to show that the means chosen to effectuate that goal are rationally related to its achievement, makes equal protection analysis no more than an empty gesture. [n6] In my view, the parents and children in Edgewood, and in like districts, suffer from an invidious discrimination violative of the Equal Protection Clause. This does not, of course, mean that local control may not be a legitimate goal of a school financing system. Nor does it mean that the State must guarantee each district an equal per-pupil revenue from the state school financing system. Nor does it mean, as the majority appears to believe, that, by affirming the decision below, [p69] this Court would be

imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.

On the contrary, it would merely mean that the State must fashion a financing scheme which provides a rational basis for the maximization of local control, if local control is to remain a goal of the system, and not a scheme with

different treatment be[ing] accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute.

Reed v. Reed, 404 U.S. 71, 75-76 (1971).

Perhaps the majority believes that the major disparity in revenues provided and permitted by the Texas system is inconsequential. I cannot agree, however, that the difference of the magnitude appearing in this case can sensibly be ignored, particularly since the State itself considers it so important to provide opportunities to exceed the minimum state educational expenditures.

There is no difficulty in identifying the class that is subject to the alleged discrimination and that is entitled to the benefits of the Equal Protection Clause. I need go no farther than the parents and children in the Edgewood district, who are plaintiffs here and who assert that they are entitled to the same choice as Alamo Heights to augment local expenditures for schools but are denied that choice by state law. This group constitutes a class sufficiently definite to invoke the protection of the Constitution. They are as entitled to the protection of the Equal Protection Clause as were the voters in allegedly underrepresented counties in the reapportionment case. See, e.g., Baker v. Carr, 369 U.S. 186, 204-208 (1962); Gray v. Sanders, 372 U.S. 368, 375 (1963); Reynolds v. Sims, 377 U.S. 533, 654-556 (1964). And in Bullock v. Carter, 405 U.S. 134 (1972), where a challenge to the [p70] Texas candidate filing fee on equal protection grounds was upheld, we noted that the victims of alleged discrimination wrought by the filing fee

cannot be described by reference to discrete and precisely defined segments of the community as is typical of inequities challenged under the Equal Protection Clause,

but concluded that

we would ignore reality were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status.

Id. at 144. Similarly, in the present case, we would blink reality to ignore the fact that school districts, and students in the end, are differentially affected by the Texas school financing scheme with respect to their capability to supplement the Minimum Foundation School Program. At the very least, the law discriminates against those children and their parents who live in districts where the per-pupil tax base is sufficiently low to make impossible the provision of comparable school revenues by resort to the real property tax which is the only device the State extends for this purpose.

1. The heart of the Texas system is embodied in an intricate series of statutory provisions which make up Chapter 16 of the Texas Education Code, Tex.Educ.Code Ann. § 16.01 et seq. See also Tex.Educ.Code Ann. § 15.01 et seq., and § 20.10 et seq.

2. The figures discussed are from Plaintiffs' Exhibits 7, 8, and 12. The figures are from the 1967-1968 school year. Because the various exhibits relied upon different attendance totals, the per-pupil results do not precisely correspond to the gross figures quoted. The disparity between districts, rather than the actual figures, is the important factor.

3. Brief for Appellants 11-13, 35.

4. Variable assessment practices are also revealed in this record. Appellants do not, however, contend that this factor accounts, even to a small extent, for the inter-district disparities.

5. The per-pupil funds received from state, federal, and other sources, while not precisely equal, do not account for the large differential and are not directly attacked in the present case.

6. The State of Texas appears to concede that the choice of whether or not to go beyond the state-provided minimum

is easier for some districts than for others. Those districts with large amounts of taxable property can produce more revenue at a lower tax rate and will provide their children with a more expensive education.

Brief for Appellants 35. The State nevertheless insists that districts have a choice and that the people in each district have exercised that choice by providing some real property tax money over and above the minimum funds guaranteed by the State. Like the majority, however, the State fails to explain why the Equal Protection Clause is not violated, or how its goal of providing local government with realistic choices as to how much money should be expended on education is implemented, where the system makes it much more difficult for some than for others to provide additional educational funds and where, as a practical and legal matter, it is impossible for some districts to provide the educational budgets that other districts can make available from real property tax revenues.