Hornbeck v. Somerset County Board of Education

Cole, J.,

dissenting:

Today, this Court, based upon its review of the evidence in this case and its analysis of what the framers of the Constitution intended 116 years ago, places its imprimatur on an educational system which thwarts the full growth and development of a large segment of the school population. It seems to me that an educational system must be measured in light of what the needs of children are in today’s world and the foreseeable future. We should not be using a hundred year-old yardstick in a time of computer technology.

I believe this Court should be committed to admonishing the legislature that it has not fulfilled its constitutional obligation to "establish throughout the State a thorough and efficient system of Free Public Schools; and [to] provide by taxation, or otherwise, for their maintenance” pursuant to Article VIII, Section I. For this Court to do less, is to render a disservice to the children of this State by approving a system which treats them unequally, thereby also violating Article 24 of the Maryland Declaration of Rights. I, therefore, respectfully dissent.

The quality of education under the present system is determined by the wealth of the subdivision in which the child lives. If he lives in a rich subdivision, he enjoys a fuller educational opportunity; if he lives in a poorer subdivision, he perforce is deprived of various educational advantages. The record in this case abounds with evidence to support the proposition that the school funding system fosters unequal educational treatment of children throughout the State.

The system divides the responsibility to fund education *660 between the State and the twenty-four subdivisions. The State, under a "foundation formula” for basic expenses, contributes more funds to the poorer subdivisions to offset the ability of the affluent counties to raise more revenue for this purpose. However, the foundation level of the present formula is so low that it does not begin to overcome the vast local wealth differences. 1 Montgomery County in F.Y. 1979 collected and spent from State and local revenues over $1,000 more per pupil than Somerset and Caroline Counties, $941 more than St. Mary’s and $866 more than Baltimore City. Moreover, the State’s policy of providing categorical aid (e.g., teacher retirement and social security) without regard to the differences in local wealth exacerbates the disparities. The wealthier subdivisions pay their teachers higher salaries and thus receive greater categorical aid. I agree with the trial court’s conclusion that the result of such disparity in funding between the wealthy and poor subdivisions is substantially inferior educational resources and a reduction in educational opportunities for the children in the schools of the poorer systems.

The record is replete with examples of how the poor jurisdictions’ lack of sufficient funding from the State translates into less of almost every kind of school resource and an inability to compete effectively with the more affluent subdivisions. For instance, the City’s ability to attract and retain better teachers, more guidance counselors, nurses, psychologists, librarians and maintenance crews is gravely impaired, not even to mention its inability to maintain an "acceptable” class size, acquire the necessary quantity and quality of instructional materials and equipment or to supply books and provide the required number of librarians. Evidence at the trial revealed that in the City, elementary school libraries are frequently locked up two or three days a week because the system cannot afford the proper personnel. A few facts illustrate widespread disparities. The City school *661 system has only 140 librarians and five aides for 187 libraries while Baltimore County employs 190 librarians and 80 aides to staff 160 school libraries. Baltimore City has eliminated advanced courses in foreign languages, science and mathematics in most of its high schools while Montgomery County is able to offer data processing to a single student and bricklaying to three students.

The record clearly demonstrates that most of the poor children in this State reside in Baltimore City, Somerset, St. Mary’s and Caroline Counties and are beset with special and greater educational needs. The present school funding system fails to provide the educational resources to satisfy these needs. Despite the fact that many studies have recognized the inequities imposed upon the poorer subdivisions by the State’s school funding system, the General Assembly has not heeded the suggestion for equalization.

Thus, as I see it, the trial court’s ruling that the existing school finance system violates both Article VIII, Section I of the Constitution and Article 24 of the Declaration of Rights is correct. I shall now explain.

I

The majority misinterprets the significance of the history underlying the Education Article of our Constitution. They seek to discern the proper interpretation of a one hundred and sixteen year-old provision of the Constitution by examining comments by some of the convention delegates as reported in unofficial sources (such as newspapers) and by noting some specific actions that historically have been taken under this provision. Newspaper articles and legislative debates are hardly the most reliable sources for extrapolating legislative intent; they certainly are not adequate substitutes for cogent analysis of the purpose of a provision as discerned from its historical context and basic goals. See generally Schneider v. Lansdale, 191 Md. 317 , 61 A.2d 671 (1948). As society evolves, specific measures that were not necessarily able to further the purpose of a constitutional or statutory provision when drafted later *662 become practicable and well able to fulfill that purpose. The drafters seldom anticipate the changes that occur hundreds of years later in our society. The Constitution should be a living, developing document, able to fit the needs of the time of its interpretation. Therefore it becomes incumbent upon the Court to view provisions of our Constitution in context, determine their general purpose, and then apply them in our current society so as to best effectuate that purpose. In my view, the overriding purpose of both the Constitutions of 1864 and 1867 was to improve the system of education in this State, thereby assuring an effective and universal system of free public schools. This is the clear message of the history surrounding the adoption of the Education Article.

Society and the education provided therein were vastly different in the period preceding 1867 than they are today. As noted in McCarthy v. Bd. of Education of A. A. Co., 280 Md. 634 , 374 A.2d 1135 (1977), Maryland was "concerned” with education throughout the colonial and revolutionary era. However, this concern was manifested in public support for a very limited number of institutions. In 1826, the General Assembly enacted Chapter 162 of the Acts of 1825 to "provide for the public instruction of youth in primary schools throughout this state.” This law, providing money for teachers’ salaries, only became effective in counties adopting it by a majority vote. Only thirteen counties actually adopted the law. A. Crewe, No Backward Step Was Taken 16 (1949). It apparently did not greatly foster the development of public school systems in the counties, because, as Ms. Crewe noted, little progress was made in the ensuing years. Id. at 17. Even in Baltimore City, the first "public” school was not opened until 1829. See V. Vavrina, The History of Public Education in the City of Baltimore, 1829-1956, at 1 (1958).

From 1830 to 1864, schools realized varying success throughout the State. Baltimore City enjoyed by far the greatest growth and achievement. For instance, in 1839 the City had 9 schools, 16 teachers and 1,126 pupils. In 1849 there were 30 schools, 107 teachers and 6,763 students. And *663 in 1864 the City had 87 schools, 358 teachers and 16,086 pupils. See id. at 2 & 6. Furthermore, the quality of the school system "received the unqualified praise of educators who visited the schools of the city.” Id. at 7.

By contrast, education in the counties did not develop as rapidly or as well. For instance, the first sign of the emergence of the Baltimore County school system was in 1848 when the Maryland Assembly passed a law entitled: "An Act to Establish Public Schools in Baltimore County.” In 1849, this county had 60 schools and 1,858 pupils. As of 1864, the system had grown to include 103 schools and an average of 4,205 pupils. See A. Crewe, supra, at 21 & 27. However, the quality of education in the county was hampered by a variety of problems during these years: locating schoolhouses, finding qualified teachers, and coping with the inevitably sparse number of pupils in many areas. See generally id. at 21-26. Governor T. Watkins Ligón noted that education during this period was far from adequate and available to all children in the counties:

The system of public instruction in Maryland (if we except the City of Baltimore, whose public schools are an honor to the State, and reflect the highest credit upon all those entrusted with their management) is in a state of the most utter and hopeless prostration. [1856 Message to the General Assembly 15.]

This obvious difference in educational quality between the City and county schools can be understood upon examining the social and economic character of the counties as opposed to Baltimore City. Population density, wealth and mobility probably were the most important factors distinguishing Baltimore from the surrounding counties. The following chart indicates the relative population densities of selected areas in 1860:

*664 County Area in square Population ** miles * Average Density per square mile

Anne Arundel 400 16,568 41.42

Baltimore 2 622 50,953 81.92

Baltimore City 78.3 210,200 2684.55

Dorchester 610 16,338 26.78

Kent 315 10,758 34.15

Montgomery 508 12,901 25.40

St. Mary’s 360 8,664 24.07

This chart indicates the vast difference in the number of children accessible to a centralized school in the counties as opposed to the City. Given that a state average of 23% of the population was between the ages of five and twenty, St. Mary’s County would have had only about 5V2 children per square mile who potentially could be attending school. When considering that this is a county average (including heavily populated towns such as Leonardtown), the average in rural areas would be even lower. Because of this low school-age population density in many rural areas of the counties, there certainly were relatively few potential pupils within walking, or even riding, distance of a school. Therefore, the only school that could exist (if in fact any did exist) would have placed all children of varying age and achievement together in a one-room schoolhouse, taught by one teacher that managed as best he could.

In contrast, Baltimore City had an ample potential student body within easy reach of its schools. In 1864 Baltimore had 87 schools and 16,086 pupils — an average of almost 185 students per school. In contrast, Baltimore County (the most densely populated county) had an average *665 of only 40 students per school. Obviously, the City had a much greater opportunity not only to establish schools, but also to divide and specialize classes within these schools. This simple fact not only allowed the City schools to evolve more quickly, but also placed severe limitations on what the county schools could do under even the best possible conditions.

The legislature of course realized this and attempted to alleviate some of the problems in the rural areas. For instance, it enacted Chapter 247 of the 1837 Laws of Maryland, entitled: "An act for the distribution of School Moneys.. .. Harford County.” This Act stated that funds provided to different districts should "increase ... in proportion to the sparseness of school population in the neighborhood of a school . . ..” Measures such as these undoubtedly helped; however, they could only begin to overcome the disadvantages caused by the sparse population and the general lack of societal mobility in rural areas.

Although it is difficult to assess precisely the status of education in this State in 1864, quality schools certainly were not available in many areas. It was even suggested that one-fifth of the population of Maryland could not read. See Debates and Proceedings of the Maryland Constitutional Convention, 1864, at 1245. Thus, the educational situation facing the Constitutional Convention of 1864 was extremely poor in most areas.

The Convention dealt with this troubled area by adopting a mandate for free public education throughout the State. Article VIII provided for the appointment of a State Superintendent of Public Instruction and for a State Board of Education. Section 4 required the General Assembly to provide a "uniform system of free public schools” to be kept open at least 6 months a year. Section 5 further provided that the system be funded by a State tax of at least $.10 per $100 of taxable property throughout the State. The revenue derived from this tax was to be distributed to its subdivisions in proportion to their respective population between the ages of 5 and 20 years. This funding scheme clearly was designed *666 to assure the free education of the poor in rural areas. It proposed to establish an effective, universal system of free public education, thereby improving the educational opportunity of the children of the State.

The only problem that ultimately arose under this constitutional scheme was the way in which it was implemented by appointed State Superintendent Van Bokkelen. The following excerpts suggest the problems caused by this man and the actual reasons for the demise of the system under his supervision:

State Superintendent Van Bokkelen, while awaiting returns from his letters of inquiry to the various counties, visited several northern states to study their school systems. With the information secured from both sources, he drafted a long bill to establish a Uniform System of Public Instruction for the State of Maryland, and a complete commentary explaining its features.* It was a courageous ideal, but, involving as it did an attempt to establish at one leap a system more elaborate than any other State in the Union was supporting at that time, it ran into difficulties almost immediately. While the General Assembly in 1865 enacted school laws which, in the main, followed the State Superintendent’s recommendation, objections were soon voiced to the seeming autocratic domination of this man who appeared to be convinced that the State, lagging so far behind in the fíeld of education, had no time for gradual development.

Uniform textbooks were adopted for the entire State,. .. State Law provided that all schoolhouses should be built and furnished according to plans** and drawings issued from the office of the State Superintendent, or plans from the County Boards which had been submitted to and approved by the Superintendent.

*667 This first State School System lasted from 1864 to 1867, by which time antagonistic public sentiment had been aroused and so crystalized that Superintendent Van Bokkelen’s organization was swept away. A new plan, under the Constitution of 1867, took its place. The people of Maryland had been accustomed to self-determination in respect to their schools, and resented the new system which gave no real authority to the local districts. One writer makes this commentary: * * * "It is clearly apparent that the control of the public school system was highly centralized. The State had its hands on the schools in no uncertain manner and its policies could easily be enforced. While the scheme was intended to insure a uniform system, it obviously was extreme for a State in which the citizens were accustomed to highly localized control of schools. That it was an efficient means of organizing education is hardly to be doubted.”

[A] study of the Annual Reports from the various counties of the State for the two years the system existed not only fails to reveal resentment, but indicates general appreciation by school authorities of the improvements that had been made. Political forces, rather than educational considerations, evidently were largely responsible for the repudiation of Dr. Van Bokkelen’s regime. [A. Crewe, supra, at 35-36 (emphasis supplied) (footnotes omitted).]

As suggested by this commentary, changes in the system ultimately were made largely as a political repudiation of Van Bokkelen and his autocratic control. Furthermore, the delegates in 1867 also seemed to agree that "the constitution should not be encumbered with the details.” Perlman, Debates of the Maryland Constitutional Convention of1867, *668 at 202. However, as is clear from a thorough examination of the constitutional changes made in 1867, the main purpose of this first Education Article was carried forward in the revised Constitution.

The 1867 Constitution provided as its basic guarantee:

The General Assembly, at its First Session after the adoption of this Constitution shall by Law, establish throughout the State a thorough and efficient System of Free Public Schools; and shall provide by taxation, or otherwise, for their maintenance.

That the new provision was meant to perpetuate the essential purpose of the 1864 Education Article (although without an autocratic Superintendent or specific rules) is clear from the language of the provision and from examining several proposed changes that were soundly rejected.

First, on its face, the provision mandates that it is the State’s responsibility to provide for the maintenance of the school system. It also requires that it be a "thorough and efficient system of free public schools.” Therefore, the language suggests that the Convention was still interested in improving the education system and not reverting to an ineffective system of localized education. This demonstrates that the provision’s purpose still was for the State to ensure an effective and universal system of free public schools.

The Convention’s rejection of three proposed changes in the Education Article support his interpretation. A proposal that would have authorized the county boards of education to provide the system of education and funding for their own counties was soundly rejected (90 to 6). The Convention also defeated a motion to authorize varying public schools as they may have been suited to different localities. Finally, a motion to allow Baltimore City to have a separate school system also was defeated. The defeat of these motions demonstrates a singular purpose: to continue State responsibility for the effectiveness of the educational system, not to sanctify local autonomy.

*669 In the ensuing session of the General Assembly in which that body implemented the constitutional mandate, the State did not abandon the counties, but rather pursued the purpose of the Education Article by ensuring through the action of the State government, the continuation of an effective and universal system of free public education. See 1868 Md. Laws ch. 407. This Act imposed a $.10 statewide property tax (the same as that required under the 1864 Constitution) to support the public schools throughout the State. This money was to be distributed to the jurisdictions throughout the State on a school-age population basis. As suggested in the 1867 Annual Report of the State Superintendent of Public Instruction arguing for continuation of this tax, the new system ultimately was to remain a system by which the State guaranteed an effective and universal system of free schools:

Population and wealth often are in an inverse ratio. Where children are numerous, capital does not always abound. Where the number of schools needed in proportion is greatest, the means to sustain schools is often least. If each county be left to himself; in one-third of the State there cannot be a "thorough and efficient system of Free Public Schools,” without placing a burden upon the people which they cannot bear, and ought not to be required to bear when the circumstances are remembered by which their taxable property has been diminished. The Constitution decrees efficient Free Schools throughout the State. This will be practicable only by a tax upon the property of the whole State, distributed among the counties according to their educational wants, which for practical purposes, means according to population. The children belong to the State in a higher and nobler sense that Sparta claimed, and are entitled to equal educational privileges without reference to the section in which they chance to be born. Education is a State, not a county interest. The commonwealth *670 ‘suffers by ignorance, idleness and crime, whether at its extremities or at its heart. [Report at 36-37 (emphasis supplied).]

■ The iásue the Court should address is whether the current system -of financing public education effectuates the basic purpose of the Education Article of the Maryland Constitution. ‘To -reiterate, this purpose was to improve the discouraging status of education in this State, ensuring an effective and universal system of free public schools. In my opinion, the system of education funding currently in effect in Maryland does not pursue this fundamental purpose.

Under the current system, the State does not ensure an effective and universal system of education. The State fails to collect and then distribute to the counties a state-wide tax adequate to support universal quality education: rather, the present system relies on the various localities to provide the education they can afford. The result is vastly dissimilar educational opportunities for children in the various jurisdictions within this State. This situation does not effectuate the Education Article’s purpose of ensuring an effective and universal system of free public schools. In order to reach this goal, the State must provide as effective an education as its resources allow to all children in this State. A system designed to effectuate the purposes of the Constitution should improve the public school system, not abdicate responsibility to the various localities. The goal should be to pursue an equal basic educational opportunity for all.

One might attempt to argue that such a standard is contradicted by history. For instance, history indicates that school systems were not of equal quality after the institution of the Education Article. Furthermore, as the majority is quick to point out, under the 1867 Constitution local jurisdictions could cause themselves to be taxed to have additional funds for their school systems. However, neither of these points rebuts my analysis of the purpose of this provision.

*671 Without question, history indicates that the quality of education differed from county to county in 1864 and 1867. These differences were due, in part, to the wealth of the county, the sparseness of its population and the poor conditions of travel. The one-room school house was classic. The poorly trained teacher was the order of the day in most rural and poor areas, being the local preacher or one of the more literate adults. The purpose of the Education Article, as I see it, was to correct these conditions but in many instances the obstacles could not be easily overcome because of widespread population and the lack of adequate transportation.

However, today, the threshold factors, which stifled educational opportunity for Maryland’s children in 1864, have vanished. Even in rural areas, the improvement of roads and modes of transportation allow any subdivision to assemble enough students to divide classes by age and achievement and when supplied with properly trained teachers, books, and equipment, to expose these children to equal educational learning experiences. In my view the purpose of the Education Article in 1867 was to reach this goal; it certainly can be reached today.

It is true that under the 1864, as well as the 1867, Constitution local jurisdictions could supplement State funds. See A. Crewe, supra, at 31. However, this local option to raise additional funds must be viewed in context. At that time, the State apparently was providing sufficient money to fund a basic equal educational opportunity throughout the State. 3 If the State does provide enough money to establish an equal basic educational opportunity per child in every county, then there is not the same ground for objecting to the county supplementing these funds. However, the State can not abdicate to the counties its responsibility to provide funds for that basic educational opportunity in the first instance.

*672 Under the present system, the State manifestly does not provide sufficient funds to jurisdictions throughout this State to ensure basic equal educational opportunity. The State foundation level for basic current expenses is only $690, and the State funds an average of less than 55% of this amount. This certainly is not sufficient to provide for a child’s education (especially considering a 1978 average basic cost per pupil of $1,843). In effect, the State has abdicated its responsibility to local jurisdictions and rationalized its remissness by extolling the virtues of local control. However, local control may be more efficaciously furthered by allowing localities decision-making authority with adequate funding levels provided by the State. Because the purpose of the constitutional provision was for the State to ensure an effective and universal system, children should not have to look to localities of varying wealth for their basic educational opportunity. Therefore, the current system violates the mandate of the Education Article of the Maryland Constitution.

I also dissent because the majority does not recognize that education is a fundamental right in Maryland; therefore, the majority’s analysis of the State equal protection guarantee is mistaken.

The majority recognizes that education is dealt with explicitly in the Maryland Constitution. The educational guarantee is mentioned in § 52 of Article III, which provides that the State budget include an estimate of appropriations for establishing and maintaining a thorough and efficient system of public schools throughout the State. However, § 1 of Article VIII establishes a clear mandate to the "General Assembly to establish [a] system of free public schools”: "The General Assembly, at its First Session after the adoption of this Constitution, shall by Law establish throughout the State a thorough and efficient System of Free Public Schools; and shall provide by taxation, or otherwise, for their maintenance.” Based on these provisions the trial court found education to be a fundamental right in this State, protected by the equal protection guarantee of Article 24 of the Maryland *673 Declaration of Rights. In reaching this conclusion, the trial court relied on the test enunciated in San Antonio School District v. Rodriguez, 411 U.S. 1 , 93 S. Ct. 1278 , 36 L.Ed.2d 16 (1973), for determining what rights are fundamental for the purpose of equal protection review, because our cases implicitly accept the Rodriguez formulation. Under this test, a right is fundamental if "explicitly or implicitly guaranteed by the Constitution.” Id. 411 U.S. at 33-34 . An examination of two of this Court’s seminal equal protection cases demonstrates that the trial court applied the proper test for determining fundamental rights protected by the Maryland Declaration of Rights.

Our analysis in Attorney General v. Waldron, 289 Md. 683 , 426 A.2d 929 (1981), encompassed not merely federal but also state equal protection law. There Judge Digges pointed out for the Court that 'Tilt is, perhaps, because this State has no express equal protection clause that Article 24 has been interpreted to apply 'in like manner and to the same extent as the Fourteenth Amendment of the Federal Constitution.’” Id. at 704 (citations omitted). In examining the Supreme Court’s analysis of cases under the equal protection clause, the Waldron court cited the test for determining fundamental rights outlined in Rodriguez . After outlining equal protection law (including this test as an essential aspect of the analysis), the Court stated: "When evaluating an equal protection claim grounded on Article 24, we utilize in large measure the basic analysis provided by the United States Supreme Court in interpreting the like provision contained in the fourteenth amendment.” Id. at 714. 4 This was a clear indication from the Court that we adopt the Rodriguez test for determining what rights are considered fundamental. As applied by the Supreme Court, this test requires an examination of the federal constitution *674 to determine whether the right has been guaranteed. However, having adopted the framework of the Supreme Court’s analysis, it seems logical to me that this Court examine the Maryland Constitution, in this light, to determine the fundamental rights guaranteed by Article 24 of the Maryland Declaration of Rights.

This position was also suggested by the Court in Attorney General v. Johnson, 282 Md. 274 , 385 A.2d 57 (1978). The Court stated: "Thus, although we have indeed held that in Maryland the right to a fair and impartial jury in a civil action is a fundamental one, see Davidson v. Miller, 276 Md. 54, 68-69 , 344 A.2d 422, 431-32 (1975), in accordance with the principle that a fundamental right is one explicitly or implicitly guaranteed by the Constitution, see San Antonio School District v. Rodriguez, 411 U.S. 1, 33-34 , 93 S. Ct. 1278 , 36 L.Ed.2d 16 (1973),34 . . .” Id. at 309. Footnote 34 indicated that this fundamental right was provided by reference to the Maryland Constitution because "[t]he right to civil trial by jury in state courts is not explicitly guaranteed by the United States Constitution, nor has the seventh amendment right thus far been required of the states as a matter of federal due process through the fourteenth amendment.” Id. at 309 n. 34. Thus, Johnson provides another example of this Court’s prior belief that Rodriguez announced the appropriate test.

The majority holds that education is not a fundamental right in Maryland and because there is a rational basis for the constitutional provision there is no denial of equal protection. The majority while recognizing that education is dealt with explicitly in the Constitution further contends that the test for determining if a right is fundamental enunciated in San Antonio School District v. Rodiguez, 411 U.S. 1, 33-34 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973) (that a fundamental right is one explicitly or implicitly guaranteed by the Constitution) should not be adopted to evaluate state equal protection guarantees, because "state constitutions, unlike the federal constitution, are not of limited or delegated powers and are not restricted to provisions of fundamental import....”

*675 The majority relies on several cases, a careful analysis of which demonstrates that it has overreacted to theoretical possibilities suggested by other courts that simply are not applicable in Maryland. As the New York court in Board of Educ., Levittown, Etc. v. Nyquist, 57 N.Y.2d 27 , 439 N.E.2d 359 , 366 n. 5, 453 N.Y.S. 2d 643 (1982), stated "the document [New York Constitution] concededly contains references to matters which could as well have been left to statutory articulation... .” This argument appears reasonable on its face. In fact, it is viable for most of the cases cited by the majority; however, a close examination of the state constitutions in jurisdictions making this argument indicates that they are different in relevant respects from the Maryland Constitution. Each of these constitutions guarantees services of some sort that clearly should not be accorded status as fundamental rights; this is the difference. The Maryland Constitution might mention some non-fundamental areas; it does not guarantee any right that is not fundamental.

In New York, for instance, the constitution includes Articles that arguably would guarantee rights that certainly are not fundamental. Article XIV, governing conservation, provides that "[t]he lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands.” Article XV, § 1 precludes the legislature from selling or disposing of certain canals. Article XVII states in sections 1 and 3 that the state shall provide for the protection of health and the support of the needy. Each of these provisions commands the legislature to act in these areas. Therefore, if New York were to adopt the Rodriguez test, residents would have fundamental rights in these areas just as they would in education. Faced with this dilemma, it was logical for the New York court to reject this test.

The other jurisdictions that made similar arguments are encumbered with like provisions in their constitutions, mandating action by the legislature in non-fundamental areas. For instance, the Idaho Constitution, Article XV, § 4 *676 guarantees continuing water rights to any waters that have been "appropriated or used for agricultural purposes.” Article X, § 1 states: "Educational, reformatory, and penal institutions, and those for the benefit of the insane, blind, deaf and dumb, and such other institutions as the public good may require, shall be established and supported by the state in such manner as may be prescribed by law.” In Colorado, Article XVI, § 2 of the constitution requires that "[t]he general assembly shall provide by law for the proper ventilation of mines, the construction of escapement shafts, and such other appliances as may be necessary to protect the health and secure the safety of the workmen therein.. ..” Article XXIV, § 3 provides that certain residents of Colorado are entitled to pensions. The Oregon Constitution provides in Article I, § 39 that the legislature shall carry out the intent of this provision, allowing the sale of liquor by the drink. Finally, Article VII, § 1 of the Ohio Constitution states: "Institutions for the benefit of the insane, blind, and deaf and dumb, shall always be fostered and supported by the state; and be subject to such regulations as may be prescribed by the general assembly.”

Two jurisdictions cited by the majority do not have similar provisions covering clearly non-fundamental areas in their constitutions. Although these cases find that education is not a fundamental right, they reach this conclusion as a matter of state law for varied reasons. For instance, the Georgia Court in McDaniel v. Thomas, 248 Ga. 632 , 285 S.E.2d 156 (1981), seemed willing to follow the Supreme Court’s lead in determining that "public school finance [is] 'an inappropriate candidate for strict judicial scrutiny... .’” Id. at 647 . The court also found "of constitutional significance” the extensive treatment of education in the Georgia Constitution, suggesting that the absence of a provision imposing an obligation to equalize educational opportunity provided a reason not to afford education protection under the equal protection clause. See id. at 645-46 . The Supreme Court of Michigan, Milliken v. Green, 390 Mich. 389 , 212 N.W.2d 711 (1973), also found education not to be a *677 fundamental right based on the Michigan Constitution. In this case, the court analyzed the Constitution as a whole, finding that it referred to "a system of school districts” and "ad valorem taxation by such school districts.” The court stated: "We do not find appealing the suggestion that this Court honor the obvious fact that ad valorem taxation by school districts was contemplated by our State Constitution by directing now that the entire State be reorganized into one school district or a few very large districts.” Id. at 717.

For each of these cases in which other jurisdictions analyze their constitutions and find that education is not a fundamental right, one can cite cases from other jurisdictions holding that education is a fundamental right. For instance, in Serrano v. Priest, 135 Cal. Rptr. 345 , 557 P.2d 929 (1976), cert. denied, 432 U.S. 907 , 97 S.Ct. 2951 , 53 L.Ed.2d 1079 (1977), the court concluded that education was a fundamental right under the equal protection provision of the State Constitution. See also Horton v. Meskill, 172 Conn. 615 , 376 A.2d 359 (1977); Pauley v. Kelly, 255 S.E.2d 859 (W.Va. 1979); Washakie Co. Sch. Dist. No. One v. Herschler, 606 P.2d 310 (Wyo. 1980), cert. denied, 449 U.S. 824 , 101 S.Ct. 86 , 66 L.Ed.2d 28 .

The majority, instead of merely mimicking the rationale used in education cases from other jurisdictions, should examine the Maryland Constitution to discern whether the reasons prompting these arguments apply in this State. The majority suggests that the Maryland Constitution has similar provisions to those found in the New York Constitution, under which admittedly there might be good reason for rejecting the Rodriguez test. The majority concludes: "Maryland’s Constitution explicitly, not to mention implicitly, guarantees rights and interests which can in no way be considered 'fundamental.’ ” [Emphasis supplied.] The majority attempts to enumerate examples of these nonfundamental guarantees in footnote 16. However, a closer examination of these illustrations indicates that these provisions could not give rise to any personal right that is not already considered fundamental by this Court.

*678 Article VIII, § 1 clearly commands the General Assembly to act in a given area that affects personal rights. In contrast, provisions that merely mention certain areas in which the General Assembly may become involved clearly do not command the General Assembly to take any action. Therefore, such a provision could hardly be said to guarantee any right. The first two "examples” cited by the majority fall into this category. Article XI-C, § 1 provides that "[t]he General Assembly of Maryland, by public local law, may authorize the Mayor and City Council of Baltimore ....” [Emphasis supplied.] to acquire and dispose of property for off-street parking. Article XI-G similarly provides that the General Assembly may authorize the City to contract to make rehabilitation and improvement loans. These provisions do not guarantee anything except the General Assembly’s authority to act in these areas.

The majority’s next "example” does provide an affirmative duty, yet it does not guarantee any personal right. Article 11 of the Declaration of Rights provides: "That Annapolis be the place of meeting of the Legislature. ...” This states a clear obligation for the Legislature to meet in Annapolis, which would be violated if that body convened elsewhere. This is the only possible application of the provision; therefore, it cannot be interpreted to guarantee any fundamental right. Article 41 is another provision that establishes a self-executing directive which could not logically guarantee a fundamental right. This Article provides: "That monopolies are odious, contrary to the spirit of a free government and the principles of commerce, and ought not to be suffered.” As this Court already has established in Grempler v. Multiple Listing Bureau, 258 Md. 419 , 266 A.2d 1 (1970), this article prohibits the State from granting any monopolies, being inadequate as a state anti-trust law. The provision is a statement of policy about monopoly, it suggests nothing about individual rights. As such, the provision provides a directive to the State, yet it does not create any personal rights.

*679 Finally, Article 39 provides: "That the manner of administering an oath or affirmation to any person, ought to be such as those of the religious persuasion, profession, or denomination, of which he is a member, generally esteem the most effectual confirmation by the attestation of the Divine Being.” If this provision guarantees a fundamental right, it is a right to religious liberty — not to have an oath administered that is violative of or ineffectual under one’s religion. This right to religious liberty already is deemed fundamental in Maryland.

Therefore, although non-fundamental areas may be mentioned in the Maryland Constitution, that document does not guarantee any rights that should not be considered fundamental. In fact, "education” is the only right that I perceive would be added to those we now consider fundamental. The majority apparently is concerned that if education is deemed fundamental, other services, "such as police, fire, welfare, health care and other social services,” will be evaluated under the strict scrutiny standard of review. The majority suggests this might happen because "many, if not all, of these rights could, within the Rodriguez formulation of fundamental rights be deemed implicitly guaranteed in most state constitutions. ...” However, the majority fails to explain how these services are implicitly guaranteed by the Maryland Constitution. In fact, there is no convincing argument that they are guaranteed by the Constitution. The majority attempts to equate education with these other social services because they are all "important.” However, despite this subjective evaluation, education is guaranteed by our Constitution while these other services are not even mentioned. I believe that this simple fact indicates that education, not every area of government endeavor, is fundamental and that applying the Rodriguez test will not lead to the unmanageable result apprehended by the majority.

Perhaps the most disturbing aspect of the majority opinion is that it fails to analyze the standard for determining fundamental rights under the State Constitution that it *680 perceives to be applicable. The majority simply "conclude[s] that education is not a fundamental right,” and "decline[s] to adopt the overly simplistic articulation of the fundamental rights test set forth in Rodriguez . ...” The majority notes several reasons for not declaring education a fundamental right, yet never states the standard it uses in ultimately evaluating fundamentality. In fact, the only other test the majority cites is plaintiffs’ alternative argument that "[the court] should still proclaim education’s fundamental character under the theory that it is an important personal right 'recognized as vital to the history and traditions of the people of this State.’ ”

The majority treats education as "social or economic legislation,” yet their analysis is undercut by the Supreme Court’s most recent examination of this subject in Plyler v. Doe, 50 U.S.L.W. 4650 (1982) where that Court, adhering to its prior rejection of education as a fundamental right under the federal constitution, said:

Public education is not a "right” granted to individuals by the Constitution. San Antonio School District, supra, at 35. But neither is it merely some governmental "benefit” indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. The "American people have always regarded education and the acquisition of knowledge as matters of supreme importance.” Meyer v. Nebraska, 262 U.S. 390, 400 (1923). We have recognized "the public school as a most vital civic institution for the preservation of a democratic system of government,” Abington School District v. Schempp, 374 U.S. 203, 230 (1963) (Brennan, J., concurring), and as the primary vehicle for transmitting "the values on which our society rests.” Ambach v. Norwick, 441 U.S. 68, 76 (1979). As noted early in our history, "some degree of education is necessary to prepare *681 citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.” Wisconsin v. Yoder, 406 U.S. 205, 221 (1972). And these historic "perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists.” Ambach v. Norwick, supra, at 77 . In addition, education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society. Id. at 4655.

As this passage suggests, many factors point to the fundamentality of education.

Probably the most significant aspect of education is its nexus to other fundamental rights: a level of education is necessary to ensure effective participation in our political system; education instills interest in the political process and provides the skills necessary to evaluate and to become involved in political debate; "education is the dominant factor affecting political consciousness and participation.” San Antonio School District v. Rodriguez, supra, 411 U.S. at 113 (Marshall, J. dissenting), citing J. Guthrie, G. Kleindorfer, H. Levin, & R. Stout, Schools and Inequality 103-105 (1971); R. Hess & J. Torney, The Development of Political Attitudes in Children 217-218 (1967); Campbell, the Passive Citizen, in 6 Acta Sociológica, Nos. 1-2, p. 9, at 20-21 (1962). Furthermore, "[e]ducation directly affects the ability of a child to exercise his First Amendment rights, both as a source and as a receiver of information and ideas, whatever interests he may pursue in life.” San Antonio School District v. Rodriguez, supra, 411 U.S. at 112 (Marshall, J., dissenting). The reasons underlying this statement hardly require explanation. A person requires the skills of communication that are developed through education in order to evaluate sources of information and to express ideas. *682 Therefore, education is essential because of its nexus to these fundamental rights.

Generally, education is the most important function of any state. As stated in Wisconsin v. Yoder, 406 U.S. 205, 213 , 92 S.Ct. 1526 , 32 L.Ed.2d 15 (1972), "[providing public schools ranks at the very apex of the function of a State.” The Supreme Court also recognized the importance of education in Brown v. Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954), stating that:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our 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. Id. at 493 .

The majority contends that even if a fundamental right to education exists "the State’s school finance system is not depriving, interfering with, or impinging upon, much less absolutely eliminating, any child’s right to an adequate education.” Therefore, strict scrutiny should not be invoked. The Court again seizes on the familiar litany of cases reaching this conclusion without analyzing how these cases, and equal protection analysis, should relate to the precise issue presented in this case. An examination of several classic equal protection cases will demonstrate that the heart of the equal protection guarantee is equal treatment, which has been denied in this case.

*683 Many cases have invoked strict scrutiny to protect against the deprivation of a fundamental right. For instance, in Shapiro v. Thompson, 394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969), the Court protected the right to interstate travel. In this case, the Court held unconstitutional statutory provisions denying welfare benefits to individuals residing in a jurisdiction less than a year. This classification penalized the fundamental right to travel interstate. In Skinner v. Oklahoma, 316 U.S. 535 , 62 S.Ct. 1110 , 86 L. Ed. 1655 (1942), an Oklahoma statute providing for the sterilization of "habitual criminals” was found to violate the equal protection guarantee. The Court evaluated the law under the strict scrutiny standard because sterilization constituted a deprivation of the criminal’s fundamental right to procreate. In Harper v. Virginia Board of Elections, 383 U.S. 663 , 86 S.Ct. 1079 , 16 L.Ed.2d 169 (1966), the Court held that a State may not deny someone the right to vote upon failure to pay a fee or tax. The classification impinged on the fundamental right to vote and, therefore, was closely scrutinized.

These cases clearly satisfied the criterion that the State infringe on an individual’s fundamental right. The fundamental rights involved a liberty to act — to travel, to procreate, to vote. The infringement inhibited or prevented the exercise of that right. This is the type of clear deprivation inherent in the traditional equal protection case that the majority insists always must be present. However, an analysis of Reynolds v. Sims, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964), indicates that this clear infringement is not always required before invoking strict scrutiny. In Reynolds , a denial of equal treatment affecting the exercise of a fundamental right supplied the infringement necessary to invoke strict scrutiny. The plaintiffs were not denied the right to vote; they merely claimed that the malapportionment of the Alabama Legislature diluted their votes, thereby depriving them of rights under the equal protection clause. The Court agreed that any discrimination as to the weight of votes is suspect, because "the concept of *684 equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged.” Id. 377 U.S. at 565 (emphasis supplied) quoted in DuBois v. City of College Park, 286 Md. 677, 690 , 410 A.2d 577 (1980). This lack of uniform treatment in relation to the right to vote offended the equal protection guarantee.

Reynolds focuses our attention on the essence of the equal protection guarantee — equal or uniform treatment. This unequal treatment usually is manifested in a denial of someone’s liberty to exercise a fundamental right. However, in this case (as in the reapportionment cases), unequal treatment in relation to the fundamental right is the key to the equal protection analysis. The fundamental right in this case is not merely a right to be at liberty to act in a certain fashion — the right to pursue the education an individual might desire. The fundamental right here involves the State’s obligation to provide an education and, therefore, one’s right to receive, a benefit from the State. The majority fails to see the applicability of our equal protection guarantee because, at first glance, this case does not appear to fit under the traditional test, which has not been applied to cases involving the fundamental right to receive something from the State. However, it is clear that children entitled to receive an education have been treated unequally.

Children who happen to reside in poorer counties have been provided an inferior educational opportunity. Judge Ross graphically illustrated this point in his factual findings. As he noted, "[i]n fiscal year 1978, Montgomery County spent $2,328 per pupil using the Maryland State Department of Education’s definition of per pupil expenditures while Caroline County spent $1,498.” Several definitions of per pupil expenditures suggested varying disparities. However, Judge Ross concluded: "regardless of the definition chosen, the reality is that a child in the wealthiest subdivision has approximately twice the amount spent on his education as a child in the poorest subdivision. ... As a result of this lower spending capacity, the *685 educational resources which the plaintiffs’ subdivisions afford their students are substantially inferior to those which the State’s affluent subdivisions provide.” Testimony indicated that this abstract allusion to resources means, in reality, that children in the poorer subdivisions have fewer (and more out-dated) books and other educational resource materials, less qualified teachers, larger classes, inadequate supporting staff, and inadequate specialized educational programs. This vast disparity in spending, which obviously translates into resources available to the children, constitutes an extreme denial of equal treatment to those entitled to receive an educational opportunity from the State.

This unequal treatment affects a fundamental right — the right to receive an education from the State. This right to receive an education clearly should be protected just as any right to act is guaranteed. The requisite "infringement” on this right is supplied by the State’s unequal treatment. The State is required to provide a benefit (not merely to protect a right), therefore providing the benefit unequally infringes upon the right to receive that benefit (as surely as direct action by the State normally impairs rights). Therefore, strict scrutiny must be invoked in evaluating the school finance system.

The system cannot withstand strict scrutiny because the defendants cannot show a compelling state interest justifying the infringement. As this Court observed in Waldron the strict scrutiny test "foreordains the invalidation of nearly every classification involving such analysis.” Attorney General v. Waldron, supra, 289 Md. at 708 .

The state interest advanced as justification is local control; however, this interest certainly is not compelling. In fact, the interest of local control does not even substantially justify the severe inequalities presented in this case. The State has allowed children in the poorer jurisdictions to have an inferior educational experience. The evidence establishing this was substantial.

State Superintendent Hornbeck testified that the plaintiff jurisdictions had less of almost every type of educational *686 resource. Furthermore, he and other witnesses stressed that many, children in these jurisdictions (particularly Baltimore City with approximately 40% of the State’s poor children) suffer from severe learning problems. Therefore, even more resources and individual attention are needed to cope with these problems. The results of these inequalities are obvious. Test results indicate statistics such as 83% of fifth grade schools reporting higher than normal test results in Montgomery County, while only 5% of the schools in Baltimore City were above the norm.

Local control is an elusive term to those jurisdictions that don’t have enough funds to make many decisions about what resources will benefit their children. Whatever benefits local control may entail, they certainly do not justify a system giving a vastly inferior educational opportunity to students in poor jurisdictions throughout the State. Therefore, the school finance system clearly does not pass the test of strict scrutiny.

In my view, equal treatment is required in order to comply with the constitutional mandate. By equal treatment, I mean that every district should be supplied the resources it needs to give each pupil therein a full educational program and as much opportunity for the individual to progress satisfactorily as any other school system.

It is apparent that only the General Assembly could implement this system. Certainly local school systems cannot be responsible for evaluating their own needs. Neither could all the systems be expected to agree on the levels of funding necessary to meet the needs of their children equally. In fact, if left to the individual jurisdictions, some might be unwilling, or unable, to raise sufficient revenue to meet even a commonly agreed upon level of spending. Therefore, it is apparent that the General Assembly must provide the resources necessary to establish equal educational opportunity throughout the State.

I do not propose or suggest how or from what source the necessary funds will come. It is my view that the responsibility of the Court is to advise the General Assembly that it has *687 not met its constitutional obligation. Once informed, I have every confidence that that honorable body will make amends forthwith.

. Calvert County has five times the property tax base of Caroline County. Montgomery County has three times the income tax per capita base as Somerset County. Baltimore City has the highest tax rate in the State ($5.97) more than twice as large as Montgomery County ($2.82) but raises only 38% as much revenue per pupil.

See Passano, History of Maryland (1901).

See Census Reports, 1860, at 210-15.

. Because the statistics for the area of Baltimore City and County reflect the areas of these jurisdictions after an annexation by Baltimore City of a belt of County land in 1888, they are not entirely accurate for 1860. However, to the small extent that this overstates the area of Baltimore City and understates that of the County, the density figures would be even larger for the City and smaller in Baltimore County.

. In 1864, apparently only two counties augmented their school funds by additional taxes. See A. Crewe, No Backward Step Was Taken 31 (1949). Furthermore, the same amount of revenue was raised and distributed under the 1867 Constitution. Id. at 38. If these funds were sufficient to provide a uniform education in 1864, they also should have been sufficient to provide basic equal educational opportunity in 1867.

. The Court, of course, recognized in a footnote that "the State equal protection principle is possessed of independent animation ....” Attorney General v. Waldron, 289 Md. 683 , 714 n. 20, 426 A.2d 929 (1981). Therefore, this Court could reach a result at variance with the Supreme Court’s interpretation of the federal equal protection clause. However, this did not diminish the strength of the Court’s suggestion that the fundamental form of the analysis in which we engage is similar to that outlined by the Supreme Court.