Amicus Curiae Brief — McInnis v. Ogilvie

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SUPREME court OF THE UNITED STATES

- ‘October Term, 1968.

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| Yawn Nickson, Be As rma

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‘ Bionan I B. ‘Oouwm, Er bly pe APPELLEES, —

APPEAL FROM THE UNITED STATES DISTRICT couRrT,

'.NORTHERN Seernrer. OF passa. EASTERN DIVISION

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STATEMENT AND BRIEF FOR -

American Federati of .~

on Labor-Congres )

age SS cepalinms goad A

International Union, UAW

Western Center on, Law and Poverty

AS AMICY CURIAE

—_—

Rebih 1: ‘hin Be

| : ' John Silard

ei .'. Eliott C. Lichtman |

Of Counsel: paths Rauh and Silard

Benjamin V. Cohen 3 1001 Conziecticut Ave. N.W.

- Washington, D.C. : bibs s. s9m D.0. 20086

ie AN ate us aan ee Aemlel Curls

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In the.

SUPREME COURT OF THE UNITED STATES

October Term, 1968

No. 1033 |

Linpa McInnis, Er AL., APPELLANTS,

v.

Ricuarp B. Ocitvir, Er AL., APPELLEES.

APPEAL FROM THE UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

MOTION TO FILE BRIEF SUPPORTING JURISDICTIONAL

STATEMENT FOR

American Federation of Labor-Congress of

Industrial Organizations

American Federation of Teachers

International Union, UAW

Western Center on Law and Poverty

AS AMICI CURIAE

The undersigned hereby move for leave to file the at-

tached brief supporting the Jurisdictional Statement in the ©

above-entitled case. Appellees’ counsel have refused con-

sent to the filing of an amicus brief. |

The interests of the amici are set forth on pages 9. 3

of the attached brief.

Respectfully submitted,

Joseph LL. Rauh, Jr

John Silard

Elliott C. Lichtman

Rauh and Silard |

1001 Connecticut Ave. N.W..:

Washington, D.C.30036 |

Attorneys for Amici Curiae.

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_ STATEMENT: WEIGHTY CONSTITUTIONAL IssuES ARISE FROM

- Pusiic EpucaTIon INEQUALITIES IN ILLINOIS AND’ NUMER-

‘ous OTHER STATES OF THE UNION............eeeeeeees 4

i. Malapportionment of School Districts..... ‘sence eee

ii. Disparities in School Funding...............+4. ae

iii. Inequality in Educational Offering.............. a

iv. Inferior Public Education for thé Poor........ 7 11

ARGUMENT: THE CourT BELow ErReED IN DecipinG ConstTI-.

TUTIONAL IssuES Not PrRoPERLY RESOLVABLE BEFORE TRIAL

OF THE MarerIAL CONSTITUTIONAL FACTS...........+..- 14.

CONCLUSION ......... eRREAEPV ORDA NS GRRT SS oReeeRe Ee ENS 20

RENE ain ic cscs ccocvasesciewnes ess Perri etre = 28

Cases CITED

Allied Stores of Ohio v. Bowers, 358 U.S. 522, 527-28....... | 9

Ashwander v. Valley Authority, 297 U.S. 288.............. 14

Baber ©. Carr, SED UE. THR, BBs occ nes ccsnvscnsccsicsss QE

Borden’s Co. v. Baldwin, 293 US. 194, 213....... ....-4, 14, 15, 20

Brown v. Board of Education, 347 U.S. 483, 493...... 4-5, 10, 13, 19

Carrington v. Rash, 380 U.S. 89, 96 ..... pe SEN SP ee eee tv - 16

Chicago & Grand Trunk ‘Railway v. Wellman, 143 US. 339,

DE: ine bVbK OR hes ey coke ake oes Gee een “ee:

County School Trustees v. Common School District No. 6,

‘284 S.W. 306, 307 (Tex. Civ. App. 1926)............ tees. |

Detroit Board of Education v. Michigan, No. 103342, Circuit

Court, Wayne County, BEbGR........ 0 ccccssecccsccessees 5

Douglas v. California, 372 US. 353.........ccccccecccces 12 -

Griffin v. Illinois, 351 U.S. 12....... CeEkupe a WEsAdaaeeakes 12

Griffin v. School Board, 377 US. 218...........c.eccseee- 11

Grosjean v. American Press, 297 U.S. 233, 250....:........ 16

Hall v. St. Helena Parish School Board, 197 F. Supp. 649, 657

(E.D. La. 1961) aff’d, 368 US. 515................0-. 6, 11,17

‘Hammond v. Schappi Bus Line, 275 US. 164,.172.......... 15

Harper v. Virginia Bd. of Elections, 383 US. 663 ........ 12, 13, 16

Hunter v. City of Pittsburgh, 207 U.S. 161, 178............ 17

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Pe eB Res cients tee ino gird BNR shaddainhAL athe ; i

Se ML Ci hs Sethe Wn ah od Sich Weg esa Siew

(ii)

Cases—Continued ~ | | Page

Kennedy v. Silas Mason Co., 334 U.S. 249 ..... 3 OAR Pa 15

Kinney v. County Bd. of School Trustees, 7 Ill. App. 2d 286,

> FR ee ii ois nerevncssensccnsns Fee:

M cLaughlin ¥. Florida, 379 US. 184, 190....... ochcKcek on oe)

McLaurin v. Oklahoma State Regents, 339 U.S. 637 vee

Morey v. Doud, 354 US. 457, 465-66. .........0.....0006- 9,13

Murdock v. Pennsylvania, 319 U.S. 105, 115....... aevenses 16

Pale Ca. ©. Ge, See Us Bg TMs soc csnsvccivccccctseess BEM

Prince v. Massachusetts, 321 US. 158, 164.............:.. 16

Rescue Army v. Municipal Court, 331 U.S. 549............ —

Reynolds v. Sims, 377. U.S. 533,-562..... ee EE ee 7, 13,17

Rinaldi y. Yeager, 384 U.S. 305, 308-09...............006. 9

Rodriguez v. San Antonio Independent School District, No.

a ng Sis SE BU ees ccccetacenercoune 5

Schneider v. -State, Mes vacavesdeaseaciaeees 16

Serrano v. Priest, No, 938254, Superior Court, County of Los —

Ampeles, Calta. 2.265 cc cweceecccscessccccccrcseseences ~ 3,5

Skinner v. Oklahoma, 316 US. 535, 541. eaucndeiaawsenacewe 17

Sweatt v.' Painter, 339 U.S. 629.............c cece ee eee a BD:

United States v. Auto Workers, 352 US. 567............... 15

. United States v. Carolene Products Co.; 304 US. 144,152,n.4 16

United States v. Jefferson County Board of Education, 372

F. 2d 836, 899-900, 380 F. 2d 385, 393-394, cert. denied 389

Reni ene Seats 19

Williams v. Rhodes, 393 US. DM akaccepnekanreseseee 17,18

Wilshire Oil Company v. United States, 295 U.S. 100, 102-103 15

MISCELLANEOUS :

A. Wise, ‘Rich Schools, Poor Schools, 93-112 (1968)........ 6,10

Allen, The State, Educational Priorities, and Local Financ-

ing Integrated Education 55, 58-59 (Sept.-Oct. 1968) .. 7

ik Ss A ia ss ciceindathcatpeckusaustinssas cas 6

California State Department of Education, Average Daily

__ Attendance and ‘Selected Financial Statistics of California

School Districts 1965-66, pp. 134, 115 (1967)............ 7

‘F. Keppel, The Necessary Revolution in American Education

80 (1966) 2... eee eee cece eet e eee ee eect ees eeees 4

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Te a OF ° Sa eis “ ‘

Ri D bitin BBD 288 Rat bg AEA a Aral ts ite Thighs Ne SH

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(iii) eg

Miscellaneous—Continued

Fels Institute of Local and State Government, ‘Special ‘Bae

cation and Fiscal Requirements of Urban Schoot Dtstricts .

im pana: (BB) CAIN) 5 on nas eects cecacecscs 11

Horowitz, Unseparate but Unequal—the Emerging Fourteenth

Amendment Issue yn Public School eee 13 U.C.L.A.

‘a OR PI ono ee ees ae ot ees 5

Horowitz and Neitring, Equal Protection Aspects of Inequali-

ties in Public Education and Public Assistance Programs

from Place to Place within a State, 15 U.C.L.A. L. Rev.

ey i ak oak OCR Eee ae EK CaUAAGS A ONO NEee hae es 8

We a iy ova cs es akeccanee shear EO AD 8

_J. A. Thomas, School Finance and Educational Opportunity

eS I rer eee 7, 10

J. Conant, Slums and Suburbs 145 (1961)...........-.... 4

J. Quincy, Municipal History of the Town and City of Boston

; 8 Ske ery rT Se rrr a) oan 4

- Karst, Legislative Facts in Constitutional Litigation, Su-

preme Court Review 75, ee ee 15

I is i oc a BE rer iciekSicicinaanncees 6

Mich. Stat. Ann. 15.3402 (1968)......... eR a ee Oe 6

N. Y. Consol. Laws §§ 310, 1505 (McKinney 1953) . cithees

Office of Education, HEW, Profiles in School Support (1965) 8

Study Committee, Raising the Level of Public Education in

VE SN 5 nes che anne deen wees Cee enewns 8, 10

J bal

DOERR a8 RMN Ppa Dit AN i Neaibcbadionstid aeons thihicratiasieiést , sa! "

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| In the-

SUPREME COURT OF THE UNITED STATES |

October Term, 1968

No. 1033

Lryva McInnis, Et AL., APPELLANTS,

v.

Ricuarp B. Oamuvir, Er Au., APPELLEES.

APPEAL FROM THE UNITED STATES L DISTRICT COURT,

NORTHERN DISTRICT OF ILLINOIS, EASTERN ————

BRIEF FOR

American Federation of Labor—Congress of

Industrial Organizations

. American Federation of Teachers

International Union, UAW

Western Center on Law and Poverty |

AS AMICI CURIAE

INTERESTS OF- AMICI

1. The American Federation of Labor-Corigress of In-

dustrial Organizations is a federation of 122 national and

international labor organizations having a total membership

of approximately 12,500,000. The American labor move-

ment has throughout its history. sought maximum edu-

cational opportunity for all children. Unions played a

‘

major role in the establishment of public schools early in .

the 19th century and have continuously worked for the

extension and improvement of public education. This case

directly involves the quality of schooling and the integrity

of the public education concept in theory and in practice

throughout the United States.

2. The American Federation of Teachers is a union with ©

a membership of about 175,000 public school teachers. Its

locals are found throughout the country, with the greatest

concentration of locals and members in many of the states

where the issues raised in this case are most acutely pre-

sented. The financial problems of public education are of

direct concern to every one of its members and vitally affect

the realization of the educational goals for which the AFT

has striven throughout its existence.

3. The United Automobile Workers and its nearly one and |

a half million industrial-worker members are vitally inter-

ested in quality public education for all our children. Hav-

ing long supported the interests of the disadvantaged and

the poor, UAW believes strongly in equality of educational

opportunity and believes that a public education system

built on inequality plainly violates fundamental constitu-

tional guarantees. —

4. The Western Center on San and Poverty, funded pri-

marily by the Office of Economic Opportunity, is a con-

sortium of OEO-supported legal services programs and

law schools in Southern California. It serves as a central

research and technical assistance agency for these legal

services programs, and has been active in efforts to achieve

equality of educational opportunity for the poor. Lawyers

affiliated with the Center are counsel for plaintiffs in

Serrano v. Priest, No. 938254, Superior Court, County of .

Los Angeles, similar to the case now before this Court.

quotes s10---

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STATEMENT: WEIGHTY CONSTITUTIONAL IS.

SUES ARISE FROM PUBLIC EDUCATION _IN-

EQUALITIES IN ILLINOIS AND a

OTHER STATES OF THE UNION.

“This case raises novel and: important constitutional ques-

tions concerning the financing of public school education.

in Illinois. Pl#ntiffs challenge a system

. accident of a child’s place of residence detérmines\whether

he receives a superior, an average, or a greatly i ferior

public education. Notwithstanding the gravity‘of the\gon-

stitutional issues evoked, the Court below dismissed pla}

‘ tiffs’ claim on the bare pleadings, without the benefit of -

a trial of the material facts necessary to informed adjudica- —

tion of the complex issues at bar. Amici in this brief-urge

that the District Court erred in resolving these questions

in the present posture of the case. We suggest that this

Court remand to the District Court for a trial of the ma-

terial facts because ‘‘. . . it is. inexpedient to determine

grave constitutional questions upon a demurrer to a.com-

plaint, or upon an equivalent motion, if. there is a rea-

sonable likelihood that the productidn of evidence will make

-the answer to the questions clearer’’ \Borden’s Co. v. Bald-

win, 293 US. 194, 213 ee opinion | of Justices

Stone and siarossnnit

In the pending case this Court’s attention is directed

for the first time to tragic inequalities in.the public educa-

tion systems of many of our. states. See generally F. Kep-

pel, The Necessary Revolution in American Education 80

(1966) ; J. Conant, Slums and Suburbs 145 (1961). In its

early years the public education movernent in the United

States gave promise of a great egalitarian reform: the

children of poor families unable to afford private educa-

tion would receive their preparation for life and livelihood

through public support. J. Quincy, — History of

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2 Wee Cn ete asin teks Mnaheraiion Bats med aciee Cae ? = ,

3 .

the Town and City of Boston 21-22 (1852). See Brown v.

Board of Education, 347 U.S. 483, 493. . But it was soon

discovered. that some localities were too impoverished to '

bear so-significant a fiscal burden from local tax revenues ;.

accordingly, early in the development of our public educa- ~

tion systems ‘most states adopted equalizing ‘‘flat grant’’

and ‘‘ foundation . plan’? payments of direct state money”

supplements to local school districts. —

Today it is clear that these state aid messures have

failed in their egalitarian intent. For in numerous states

(including the largest and most populous ) there exists a

first rate public education for some ‘children, only passa-

ble schooling for others, and a vastly inferior public educa-

tion for children in poorer areas—chiefly our central cities

and small rural localities. Public education in many of

our states presents a picture of four-fold inequality: i

_gross malapportionment of school districts with respect

to their resources for school finance; ii. great disparities :

(as much as 7 to 1) between school districts in per-pupil ex-.

penditures; iii. vast inequalities in the public education

thus provided for children within the same state; and iv.

* inferior public schooling and preparation for life and liveli-

hood for the poorest and most needy children. These

multiple inequalities underly this case and similar suits

pending in state and federal courts in California,’ Michigan,’

and Texas,® which invoke substantial equal protection is-

—~sues_under this Court’s previous decisions. See generally

Horowitz, Unseparate but Unequal—-the Emerging Four-

teenth Amendment Issue in Public School Education, 13

-U.C.L.A. L. Rev. 1147. (1966).

i. Malapportionment of School Districts. The idtinada

1 Serrano v. Priest, No. 938254, Superior Court, County of Los Angeles,

Cal., dismissed January 8, 1969 on authority of present case.

2 Detroit Board of Education v. Michigan, No. 103342, Cireuit Court,

Wayne County, Mich.

23 Rodriguez v. San Antonio Independent School District, No. 68-175 S. A.,

U. 8. D. €., W.D. Tex. °

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cause of the constitutional infringements presently in issue

is the malapportionment (or non-apportionment)' of “—

districts with respect to their ability to finance public e

cation.. Under state laws and constitutions throughout

the nation public education is a state responsibility,‘ and

the establishment of school districts* and operation of

public schools is regulated by state law. Typically, the leg-

islature provides that, except as supplemented by state pay-

_ ments to local districts, the prineipal fiscal burden for the

_ operation of public schools is borne by local levy of taxes

' upon property withih the school district A. Wise, supra note

5 at 127. Due to historic fortuity aggravated by the

force. of political inertia, today’s school districts are

grossly malapportioned with respect to their ability to

finance from local revenues the education which it is their

function to provide. Measured by per-pupil assessed

property value in the district, the magnitude of the mal-

apportionment in ability. to finance education at compara-

ble property tax rates is typically on the order of 50 to 1,

100 to 1, and even greater disparities between the state’s

wealthiest and poorest districts. In Illinois the Monticello

District has a per-pupil valuation of property available

for school taxation of $114,000, while Brookport District .

has $3,000; in Michigan the River Rouge District’s -prop-

. erty valuation per pupil is $53,156, while Forsyth is $1,319;

in California the Big Creek District has $306,077 per aver-

4 State constitutions commonly provide that public education is a, state

function entrusted to the preservation and control of the legislaturé.

. Mich. Const., art. VIII;.[ll. Const., art. VIII; Cal. Const., art. IX. See |

Hall v, St. Helena Parish School Board, 197 F. Supp. 649, 657 (E.D. La.

1961) aff'd, 368 U.S. .515.

5 N.Y. Consol. Laws §§ 310, 1505 (McKinney 1953); Mich. Stat. Ann.

15.3402 (1968) ; Kinney v..County Bd. of School Trustees, 7 Ill. App. 2d

286, 289, 129 N.E. 2d 292° (1955); County School Trustees v. Common

School District No. 6, 284 S.W. 306, 307 (Tex. Civ. App. — A. Wise,

Rich Schools, Poor Schools, 93-112 (1968).

:

ape daily pupil ettnntenn, while Olinda District

,698; the. range in New York is from over $200,000 ,

- under $5,000." aan \

‘ The gross malapportionment of wits sdhool districts © \

with respect to their ability to provide comparable educa-

tion surely gives rise to profound constitutional questions

under this Court’s. rulings. In striking down malappor-—

tionment of state legislatures, this Court has emphasised »

that legislators ‘‘represent people, not trees or acres’’

(Reynolds v. Sims, 377 U.S. 533, 562), and that a system

which gives one citizen substantially more voting strength

than another in the selection of the. legislature anti- |

‘ thetical to the very function of representing these citizens.

In like measure, gross malapportionment of school districts -

with respect to their taxable wealth—and thus their ability

to finance public schooling—dissérves the very furiction of |

providing public education for which school districts exist.

As ‘much as there is no credible ‘basis for favoring one

voter over another in the voting booth, education:.is a

process of instructing individual human beings in which

no rationality underlies the preferment of a child in one

school district over the child residing in another. Yet

exactly that preferment arises from: the existing malap-

portionment of school district wealth, which results in

- major and arbitrary inequalities in the actual funding

_ of public schools within different districts of the state.

ii. Disparities in School Funding. The malapportion-

ment of school districts with respect to their taxable wealth _

results in great disparities in school funding, notwithstand-

6 See Appendix, infra, p. 25; J. A. Thomas, School Finance d Edu-

eational Opportunity in Michigan 20 (1968) ; California State Department

‘of Education, Average Daily Attendance and Selected Financial Statistics

of California School Districts 1965-66, pp. 134, 115 41967); Allen, The |

State, Educational Priorities, and Local Financing, Integrated Education

_ 55, 58-59 (Sept-Oct. 1968).

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ing state ‘‘equalizing’’ supplements and the heavier. tax

rates which poorer districts typically impose to meet mini- ©

mum education requirements. « Thus, most, states provide

per-pupil ‘‘flat grants’’, and ‘‘foundation plan’’ supple-

- ments to school districts in amounts as high as $300 or

$400 per child—supplements usually somewhat weighted to

favor the poorer school districts. However, the state aid

amounts are usually at or near. the lowest per-child ex-

penditure levels in the state so that their equalizing im-

pact is very limited. _Then too, poorer districts .tend to

impose on themselves substantially higher school tax rates

to produce school revenues: in the present case the record

shows poorer Illinois districts imposing as much’as two

and three times the tax rate of the wealthy districts and.

as much as the statute allows. See Appendix, infra, p.

25. Yet these efforts to reduce the impact of ‘school

district malapportionment leave gross ‘inequalities, as high

as 7 to 1, between the per-child expendittre in the. state’s

wealthiest and poorest districts. Thus, in Virginia the

_. annual per-child expenditure ranges from $541 in Arling-

ton County to $72 in Buchanan County ; in Illinois from

$1,084 in Flannigan District to $350 in Albers; in Cali-

fornia from $1,353 in one elementary school district to

$265 in another; in New York from $1,600 to $470." See

also Office of Education, HEW, Profiles in a School Support

70-74 (1965).

No discernible pattern underlies the differing. Jevels of

- per-child public school expenditure within different dis- |

tricts of the. state. A map of school district expenditure ~

levels is a “7 quilt of fortuitous ilaaeaaieabies _be-

. 1 Study Committee, Raising the Level of Public Education in Virginia

98-103 (1967); Appendix, infra, Pp. 23; Horowitz and. Neitring, Equal

Protection Aspects of Inequalities in Public Education and Public Assis-

tance Programs from Place to Place within a State, 15 U.C.L.A. L. Rev.

787, 806; Allen, supra n. 6 at 58.

Fe ad ae Rly tek a el A ne Sit dae SI AB i Al ata Rh S as hth wala aed tah Ad aioe

3

cause the state’s investment in the public education of its’

children simply reflects haphazard variables of disparate

-local wealth and effort. ‘Once again this Ceurt’s rulings

become pertinent. Where the state legislature has made

materia} distinctions favoring some classes. and groups

against others, this Court has gone far to uphold them |

in deference to state judgments of public policy; but where

state law vests wholly haphazard and arbitrary disad-

vantages on persons not differently situated there is no. Ԥ-

' oecasion for judicial deference to any state policy judg-

ments. See, e.g., Morey v. Doud, 354 U.S. 457, 465-66 ;,

McLaughlin v. Florida, 379 U.S. 184, 190; Baker v. tase,

369 U.S. 186, 226; Allied Stores of Ohio v. Bowers, 358 U.S.

522, 527-28; Rinaldi v. Yeager, 384 U.S. 305, 308-09. Just

such haphazard disadvantagé is the result of existing public ©

school funding differentials, for a district with a half or

third as‘much as another to spend for educating the school —

child necessarily offers a vastly inferior public education.

iii. Inequality in Educational Offering. What children

-receive in public schools is not money but education. Thus,

the ultimate test of equal protection in public education

looks beyond, school district wealth and expenditures to *

the actual education offered to school children. Such seru-

tiny confirms the obvious: a child receiving a public school

education at an annual expenditure level of $400-$500 is

afforded schooling far inferior to the child for whom

$1,000 is expended ir a wealthier district. To some-extent

a. poor district can compensate (at the price of inferior |

teaching capability) by paying lower salaries. Cost reduc-

tion is also achieved by having fewer teachers, thus suffer-

- ing large and overcrowded classes with a reduced teaching

_ and learning capability. Poorer districts also must forego

facilities expensive to procure and maintain—libraries,

laboratories, gymnasiums, special courses, remedial in-

ML OE

10

. struction, counseling,’ and the like. These disadvantages

have been highlighted in a recent study by the Michigan

Department of Education—‘‘School Finance and Educa-

tional Opportunity in Michigan’’ (1968). Data there set

forth (pp. 22-57) show the Glosest correlation between an-

nual per-child expenditure levels and such education ele-

ments as class size, special classes and programs, teacher

preparation, full-time principals, counseling services, re-

search and testing, science laboratories, and library fa-

cilities. Similarly a recent Virginia report revealing school

district disparities of per-pupil expenditures as great as

- 7 to 1 demonstrates parallel disparities in the districts’

number of classrooms with more than 30 students, and in

_ the percentage of teachers with degrees and some form of

‘certificates. These correlations demonstrate the obvious

truth that more money buys a better education.

In sum, the available evidence shows that, as a con-

sequence of existing school district malapportionment, .

children in wealthier school districts receive a quality

public education while those in‘poorer districts are offered

cheap and inferior schooling. Such public school inequality

thrust upon children merely because of the poverty of their -

school district invokes a serious issue of equal protection.

While arising in a racial setting, in cases under the Plessy

“doctrine (e.g., Sweatt v. Painter, 339 U.S. 629; McLaurin

v. Oklahoma State Regents, 339 U. S. 637) this Court found

a right of public school equality to inhere in the Equal Pro-

tection Clause, which survived until Brown v.. Board of

Education, 347 U.S. 483. In turn, Brown. reiterated the

right to equality in public education, emphasizing that with |

respect to the opportunity of an education ‘‘[s]uch an op-

portunity, where the state has undertaken to provide it, is

a right which must be made available to all on equal terms”’

8 Study Committee, supra, note 7 at 35-40, 47-49, 80-82, 98-103. See also

' A. Wise, supra note 5 at 136-38.

eS ee eG

1i

(Id. at 493, our emphasis). That right was upheld against

state infringement in Griffin v. School Board, 377. U.S. 218

and in Hallv. St. Helena Parish School Board, 197 F. Supp.

649, 651 (E.D. La. 1961) aff’d, 368 U.S. 515, where fhe

District Court found that closing public schools in a single

parish of the state would ‘‘unfairly discriminate against

' the residents of that parish, irrespective of race.”’

Under this Court’s previous rulings gross and arbitrary .

public education inequality invokes a serious constitutional

question. It does so all the more in view of the fact that —

‘it is the children of the poor—those most needy of educa-

tion—who are the principal victims of the present in-

equalities.

iv. Inferior Public Education for the Poor. The ulti-

mate paradox illumined by the pending case is that while

children in the state’s affluent areas enjoy high quality

public education, the needy children of urban slums and

rural poverty are condemned to suffer cheap and inferior

public schooling. While members of state legislatures may

not consciously intend it, because community wealth is the

key determinant of the public education offered the in-

evitable consequence of the present inequalities is that poor

children most needy of a good public education ° are those

most often: denied it. 3

_ The economics of home ownership have produced great |

9“Using achievement test data for the school year 1962-63, the study

found a substantial difference in the educational requirements of: urban,

suburban and rural school populations. . Urban districts, as defined in this

study, contained 25 percent of the state’s publie school pupils. Yet, these

same districts contained 66 percent of the state’s pupils in school districts

or attendance areas with average achievement test scores one-half grade

or more below equated norms. Pupils in suburban districts represented

49 percent of the state’s pupils and only 8 percent of pupils in low achiev-

ing districts or attendance areas. Pupils.in rural districts represented 26

percent. of the state’s pupils and a proportional 26 percent of the pupils

in low achieving districts.” Fels Institute of Local and State Government, .

Special Education and ‘Fiscal Requirements of Urban School Districts in

Pennsylvania (2-3) ie .

12°

areas of wealth and poverty within the state... Where the |

wealthy live property values are high and a large taxable

base exists for financing public schools. Conversely, the

poor live where property values are the lowest and where,

nder the present system of malapportioned school dis- .

iricts, the least taxable property is available for public -

education. The poor are thus caught in a vicious circle

where the offering of unequal public education in different -

school districts thrusts the disadvantages of the father

upon the child. From public revenue the children of

wealth obtain a first rate public education enabling them

‘to go on to college, career, and continued affluence. Mean-

while, the children of the poor are afforded inferior public

schools where they are discouraged from graduating, ed-—

ucated too poorly to enter college, and thus prepared only

for a life of continued poverty. ae

Without .overstatement it can be said of the present

situation that the state is operating a system of public

education which perpetuates the prospects of a lifetime of

poverty for the children of the poor. In Griffin v. Illinois,

351 U.S. 12, Douglas v. California, 372 U.S. 353, and

Harper v. Virginia Bd. of Elections, 383 U.S. 663, this.

Court struck down laws having unequal effect upon the

poor. As the Court reminded in invalidating. the Virginia

poll tax in Harper (at p. 668), ‘‘Lines drawn on the basis

of wealth or property, like those of race... . are tradition- .

ally disfavored.’’ To deny any children equality of public

education merely because of the poverty of their school

district is bad enough. Systematically to thrust inferior

_ public education upon the children of the poor, perpetuat-

ing family poverty from generation to generation, is to

exceed all defensible bounds.

+ aeame fe seagate -

“The foregoing exposition underlines ‘the multiple in-

equalities existing in public education in many of our

states and highlighted in the present case—malapportion-

ment, of school district wealth, disparities in public school

funding, inequality of public education, and inferior public

education for children of the poor. Each of these inequali-

ties presents a tangible constitutional question, and mani-

festly the confluence of all four raises a substantial equal

protection issue. See Reynolds v..Sims, supra; Morey v.—

Doud, supra; Brown v. Board of Education, supra; Harper —

v. Virginia Bd. of Elections, supra. Surely the -constitu-

tional questions plaintiffs sought to plead entitled them

to a trial. However, by summary dismissal of the action

the Court below short-circuited the process of constitu-

tional adjudication. We urge in the Argument that this

Court return the case for a trial, where the material facts.

governing the grave constitutional issues presented can be

adjudicated through orderly process.

10Tn urging that grave constitutional questions arise from inequality of

public education in different districts within the state, we do not mean to

suggest that similar inequalities as between states of the union would invoke

constitutional doubts. To suggest that states vis-a-vis the federal govern-

ment are analogous to local school districts vis-a-vis the state would be to -

defy the teaching of history and the nature of the federal union. In a

similar setting involving malapportionment of the legislature, this court in

Reynolds v. Sims, 377 U.S. 533, 574, recently: — such | an analogy

in presently applicable terms:

“The system of representation in the two Houses of the Federal

Congress is one ingrained in our Constitution, as part of the law of-

the land. It is one conceived out of compromise and concession indis-

pensable to the establishment of our federal public. Arising from

- unique historical circumstances, it is based on the consideration that

in establishing our type of federalism a group of formerly independent

States bound themselves together under one. national government.

Admittedly, the original 13 States surrendered some of their sover-

eignty in agreeing to join together ‘to-form a more perfect Union.’

But at the heart of our constitutional system remains the concept of ~

separate and distinct governmental entities which have delegated some,

but not all, of their formerly held powers to the mngle | national

government .. .”

14

ARGUMENT: THE COURT BELOW ERRED IN DE-

CIDING CONSTITUTIONAL ISSUES NOT PROP-

ERLY RESOLVABLE BEFORE TRIAL OF THE MA-

TERIAL CONSTITUTIONAL FACTS.

Vital constitutional questions inhere in the pending suit,

but on the present record the Court below was not in a

position to resolve them. This Court’s general rule against

premature constitutional adjudication (Ashwander v.

Valley Authority, 297 U.S. 288; Rescue Army v. Municipal

Court, 331 U.S. 549) has special applicability where on the

bare pleadings a court. does not yet have the material facts

for resolution of a novel and important constitutional issue.

The impropriety of constitutional decision on the plead-

ings is highlighted by Borden’s Co. v. Baldwin, 293 U.S.

194, 209, where the Court refused to decide a constitutional

issue at the pleading stage because it turned on ‘‘facts

which are the proper subjects of evidence and of deter-

minations of fact by the trial court.’’’! The principle has

special applicability where the relevant facts are complex

or there is-presented a major constitutional question of.

11In Borden’s the Commissioner of Agriculture of New York was sued

by a party asserting that the state’s milk control law violated the Four-

teenth Amendment. After presentation of opposing affidavits a three-

judge District Court dismissed the complaint for failure to state a consti-

tutional cause of action. This Court reversed for a trial of the —_

tional question:

' “For the present purpose, it is sufficient to say that these arguments

are addressed to particular trade conditions in the city of New York,

which. largely’lie outside the range of judicial notice. Counsel refer

to the affidavits submitted on the.motion for injunction. And we are

asked to extract from various tables and statements in.the reports of

the legislative committee, which were not addressed to the fixing of the

differential here in question, sufficient data upon which to predicate a

judgment. But the case is not before us upon evidence, or upon deter-

minations of fact based on evidence, as the complaint was dismissed

solely in the view that it failed to state a cause of action ... the

decision of this appeal should not turn on . . . facts which are the

proper subjects of evidence and of determinations of fact by the

trial court” ad U.S. at .208- 209). ,

wise

. 3

F med 7

- 15

first impression. As emphasized in Borden’s (at 212),

the Court’s earlier ruling in Hammond v. Schappi Bus Line, —

275 U.S. 164, 172, held that ‘‘before the questions of con-

stitutional law, both novel and of far reaching importance,

- were passed upon by this Court, ‘the facts essential to

their decision should be definitely found by the lower courts ©

upon adequate evidence.’’’ Accord: Polk Co. v. Glover,

305 U.S. 5, 10; Wilshire Oil Company v. United States,

295 U.S. 100, 102-103; ef. Chicago & Grand Trunk Railway

v. Wellman, 143 U.S, 339, 346. This-important principle

was recently applied in emphatic terms in Umted States v.

‘Auto Workers, 352 U.S. 567. There, upon direct appeal .

from. a district court dismissal this Court declined to re-

solve constitutional issues because ‘‘only an adjudication

on the merits can provide the concrete factual setting that

sharpens the deliberative pracess especially demanded for

constitutional decision.’”? Noting that ‘‘[mJattér now

buried under abstract constitutional issues may, by the

elucidation of a trial, be brought to the surface,”’ the Court

emphasized that allegations -‘‘hypothetically framed to

elicit a ruling from this Court or based upon misunder-

standing of the facts may not survive the test of proof -

(Id. at 591, 592). Cf. Kennedy v. Silas ae Co., 334 U.S.

249, 256-57.

This Court’s warning coniua resolution of oe and

novel constitutional i issues upon bare pleadings has mani--

fest applicability i in the present case. Avoiding resolution

of constitutional questions on the pleadings serves two

salient purposes: when a novel constitutional issue arises

from complex facts they should be clarified by a trial of

fact, which also serves to expose the critical contentions

_of the opposing parties bearing on the constitutional issue

for resolution: In te present case the disregard of the

governing principle, over the plaintiff’s objection. to pre- ‘

12 See also Karst, Legislative Facts in Constitutional Litigation, Supreme —

Conrt Review 75, 95-103 (1960).

Ce.

16°

mature resolution," leads the lower Court to salient errors

of fact and law. It applies the wrong constitutional stand-

ard in rendering a merits ruling which confuses and

obscares the central challenge at bar; it prematurely hy-

pothesizes judicial incompetence to establish workable con-

‘stitutional guidelines; and it obscures or begs relevant -

constitutional issues for lack of the material facts upon

which they turn. .

i. The Court below, while conceding that ‘‘the inequali-

ties of the existing arrangement are readily apparent,’’

(293 F. Supp. 327, 331) upholds the Illinois statutes on the

ground that they are supported by a “rational”? policy.

This test is drawn from cases involving equal protection

challenges to state economic regulation.. However, in an

individual rights setting this Court has long rejected ‘‘ra-

tional basis’’ as the applicable constitutional.standard. It

was, after all, the, principal thrust of. the landmark First .

Amendment ‘rulings some thirty years ago that individual

civil liberties take ‘priority even over legitimate state in-

- terests, such as taxation, regulation and licensing. “4 And

when ‘‘fundamental rights and liberties are asserted under .

the Equal Protection Clause, classification which might in-

vade or restrain them must be closely scrutinized and care-

fully confined.’’ Harper v. Virginia Bd. of Elections, 383

U.S. at 670. Accord: Carrington v. Rash, 380 U.S. 89, 96;

18 The burden of plaintiffs’ Brief in Opposition to the-motion to dismiss

below was that they had stated a cause of action upon which a trial was

necessary. Indeed, they emphasized that this ease turns upon a showing

of actual: inequality in education, for which a trial is required:

Plaintiffs may not be able to demonstrate the factual inequality upon

which their case is based. But the mere speculative difficulty of proof

ought not deprive Plaintiffs of a hearing. on such an. important question.

Once the fact of inequality is shown, judging the legality of those inequali-

ties employs traditional standards” (Brief in Opposition, p. 81).

14 Schneider v. State, 308 U.S. 147, 161; Prince v. Massachusetts,

321 U.S. 158, 164; Murdock v. Pennsylvania, 319 U.S. 105, 115; Grosjean

v. American Press, 297 U.S. 233, 250; see United States v. Carolene Prod-

ucts Co., 304 U.S. 144, 152 n. 4.

Pi Bas

\ a

Reynolds v. Sims. 377 U.S. at§61-62; Skinner v. Oklahoma,

316 U.S. 535, 541; Williams v. Rhodes, 393 U.S. 23, 31.

Mistakenly employing a 4‘ rational basis’’ criterion, the

District Court compounds the error by: a merits, decision.

which confuses and obscures the actual const" ynal chal-

lenge at bar. ‘The Court belabors. the vir’ — ‘‘local

control’’. of education and public school expen -e. What

plaintiffs challenge is not local control, but: the right of

the state in providing education for its people to escape its

equal protection responsibility—by delegating tax power to

subdivisions greatly unequal in taxable resources for their

school populations without compensating state financial as- -

sistance to avoid gross inequalities. As the Court stated in

Hall v. St. Helena Parish School Board, 197 F. Supp..649,

. 657 (E.D. La. 1961), aff’d, 368 U.S. 515, localism ‘‘does not

excuse inequalities in a state-wide, centrally financed and

administered, system of public institutions.’’ The state can- \

not avoid its constitutional responsibility under the Equal

Protection Clause by ‘‘carve-outs of small units’? (Id. at

658). As this Court recently noted in an analogous context

in Reynolds v. Sims, 377 U.S. 533, 575.

‘Political subdivisions of States—counties, cities

‘or whatever—never were and never have been con-

sidered as sovereign entities. Rather, they have been -

_ traditionally regarded as ae ‘governmental

instrumentalities created by'the State to assist in the

carrying out of state governmental. functions. As

stated by the Court in Hunter v. City of Pittsburgh,

207 U.S. 161, 178, these governmental units are created

‘as convenient agencies for exercising such of the gov-

ernmenta} powers of the State as may be entrusted to

them,’ and the ‘number, nature, and duration. of the

powers conferred upon [them] . . . and the territory

over which they shall be exercised rests in the absolute

discretion of the State.’ ”’

diate Riek

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The present objection is not to such public education in-

* equalities as may result from local differences in school tax

rates. Appellants’ objection is that due to malapportion-

ment they are denied equal schooling, although their

_ school districts have taxed at the highest rates permitted

by Illinois law and well above those of wealthier school.

districts. Under these circumstances the District Court’s -

constitutional ruling confusing differing local effort

‘with the critical-issue of school district malapportionment

was-error, which underlines the wisdom of withholding,

constitutional decision until:the adversary trial process has

refined and clarified the precise contentions being urged by

the opposing parties. ) ..

ii. Equally demonstrative of the dangers inhering in

premature constitutional decision is the District Court’s |

ruling that this case.must be dismissed because no consti-

tutional standard of public education equality can be

judicially defined should the existing Illinois statutes be

‘found invalid. Without even postulating the central con-

stitutional wrong (school inequality resulting from district

wealth malapportionment) the Court hypothesizes inability ~

in-any event to define the applicable constitutional right.

* But decisions of this Court emphasize that where a state

law transgresses equal protection, courts will so rule with-

out necessity for defining to the legislature alternative

measures which would meet vonstitutional ‘requirements.

‘See, e.g., Williams v, Rhodes, 393 U.S. 23 (and concurring

opinion, of Mr. Justice Harlan at 48); Baker v. Carr, 369

U.S. 186.5 Thus, the degree and character of the edu*

15 As this Court held in Baker v. Carr, 369 U.S. at 226, to succeed in an

equal protection challenge, litigants need not

- “ask the Court to énter upon policy determinations for.which judicially

manageable standards are lacking. Judicial standards under the

Equal Protection Clause are well developed and familar, and it has

been open to courts since the enactment of the Fourteenth Amendment

to determine, if on the particular facts they must, that a discrimina- -

~ py ey

tion reflects no policy, but simply arbitrary and capricious action.”

WA et tam aS os sas che Casta ea nk ale Nn Ae ie tne oer th te SS NT

19

cational inequalities demonstrable in the present case may

. result in a finding that equal protection has been breached, ~

leaving the legislature free to éhoose ameliorative meas-

ures of school district apportionment or school fund supple-

mentation which would conform with the equality guaran-

- tee. as. ‘

' . In any event, for | purposes of the present challenge, teins

is no need to invoke either of the constitutional standards

the Court below eschews: dollar equality for pupil educa-

tion, and expenditures tailored to individual educational

need. Rather, the dispositive constitutional standard ade-

quate for the case at bar’is one wih Aoal preclude a

state from subjecting some of its cb#fdren to tangibly in-

ferior public.education by reason of school district wealth

malapportionment. But whatever constitutional standard

may ultimately prevail, the Court below plainly puts the

cart before the horse when at the pleadings stage it pre-

‘dicts judicial inability to define any constitutional right. of

equality in education. This Court was able to define and

apply ‘‘equality’’ in the separate but equal cases arising: ou

from Plessy—Sweatt v. Painter, 339 U.S. 629; McLaurin v.

Oklahoma State Regents, 339 U.S. 637—and lower courts

’ applied that rule to entire school systems. See Brown v.

Board of Education, 347 U.S. 483, 486, n. 1; ef. United States

v. Jefferson County Board of Education, 372 F. 2d 836, —

899-900, 380 F. 2d 385, 393-394, cert. denied, 389 U.S. 846

It seems equally likely that in the present context a work- °

able constitutional standard will emerge when the principal

constitutional points have bgen clarified by trial proceed-

ings, and that at this stage the problems of judicial

_ competence anticipated by the District Court: are entirely

conjectural and premature. ; =

ili, Finally, for want of the material facts the ruling

below begs the: critical constitutional issues. These are |

“issues concerning the inequalities cited by plaintiffs and — |

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the justifications advanced by defendants, and they are nu-

- merous: What degree of school district wealth malappor-

tionment exists in Illinois, how did it originate, and what

state objectives does it serve? How far is malapportion-

ment in ability to. finance education as between school

districts reflected in unequal expenditures. per pupil, both

‘ before. and after state equalizing supplements and in-

creased -local tax rates?. How severe is the actual

inequality in public education offered to children in IIli-

nois, particularly as concerns teacher-pupi} ratios, qualifi-

. Cations of the teaching staff, educational facilities and re-

sources, school equipment, libraries, laboratories, gymna-

siums, and other like indicia? What is the effect of public

education inequalities upon pupil achievement—do they sys-

_tematically affect the children of poorer families. so that

they are further disabled from overcoming their heritage

of poverty? It is these’ and similarly seminal questions

which the Court below entirely obscures, when without

benefit of the material facts it purports to decide the ulti-

mate constitutional questions.

4

CONCLUSION

‘The mistake of the Court below was in reaching and de-

ciding ultimate constitutional issues at a preliminary ‘stage

‘of. the proceedings when meaningful adjudication was

not yet possible. In numerous respects the opinion below.

attests to the wisdom of this Court’s Borden’ s stricture

- against the resolution of complex and novel constitutional

issues upon the pleadings. The lower Court’s opinion con-

firms the ‘‘salutory principle’’ that the ‘‘essential facts

should be determined before passing upon grave constitu-

tional questions... .’? Polk Co. -v. Glover, 305 U.S. 5, 10.

_ To invoke that principle here, this Court can and should:

reverse and direct a trial, and is free to ‘‘intimate no

opinion’’ on the ultimate merits issues at this juncture

- 21.

(Ibid.). This Court, of course, is in no better position to re- “

solve the constitutional questions presented before the mate-

rial facts have been established by a trial of the case. If

the Court were to note probable jurisdiction (or postpone

to the merits) it would be inviting detailed briefs by the

parties and amici curiae tendering facts which have not

- met the test of trial evaluation. If, on the other hand, the

Court were to affirm or dismiss, lower courts might treat .

. the action as precedent against the constitutional claims

. being advanced in other pending cases unless this Court’s

action were rested on procedural or pleading grounds,

We therefore most respectfully suggest that the Court

remand this case for a trial to develop the material facts

so that the vital constitutional issues presented can be

adjudicated through orderly process. Whatever may be

the ultimate outcome of the pending and future litigation

seeking to redress inequalities in public education, this

Court certainly would not want to approve the lower Court’s

sweeping and premature ruling on the merits of constitu-

tional issues so vital to the future of the nation.

Respectfully submitted,

Joseph. L. Rauh, Jr:

John Silard .

Elliott C. Lichtman

Of Counsel: Rauh and Silard

Benjamin V. Cohen 1001 Connecticut Ave., N. W.

Washington, D.C. Washington, D.C. 20036

Attorneys for Amict Curiae

22

J. Albert Woll

815 15th Street N.W.

Washington, D.C. 20005.

Thomas E. ‘Harris |

815 16th Street N.W.

Washington, D.C. 20006

Attorneys for AFL-CIO

John Ligtenberg

Andréw J. Leahy

134 No. LaSalle Street

Chicago, Illinois. 60602

Attorneys for American

- Federation of Teachers

_ Stephen I. Schlossberg

8000 E. Jefferson Ave.

Detroit, Michigan 48214

Attorney for International

- Union, United Automobile

Workers

Derrick A. Bell, Jr..

University Park

Los Angeles, Calif. 90007

Harold W. Horowitz:

405 Hilgarde Avenue

Los Angeles, Calif. 90024

Attorneys for Western

Center on Law and Poverty

23

APPENDIX

EsTIMATED EXPENDITURE Per Purit in SELECTED ILLINOIS

ELEMENTARY Districts : .

Total funds |

(including

. Assessed Tax Rate state

Valuation (per $100 supplement

District Name per average assessed payments)

daily ~ valuation) : per average

attendance daily

. attendance

Flannigan : $112,000 $0 .890 $1 , 084

Millbrook 87,000 0.835 815

Raccoon 75 ,000 0.838 716

Bryce Ash 65,000 : 0.860 . 639

Duncan . 57,000 . 0.935 . 610 |

. Freedom 52,000 0:764°——: 466

. Hill City . 48 ,000 1.067 592°

Argo Summit - 44,000 1.165 565 —

-Tonica - 41,000 0.910 444

Kildeer Countryside 39 ,000 1.590 ' 724

Irvington 37 ,000° 0.931 434

Belle Valley 35 ,000 0.897 | “et

Oskaloosa . 33 ,000 0.858 - 412

Lotus Country 31,000 1.350 543

Beaver Creek Comm. 29 ,000 * 1.120 477

Hines - 27,000 © 1.228 466

Brookfield | 25,000 1.457: | 521

Center Hill’ 23,000 1.032 429 .

Lenzburg_ 21 "000 0.849 _ 357

East Maine 19,000 1.650 511

South Stickney _- 17,000 1.520 470

Mill Shoals 15,000 ‘iii ~ 410°

Opdyke 13 ,000 1.170 414

Chicage Ridge 11,000 1.395 |. 409

Metropolis 9,000 1.089 379

Albers : 6,000 0.838 - 350

. Digested from tables 13, 15 and 17 of Brief in Opposition

to Defendants’ Motion to Dismaies. Data based on 1965-1966

Foundation Formula and 1964.tax rates.

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EsTIMATED EXPENDITURE PER PUPIL IN- SELECTED ILLINOIS

SeconDARY DIsTRICTS

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Total funds

(including

Assessed Tax Rate .. State

Valuation (per $100 supplement

District Name — per average assessed payments)

daily valuation) per average

attendance daily

attendance

Bellflower $168 , 000 $0 . 562 $1,012

Malden - 108 ,000 0.937 1,136

Neponset 93,000 — 1.019 1,064

Cornell - 85,000 0.957 962

Rochelle 77 ,000 0.857 749

Woodstock 74,000 0.836 . 728 -

Antioch 68 ,000 0.958 797 |

Henry-Senachwine 65 ,000° 0.857 655 |

Bradley-Bourbonnais 62,000 0.895 ‘637

Tower Hill | 59 ,000 1.020 711

Glenbard 56,000 1.178 730

Lisle 54,000 1.128 676

Fenton 51,000 1.208 684

Grayslake 48 ,000 1.304 © 748

Cowden 45 ,000 - 1.208 640

~ Flora 42,000 ~ 1°008 507

Rock Falls 39 ,000 1.230 567

Sumner 37 ,000 1.163 * 550

St. Francisville 32 ,000 '1.230. . 645

Riverton 29 ,000 1:077 * 44)

Alto Pass 26 ,000 1.210 _ +480

Christopher 24,000 1.230 - _ . 482

2

EstTIMATED EXPENDITURE PER PUPIL IN SELECTED ILLINOIS

Unit Districts '

; : ' . Total funds

Ane ot (including

Assessed Tax Rate state

. . Valuation (per $100 supplement

District Name per average assessed payments)

a daily valuation) per average

attendance _ daily —

| Sindy phe attendance

Monticello | $114,000 $0 .524 $672

Hartsburg-Emden 46,000 1.509 — * 792

New Holland — 42,000 1.467. ie

Melvin-Sibley . — 38,000 1.475 643

Stanford _ 36,000 1.504 623

Waverly 32 ,000 1.520 577

Hopedale . 30,000 1.535 557

Spoon River Valley - 28,000 1.634 572

Manteno - - 26,000 1.520 540

Mahomet LAG _ 24,000 1:520 — 521

Chicago. 7 23 , 000 1.856 — 585

Genesco , 22 ,000 1.416. _ 469

Pleasant Hill . 20 ,000 1.520 491

Rock Island 18,000 - 1.491 . - 475

Comm. Unit School : : >

(Robertson) - 16,000 1.520 | 451

North Green Unit 14,000 1.770 477

Marseilles’. 12,000 1.680 440

Pope County ; 7

- . Comm. U. 10,000 1.520 439

Cobden | _ 8,000 1.520 407 |

Bethalto 7,000 1.670 405

Brookport . 3,000 1.520 | 366

(6545-8)