Appellees Brief — Askew v. Hargrave

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SUPREME COURT, U.

IN-THE

Srpreme Couette Mate

Ocroser Term, 1970 | 7

“No. 573

“

Covernor Rusen ASKEW, successor to-and substituted

for Governor Claude R. Kirk, Jr., er a., Appellants,

Rosert H. Hancrave, et av., Appellees.

On Appes! From ihe United States District Coutt forthe

Middle District of Florida

sie ote isha

; Attorneys for Appellees

Davip Rusew °

” 1201 Sixteenth Street, N. W.

Of Comed 20006

———————————————————————————

Pauses of Breon 8. Avance Puuwtine, Lec., Waeureoron, D.C.

=>.

| TABLE OF CONTENTS *—-@

cai : i ; Page

Orixioxs BELow ....... eps hy ee Pe oe POTEET y

ASURIGQDECTION ......2'.-- over err Puseeaaaeves ee 2

— Questiox Presextep ........ Seeker es SED IS ieee

wearers ES ey ay eee ee eet bs ea , 8

DSA TIO DOE, Spe taney cewea ae) eet we

A. The Background: siemens Publie Kducation in_

- ME te Gree aee phe sive gst s $5 4 PEON Pep re 65

b. The Millage Rollback Act and Its Kiffeet Wee ne 10

i he Procedural History of Tits Case .......... 15

Sum MARY si ARGUMENT ..... RE ais a} Ppa ae is

ARGUMENT: “4 a *

1. The Millage Rollback Act Violates the Eeual ;

Protection € lauxe of the k ‘ourteenth Amendment. 18

A. An Analysis of the haul Piniesties Vio-

a Se ee EEO remit Fy oc

B. The Choice of a Stitudard of Review ....:... 21

~C, The Compelling Interest”? Tost Is Appli- |

cable Because the Millage Rollback Act ( las.

sifies Counties According to Wealth ........ 2,

1). The Line Drawn by the Millage Rélback Aet

‘Js Especially Invidious Because It Classifies

on the Basis of Wealth in Respect to the Allo-

eation of Edneational Resources ........... a)

1. The Importance of Mduneation ......... :. #

2 The Compulsory Nature of Kdneation ..... a6

ee Table of Contents Cont inued

Page

Ki. No Reasonable Basis, Let Alone. aC ‘ompelling

State’ Interest, Can Be-Found To Justify the

Distinctions Drawn hy the Millage Roliback

* FM sb ae baad Rev ce rere cca eae 41

I. The Significnnve. of Melanie v. Ogilvie, 394.

“GS. 322 (1969), and Purruss vy. Wilkerson,

306 US, 44 (1970), to the Case-at Bar ...... 0 47

1. Distinguishing Meliunis and Burruss 2... 50 |

® Welnnis aun Purruss Mould Be Limited «

‘to Their Precine Paets 2... 5 occcccceccccce 3

‘om. Kve en the Narrow Holding in Me fnnis ona”

Burruss Se WORINOEE oF hi cies nclstacek ce 7

AL Thix ( ‘ourt Should Not Abstain van Deciding

This Case in Deference to w State Court ..... SS

CCR AOS oe phase 4, FOP Pe eee, 2) Seay ware ge

Aneta Ao oo ses store eee ia pegaae eon 67

APSPENME TE. Sos sks Vtkee cos PPR rae ieee » 68

; $ — . e

TABLE OF AUTHORITIES

- CASES: : *

Anders vy. California, 386 ULS, 738 (1967) 0.0 0.0..... 20

Aptheker v. Seeretary of St: ate, 378 US. 500 (1964) ». ND

Ashwander'y. TLVLA., 207 US, 288 (19! 5) easter seen 63

naner ¥, Carr, HOP Oss: 100 (Tai cd ccviiivwtcessness a

Baldwin v. Seelig, 294,U0S, 511 (19; “he ee Ey wee Aig eae

Boddie v. Connecticut, No, 27, ee 1970 ere ee 3s

Brown v. Board of Edueation, 347 0 S, 483 abe 4) ior hes

! 59, 33,

Burns. v. Ohio. 260 US, 242: (#4) _ ) rere tae aes ‘a

Burrius< vy, Wilkerson, 105 US. 44 (1970), af 4 wews

210 Supp. 572 (WLD. Va. 1969) . 32, 47, 49, 50, 51, 52,

. ne, 4.5 yD, DG, v7, 59

‘Cafeteria Workers v. McElroy, 267 U.S, 886 (1964)... 18

Carrington v. Rasin 280 US, 89 (19605) ends aoe ve os AS, 4

Chew v. Colding, 2441.8. 590 (1952) ..¢...5.... reper. § 18

; Table of Contents ( ‘ontinued iii

: os e f x * ; | age

Cipriano v, City of Hounia, 293.0 S. 1061 (1969) ..... |

Dandridge v. Willinins, 297 0 x, $71 (1970) .. 29, 40, 41,58

Dixon v. Alabama State Board of Kdueation, 308 2d

150 (Sth Cir. + sig So v.ke 0 ¢k6 oa Wa hah oe oe “4

Douglas v. ( ‘aliforhia, : 2 U.S. 2523 (1963) .: O. 7 28, 29, °

20, 31, 32, 36, 38, 39, 57

Draper v. Washington, 02 US. 487 (1963) .......... 30

Kisen v. Mastman, 421 F.2d 560 (2d Cir. 1969) 200.0... 61

Kintsminger v. lowa, O86 US, 748 (1967) ..52........ . @

Mskridge v. Washington Stite Board, 357 ULS. "214

ME: ce cir aeecs eats ore ee |

Mornaris v. Ridge Tool Co., 400 US. 41 (1970) 200... oo

Mrost and Frost T rucking. C OV. “Teailpoad Comm'n,

971 US, 58% (1920) ET OTE Perr rr iy Per eee 18 °

-Garrity v. Ne w Jersey, OS) US. 4:3 ip TARPS ea gee Cae 18

~e Gomillion v. 1. isghtfowt, 364 U.S. SAB (1900) - 2. te ed: 46

(iriffin ve. PMinois, 351 US. 12 195 -) REG = athe 30, io

; < args 252, 23h, 8, 39, 46, 7

Griffin v. School Board of Prince Mdward C paca 377

US. 218 (RRR 6 4 yon ks aes AE RL ONSAE 8 Mier Se pee. 4

Griswold v. Connecticut. 281 US. 479 (1965) ae ee

Hague v. CIO, 307 US. 496 (1959) 000. oa... ae atacs 61

Hall v. Beals, 396 ULS, 45 (1967) .5.0...5.... Peeaaiee ee

Hall v. Garson, 430 F.2d 420 (Sth Cire 1970) o00002... (2

Halkv. St. Helena Parish School Hurd, 197 F.. Supp

649 (1D. a. 1961), aff'd, 268 US, 516 (1962 )'. Ft, 46

Hargrave ve MeKinney, 413 2d 320 (th Cire 1969) 015, 55

darman v. Forssenins, 280 0S. 528 ORO ole 60, 64, 65

Harper v .Virginia State Bourd of Mlections, 383 US! °

ee) reer ~ Ab TT

: 28, 31, 32 6. S85

Hobson v. Hansen, 269 FL Supp. 401 (DD 1967).

aft’d, sub nom... Smuck ve Wobson, 408 F.2d °175

(D.C. Cir. 1969) ...3.: Sos vines C206 caabse east i

Iinois y. Board of Education, 222 ULS. 208 (14948) ...°5 33

fn Re Antazo, 89 Cal Rptr. 255, 473 2.2 999 (1970) +. 29

Kramer v. Union Free School District, 295 US. 621

(ti 3 PPP ey Creer reve re eee FP PRPS tel eee 8, 22, 25

lane 'v. Brown, 372 U3, 477 (1968) ooo cic ccccccvcese, |

. Long v. —_ Court, 3@8 U.S. 192 (1966) .......006. on

MeDonald v. Board of Election Commissioners, 294

TLS. 802 M1969). putes shupaeees Meeeeade es 25, 24, 3, 38:

a at i

se Table of Contents Continued

pas ie Ait Pia

Mefiowan v. ‘Marvignd, 366 U.S. 420 (1961) .......... 56

MeInnis v. Ogilvie, 394 U.S. 329 (1969), aff’g. mem.,

Melnnis v. Shapiro; 293 F. Supp. 327 (N.D. Til.

BS uaa cab se'awras ee teas eed oo 20, 21, 32, 47, 48,

: ‘ 49, 50, 51, 52, 53,

54, 55, 56, 57, 59

Mel akin Vv. Florida, 379 C ‘S. 184 (1964) .” alae a "23, 46

. © MeMillan v. Garlick, 480 F.2d 1145 (2d Cir. 1970) ..... 55

~ MgNeese v. Board of Kdueation, 373. U.S. 668 (1963)

17, 60, 61

Minersville School District v. Gobitis, 310. U.S. 586

p00 URES ASST a2 pay a eee ee 56

Monroe v. Pape, 265 U.S. 167 (1961) ..... PD 17, 60,61 ©

Mullane v. Central Hanover Bank and Trust Co., 399

Me ES) Ee ER rae nn cre 45

Oregon v. Mitcheli, 39 U:S.L W. 4037 (decided Decem-

aval ngs se chose rceces . 40

Parish School Board St. Charles v. Stewart, 39

' US.L.W. 3199 (decided November 10,1970) ...... 8

Phoenix v. Kolodziejski, 399 U.S. 204 (1970)'........ 8

Reetz v. Bonzanich, 397. U.S. 82 (1970) . .17, 18, 60, 61, 62, 63.

Reynolds v. Sims, 377. U.S. 533 (1964) ..0.... "31, 3a, 36, 46 .

Roberts v. La Vallee, $89 U.S. 40 (1967) -.....:...7. 30. .

Sanks v."Georgia, No. 28, Oct..T., 1970 .......... SO

School Board of Broward County y. Christian, No.

69-9232, 2d Judicial Circuit, ONS Da era 63

Serrano v. Priest, Civ..No. 35017 (Calif. Ct. App., 2d.

' Dist., decided September 1, 1970) .............. DD -

Shapiro v. Thompson, 394 U.S. 618 (1969) . 6, 18, 19, 21, 22,

oe ce - 23, 4 31, 35 ), 37,

| ~ ve 38, 29, 44,58 |

Shelton v. Tucker, 364 U.S. 479 (1960) ..........0... 45 |

Sherbert v. Verner, 374 U.S. 398 (1963) Sk vaet g +. 18,45 |

Skinner v. Oklahoma, 316 U.S. 535 (1942) ope 35

Smith v. Bennett, 365 Tie WT CEE bo Sore csce aes se - 30

Speiser v. Randall, 357 US, 513 (1958) ..... ee kees es 18

Swenson v. Bosler, 386 U°S. 258 (190) .............. 30

Talley v. California, 362 U.S. 60 (1960) es ea es 45

Tate v. Short, No. 3224; Oct. T., 1970 ......... Lcavaews 38

Turner v. Fouche, 296 US. 246 ra kek en cede ess 45

West Virginia State Board of I2dueation, v. Barnette,

SIRS >. 56

Williams v. Hlinois, 09: S. 295 (970) 24, 30, 39, 45, 46

Table of Contents Continued ee. ,

Page

Williams v. Oklahoma City, 392 U.S. 458. (1969) 0.2... 30

Williams v, Rhodes, 393 U.S. 23 (1968) ..... See rie 36 46, 47

Wisconsin v. Constantineau, 39 fy S.L.W. 4128 (decided

PB he | ee pee ae Gee 18, 59, 62, 63

Wynuin v. James, 39 ULS.L.W. 4085 (decided January : |

RR as bu PNW 5.0 Dey bod bee bk pode ee pee ee

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ............31,46

Zwickler v. Koota, 389 ee eo ener ae 60

FEDERAL Consrere TION: | )

United State es Constitution, Simenglmeni XIV or eS

: 60, 63

FEDERAL ‘STATUTES: > At Sad, :

- 28 U.S.C. § 1253 ...... EPO ere Se rors isa eda yes eaeas <2

42 U.S.C. § | Sees eereeroerer ts naa 62, 63

STATE ConstiTUTION: | |

Florida Constitution : oe

Article VII, §9 .......... ME Coa wed Pie ete 8,68

Article IX, §4(a) ”..<: wenn os Peiee ce pes eee eee Ae

~~ Rt neem cig tds eas adeae a a

- Article XH, §10......... ied Tae Nene a Lae 9

STATE STATUTES: ; ae , ae ;

, Florida Statutes: ere log |

Section 230.34(1) .......... eee pensoasvovrssdie « @

yp Bection SOD.761(8)-—-5..5.. 030605625. EER TS

Section 232.01-.45 ..,....:.... Ce Aes deena ea ee

Section 232.09 ............. PG ahst pers ENS 36

eee SRI eo ike cos ss neues tae ees 36

Section 236.01-071 ....... hi enees ators pe ae

Section 236.04 ........... Sep te se Peers sesueines 7

~ Section 236.075 ..... Pee yee coxa Vee en -67, 69

vi ; . Table of Conten}s Continued eee

aa “ye PLE eta eet Secpl ttre 5 np Reeer . Page

Section 2: 236 OT (10) | reir t tet tere ae crests tales 7, 67

Section 236.29 ..¥...:.. BS LMT Gap Bani aaa Ap

een SOG es les oA asl steers Pope eee 8

Section 236.32 ........ . PN ee : eae Sig a eaten 9

Section ck BE era ee eee ear Ce eet 10

Section 236.53 ........2..2... os aeae eine me

Section 236.25) o-.55 occas Seas eag Pt. tae 3, 15, 67, 68

, ala AE SG Fe Siege aes n:

books:

" Coons, Cline & Sugarman, Private Wealth and Public

Education (Warvard Univers ity Press, 1970) 22, 44,5

Proposals f: eliting fo the Education’ of. Youth in

‘ Pe mnsyle ania (1749), 2 W orks of Benjamin, Mrank/,

lin (Smyth ed. 1905) ..... Pn PA eee aan ote ts 33

A Pill for the More Geieral Hiffusion of. WNnowle dge,

2 The Papers of “Thomas Jefferson (Boyd ed. ;

bonis a siee iis Hitiws oa ke pe he Nes nae ma Taa vecees. OF

A. Wise, Rich Schools, Poor Schools: The Promise of

Equal” Educational’ Opportunity (University of

oC mango Prost, 1900): oo oi cfs ties Wess phone 6. 48

Periopic. ALS: | é

C hoper, “On the Warren Court and: Judiei al. Review,’

17 ( USL. Rev, Be CIOL 62 male ayony & kpo'es'e (33 |

Coons, “Clune snd Sugarman, ‘ Mqual Rascational Op-

portunity: A Workwble Coustititional Test for:

State Financial Structures,*’ 57 Calif. L. Rev. 305 “

G2 Eee Sareea peer errr rey Tere Sere epee 36, 47

Comment, ‘Another Look .at -Uneonstitutional Condi-

-tions,”’ 117 U.'Pa. L. Rev. 144 (1968) .:..... ee ee

‘Developments in the Law—Equal Proteetion,’? 82.

Harv. L. Rev, 1065 (1909) 2. o cece eee "27, 35,48

Table of Coutents Contined ace Vii

Page

mong, “*Kquality and Governme tal Action,’’ 39

-N.Y.ULL. Rev... 205 (1964): ..:.. Lee 2458

aoduatie et | nseparate But U ne«tal—The Emerging

Fourteenth -Amendiment Issue cin’ Publie’ School

KEdueation,”? 13 UCLA. L. Rev. 1147 (1966). 48 .

Horowitz & Neitring, “Equa I Protection Aspects of In-

equalities i in’ Public Mdueation-and Public Assist- b-

— ance Programs froin Place to Place Within a ne

\ State, 15 UA EA. i Rev, TST (1968) Reps Cryry ve Tay sree

Kirk: “~The Constitutional Dimensions: ‘of qual du-’

« — citional ‘Opportunity, "38 Hart. Edue. Rev. 635.

' (1968), reprinted: inf qual: Lduc titional od thats

hity (Harvard University Press, 1969) .:...6... 48

Kurland, Nqual Kducational Opportanity: The Limits

# Constitutional Jurisprudence Undelined, ier

Chi, L Re Vv. OSD (1968), reprinted in The ‘Qual-

io of Inequality: Suburban and. Urban Public

Schools (C, Daly ed.; University of ( ‘hicago Press, f a8

re. aentaney Ge aay LEP i aN peas gs lpia oi - 48

- Michelman, “*Foreword: On Protecting ree Poor

Through the ourteenti Amendment,”’ 83° Ti agy.

=. he WOE 0 MUONS 5S Neen eats reb Une ns chaniaes 47

Shanks, Pook Review, 84 Harv. LL. Rev. re ae 47,53 .°,

" Shanks, ‘Equal Education and ‘the Law,’” 39 The Amer-'

ican Scholar 255 (1970)... 2 ee ee 7

. Silard & White, ‘ Intrastate Inequalities i in Publie ke ‘due

cation: ‘The Case for. Judicial Relief Under, the

Equal bon Clause,’’ 1970 \Wise. L. Rev. 7

4 rere re eet Sheree pe enemas oe

im Struve, “The Less-Restrictive Alte native P rinciple “.

and Economic Due Process,’ ’S0 Harv. L. Rev. 1463

EE ei meee Si RNS Rasetee es “AS

V- “an Alstfie, he Demfrsé of the Right- Privilege Dis-

tinction in Constitution: uo Law,’’ 81 Harv: -Ii, Rev. ;

1439 (1968) ©... x eS eres Noe at ti >. ™18

Sv Ae ag THE | |

“Supreme ¢ Court nf the United States ea

> Oc OBER TERM, 19 70

fs No: 573

GOVERNOR RUBEN ASKEW, successor to’ and substituted

for Governor Claude R. Kirk, Jr., ET cased Appeliante,,

£ . 4 . 8 . , .

’ v. ae ce 0 P Mee

Roserr TH. TARGRAVE, ET AL,, Appellees,

“d

On n Appeal From the United Siates District Court for the |

: Middle ‘District of: Florida

”

BRIEF FOR cea ‘

OPINIONS BELOW (,. 00-00. ec

The-opinion of ‘the tliree- judge district court fr om

a whic h this appeal is taken is-reported at 313 F. Supp.»

944 ( App. 44-54). . This: "snritivas initially dismissed ‘by

a single district judge; whose order is: Gontained in.

“footnote 2 to the opinion of the Fifth. Circuit retidered

on appeal from the order of. dismissal Sub noni.’

Hargrave v.. McKinney, 413 F.2d 320fn. 2: The opin-. ..

jon of the Court, of —— for the Fifth Circuit-1 re-.

} , %

ot Ae ~

;

a 1253, .

Te ee ee ens | Seo Ses

‘ |

versing the single judge's distuissal of ‘the complaint

and ofdering the convening of a’ three-judge court is,

as indicated above, reported at 413 F.2d 320. , Chief

Judge Browh wrote an additional opinion specitically

ordering the convening of a three-jwlge court ini this

case, That opinion fis reported at 502 F. Supp. 1381.

. ae ad

~. The tenes of the tlinee: judge district court was

‘entered on Mi

§ 8, 1970 (App. 53)... Notice of appeal

was filed oni June 3; 1976 (App. 5505. Appellants”

Jurisdictional Statement was filed 0: August 21, 1970,

Breateren jurisdiction was voted on November 9, 1970.

‘The: juri iction of this Oourt rests on 28 U.S.C;

A Florida’ statuis kisown as the Millage Roliback

Act provides that any Florida nuty that imposes on

itself more than 10 mis ad valorcm property Saxes

~ for educational purposes will not be eligiblé to reevive

' state funds for the support of its publie education sys

‘(mn/’ A

The questién presented is whether the Millage Roll-.

hack Act viohites the equal protection clause of the

Fourteenth Amendinent as a discrimination ‘based on

wealth, because it distributes taxing authority: for edu- °

“+ extional purposes by a standard related solely to the

wealth of the county (ie., ‘the value of the property

in the eaumty), and in’ effect allows the wealthiest |

Miorida oonnty to tax itself up te #725 per pupil with-

ont losing state support for its public education sys-

tem, while limiting the poorest Florida county to £52

- per pupil on pain Of losing state support for its publie

odue vation system.

“3

STATUTE INVOLVED. ¢

The Millage Rollback Act, Section 23, Chapfer 6B:

18 Flofida Laws, enacted at the Extraordinary Ses-

sion of 1968 of the Florida Legislature, provides in’

pertinent part as follows: hy od |

Effective July 1, 1968, each county board. of

public instruction desiring to participate in ‘the

minimum fowslation program for kindergarteys

and grades one through twelve shall levy no more

than ten mills of tax ou the vor-excmpt Assessed

valuation of the couity,, exclusive of voted dis-

trict building and bus, required debt service, and

— the millage required for junior college minimum

* effort. : ;

The text, of the entire’staiute as enacted set fortli

iP Appendix A hereto. Since the decision of the three-

judge court, the Millage .Rojlback Act has been

amended in respects not relevant to this litigation. In?’

Appendix Bb we have set forth the text of the. Millage

Rollback Act, now FS.A. § 236.251, showing, by brack-

‘ets and italies, the act ag originally enacted and as

amended, ies +

“ie STATEMENT,

This snit attacks, under the equal protection clause

of the Fourtceuth Amendment, the constitutionality

of a Florida statute (the “Millage Rollback Act’’)

which provides that any county imposing on itself

more than 10 mills in 4d valorem property taxes for*

educational purposes will not be eligible to receive state

funds for the support of its public edneation system.

Appellees’ (plaintiffs below) seek to enjoin .appel-

5 Apodiess are parents, taxpayers and «students from 16 Florida

cpunties which have been adversely affected by the Millage Rollback:

Ta, ie., which have been forced by the Act to reduce their tax

- fates in order tg avoid losing state support for their education

* system, - :

on . . : .

= 4 . | ; ba

lanits * (defendants below) from withholding state edu-

vation funds from any cauity beeause it taxes itself

in excess of the limit imposed by: the. Milage Rollback

Act. ;

Appellees contend that the Millage Rollback Act

draws an imperniissible line based on wealth, allowing,

us it does, the imposition of 4725 per pupil of educa-

tien taxes in Florida’s wealthiest county and only %o2

per pupil in Florida’s poorest connty? Thus the Act

prevents a poor comity from provid~ig as good an edu-

cation Tor its children as the oalgiierrynuities provide

éven if the poor county is willing to sderifice to reach

thix goal by imposing on itself a higher eduéation tax

‘ate than is imposed in wealthier counties.

Prior to the passage of the Millage Rolllnick Act, -

54. Florida counties had imposed gu themselves taxes.

for the 1967-68 school year in excess of 10 mills, The

Millage Rollback Act, passed in February 1968," re-

quired each of these counties to reduce its school taxes

to 10 mill<* for subsequent years if it was to avoid

losing state funds, Accordingly, for the 1968-69 school

year, each of these 24 counties did reduce its taxes’ for

2 Appellants are members of the State Board of Education, the

State Corfimissioner of Education, and the State Comptroller. The

State Board of Edecition and Me State Commissioner of Education

compute the amount of ey each county is 40 receive from the

state. They do thieetfrording to an elaborate formula which is

part of the state’s Minimum Foundation Program. The Comp

troller actually distributes the ntongy to the: counties. (See

Amended Complaint, paragraph ‘4, ‘App. 4).

2 And amended in respects itrelevant to this lawsuit in 1970.

see Appendix B.

‘Plus certain minor adjustments known as “DBEB", to be

stibxequently discussed.

Bo eae

edie ational purposes to {he 10-mill limit imposed by

the Act.

Appellees’ position below and here is that this limit

‘on the authority of counties to tax themselves for edu-

eitional purposes violates the equal protection elause

Jweausethe limitation is fixed by reference to a stand-

ard which relites solely to the amount of property in

the county (iLe., wealth), not to the educational needs

of the county. Counties with high property values in

relation to their school population are authorized by

the state to tax themselves far more in relation to their

educational needs than counties with low property .

pili in relation *to their school population.’ - We

argue that to limit the extent to which a county may

tax itself to provide for its educational needs by refer-

ence to the smneunit of property in the county, which

wmount is wholly unrelated to the cducdtional necds of

the county, surely promotes no compelling state inter-

-est: and lacks even a reasonable basi¢.

Ii) a unanimous opinion ipvalidating the Florida

jatute, Cirenit Judge Dyer stated:

What apparently is arcane to the defendants is

lncid to us—that the [Millage Ruliback] Act pre-

vents the poor counties from providing from their

own ares the same support for public education

which the wealthy counties are able to prov ide.

* Thus, Charlotte Seaity may raise by its own taxes &725 per

student, whilg Bradford County is permitted by the State to raise

only €52 per student. See Column 10 of Exhibit D to the Amended

‘Complaint (App. 25-26)). This variation stems from the fdet

that the tax base per.child varies from #5,239 in Bradford C ounty

ty $72,535 in Charlotte C ounty (see Column 12 of Exhibit D to the ey

Amended Complaint (App. 25-26)). .

What rational basis can be found for the dlis-

tinctiows that ave inherenf€ in the Act? Do they

haveauy rational relationship to a legitiniate state

end ox are they based on reasons totally unrelated

| to the pursuit of that goal? What interest has the

* Strie of Florida in préevelting its poorer connties

from providing as good an education for thgir

_ children as its richer counties? As postulated by

the plaintiffs, “The legislature says to,a_ county, °

*.-You may ‘not raise yori own taxes to improve

_your own school system, even though that is what

the voters of your county want todo.” "* We have

senvehed in vain for some legitimate state end for .

the discriminatory treatment imposed by the Act.

While the state undoubtedly his a valid interest”

in. preseming the fiscal integrity of its programs,

and may legitimately attempt to limit its expendi-

tures fox public education, or any other purpose,

it ‘imay net accomplish such a purpose by invidi-

ous disgrimination between classes of its citizens.”

» Shapiro Vv. Thompson, 394 LUS. 618, 633, 89 S.Ct.

- 1322, 22 L.ed.2d 600 (1969) [313 F. Supp. at 947,

O48: App. 48.49-50; empliasis dy original).

"A, The Background: Financing Public Education in Florida

Florida provides financial support for the pperation

of its public schools in two ways.” The first source

is Minimum Foundation Program funds which are

appropriated by*the’ state from state-wide taxes and

distributed to. each county according to a somewhat

~~" Amended Complaint, paragraph 5 and 6, App. 4-6. The an-

swer (App, 27-28) adinits substantially all of the faetual allega-

tions of the Amended Complaint and the allegations r@lating .

to the legal background of educational- financing @ Plorida.

“References to the Amended Compfaint may therefore be taken

to be references to allegations which have been admitted. Appel-

lants in their brief (Br. 2-3) ‘specifically adopt the-complaint’s

description of Florida's method of financing publie education.

$ . ie

complicated formula. This formula is based on, and

varies with, certain indices of the educational iceds of ~

the particular county’ and “is, accordingly, not here

under attack.” . |

The second source of funds for the support of pub-

lie eduéation in Florida is local, as opposed to state-

wide, taxation." Loeal taxes are of two kinds.. The

first is so-called ‘County Millage’, and the second is

so-called * District Millage.” County Millage, which

may be levied up to a maximum of 10 mills, is imposed ,

by the School Board without prior voter authorization.

. District Millage, on the other hand, is subject to no

“maximum limit provided it is first authorized, for no

7 Amended Complaint, paravraphs 5, 8-11, App.. 4-10.

* Briefly, the Minimum Foundation Program as a whole is a

body of rules for calenlating the total cost of funding a minimal

-educdtional system in the county (F.S.A. $$ 236,01-236.071). The

total gost of a Minimum Foundation Program for each county is

determined by reference, to the numberof Instruction’ Units of

whieh the county public educational system is comprised. In-

struction Units, in turn, are based on a number of factors. indie.

ative of educational heed, but primarily-on the number of students

in average daily attendance (F.S.A. § 236.04). From the resuiting

amount, there is deducted a certain’ minimum sum which each

- county is expected to raise for itself if it wishes to receive so-called

MFP funds from the state (F.S.A. § 236.07(19)). After the

deduction of this minimum sum, the remainder is the amount of

MFP funds which" the state allocates to edeh county (F.S.A.

$ 236.07(10)).. As a practical mattwr, each Florida county has

taxed itself in excess of the minimum snm which Is required if a -

county js to be eligible for MFP funds (See Exhibit C to Amended

Complaint, App. 23-24). This is so because each county must

expend more than the amount of a*Minimum Foundation Program

in order to provide an even colorably decent education for its

children (Amended Complaint, paragraph 12, (App. 10).

* Amended Complaint, paragraph 6, “App. 5-6.

Ibid. |

more than two years at a time, by a vote of the frée-

holders paying taxes." To the extent authorized, git

may then be imposed by. the School Board.- Both

County: Millage and District Millage 3 are provided for.

in the Florida ¢ ‘onstitution.” ,

The qualified voters in each county thus-vote for

District — every two years (ES.A. § 23 1),

"The provision of ‘tee Florida Constitution limiting the fran-

chise to frecholders is obviously unconstitutional: - Kramer v.

Unton Free School District, 395 US. 621 (1969) ; Cipriano ve City

of Mouma; Yo3 US. 1061 (1964): Phocnir-v. Kolodzicjski, 399

_ US. 204 (1970); Parish School Board St. Charles y. Stewart, 39

US.L.W. 3199 (decided Novembyr. 9, 1970). Ilowever, this pro-

vision is “Mot under attack here. .

2 Cofinty Millage is authorized ju Fla. Const. Art. Vil §9. (as

amended 196s) which, provides in pertinent part:

(a) Counties, school districts, and niunicipalities shall... be

authorized. . . to‘levy ad valorem taxes’. . . for their ré-

spective purposes... . :

(hb) Ad valorem taxes... shall avot be levied in excess of

the following millages upon the assessed value of real estate ~

and tangible -persnal property: . . for all se ‘hool purposes,

. ten mills ..°.. - Rae

, : :

Artielé XII, Section 8 Of the prior Constitution (which was in

force w hen the original complaint was filed) prov ided for C ounty

Millage in the following terms: °

Each county shall be required to, assess aan collect annually

for the support of the public free ‘schools therein, a tax of not

less than three (3) mills? noe more than ten’ (10) mills on the

ai dollar 6n all taxable property in the same.

The 1968 C onstitution makes no provision for a 3 ‘silt minimum.

- As to District Millage, the relevant portion of Fla. Const. Art.

VIE £9 (as amended 1968) provides:

(b) Ad valorem taxes, crclusive of tares lericd for.

periods not longer than fwo years when authorized by vote’

of the «leetors. who are the owners of frechokds . . . shall not:

. 9 , 2

Chaqeny authorizing District Millage at a specific maxi-

mum rate for the ensuing two-year period... These’

élections are held-#y odd-numbered years (ibid.). While

the voters authorize District. Millage for a- two-year

_ period, thé extent to which. District Millage is actually

levied is determined by the School Board after con-

sideration of its budgetary needs for the particular

be lev ied in excess of [specified mane) . [Emphasis sup-

plied.) ~ eo ‘ = :

The implication of the italicized -portion is that ad valorcm

taxes for less than two years may, when authorized by the-vote of

freehold electors, be levied in any amount.

The analogous provisivin in the prée-1968 Constitution was Article

XII} Section 10 wiich provided:

The LegiSlature .. . may ‘provide de the levying and collec-

tion of a district séhool tax, for the exclusive use of public

free schools within the District’ whenever a majority of ‘the

qualified electors thereof that pay a tax’on real or personal ‘

property shall vote in favor of such levy; Provided, that any

tax authorized by .this section shall nof exceed 10 mills on the

_ dollar in any ove year on the taxable property of the district’

The 196% Constitution sets-no upper limit on the millage . which -

can be authorized ta be levied in this way.

Although in. the- pre-1968 Constitution, County Millage was ,

imposed by tlie’ county and District Millage was imposed by the

school tax district, the latter was by pe co-extensive with the.

boundaries of the county. See F.S.A_ § 230.34(1): The substance |

of this statute is now included in the 1968 Constitution ‘* Each

county shall constitute a school district ..°. °° Fla. Const. Art.

IX $4(a) (as amended 1968),

It should also be noted to round out the picture that the state

legislative authorization which the old constitution be ind be-

ae District Millage’ could be voted on was given by FLSA,

§ 236.33 which establishes proc edures’ for the conduct of district

iaillage elections. :

10. -

school year involved (F. S. A. § 286133). Depending

on those needs, the Se ‘hool Board may or may not ex-

haust the full authority to tax which is sere to tt by

the voters. er 7

In addition to ide and local coutributioys to public

education, the federal gove nmert also makes a con-

_ tribution to publi¢ education in Florida of approxi-

mately 2 or 3 pereent.’* | |

B. Tho Millage Rollback Act and Its Effect

“In its Extraerditiary Session of 1968, the Florida |

legislature enacted into law Chapter 68:18, Florida.

Statutes. See tion 23°0f that law di-tates that no county

may reé ive its share of state M FP funds if its School

Board levies more thay 10 mil!s (plus certain ad just-

‘ments) of locat tax on the non-exempt. property in the

> county. - | send

. In pertinent part, Section’ 25 provides as follows:

hifective July i, 1008, cach school board desiring

to partici pate in the. minimum foundation pro-—

gram for Ieindergartens and grades one through

En Ire shall lev Y HOMO. than ten mills of far on

“the non-erem pt dissessed valuation of the district,

elusive of voted district building’ and bus, re--

quired debt service, and the millage required. for -

Jmnor college minimum effert.9 2

From the itali¢ized Sigtion of the statute, it can be

seen that the prohibition of the Rollback Act means

dhat District and € ‘ounty Millages@n any ‘Florida Coun- or

e ‘

12 Sp 0 iso Affidavit of Lee Young submitted in support of ‘lain-

. tiffs’ Po for summary eee nt CApp. ht be hereinafter = |

Young Affidavit. as

# See Exhibit A to ‘Ainended, Complaint, opp. 19- 1,

—

y may. not, in the aggregate, exceed the 10- ‘mill limit,

-plus certain minor additional author izations. ¢ contained

-ju.the unitalicized portion of the Act. These additional

‘authorizations, sometimes referred to as DB&B,-are.

explained i ina ee % “As a practical matter, they ©

add as much as 1.5 mills to the basic 10- mill collie. 23

However, as the court below noted, ‘Funds [for

“, DB&B] are not involved’ in, nor are they-material to,

a determination of this cause’? (App. 46). In Short,

while the Florida Constitution. permits 10 mills ‘to be

levied as County Millage and an additional U1 iggited

number of mills to be levied ¢for perieds not longer

than two years) as District Millage, the Rollback Act

limits/the aggregate levy ‘of both:to oily 10 milk.

- Bor the 1967-1968 sc bool year, prior to the passage

of the Millage Rollback Act, Florida counties had-im-

posed on themselves between-4 mills (Liberty County)

_and 17 mills (Pinellas ¢ ‘ounty ) of taxes,’ both County

' Millage and, District Millage.” Obviously any county,

which imposed more than 10 mills’ had the, authoriza-

tion of its voters to impose at least that much additional

_ é —

;

- : . a we + ; e : >

'S The unitaticized part of the statute refers to statutes pursuant

-to which counties are required to raise by. taxation additional,

moneys. for district. building and bus funds (F.S.A- $237.13),

for required debt service on school bond issues’ (F.S,A.

and 236.5%),-and. for the county share of junior college support

funds (F\S.A. § 230.761(2)). Int 19744he Florida jegisinture also

excepted from’ the 10-mill, limit millage’ certain other minor

amounts, Se ‘e Appendix B. However, as appellants point out,

*{SJuch exe eptions are “not really material, to the issues of this -

case’. (Br. 3). *

a6 Ste Column 2b of Exhibit D to the cacumes Complaint, App.

25-26. . bs

17 See Column 1 of Exhibit D to Amended Complaint, App. 25.

$$. 995,99 :

millage. The. ana sin 24 counties had. Mastigtiond their. -

School Board to impose District Millage in addition to.

the 10 mills of County Millage.

Although the voted. biennial additional author ination

“in these 24 counties applied to the 1968-69 school year,

each ef these 24 counties nevertheless rolled back its

millage for the 1968-69 school’ we: w in order to avoid

Josinig state MFP funds) under the Yur of the’Millage

Rollbac ‘k Act. In'‘effect t, all of, thes¢<couuties heeded

the w arning.of the Millage Rollback Ac ‘tayhich says to’

them, “The State will provide substantial *agsistane To

‘for your local education SY stem on-condition that you.

“do not provide too muelr moliey yourself. If, you do

provide .for yourself more than we think you should,

we will not give you any_state MFP money. And the -

standard by which you must limit yourself is’ based

‘not on your educational need ior oti the priority

which you place on education, but only on the amount |

of property (Le., wealth) in your county. re

The effect of the. Millage Rollback Act in 1968- 69

“as td reduce sharply the amount of money which local.

soatttes could raise for themselves. Measured by the

reduction ii millage from the year preceding the’ ei-

ae ‘tment. of the Millage Rollbac k Act (1967-68), the loss’

was well ini excess of $0, 000, 000. “A bre: ikdown, of this

amount is- contained,in the following memorandum |

dated January 6, 198, prepared by defendant Floyd

-T. Christian, Commissioner of: Education = Efe

: IS Our figures differ somew hat from Dr. Christian's (See Column

10 of Exhibit 1 to Young Affidavit, App. 40-41. -but the precise

amount is unimportant. Pr. Christian’s Me ‘morandum appears’

as Exhibit 1 to Affidavig of IHershel Shafks submitted in support

of plaintiffs’ motion for sttmmary judgment (App. 30-31), herein-

after *‘Shanks Affiday ea 7

anes The following counties have enforced millage

ee “reductions i in 1968- 69:

i -- 18, ,

' Pnf cea :

\ 1967-68 1968-69 Approximate

t Operating Operating Millage, , Dollar

4 County. “Millage Millage Decrease eduetion

‘Alachua’ +130 10.66 = “~240 ** 802,517

Brevard TY. ae. eenaeene f 2,921,310

Broward, 10.67. 7.10.24 43 A312,304

Collier 1145 10.00 0-4 am

* Columbia © 11.729 10.00 ’ 1.729 18

Dade 12.32 10.28 |. 2.04 2,812,703

Dixie 14.874. 10.8737. 4.0003 eras fae

Duval 15.8963 '10.670T - 5.2262 8,899,894

~ Escambia. 13.183 “ 10.00 -* ms ;

Gadsden 15.50 10.45- ‘5.05- 343/313 ~

Gulp 13.30° : °. 1059 © + 2771. 108,410 *

Hernando | _, 12.868 1000 > 2.868 235,342.

[ills- ‘ \ | - ri

-boreugh -. (14.206 10. 00 + 4.206 ° 6,609,052

~ Leon. * 11.762 10.00 1.762 635,173

Manatee 12.00, 10.46 1.54 485,479

Nassau 12.42" 10.86. 156 114,887

Orange: ’ 14.80 . 10.40°— 4.40 5,343,076 ’

Pasco 11.425 10.00 1.425 263,289

‘Pinellas 17.00." 10.65 6.35 - 9,481,993

Putnam 14.271 1147. . 2.808 - 354,447

Seminole.) ° 12.75 ° 10.44, ~ 231 349,573

Taylor. 11.6196. 10.2593. 1.2603 90,050,

Volusia’ 14.65 10.8936. 3.7564 2.449.349

* Walton 12.00 11.00, 1.00~ -48,930

$54,074,911

to -—- ----

* Freeholders voted zero district =. for 1968- 69 and’ 1969. 70.

. 9

4 "e : - é 14 , : 2 : 4 ‘

" Dr. ‘Christian also. snotab § in his memorandum : @ ey

Thee ifeet, of the ter-mil! limitativir creates a ee casey eet

““strictieh on the’ amount. of Jocal support which

6) ew CoNtain eoupties, can provide for’ the’ edacational ‘

Be program. he

y The expression “if the freshiclders i in the ‘Woe al mill-

e age clection i® bei yeing negated in those, cases s where. ”

aere is a desire to provide a greater amount of

. local support for the educatioir program [App.

v2). rf

Theypr ecise effect of the Millage’ Rollback “Act varias

:. eoisider ably fromeounty to comity. In ine comities,

_ it merely preveuts the county from i improving its edu-- ~

-cational syste m to the-extent its voters Lave authorized.

In ait least | one county, how ever, the Schopl’ Board had ,

. glifficulty evi preparing a budget. On August 15,

1969; the ‘Superintendent of t » Broward spend

Se hoo! sw rote Dr. Christian as follows: y

‘The I ard of Public Tustryction . of Broward™ ste

. Cowity, mecting in regular session ow Aygust 14th,

vassed a resolution stating that the. Board can note.

lakenee its budget for the 1959.70 school ‘vear with- -

out exceedit.g fhe 10-mill cap Amnposed hy the last

le piel ature: bane yo

It is impossible for us to submit a budget ile ‘SS

your, office agrees that we may iuclide millage

fiw rds exceeding 10-mills. Wiil vou please advise

us inunediateiy whether or vot a budget prepar od

which inchides funds exe eediug 10 mills will be 19

accepted by* your. office.” ets + et ioe t

’

Dr. Chyistian’ ’sAeply is as ; folicws: ny! 9d

» In-respouse ‘to your ‘tter of August 15- in whieh’ Z

Eo: presented the «i lemma -the District Se hook

sox. d itt Broward Cowity faces in developing an”

adequate, school budget for 1969-70 it light of the

"Exhibit 2 to Shaiiks Affidavit, laa 33.

15 ay ar, a Re .

lisditadtoine. of “tg 10- mill cap, a following in-

formatian submitted.

Fhe re spousibilities, of this Sffice in exec uting the*

statutes ¢urrently fa, éxistence would int permit

a budg. t to he officially approved ayhic] h Ticluded t+

levy of ad valorem tax iti exeess ‘of: those leyjes ane

‘thorized “in Sectioiy: 236.251, Florida Statutes y

‘Pherefore, the ‘Auniial. Se hool, Budget for 1969-70

must be developed té comply With this restriction -

if the district is to continue prrticipation in tlie.

Minimum Fondation Program for Kinder garten

and Grades 1-12. as

”

I reciguize the severe sine diffie ulties whi

have resultedfrom recently euacted statutory pro- *

Visions, liowever . there were no altermatives or dis-

eretios, ary author’ ities iro ided this office in ad-

ministériig the state and local fun ds for support |

ae of puplie se oer, 57

C. The Procedural Hitory of This "ee

= | Sh complaint in this ease was filed October 31, 1968,

(App. 1). Thereafter, of December 13, 198, a single

district judge granted. the.defend: ants* motion to dis-

‘miss on jr isdictional grounds without ruling on the

substantiality of the mefits of plaiiutiffs’ constitutional.

‘claim (App. 1; see Margrave v. McK inky y, 413 ¥.2d

320, 0. 2 (Sth Cir, 1969) ).

On appes ul, the Fifth Circuit reversed the District:

Court’s jurisdictional rulings, and then faced the ques-

tion whether plaintiffs had presented a substantial

constitutional claim. The Court of “Appeals held that

the complaint did in fa¢t presenta substantial consti-

tutional question. , Hargrave v. McKinney, 413 F.2d

320 (Sth Cir. 1969). But, since that Court had no, .

jurisdiction to pass on the merits, it refrained from ex-

“” Exhibit 3.to Shanks Affidavit, App. 34-35,

pl essiug aly: Views s thereon, fund remanded vee diree-,

tions to couveiie a three- judge district éotirt.

After plaintiffs filed an ame nde complaint, adding

certain additional defendants’ and: deleting a prayer

to require the collection of back taxes (App. 3-26), de-

‘fendauts filed an answer admitting substantially all of |

“the fae rg allegations of the amended complaint, as

well ds it¥deser iption of the legal background of finane-

ing public esacation in’ Florida. (App. 27:28).

Promptly thereafter, both plaintiffs and defendants —

filet cross-motions for summary judgment (App. 30-

36, 43). oa tie A wage

fIna unanitiorts opinion carefully analyzing, the con- .-

Aitutional’ violation, the .three-judge district - court’

granted plaintiffs’ motion and desied défend: wuts’ mo-,

tioir (App. 44-54). This appeal followed ( App. 59- eke ned

ey oe SUMMARY OF ARGUMENT +

x 3

‘ ,

The Millage ~ Rollback Act, . together “eit other ;

Florida statutes authorizes’ Florida counties to tax

themselves for a. portioxt of the money reqitired to

authority by a standard based on the value. of the

~~ property in each county. We believe that this kind

‘support their Pap ation systems, but limits this |

“of limitation-viclates the equatprotection-chise. Such~

a limitation is just as unconstitutional as a system

awvhich would make the amount of the state education

appropriation to cach couyt™— rather than the amount

of taxing authority—de ee on the value of the prop-

erty within edch county. .

“te cour more detailed analysis, we first wake ern

our equal protection. claim should be reviewed pure

~snant to the “compelling interest” test or: the. ‘‘rea-

sonable basis’” test. We argue that the ‘compelling .

rinterest”’ test is applicable because the Millage Roll-

oo 2.

‘ ‘17 Pp A i . . - -

“”

back het alloe ates dittiority-’ 't6 tax on n’ thé basif ‘« :

AWW CY th. . Our couclusion that the ‘compelling intere; a ‘

teist must be applied here is reinforced by a considé: ,

—.

tion of the governmental, benefit — in connection’ with

which the\distinctjou is jae kt the allocation

~~ of ‘educational resoutecs. / Surely the‘ coinpelling iN-

terest’ test is applicable to.a dis@imination based on’ 6 , |

wealth in the atlocation of. edue ational, resources, gee

"She. Millake Rollback Act not only: fails to meét

the **compelling interest’ test, but lacks evefi a rea- ,

sonable basis. Appellants attempt-.to justify the Mill-

- age Rollback Act on the ground flat ‘h limitation-on Q !

the local, tax rate was the 1 Becessan® political ‘price -

thit had to: be paid for aincrease in state edyeation

~ finds.” Sucha jistiticatic Mwill not pass cans titutiona’, wo

“muster, F lovida mi wv Jinsit it expe nditures. for public

schools, but, not by a standard related to the wealth

of the local’ community: and it offers no saving grace

that this: unconstitutional tax ‘Hiitation was. tied fo

‘an inereise in state finds for education: . This: is j ta

especially so becayse of. the many alternative methods

that are easily available for ingiting educational ex-

/penditures that are not tied £7 an unconstitutional

‘wealth standard. (io ve tr, A y

mee, I I ee cee

Akstention would he inappropriate in this cys =. -

Mirst, there is 0 uncertainty In the state Statute der

attack which might niodify or avoid the federal eon:

sstitutional question; the-Millage Rollback Aet speaks: |

with utter clarity. “Second, the possibility of obtaining °

relief in austate court on state-law grounds is not a

sufficient predieate for an abstention order, ‘certainly

ina tage, like the instant one broughtamider 42 U.S.C.

$1983. Monroe v. Pape, 365 U.S. 167 (1961): » 4

We Neese V. Board of Education, 373 U.S 668: (1963). @

Appellaits reliane ‘© on Rectz vy, Boe anich, 397 US, 82

- ‘ SA LE

ee .

(16 970), iS misplaced. Rectz, unlike the ‘ingtant- ease,

was ‘not ‘based on Section 1983. Mereover, the recent

“case of WW isconsin* v. Constantinenu, ‘decided January

- 1971, suggests that,J?«ctz must be read. only as)

Sins eaffirming the rule that an, uncertainty in the statute

mene ade attack will lead to < stention, a principal which

*. oes not apply here, Tw addition, the result in fects,

may well be. accounted for on the ground that the

plaintiffs’ there pressed’ their’ state-law. elaim in the

fedéral court, side *by side with their federal constitiy

tional ¢ ee Ifere appellées have pressed only. their »

federal’ elajm. Moreover, appellants have not even.

ie tified the late law ground on whieh they, contend |

appellees might obtain relief. - 3

ARGUMENT

I. THE-MILLAGE ROLLBACK ACT VIOLATES THE EQUAL

' PROTECTION CLAUSE OF THE FOURTEENTH

AMENDMENT: _ . ee

A. An estos < of the Equal Protection Violation

edue ational purposes. Such a classifi ation is wholly

as, t- : P «

2.'The fact “that Florida does not niake its ‘iitlege lisnteation. an

® absolute *prohibition, but instead conditions state’ MFP aid on

compliance with the millage limitation, is constitutionally’ irrele-

‘vant. The doctrine fhat goveriment may not: grant: a henefit or

“constitutional: rights is wattestablish@h -See, e.g., Shapiro’ v.

Thompson, 394 0 ae ‘518, 627. n. 6 V yt) Cafeteria Workers Vv.

i. McElroy, 367 U.S. 886, p'H4 (1961); Shorbert v. Verner, 374 US

~ ._ 398, 404 71963): Spoiser X Randall, 357 U.S. 513, 519-20 (19: 58);

. ~ Gakrity v. New Jersey, bs D&S. 493, 499- 500 (1967) =" Chew:

Volding, 344 U.S. .590, 507- 598 (1953): Frost and Frost Truelking

vi Co. y. Railroad Comm'n, OTT S. 583, 593-594e(1926). See-Van

Alstyne, ** The Demise of they. Right- Priv ilece Distinction” in Con-

stitutional Law,” 81 Marv. Ly Rev, 1439, 1445-54 (1968) ; Com-

\ment, ‘Another Look at I Y itional npn pia = 78, Pa.

I, Rev. 144 (1968). 3 I. he a

/ privilege—emn conditions: Fe¢uiring ray to- relinquish his

. : The, Millage Rollback Act classifies ‘eouties accord-

ing to the size. of their tax bases; hid by this standard

limits the authority of counties to ytax_themseélves for .

unrelated to the purpose for which the state authorizes .

its counties to tax theme Ives—to educate Florida chil- 7

dren. Ls a rae

"Phe ar itcary nature of the Millage: Rollback Act :

may be highlighted hy comparing it to%a hypotlietical

case. Let us suppose that the State*of Florida pissed

_astatiite by which state funds for the support. of public

education were appropriated to each Punty. on the

‘basis of the vAlue of the pr operty in that county. . Let

us further si

ypose that‘the statute provided foi an ap-

- propriation to-each county « equal to 4% of the county's |

tax base for the previous year. Thus, County, A with

# tax base of $500 million would get $5 million to op-

‘ate its school system). while County B w ith a lower

tax base of #100 million would get only $1 million.

U nquestionably this. hypothetiéal le gislatio’ 1 would-be © °

San constitutional.” The Millage. Rollback Act is just as:

cle: uly unconstitutional. Instéad . of, appropriating |

‘Tghey on al unconstitutional basis, the’ Roliback Act

appropri ates anthority to the ‘counties to tax: them-

selves for the spipport of their public selidéls—and does

<o Gu the same unconstitutional basis:. ‘Lut. another

waft, instead of merely’ appropr iating state money to

~ the coamty liv an amount dete rmined by a. xed per-

centage of the property \ value in the county, the Roll-.

hack Act places a lintitation or ceiling on tle “appre.

nriatiow” of a.county to itself. A limitation or ceilipg

is Imposed on the peres ent: ge (nillage) which a. county,

”

Z ;

a 7

3 Cf. the anguage of the Supreme Court in Shapird 8. Thomp-

von, 34 USM18, 692-33 (1969) :

[ Appellants’ argument] would permit the. state to apportio ;

all benefits and services according to past tax’ contributions Af -

_ its citizeds.” The Equal Protection Clause prohibits. sucht an

. apportionment of state serv ices. Jif gh Py cee

: - $ w= $, é rt “ ae? ef .

* - s = ‘

ce . Be ¥y -

raise money tie purposes of : onblie” “ed |

-- « Militre Rollback: ‘Act. thus involves pr isély the same: :

une ‘ouytitutional: basis as is inv oly: din the h¢pothe ‘teal :

case. For under both 1 th eaimount of revenue Which.

may be pF OAycec ed pfor” dueation is determined hy ref-

erene® to aawholly arbitrary” standard, namely: the.

syne of wane in the county, not the ue ational

_-—Tecds pf | the county. phe: SEG oe Oe ee y ae ;

*” ® ; “4 ze aie - ;

? > 3 “- fae ) ’ .

> ° rc a - e : « , *

28. We have-used thé concept ‘of * ‘educ ational riveds ce here to” tiy--

* clude all constitutionally’ valid-standards by which Florida might. :

decide to allocate authority to tax. Florida’s fange of choice is". °

* indeed wide. / It could alloéate, for example, on the Sasi of dollars ¢ Bay

* oper ypil, though, this is’ by no. means the ely constitutionally, ~~ ° \- J

valid standard. a could also allocate by: taking into ac’ount. the ;

numerous other factors which Florida has ‘already incorporated: © *('-

into the Concept of Instruction Knits as used in its MF P. pro-. =

gram, See footaote 8, supra, p. 7. The standard could algo consider” %

, the asta s willingness. to adopt special instruction and guidance

_ programs, special problems. of urban schools, the (lispersion of

* |. students within a district, special educational.problems that result

- because “a ‘syStem is very large or very small, ete.win short, any

‘standard related to the cotinty ‘s “odic atioual weeds.’” ,We cl

acterize this ‘extensive constitutionally permissible afea, which . +

does not use wealth as-a basis of allocation, as,a¢standard based’ on

- “educational needs.’’ See -€vons, Clune and: Sugarman, Private | y

Wealth aid Public Edueation Oe) Shanks, Book Review, 84 as

*Hary. L. Rey. 257, 249-260. The/vice*of the ‘present. stamdard is - .

_ that it’ is based on wealth. * The state may * wot use wealth as a _

standard for allocating authority to tax pee er Pier : &

‘Our use of the toncept of “teducational needs’’ here is in sharp

- comtFast to the use of that concept in Welnniscy, Ogilvie, see infra;

p. 53. In Meélnnis, the plaintiffs souglit to obtain an order _

from the court allocating educational resourcesad®éptding. to in- 4

dividual students’ edit ation? needs. Unlike the McInnis plain- —

. tiffs, we do not contend, that the state inust: aflirmatively ‘allocate. =

educational resources on the basis of some single, though undefined Q

standard of educational need. Our argimeént is a negative one;

test

Agalu following Shapiro vy. Thompson, we shall do SO.

‘even though we contend that the distine ‘tion drawn by

F me F . : s . Age v

eo. ‘ - P23. 9 - SP sk i oO.

B: ‘The » Bitjoe of a’ Standard of. Review z i

claim resented here should: be the ‘‘reasonable. basis*’

* the more exacting are apelin interest’? test.”

the statute under attack here. does not meéct even the

“reasonable basi’’”’ test. as Be

Tn determining. whic h test.is ‘polis ie aaa indeed ¢

in determining whether ¢ or "not the distinction dra awn by’. *

: however the’ allo¢ation is made, ft niay not be tnade” on the basis

of wealth. For, the: McInnis plaintiffs ‘‘edutational. need”? was -

a single ‘undefined standard which was constitutionally required ;

for. us ‘educational need?” is that- large area of discretion which is ©.

‘ constitutionally sper mitted i int the allocation? of educational resources,

SQ idig; as‘such resources are not allovated on the basis of wealth or’

. other invidicus distinction. | *.

“4 Tn Shapiro Vv. TDhompior, the Cents ns to sation thie

’'sé-called ‘ ‘compelling interest’’ test in.greater detail than had ever °

previously been done, even théugh this was not necessary. to the

decision inasmuch as the Court found that .the’ distinetion: drawn

in that case did not satisf\ the ‘treasonable basis’’ test.’ The logical

reason for. the discussion: of “the ‘compelling interést’’ test in

Shapiro was to “provide - ‘guidance to the bench and bar regarding

.the applicable standards of review in equal protection cases, and,

in fact, the discussion in Shapiro has had far-reaching significance

in delineating the _ parameters of. oe equal protection

problems. “¢

25 The court below ‘ia fnat. he. Millage Rojlback. Act did not

mect even the ‘‘reasonable basis’’ test. 1t-did not reach the ques-

tion as to whether the “compelling interest’ gt w was applic ‘able.

Having concluded. that there is no rational basis for the diz-

tinction: which’ the legislagure has drawn, ..'. we dp not reach .

the more exacting ‘‘compelting interest”?,approach [App. 50].

‘3 Following: this ( ‘ourt’s s approach in ‘Sha piro:¥.

Thompson, 394 U.S . 618 (1969), we shall first consider.

- whether the standay dof:review of the equal protection

ee \ "depen ding ou the. way.a

+. £2 ny f o > 5 ey aa | WRX rae < . Re oe 2 ~N

a : Ee a ae e . omy

/ s ° ; 2 ; oe eae Le

“the statute meets the applic bile. tet it. is s necessiny”

to focits on two fattors:. (1) ‘The differentiating classi-

\) fication?” and (2) the. hati re of. the’ berietit’ or burden |

e which fs lye hig {hifferc: nitialiy distributed by gover ament®

arty iS classified vider the

at: bar, the differentiatiug -

\ Rest factor... In the CASE)

-.\. elassifieation is Wealth. ‘In other -¢ cases it Ifis” been

aN Mult residence (whith restricted. the right - to

~ travel) CShapiro v. Thompson, supra), race (Brow nV.

Bourd pe Eduedtig: ny SFE US. 483. (1954) ), or oMer-

.. ship 6f property (Krame¥ v. Lnian Free School Dis-

trict, 395 U.S. 621 (1969) ). The benefit being differ-

eutially dis ributed here is taxing authority for ednieas,

tivyal pyr poses, , the . ‘agduunt of which is: dependent,

upon the. pve: ith of the county, “In other cases. the’

benefit .or burden. differe tie fly. distributed has: heer

the - franchise (Harper \ ‘Virginia. State -Board of

eo ommissioners, 883.U, S: 66 3 (1966)), tile opportunity |

to appeal a c riminal ro conviction (Griffin x. Minois, 351.

IS.S. 12 (1956) ); or the teeeipt’ of welfare eo c:

(Shapiro v. Thompson, supra)). 8 /

Bre. f - believe that the. “compelling ’ interest”’ test: is.

applicable “herd simply - becansé the differentiatipgs

. classifies ation is) wealth. . Hoavever , itis clear beyond

doubt, that the ‘conipelling: interest”’ test is applic able

where e@, as. here wealth is usett as tlie basis for differ-

entially distril ting rapide to. tax for edue: ational

. o. eae sae Bee a sy

so Ge St ae J

Mr. Justice Harlan’ s. pee v.. Virginia State a

Board of B Bt tioy Ss, 383, U.S. 663, 681: (dissenting opinion). Coons

er id to the same.concept as ‘‘the classifying -fact’’.

anil Sugarman, Private Wealth and Public ae:

MI ‘piversity Press 1970), Pp. 342. ; nog

Fa e

Fi ° = wf

we ° . >

wos

*e°

yO ec aed - Compe}

. : r . . .

io — - ty 7 9 yo :

YE A ° y =) . ‘ i ’

‘

Millage . Ro}lback Act: Wh wa Connties _ According to.

Wealth” ;

c. The ’ ‘Compellin ’ Interest” Test Is Applicable E Because tha’|

ey Afe Dorald\ v. Bourd bf Election omininioners.

ots 802 (1969); dee ided a week after. Shapiro V.

Thompson, supra, this, Cojut disc ussed the kinds. of *

® Gases to whic ‘h the’ seompeliiiag 3 1h terest” test is apple’

_ cable. , This disctssion mikes ¢ ‘lear that it classification :

~ based: on wealth will, in aid-of itself, render: ‘govern-

* mmeagtad action p¥edic ited oni that classific dition subject

- to.the more stringent. siandnisl of review. of the ‘‘com-

_ petting interest’? test. The? Conirt’s: ‘analysis. in Me-

Donald follow ed the.same steps it had taken the week

before i in “Shapiro, first cousideritig which standard of

‘review was applicé able, and then considering whether

the facts pr eseiited met the — test. Ate: Count

stated: : SER Caps i ~

‘ —_ nois’ absentee. [voting] provisions, we m < deter’

ee nine initially how stringent ta staiidard \te use. in”

_? evaluating the ¢lassific ations made thereunder and’

“Thies are drawi, on the basis ‘of wealth or race,

+ Harper v. Virginia Board of Elections, [883-U.S.

663 (1966) )] two factors: which. would tide pend-

ently render-a Classification highfy suspect and °

. theredy demand a nicre Cracting judicval scrutiny.

Dougtas. vz California, gids U. S: 353 °(1963) : ee e

Lawghhnv. Florida, 379. US. 184, 192. (1464) Sod

-US, at. 806,07 + emphasis supplied],

The Court’s citation to the Harper aud. Douglis cases

indicated its view that these ‘ases involved discrimina-.

Re ‘fore controuting appellar ts teh ei é to Ii.

whether the distinctions must be: justified by a,

ing state interest ... . [A] careful exami- |

\ - 2 nation on our part is esper ially warranted where

+ tious’ based upon wealth and: that for this réasén the

-Court applied the mor e Stringent “seompelling inte rest? ?

| _ test? While we agree that the Court exércised a more.

Ly ‘ ° s: q

. . : “sy

_ —

“-

pe reeie y F ces ee

oe ae a ° $9, ; ne pati

® ‘ting judicial scrutiny-in these casgs, we are not as

(

‘aras the McDonald Court appears to have been thhyt

‘Harper and Douglas’ did imiced involve wealth dis-

‘crimination in the narrowest meaning of the term, fad

I, wealth ax opposed to a discrimination based on *

ability to pay. Because the Peat bar does involve a

wealth discrimination i ints narrowest meaning, we be-

‘lieve our case is even stronger than Marper and

‘ Douglas. * * ; ;

In Harper and Douglas the € ourt: Tiad under? review

classifications. whie hh were based, xtriv Ivy speaking, hot

on Wealth, but ou abilityto pay-(or-on-payment-of-a-

" fee). The effect, of course, myty be the same regardless

of whether the discrimination is based an’ wealth or

ability to pay.” The* poor person frequently does not.

Taye the ability to pay.. * Hlowever, for PUPrposes

of leg al theory, if is useful to distinguish between thie

a A law. prohibiting all people earning less: than

5000 per year from usi“g a public park isa dis-

“ acer ll based on wealth? one forBiddinig entry toa

park. unless a $5 adgnission fee'is paid is a diserimina-

tion based on ability to pay) — «< :

In Harper the Court. struck down Fl $1.50 poll tax.

The Court stated ; ;

A State violates the Equg! Protection Clanse of,

the Fourteenth Amendment whenever it makes the

affluence of the Yoter ‘or; uty, met of auy fee an

‘

& llowever, the citations to Harpe? and Douglas in the MeDonatd

case may refer only to dicta; rathet than holding, to ‘the effect

‘ that wealth discriminations are invidious, without distingyishing

between wealth discrimination and discrimination based on ability

to Lng See the qnotations from Harper, and Douglas, infra, .

pp. 24-95 29-30. a

a Williams v. Alinois, 399 US. 2%, 242 ( Wi).

;

“~e

pom ‘

electoral standard. Voter qualifications have no.

relation te wealth [385 U.S. at 666; ; emphasis SUp-

: plied]. ' ; os oO.

Lines drawn.on the basis of we: valth or propegty,

Wke those of race, are ‘traditionally, disfavored. :

2 TO introduce wealth or pacers of a fee as a

meas of a voter's qualification is to. introduce

ae capricious or irrelevant factor. The degree of

the Wiserimination.is irrelevant in this coutext—

that is, as a condition of obtaining a ballot—the

requirement of fee paying causes an.*invidious”?

discrimination that runs afoul ofthe Equal¢Pro-.

tection-Clause [383 U.S, at 668; citations omitted ;

eniphasis supplied |. + - -

5G Ms. . *

[Wealth or fee paying has, in our view, no re-

lation to voting qualific ations [383 U.S. at 670;

emphasis supplied |.” mm

Rieh andl’ poor alike wwe charged the 41.50 poll

tax, The statute did not ky to the peor man who

manage? by dint of gredt “saerifice te come up@vith

_the $1. 50 poll tax, ye on are net permitted. to .pay the

"$1.50 poll.tax.” Te indigent citizew in Harper was.”

dented the'franchise’only if he did not have the $1.50

The stat® would clearly haye accepted the fee from”

an indigent person Whe wax willing.to pay the fee.

Strictly speaking, therefore, the statute diseriminated *

on the basi< of abitity to-pay. rather than wealth, al- ,

though the effect may be and often is the saan: namely.

. to Mnee ott indigent voters, .

.*-

2 Of course the poll gx serve as-a depressant even to “those ,

‘ who had the £1.50 but-for whom payment was a greaten sacrifice

than for the wealthy. ‘It ix interesting to note, in this Fonnection

that the plaiytiffs in d/arpor made no argument that they could

not afford to pay the poll. tax ; ~ had standing ever though they

‘were not indigent. - ; ,

4°

This is obviously not to say, or even suggest, that

Harper was wrongly decided. There: are situations,

of which Harper is one, where it is unconstitutional

for government to disefiminate even-on the basis of

ability to pay. | Conversely, it is equally obvious that

while all fee-paying requirements -do discriminate on

the -basis of ability to pay, all such requirements, are

- wot unconstitutional. For example, it would be diffi-

cult to argue that the annual $25 fee, which the District

of Columbia.charges te practi¢e law, violates the equal

protection clause.. To determine when a discrimina-

tion’ based on ability to pay violates the equal pro-

“tection clause, we must examine the ‘nature of the

henefit which is being differentially distributed on the—

basis of ability to’ pay. IncIarpe?, the hénefit which

‘was differentially distributed based on ability to pay

was the franchise; the Court properly, placed sueh

great value on the franchise that it found that stri ingent

aeview was required, and the state was not’ able to

meet its burden of’ justification under this standard

of review. We heartily agree with this conclusion:

However, the significance of Jarper for the ease

at bar is that, by comparison, Piatt here have an ~

even stronger ease than the Harper) plaintiffs. It does.

not matter whether a poor Florida county is willing

‘to sacrifice in order to provide as good an edueation

for its children as a wealthy county is able to pros

vide; the poor county ix neverytheless prevented from

doing -6, Mot hecanse it caynot pay—we hypothesize

that it ix willing to sacrifice to make the payment”.

but ouly because of- its status as a poor county.

-_—_—

: 30 Thi ivseteda | is supparted by the fact that prior ‘to the

passage of the MiJlave Rollback Act, 24 Florida counties had

imposed on themselves a higher tax rate than is permitted by the

Millage Rollback Act. See, SUPE, p. 14, -

Moreover, because Harper involved a per Soe be

based on ability to pay, rath than Wealth, it re-

quired an examination’ of the nature of the benefit

which was being: differentially distributed on the basis

_of ability to pay. In our case the basis of diserimina-

tion ix ng wealth: rather than ability to pay. Ac-

cordingly, it is unnecessary here, just as - it is un,

Hecessary’ i a race ca>@ t6 examine the nature of

the henefit which the state is diffe rentially distributing.

. The “compelling interest” test is applicable to a racial

Classification even/when testing rujes as to who may

‘drink ‘at a public fountain. Once a racial classifica-

tion is drawn, it is unnecessary: te ask for what pur-

pose” Similarly, in wealth discrimination cases, it

does not iatter for what ‘purpose the distinetion ix

drawn,” whether entrance ‘toa park, entrance to a

profession, avail: tility of educs itional resources or the |

franchise. «| a 8

Thus, while Harper involved a discrimination based

on ability to pay. aml henge, required the Céurt to

an However,- the apple ation of the ‘‘compelling interest’’ test

does not lead to a per se rile condemning all racial classifications..

In some cases the state may We able to meet the birden of estab-

lishing a compelling state interest. Lt may be able to do this; for

example, in the case of so-called. benign racial classifications, . See

“Developments in the Law— Equal Protection. 82 Harv. L. Reve

1065, 1104-1120 (1969),

% Again, the applidition of the “*compelling interest’” test does

not lead to a por se rule condemning all wealth discriminations.

As there are benigi' racial « ‘lassitic ations, so there are benign avealth

Classifications, such as well: ire payments which discriminate in

faver of the poor) atid wradnated income tax (which dascriminatés.

against the rich). Such diseriminfations would meet the **com-

pelling intérest’’ test.’ =.

’

— LN

consider the nature and importance of the benefit

beiig differentially distributed (i.e., the franchise), cs

‘in our case the fact that the discrimination is based

on weaRh rather.than ability to pay in itself inelucta- \

“bly leadse to the. conclusion that the ‘compelling in-

_ terest” test, is applicable : ‘ Sas

Our analysis of Douglas v. California, 372 U.S. 353

(1963) is muc ‘hh the same as our analysis of the Harper

‘ase. Douglas is one of a line of eases beginnipg

with Griffin vy. Hlinois, 351 U.S. 12 (1956), in which:

this Court has ruled that in evinvinal. proc eedings the

state may not discriminate between “defendants on.

the basis of their ability to pay! In Griffin the Court

found that Ulinois had made the -transeript of the . -

trial a prerequisite for appeal in eriminal Ci SCS, ~The

effect was to deny appeals to indigents who were not

able to pay for a transcript. However, the state had:

not said that no indigent vould appeal; it simply of-

fered tri scripts to all.defendants on ostensibly equal. °

terms, at a price approximating its costs: Thus, the

state discriminated on the basis of ability to pay,

‘ather than on. the basis of wealth, et

. OI

—_-*

ge er Eh

** We may also add that dicta in the Harper case, ‘already quoted,

indicate that wealth is an invidious, ¢ ‘lassification. See also nn. 34-

BOenfra, . 8" :

hay Griffin, like Harpe r, contains dicta to the effect that wealth

diseriminatfous are invidious: -

In criminal trials a State can no more dise riminate on account

of poverty than on account of religion, race, or color.

‘ eee a nee ee . —

It is true that a State is not required by the Federal Con-

stitution to provide appellate courts or a right: to appellate

review at all .. + But that is not_to say that a State’ that does

yrapit appellate review can do so in a way that discriminates

against some convicted defendants,on account of their poverty

(351 1S. at 17-18},

fr =

29.

As Mr. Justice Goldberg has observed, the Griffin

case ‘‘lafid] to rest the iiotion that equal protection

requires only equal laws -and that the state -is jrever

obliged to equalize economic ‘slispérities.”’ The

teaching of Griffin is thateven a dise rimination based

on ability. to- pay is sometimes unconstitutional —in

the Griffin case because of the importance to the de-

fendant of. the criminal sanction invohiitarily imposed

upon him by the state. ee hon tee

The Douglas case involved a elaim of denial of the

‘ equal ‘protection by an indigent. criminal -defendant—

who could not afford counsel gu appeals Following

Griffin, the Court held that to allow a criminal de-

fendant to appeal from a conyiction with the assistance

‘of counsel only on the condition that he be able to pay

for his: counsel amounted _to_an_uneenstitutionaltdss—————

crimination based on. ability to pay.” This Court re-

fused to put its stamp of approval ona rule pursuant to

which ‘‘the type of appeal a-person is -afforded Rees

—- at

—_ .

—

——— Goldberg; | ‘Bquality and (iovernmental Action, ! 2 RTD,

L. Rey. 205,°218 (1964). ’

# As in the other eases we have been Te ‘Ussing, the Court in

Douglas used some language which did not distinguish’ between

a discrimination based on.*wealth and .a discrimination based

on ability to pay: | eve :

There is lacking that equality: demanded “by the Fourteenth

Amendment where’ the fich man. 7. enjoys the benefit of

counsel ‘s ssaomaid. White the indigent... . is foreed to

shift for himself . [T]he vvil is... discrimination against

the indigent . [Mn unconstitutional line has been drawn

between rie hy -_ poor [372 U.S, at 345, 357, 358).

However, in terns of the analy sis presented in’ this brief, we

believe Douglas is an ability-to-pay case. In any event, it is Gear

from Douglas that lines dr awa on _ basis. of wealth constitute .

invidious discrimination.

, a é >

- hinges. upgn- whether

sistanee yf counsel’? (472 US.. at 350- glee

gy” «

ae. aie

—

/fines);

ar ili ius ¥. Oklahoma C ita 05, S. 458, 16

fer al of trial. tr od et for lack of fee);

‘to etain appellate Caneel Swenson V./Bosler, 386 .

* US... 258;.299 (1967) (same): Long Vv. Dr trict Court,

-388 U.S... 192, 194 (1966): (transeript); Draper Y.

Ww ashinglon, 372 US_487, 497-98 (1963 Aeaumeript-

Lane. Vv. Brown, R72 /U.S. 477, pee Y £1963) (erent

———se¥ipt) Smith v. "Debuett, 369 ULS. 708, 710, 711, 714

(1961) (habeas corpas writ abe or lack of’ ee);

Burns Vv. Ohio, 360 Wis. 2ave- 25! (1959) (lack of

Bee :

not- he can ” pay for thd as-

3 yt E

V. Chlifornia, 386 US: 738, TA (1967) (lack of funds"

y > Wast-

lie State Ba. 357 U a 214,/ 216 (1958) (tran-

script). See also’ Knfsminger v./Lawa, 386°US. 8,

T)1-52-1 967) ¥ Robey ts-v. ha Fattee, 389. ULS. 740, 42) /

(1967). However, yore of thege cases are) ‘as/ ‘s rong,

for the plaintiffs 9& the ¢éase. ft. bar, involving, as it’

does, diseriminatign based on vealth—ini the narrow;

est meaning of tat phrase. : ahs a |

BES Ag /*

-D. The Line Dray by the Millage Rollback tn Is Especially

is of — in‘

Allocation of: Educational esources

As we haye indicated above, we db not believe that

in — case Boe a Sav gear panel based / fon er

ir ‘Soin aa 1 id aeray in pear to detbertndise w hethe

‘compelling interest”? test As applical ble. Howey r, if

| it i

Aermining Ww hether to send a maf

' thus discriminating on the basis

. @

nation has been made in this case, such consideration

only reinforces the conclusion thatgthe strictest judicial

- 6

svfutiny is required here, 2 ">?

“We have suggested that the purposes: for which the .

ability-to-pay diser iminations were made in the Harper

and Griffin-Douglas line of decisions were crucial to

the outeome.. In. Harper the Court forbade diserim-

ination based on ability ‘to pay because. of +the im-

portance of the benefit involved (i.e., the franchise ).”7

As this’ -Court on ago noted, The political fran-

99 38

chise of voting’’. is ‘*preservative of all rights.

Through the fr: aaa: citizens are assured not only

that government will treat them fairly, but’ that so-.

triffin-Douglas line -

ciety will operate fairly. In the

of ‘cases the state had. intervene

defendant lant against his his will by

~ prosecution. - Accordingly, the Gourt held that ‘in de-

1 to jail involuntarily,

in the life of the

37 We stress that in our view the

counted for by the importance of the benefit rather than by the

fact that the henefif in that éase ha pened to be a ‘‘right.” “There

are neany ‘rights’? with respect tb which he state may discrimi-

nate on the basis of ability to pay. For example. a citizen has.the

‘right to travel,’’ Shapiro v. Thdmpson, supra; however, a state is

permitted to charge a reasonable fee for the use of its highways,

of ability to pay,-even though this

has an effect-on an ‘indigent ’s/‘

9 9-

on the basis of the smportan he of the “right to vote’*, rather than

by the fact that it isa ‘righ

result in the case of a reagonable. highway use fee by saying that

a discrimination based on/ability to pay for use of a highway is

reviewed under’ the ‘‘rea onable basis.’ test, and that such a fee

meets that test. It prgbably would .not meet the’ “compelling

interest’” test.) 4

%Yick’ Wo v. Hopkin’, 118 U.S. 356, 370 (1886)\; see also,

———

. Reynolds’ v.ASims, 377 US. 533, 561-562 (1964), se)

—

~ *e

initiating criminal

esult in Narper must be .ac-.

right to travel.” Accordingly, we:

must, conclude that the resuJt.in //arper niust be accounted for. -

(: Analytically, one would reach the .

‘ : 4 o : : ° } ;

32 ; ; 4 | ;

¢ . ° o 17)

: °

. ad °

. 7 eo; °".0

the state may ‘not. ‘discriminate on ‘the basis of his’

ability to pay for the process inade a railable to him.

. The denefit distributed _ in the. case at bar,. eduea

tional resourves, partakes of many of the elements

which: Ted the Court in Harper and in the Griff La

Douglas line of ¢ ‘ases to conclude that the state may Hot

-(liseriminate on the basis ‘of ability to. pay, For tl

- teasons, we belieye that in the area of, edueatign—

certainly through high. school—a state is forbidden,

: in the absence of a-comypelling state inter os to. dis-

cfiminate on the basis of ability to. pay” Obviously, ’

/the-Court-need-not- reach that-question ‘in ‘this @ise.. ae

Our : point here -is. a narrow one: Considering the

age. “

nature of the benefit involved in’ this case “(i.e.,. edu-

cational resources), it is especially clear that.the *‘cerm-

polling interést”’ test must be applied. Like the benefit’

Be EE 9) (the franchise), the benefit involved hére

(edidAitional resources)’ is of the utmost importance.

Moreover, like the ‘state intervention in. Griffin-

Douglas, which was without defendants’ consent, .Flor-

“ida, too; has intervened involuntarily in the life of its

é : :

childrem without their ‘consent by. making education -

‘compulsory. Accordingly, the’ state may not in these

__ cireumstanees ‘discriminate on the basis of ability to

pay, and .a@-fortiori it may. not lo/so on the basis of :

wealth, iad | ; ‘

_ * Compare McTnnis Vv. ‘Ogtithe: 394. U.S. 322 (1969), affirming

mem., McInnis v. Shapiro, 293 ¥F. _Supp. "3 27 (ND. Til. 1968 )* and

Burruss v. W ilker'son, affirming mem., 310 ¥: ‘Supp: 572 (W.D.

- Va, 1969), discussed, infra, pp. -47-59.—--+.— 5

49-\ separate consideration which also militates toward ‘a more

Str hggent . rRiew is the fact, that we “are dealing «here with the

rights of children, an espec ‘ially helpless minority who do ‘not haye

access: to the political process and who~ are in special need of the

; ? . ° “4

_ @

o < Ae

re a 1, The Importance of Education 5 2 *

“tn 1749 Benjamin Franklin wrote: +

— The ‘good Education.of Youth has been esteemed

. by. Men in all Agés, as the Surest. Foundation of |. .

the Happiness both of private Families and of .

-Commonwealths . +. Capacities require Cultiva-

tion, it being trily with them, as with the best

Ground, which unless well tilled and sowed. with:

: profitable Seed, produr es only ranker W e eds."

"This thought Was C¢ ied by this Court almost: 200.

“ye ear later when it said; ‘The public se ‘hool & at once"

the symbel-of-onrdemoeracy-aid-the-most pervasyve—

“means for promoting our common destiny.”’- THinois

VW, Bourd of E ducation, 333. U.S, 203, 231 (1948).

‘And as this Court said in Brow WV. Board of Kdueu- |

-1971): ‘‘there is no more wortlty obje

-paramount . .” ef. Reynolds v. Sims

_ tion, 347 U.S. 483, (1954):

Taday, education is perhaps the-most important

: fhihetion- of state aid: local governments. - Com-

ee y school attendance laws-and the great ex-

penditures. for education: both demonstrate our’

. recognition of the importance of education to our

“democratic society. It is required °in. the per-

formance of our most basie publie 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 pro-

| Court’ S ‘protection. ‘As Mr. Jliistice Blackmun’ recently ‘stated in

Wyman v. James, 39-U.S.L.W: 4085, 5088 (decided January 12,

‘t of the public’s concern

[than ee, children]. The dejfendent -child’s needs are

377 U.S. 533, 565 (1964).

ind. Judicial Review,’’ 17

mn Choper, “*On the Warren Court:

_ UL TL. Rev. 20,3642 (1967).

41 Proposals Reliting to the Education of Youth in Pensil-

‘yania’’ (1749), 2 Works of Benjamin Fkanklin (Seaythe ed. 1905),

p. 338.

}

——

An Brow n, the. Court w ent on to say:

~48'See also Mall v. St. IPelena, Parish School Board, 197 F. Sup

eg tee:

fessional tre lining, and in helping him a adjust

normally to his envirenment. - In- these days, it

_is doubtful. that any child may reasonably be.

“expected to, fan eh in- Tife if he’ is. denied the.

‘opportunity of an edue: “i | Salt aa ':

e ‘ : “

The opportunity of an- education .. . where the

' state has ga an to” provide it, is- a right

which-must be made rwilable to all on equal terms

Be us AS. at493].",

» ard rt

It requires “no argument to-demonstrate tliat education is vital

and, indeed, basie to civilized’ Sot iety.. Without sufficient, edu-

cation the. plaintiffs would not be ‘able to earn an ‘adequate

livelihood, to -enjoy life to- the fullest, or to fulfill as com-

pletely -as: possible the «lities ‘and responsibilities. of aN

. citizens. [| Diron.v: Alabama State Board of Education 2

F.2d 150, 157, (5th Ole, 2981) 4.2 i

649, 656 E.D. La. 1961), affix on opinionsbelow, 368 US S. 516

(1962). In 1779 Thomas Jefferson introduved. in fhe Virginia =

* legislature, ‘*A, Bill for: the More General Difusion of a ae

eldge,”” » The Papers of Thomas Je ferson (Boyd ed. 1S?

pp.

26-27. H, e stated :

Sires it is generally true: that peaple ‘will be happiest

’. Whose laws are best, and are -best administered, and that laws

will -be wisely forthed and. honestly: administered in “propor- .

tion “as Qhose who form and administer them are wist and

honest ; whence, it becotes expedient ‘for promoting the

“public k happiness that those persons, whom nature. hath

endowed with genius and virtue, should be rendered by lieral |

-edueation worthy to rec eive, and able to guard, the sacred

deposits of the rights -and liberties of their fellow, citizens,

and that they should be®called’ to that charge without regard

, to wealth, birth or other accidental condition or circumstance ;

but the indigence of the greater number. disabling them from

0) educating’ at ‘their own -expense, those of their’ children ‘

whom nature hath fittly formed and disposed, to“become use-

ful instruments for the“publick,:it is better: that such’ should

be — for ane” educated‘ at the common expence of all.:

“ The Cc ourt of _ Appeals for the Fifth C ircuit has ised similar -

_ Janguage::* ."- canine eae ae Seog Ap : oRw

5 deen es |

in short, education nee nly provides ‘ndiv iduals with

ca basis for pursuing a happy and satisfyinfg life, but

also énables, the stite itself to function properly. So

understood, Bax things could be. deemed, more funda-

Sin the Constitution, found inter’

‘mental or important. "~ Por this reason, education may

r ¢

xy Some have sugeested thax the opportunity to-obtain an, edu-

cation in twentieth century America must He considered a funda- ‘

mental right, and if so, this fact alotie may. Result ‘in ‘the appliea-

tion Of. thie, ‘compelling interest ”’ fest. . In McDonald %. Board

‘of Election Conimissioners of Chicago, 304 US. 802, 807 (1969),

the: Court suggest@d’ that the ‘‘compelling interest’’ test is ap-

_plicable whenever a ‘‘basic fundamental right’? js involved.

“AVhile this Court has not y Se

ot found ° edue ‘atian® to

e absene e Of any specifie language

ate. travel to be a: constitutionally

mentalsright, it has, despite:

- protected right (Shapiro v. ‘Thomys son, 354 U.S. 618, 630 (1969) ),

-Tud found4procreation.to be» a ** basic “Givitnight’? (Skinner v.

“procreation, privacy ai

‘a constitutionally protected *right. Certainly many, if not all, of

Oklahoma, 3162 US. O39, 541 (442) ).° In both of these cases,

the Court applied a more stringent standard of review in an equal

protection céntext, based on its finding that it-was dealing ‘with

‘a fundamental, right. (But see footnote 37). Similarly, the

Court lias fond that the franchise ina state“election is a ftinda-

for example, Kramer vy. Union Free School. District, 395 US. 631,

mental right and ‘that, therefore, the ‘compelling interest’ test’

is applicable to legislative distinetions denying this franchisee (See,,

‘a fianda- _

627 (1969) 3 F inally, again w ithout specific language in fhe Con--

of privacy (Griswold v. Connecticut, 381 U.S. 479, 484-85 (1965) )-

From. this it follows that the *‘compelling interest’’ test ‘would

be applicable here if aes ation were found—like interstate travel,

the franchise in a state election—to be

the considerations which lead the. Court to conclude that. these

other benefits, are constitutionally protected rights are applic ae

to education.” Cf. ‘Developments in. the Law—E qual Protection,’

82 Tharv. L. Rev. 1065, 11833 (1969) :

Ilistory. and - ctistomn, however, have by now established the . ‘

asstimption that everyone/will receive some’ education, to be

‘stitution, the. Court has found a constitutionally protected right:

provided. by the state if’ by vo one else; and that a- person's .

. color or finance ‘ial ede should not determine how much edu- .

, ation he, gets. iy ax has come to be regognized as. a’

es: bs r.

a 2 ;

* é

-¢?

‘@

’

£2.

properly he compared W ith the right to vote, to Which

this, 4 ‘ont applied ‘the strictest standard of- etal

treatment in Harper.”

6 2. The Compulsory Maturé of Batcétion

Moreover, eduwation in this country is compulsory.

In Florida,” as in most states in the nation, children

‘are required by law to attémd school. * Parents who

willfully fail to send their children to schéol are guilty

of a criminal offense.” When a state brings the weight

yf its sovereignty to bear by requiring a child to be

vdueated, and, in addition, provides the major facilities

for that eduvation, it has intervened in the life of that

child te much the same extent ax was true inthe Griffine

/ pougees, line of cases,

No one dowbts thiit Florida ‘stintervention in the

life ‘of ats childre aif, veflected in its compulsory school

- attegaltunce Jaws, is ax wise from society's viewpoint

as wi the criminal prosdeution in the Griff in- Douglas

line. And we Also recognize that the to tigations can

he distinguished | on’the ground that ifi the ¢ate of com-

pulsory schvol attendance laws the principal purpose

critic iol iterest similar ty those inivolved in voting*and the

erithinal process, necessary to a meaningful participation in

human society and in the henefits which it offers.

See also Coons, Cline and Suyarmah, ** Educational Opportunity :

A Workable Constjtutional Test for State Financial Structures,”’

57 Calif. L. Rev, 305, 382-89 (1969).

The strictest standard of review has been regularly applied

in cases involving elections and the right to vote. See Williams

Vv, Rhodes; 393. US. 23 (19M) ; Reynolds <. Sims, 377 US. 533

(1964) and subs pient. reapportionment cases. ~ See alse Iall vy.

Kgals, 396. US. 45, 52 (1969) (Marshall, 4.” dissenting). -

FSA. $$ 252.01-252.45, 71-48

TV S.A. §§ 252.09, 232.19. s 7

: : 4

; 4

©.

‘

ix to benefit the stiident, while in the case of the erim-*

inal prosecution the principal purpose is, if not cor-

rection, punishment. Howexer, we believe that the

es _ evitical elantintis,or-schould-be, the fact of the state's

~~?

compulsory and in®oluntary . interventioi, whatever |

might be its purpose: This may perhaps be illustrated

_ by angther hypothetical case. Suppose Florida passed

a compulsory. innoculation ‘statute, to Fuard against an

epidemic disease, but made available only two serumes

Whieh.could be used. ¢ ne, available to the recipient at

a cost of ¥10, was without side effects; the other, avail-

able to the recipient at a cost-of #1, had a potential for ©

causing substantial adverse side effects. Surely such

a law would be mneconstitutional. Once ‘the state re-

quires innoculation, thus. mandatorily intervening’,

the life of its citizens, it cannot diseriminate betw

the recipients othe basis of their abilgy to pay. And

the fact that the innoeulation requirenient is designed

to benefit, not punish, the recipier®is certainly: no

ground for distinguishing the cases. |

: . * *

Finally, this Court has already expréssed itself that

education may not be conditioried on wealth, Ait least

in the absence of a compelling state: intebest.” In the

-course of its opinion in Shapiro v, Thompson, 394 US.

618 (1969), the Court stated :,

_ . We reeognize that a $tate has. a valtd interest in

preserving the fiseal integrity of its programs. It

may legitimately attempt to limit its expenditures,

whether for public assistance, public pheadion. or

any other program. But a State may not aceom-

_ plish such a purpose by invidious distinetions be-

_ tween classes of its citizens. It could not, for ex-

ample, reduce expenditures for education by bar-

ring indigent children from its schools. (394 U.S,

at 633; emphasis supplied]. .

e j tA

; - ’ «

‘ 38. sin ”

The Court ini Shapiro v. Thompson also niet and re-

jected thé notion that the state may dispense its

largess in proportion to past contributions to the state

fixe, Appellants’ argument, said the Céurt:

[ W Jould permit the state to apportion all bene- -

fits and services according to the past tax con-

ributions of its’ citizens. The Equal Protection

Flause prohibits such an Bpportrcnaers of state

services,” . ;

i * summary, this Court explicitly stated in Me Donald

that a state may not discriminate on the basis, of

wealth (absent a compelling state interest for doing °

so). In Harper, and, in the Griffin-Douglas Vine of

— eases, this Cowt held that the state may net dis-

criminate even oi the basis of ability to’ jay—again,

absefit a compe ling state interest—when fundamentally

important interests are involved and the state invol-

untarily intervenes in the life of a citizen, considera-

‘tions which. are alse “applic: ible here. If, in these

circumstances, the state-may not diserithinate on the

"In addition. three cases are presently befere this Court “which

pose the question whether a particular discrimination based on

ability 16 pay violates the equal protection clause. Two were

argued last term and set for reargument thix term. In the first

of these, Bode v. Connecticut, No, 27; Oct. T.. 1970. indigent wives

who want to divorce their husbands contend-that, Connectient’s

£45 fee to file a divorce proceeditig une smistit utionally discriminates

against them bheeause of their inability to pay thejfee. -In the

second ease, Sanks v. Georgia, No, 2%, Oct. T.. 1970, Undigent ten-

ants attack a” provision of Georgia last which requires a double

hond to be put up by a tenant as a “prere quisite to defending ats

eviction pro weling. WU the payment requirement in either of

these cases is struck down on equal protection grounds, the holding

would “ rie a fortiari to a case involving the distribution of edu-

cational resources on the basis of ability to pay. In the third case,

Tate y.Short, No. 324, Oct. T., 1970, an indigent criminal defend-

Ant was jailed to work off a fine which he was unable to pay. Cf:

* basis of ability to pay, surely it may not diser, re

asx Florida did here on the basis of wealth. Finally

an Shapiro vy. Thompson the Court explicitly stated:

that wealth discrimination with respect to education

would be unconstitutional.”

It remains only to discuss Dandridge v. Williams,

397 U.S. 471 (1970). Appellants argue (Br. 15-16)

that the teaching of this case is that the *‘re: sonable 7s

basis” test rather than the **compelling, interest” test

ix applic able to the case at nar. We disagree.

Williams vy. Illinois, 399 TUS. 235 (1970) and dn Wee histes 0, 89

Cal. Rptr. 255, 473 P.2d 999 (1970).

The most prominent lower court ‘deci ‘ision holding that r, eeey

ment - ‘may not discriminate in the distribution of educational re-

sourees‘on the basis of wealth is Hobson vy. Hansén, 269 F. Supp.

$01 (B.D. 1967). aff'd sub nom... Smucele y- Hobson, 408 F 2d

175 (D.C. Cir’ 1969). a ;

” Even Mr. Justice Harlan who has dissented from most of the

equal protection cases on which we rely agrees that. diserimination

basec| on wealth is wiconstitutionai:

It iv said that a State cannot discriminate between the “rich”?

and the ** poor” in its system of criminal appeals. That state-

ment of course commands support... [Griffin v. fUinois, 351

1S. 12, 34 (1956) (dissenting opinion) J. .

_ The States, of course, are prohibited by the Equal Protee tfon

‘Clause from dise Timinating between *‘rich’’ and.*‘poor’’ as

such in the formulation and application of their laws. But it

is a far different thing to suggest that this provision prevents

the State from adopting a law of general applicability that

may affect.the poor more harshly than it does the rich,

[ Douglas v. California, 472 US. 353, 361. (1963) (dissenting

- opinion) 9 Cmphasis supplied as tu the word *‘application’’) |.

llowever, Justice Harlan does not appear to require the application

of the * “compelling | interest’’ test to .wealth classifications. See

Dandridge +. Williams, 397 U.S. 471, 489 (1970) (cone urring

" opinion ) ; Shapiro v. Thompxon, waestirs WB. GIS, 65941 (169) (dis-

genting opinion ).

. 40

Zz ar , bai aed

—- In Dandridge the Court sustained Maryland’s maxi-

“mum family grant of welfare payments ($250 per

+ month), regardless 6f size of the family... The con-

stitutignal claim was. that this upper limit violated

the equal protection clause, because - it discriminated ——__

against large families. The Court ruled that ‘the **rea-

sonable basis’ test was. applicable. Applying this

test, the Court found that the maximun’ payment was

reasonable beeause. it encouraged ’ employment and

avoided discrimination between non-working welfare:

families and families of the warking poor,

The Maryland-scheme undoubtedly discriminated

against Jarge families in the distributiou of welfare

funds, in that large families received less per person

than smaller fatnilies. ’ |

The fact that’ the Court did not were the * ‘com-

pelling interest” test, notwithstanding the: importane c

of the benefit, only indicates that the **compelling in-

terest”? test if not applicable on the basis of the

importahee of the benefit alone; the Court must. also

examine the differentiating classifieation. Tn short.

hoth the differentiating classifieation and the benefit

-(or detriment) distributed thust be considered in, de-

‘termining whether the ‘reasonable basis’? test ‘or the

‘compélling interest’ test applies. In Dandridge the

Court ruled that the ‘reasonable basis’’ test was aps.

plicable to a diserimination based on family size in

the distribution of welfare Henetits; quite apart from

the inrportince of welfare benefits, the differentiating

classification invelved—family size—was not an in-

vidios one like wealth or race. Accordingly, while

Cr., Mr. Jin tire Stewart's opinion in “Oregon Vv. Vitehell, 29

US.L.W.4037 or December 21, 1970)?

' 41

the opinion in Dandridge could have discussed in

greater detail why the ‘compelling interest”? test was

inapplicable, its application of the ‘reasonable basis”

test was nat plainly. wrong.

Contrary to “appellants” argument, however, Dan- .°2

_ dridge provides no predicate for concluding that, a

state may discriminate on the basieof seedth in the---—~~-

_ dastribution of educationnl resources, or even on the.

basis of ability to pay, in the distribution of , those *

resources, - Accordingly, we conclude. that the ‘*eom-

‘pelling interest’ -test ‘is. applicable here and that

Pandridge does not suggest the contrary.

E. No Reasonable Basis, Lae Alone a Coniiiilieg State Seiad

Can Be Found To Justify the Distinctions Drawn by the .

Millage Rollback Act, S :

Having concluded that “the **compelling interest”

~ test is applicable to this case, we turn new to the ques-

tion of possible justifications for the Rollback Act.

We conclude that the. Rollback Act is not only sm-

supported by a ¢ompelling state interest, but, lacks

even a reasonable, basis.

In the comt below. we chided the defendants for

- failing to advance an? justification for this unequal

treatment: What-inteyest,’’ we asked, ** has Florida

in preventing its pdéorer counties from providing as

good .an edueation for their children ‘as its richer

counties?” The ‘three-judge court asked the same

question (App. 49250), and ‘senrched in vain, for an

answer. Now for the first time—in their brief in

this Court—appellants attempt toe provide an answer.

Their answer, in short, is that the Millage Rollback -

Act is, part of a larger legislative. package designed. -

te inerease state—as opposed to local—support -of

ebility te pay.

42°

public education. By ‘the **massive infusion of state

money ’’ made available by this legislative package (Br.

16), which is distributed on a wealth-free ‘basis

pursuant to the MFP formula, there is-said to. be ef-

fected a decrease in the variation im per pupil . ees

_penditures.- “In this-way, Say appeHants, the unfair-

ness of requiring districts of varying financial strength

to provide substantial support for. thei ow public

school systems is -amelioratéd (Br. 3, 9-13, 18-19).

Laudable though this objective may, be, appellants

never explain why ‘a Wealth-related millage limita-

tion on lo¢eal support for schools is either a necessary

or desirable part of this package. Nor do they ex-

plain how such a limitation would work. in any way

to increase state support (distributed on a wealth- free

basis) for local public education systems. At best,

appellants’ arguihent reduces to the proposition that a.

wealth-related millage limitation is the necessary po-

litical price.that must be paid if there is to be any

"! Interestingly enough, appellants appear to contend that plac-

ine the responsibility for the support of local schools on local juris-

dictions whose ability’to bear that responsibility varies would be

Unconstitutional : , ; ‘

To unleash the taxing power of the several school districts by

striking down the Millage Rollback Law would compound and .

magnify the very inequities in public. school financing of which

appellees complain. The disparity of the tax impact per -mill

levied would vary so greatly between the property-poor, county

and the property-rich county: as to truly justify a charge of -

‘invidious discrimination’’, a concept roundly condemned by

this Court [Br. 18]. eg oi

Perhaps appellants meafi to suggest that they should be permitted

to réduce disparities attributable to local variations in ability to

pay by placing a differkntial tax limitation on poor counties as

opposed to rich*counties. \Such a limitation is a clearly uneconstitu-

tional way of alleviating \disparities attributable to variations in

additional infusion into county: schoo! systems of state

‘funds distributed on a wealth-free basis.” This, they

suggest, constitutes a ‘trea sonable basis’? justifying the

discrimination. 4 é :

Ito tht thie-jtenton wit ——

not pass constitutional muster.” The: Florida legisla-

tire may be free to exact almost. any pyice it wishes

as a condition of inereasing state support for. pablie

edueation—except an unconstitutional price. It

could not, for example, enlist necessary political sup-

port for greater state fimding of -publie education by

requiring, as part of theJepisfative package, segre-

gated schools. Nor could it increase state support for

public education by giving’ a greater share “of the

additional funds to wealthy counties than to poor

counties. Similarly, it could not enlist the necessary

‘political support for the infusion of new state money

into the educational system by placing a more severe

limitation on the financial support which poor coun-

- ties may.give to their public schools than on the fi-

nancial support which rich counties may give to their

public schools—which is - preeisely what Florida has.

done’ here.’

Appellants furtf@r assert that Florida has the right

‘to limit its expenditures for public schools. They

- J e

52 Although there is no recorded legislative history of the Millage

Rollback Act, our understanding is that its enactment simply re-

flected the political. power-of certain property owners, who saw the

statute as a means of reducing their local taxes and who secured

its passage as a polittea! tradeoff for their support of other

tegislation.* ¢

ag, * Mr. Justice Slaveholl’ dissecting in Wyman vy. James, 39

U.S.L. W. 4085; 4095-96 (decided January 12, 1971): ‘‘A pater-

nalistie notion that a complaining citizen’s constitutional rights

can be violated so long as the State is somehow. helping himsis alien

to our Nation's philosophy.’ e oo

°. : an # ¢

; 2

atiote (Br. T4) from this Court’ s opinion in Shapiro

Thompson, 394 U.S. 618, 633 "(1969) :

Be A state has ; a valid interest in preserving the fiséal

integrity of its programs. “It may legitimately

attempt to limit its: expenditures whether for pub-

“

Hie—assistanee,pubhie-education or. any other pro-

WA 6g eee

But. appellants’ abfupt termination of this qtiotation:

unfairly neglec ts the two sentences immediately fol-

le wing : : P

‘But a State. may not accomplish. such a “purpose

by invidious distinctions between- classes of. its

“citizens. It could not, for example, reduce ex-

penditures for education by ‘barring indigent

children from its schools,

Neither may it -give unequal edue: iticnal \ daxine ae

thority to its ri¢th and poor counties. As the Shapiro

Court said in an only slightly different context, ‘The

saving of welfare costs: cannot be ‘an independent

ground for an invidious classification’? (394 U.S. at

eee” . he

6033.). . . 4 ee

Moreover, if Florida desires. to limit the support,

logal communities may: give’ to their public scheols,

“it Inay easily do so on a non- -discriminatory basis.- It

eould, for example, limit the amount of local support

for edue: ation to X dollars per Instruction Unit, there-”

by incorporating all of the legitimate factors to which

‘consideration is given in Florida’s complicated ‘for ‘mula

for determining Instruction Units. Or it could impose

a limitation in,terms of dollars per pupil. ‘This Court

“hhas‘on a number of oecasions struck down classifica-

tionsgon equal protection grounds because of the avail-

ability of less drastic means for accomplishing the

Vea ,

“same purpose. For example, in Shapiro v. Thompson,~

° y . . ; on "

he ‘. 394 U. S: 618 (1969), the « Court-rejec oar anrcabonable

a a sprotter red justification of a. statute because of the

wajlability: of alternative nrethods for. accomplishing «B

» tive same Purpose:.«° a 7 oe ois ee

M f T there isi need for a State a, use the one- year

waiting period as a safeguard against fraudulent:

réceipt of benefits; for less drastic Ameans are

available; and are employed, to minimize that

“hazard.” of course, a’ State has a valid interest in

pr eventing: fraud hy any applic uit... .f Hewever]

it is unreasonable to aceomplish this objective ‘by °

‘the blunderbuss method 6f denying assistance to, /

dl indigent newcomers for an entire’ vear [894 /

U.S. at 637; emphasis supplied]. are mee

“ ih /

Tn. hone a as “me: ius nrore finely tailored-to aeliews

the de sired goal,’’ are available (Turner v. Fouche; 3!

U.S: OHO, 364 (1970) ), the State’ s failure to use these

— mequs ay, as if does here, result in an unreasonable

5 «eae and, a fortiori, a classification that is

insupported by a compelling state interest. :

PAG: “Appellants also suggest. that the Millage Rollback

y Act aa not diseriminatory on, its. face" (Br. 10) and

5s Seb W illiams Vv. Ilinois, 399-U.S.- 235, 244 (1970) (** [There —.

_ are}'numerous alternatives to whic hethe State by idgialattrs enact~ /

mentor jtidges within the scope of- their authority—may ‘resort in _

order to avoid imprisoning an indigent beyond the statutory maxi-

mum. for involuntary noupaxment of a fine or court costs.’’):

ShcHon vy. Tucker, 364 U.S. 479, 488 (1960) (¢*The breadth of iif

le wislative abridgement must be viewed in the ligkit of léss drastic Pa? ea

~~ means for achieving: the same basic purpose.’’?) See also, € ‘arring-

tan Vv. Rash, 380 U.S, 89, 94-96 (1965) ; Aptheke rv. Neerftar y of

). State, 378° U.S, 590, 512-14 (1964): Sherbert ve DS iheon Bi4 U.S.

398, 407 (1962); Talley vy. California, 362 US. .60, ‘ef (1960) : :

Mullane vy. Central Wanover Bank and: Trust Co., — U.S. 306, 319

(1950) ; Baldwin v. Seclig; 294 U.S. 511, 521-22 neat See gen-.

erally. Struves-* The Less-Restrictive-Alte ‘rnative Principle and Heo-

nomic Due Protvess,”’ 80 Harv. I. Rev. 1463 Saonibe

j ?

4 applies a ten mill taxing limit: ition -to all Florida

~ counties” (Br. 10). T his is ‘true. Ilowever, this

Court. has never regarded itself as confined by, such

‘a simplistic view of the requirements of: equal pro-

tection. It is, its effect that. condenins ‘the Millage

-— ~Relback Act; “and that effect is “apessa rile to dis”

criminate on the basis of wealth.

As the court. below noted, ‘iE ven “thoigh the Actin |.

question applies uniformly to each county it? may,

nevertheless violate: the Equak Protection Clause if its

effect is discriminatory’ (313, Supp. at 948; App.

49), Not the ostensibly evenhanded words,* but the

practical and necessary effect of the statute, given

the denionstrable variation anwng’ counties in the tax’

hase” per pupil, is determin:tive. Thee mvts must

‘determine whether there is an arbitrary orinvidious

diserimination between those Class®s,’ — MeLaughlin

Vv. Florida, 879 U.S. 184, 191 (1964) and cases there

cited. For cases applying ‘this. principle and holding, °

statutes void oni equal protection. graunds based On,

‘their effect, see Williams v. Rhodes, 393 U.S. 23 (1968) ;

. Carrington v. Rash, 380 U.S. 89 (1965); Reynolds

v. Sims, 377 U.S. 533 (1964) “And subsequent reaps.

portionment eases; Gomillion vy. Lightfoot, B64 U.S

339 (1960) ; Griffin v. School Bourd of Prince Edward

. County, 377° US. 218 (1964); Mall vi St.. elena

— Parish: School. Board, 197 F. Supp. 649 (ELD. ‘a.

1961), aff'd,.368_U:S. 515 (1962): Viek Wo v. Hop- |

..* bins; 118 U.S. 356_ (1886). As Mr. Justice Black ..

Drona sit ay Grifft vy. Mlindis, 851 US. 12, 17, n.11

(1956), “| A] Jaw nondise riminatory on its. face may

925

, 242 (1970).

be | ‘ossly diseriminatory in its: operation.’ See also. .

cas¢s there -cited and Williams v. Tlinois, 399 U.S! -

i 47 ’

Pe * | = e = ' .

io “Whether | appellants, will ae to. ‘find ‘other justifi

AS cations for the Millage Rollback ‘Act, we cannot '§

; se any eve iit, it As -abnarheals to dhserxe that

saab ‘ik one ‘which, age

» in Williams v. Rhodes, 293 |

‘to us no more than’ ‘theoreti

{ Mee

S.. 23, 34 (1968), “geen

ally imaginable’

F. ‘The Significance ‘Of, MclIanis ¥. iIvie, 394 U.S. 207 (1968), ;

_and Burruss v. Wilkerson, 397 * . 44 ee ‘to /the Cake>

at Bar é é /

~ We turn now to a consider ne ‘of two

‘ decisions, which are reloy Mit Were qh / because

-. appellants place primi wy reliance upotr ym, but also

because the Court’s opmion and decisyory in this case

/ may have signifieant impowdfn interyrefing these two”

decisions to the heehee har. /'Tiese’ cases are

MelTinis v Ogilvie: a U.S.’ “B29 | 1969), aff’g mem,

MeTnnis ¥: Shapird, 29908. Supp 327 (ND, Il. 1968)

rated (Mr. Justice Doug: as would hav¢ noted’ probable, juris-

Shae | diction), a 1 Burrus v. Wilkerson, 397 U.S. 44 (1970),

se aff’'g mém/, 210 JF: Supp. 572/(W.D. Va. 1969) (Mr.

‘Justice Youglag and’ Mr: Tustice White would have

| noted. P ArbaN\es Fins pl --

i curian

and W ithe ‘Tutrantate Thedunlties in Pub. ab

Case for Judicial Relief Under the Equal

970 Ww ige. LL. Rev. (1970): Shanks, ** Equal

oe Edughtion xe the: Law.’ 3y The American Seholar 255 (1970)'

| Shanks, Book Review, ‘S4 Tharv. L. Rev: 256 (1970+; Michelman,

>. .° **Foreword: On Protecting the. Poor Through the Fourteenth

Amendment,’” 83 Harv. L. Rey. 7 (1969) ; :. Coons, ( lune and Sugar-

man, ** Equal’ Edueational Pipportnlty A Workable € onstitutional

HD QT 0) : Silard

lie Ke ueatan : The

, an

Lag

’

“#4

L. Rev. 47 (TMG), 2 :

£ . .

In the ‘McTunin case a group of Mlinois students at-.

tackgd that state's legal.<tructure for finaneing public '

education because it “permitfted| wide-vayiations in

the e ? uditures per student Arom district to glistrict”’

(293 FB. Supp. at 529) by pacing major respousibility

for financing public “eh Ns On local, jurisdictions of

widely varying: finanyfal strength. These «students

urged a three-judge Mistrtet comt to devisey financing

“system that would be based on e; wh pupil's *eduea-

_ tional needs**

Recognizing that-**the inequi-

ties of the exiSting. iebanmbes are readily apparent”

(295 #. Sypp.at 331). the district court nevertheless’

slistnisseW the ‘complaint without trialeon two inde-

pendent gromids, First, it ruled “that “the Four-

‘teenth Amendment does not require that publie school

expenditures be-made only on the basis. of pupils’

educational needs” (293 V, Supp. ait 529), Seeond,

the court would pot redloecate state. funds on the Inert

of the students’ ‘eduedtional needs’. because thy

Codrt found the are gp IwMh *nebitlous’* jad, ** jue

dicially nnmartd ges ible** 28 , Supp. at 329, ea).

ete geiacmmaenmmmmnntilion

Tent for State Find ‘jal Structures: 57 (Calif, lL. Rew. hy (15)

Developments inthe Law--Eqnal Protection.” 82 Ware. Li. tev

1M (16): AL Wine, Rich Schools, Poor Schotdes The l’romine

af. Equal Educatianal Opportunity Vv niversity of Chie age Pron:

1)? Horowitz i Néitring, ** Equal Protection Aaprets of In-

equalities in Public Kdlucation and Public Asgistanie Programs

= = =

from Place 10 Place Within a State.’.15 TOC4LA. OE. ltev, 787.

(Mime: Kirp. ° Tie Constitutional Dimensions of Equal Bdaea-

tienel Cpportunfity,’ “oe ary, Blue, Rew, 635 (1968), reprinted

in Equal Educdhonal Opportunity «tary: ee University Dien,

169): Korlgid, ** Banal Eduentional (dyppreortuanity « The Limits of

Cont it uttioonnal Autisprude nee Undefined.” 35.0, Chi, L. Rev. api

" (158), repriuted in The Ouythta of Ingqualitas Suburban and

lrhan Public Schogle (UC. Daly. edu; Univ. of Chicago Press;

1468 ) + Morowity, ° ‘Tw parate bat Vinewual vier Lage rj hour.

teenth Amegdimggit besue in Pablie School Ke “TS TLL A,

of plaintiffs’

On appeal to this Court, the eon was affirmed

by memorandum, order for want of a. substantial fed-

eral question, 394 U.S, 322°(1969). Mr. Systic e Doug.

las would shave tioted probable juris sHietion. 4

_———

‘Burrus presented exsentially the sume Lahral Atu-

ation as Melunis, Procedarally, huswexOr, defendants

presented a motion to dismiss ts cifygle liste iet judge

vho was thus required tp%rule on the xpbstantiality

) il contention, Chief Judge

ore th\s Court's por curiam affirni-

the question was substantial

mrt nist Me couvened:

Dalton, «

ance in Melnnis, ru

and that/a°three-juc

”

Poyerty does appear te be a factor contributing

he conditions which give ‘vise to the plait-

n based on poverty is no more per-

it 1239]

renewed to the three-judge court after thixe Court's

decision in’ Melnuis, a trial was had in’ Burriss.

Plajntiffs established ‘that they were frony a poor

rural Virginia county and’ that their extreme poverty.”

prevented flan from providing an even a My

adequate se ‘hoo! “vstein despite the fact that their’sehoo!

tax rates were winsually high and far in exgess of -

many counties with well-financed eehool eV stonis,

When the three-judge court w rote, this Court's de-

cision in’ Melunix had already been handed down,

Nevertheless the district @ourt took the ove asion in

its opinion dismissing the confplaint to obsérve:

The existence of such deficiencies and differences

ix forcefully put by plaintiff*’ commel. They ave

not, and cannot be gainsaid (310 F. Supp. at 574}.

complaint. «It is clear beyond question that

ible thats racial discrimination MAPS Ey

Q- Sup}

Apparently because the motion to. dismiss was not”

However, the Court found that

» The circumstances of [the MeInnis’ case| are

scarcely “‘Sistingutebable , from the facets here

(Ibid... » ae :

Thus. the Court dismissed- the case, but added

While we most and do deny the plaintiffs’ suit,

we must notiee their beseeming, earnest and justi-

_ fied appeal for help (Lbid.]. °

On appeal tw this (purt, the-judgment was: affirmed

yer curion on the jurisdictional papers. 397 U.S. 44

C1970). Mr, Juv tier Douglas ‘and Mr: Justice’ W hite

“World Hove noted probable jurisdiction.

We shail show Ie! tow th: at oven giving. the broadest

reading to the por curiam decisions in Melunis and

Burruss, both-eases are easily distinguishable from the

ease at bar. Llowé ‘cause how the Court deals

here with Melunis tnd Burrr«s will have an inevita-

ble effect on how these cases ave applied by lower

conrts in the future, we shall also y slise ‘uss the institu-

tional problem Which faces the ri in deciding What

precedential effect should he given to per curiam af-

firmances of nevel and difficult questions. Finally, we

shall brietly suggest why we believe Melnnis and. Bur-

russ were wrongly dee idéd, tot because we think they

should be overruled in this case—we do not—but be-

cause We believe the Court’s consideration of :these

eases in its opinion in the instant case should not

preclude that possibility, ini future cases, -

1. Distinguishing McInnis and Burruss

Initially, and ax the court below agreed Welunis

and Burruss may ‘easily be distinguished from the

ease at bar,. both factually and on fhe basis of the

legal principles.involved. Briefly tated, McInnis

pated et

and Burruss botli involved discriminations on the —

basis of ability to pay, while the instant case involves

_ a discrimination based ow wealth. As the wir aa

court stated in Burruss: * ;

_ Truth is, the inequalities suffered by the school .

children of Bath are due to the inability of the:

county to obtain, locatly, the money's needed to bel.

added to the State contribution to raise the edu-

cational provision to the level of that of some of

- the other counties or cities [310 F. Supp. at 5741.

Sx = . : so

Whatever doubt there may be regarding the eanstitu--

-tionality of a diserimination in the attecation of -edu-

cational resources oased on ability te pay in particular

circumstances, it is clear, as we have shown above, |

that’ the state may not distinguish among its children

‘simply on the basis.of w ex'th, ds : ‘

The difference in applic “ahle fegal. principles is re-"’

flected by the diffe ent factual situatfous in Melis

andy Burrauss on the ené liand, and‘in the instant case

on the other. The plaintiffs ti, MeLunis® cha’ lenged ~

the. Jaws structuring the financing of public schools -

because they ** permit wide variations in the expendi-

tures ‘per student from district to district”? (293. F,

Supp. «at 329) (cinphosis supplied)., “State statutes

which permit such wide variations allegedly deny the

less fortunate Mlincis shudents of their Constitutional

rightx"* (293 F. Supp. at 220) (emphasis supplied).

Thus, the Welunis plaintifis objected to the fact that

seme parents in wealthy districts were able to finance

a better education for their children than parents in -

poorer districts. This is precisely the opposite of the

position taken by appellees here. We do not here

)

The ensuing discussion applies pari passu to Burrus.

52 -

object to a state scheme that permits variations in per

pupil expenditures. Our, complaint is, that the. state

prevents us from adequately undertaking the respon-.

sibility of financing our children’s education—a. re-,

sibility which is identical to that of wealthier counties.

- *As the court below stated in the instant case:

The opposite situation [from that in McInnis and,

Burruss|- confronts us in. this case where the

school districts (counties) are seeking, through.

‘the plaintiffsy to be able **to determine their own

ax burden according to the importance which

they place upon public schools.” |

The Florida Act prevents the local Boards from

adequately financing their children’s edueation.

The complaint is not [as in Melnnis and Burruss]

that the state permits the Boards to spend less, .

but that it requires them to spend less. Plaintiffs.

are asking to be able to rdise more money locally.

In McInnis the plaifitiffs wanted the state to give

them more. Lrrespective of the plaintiffs’ success-

ful attack ’on the. Act, we know that there. will

continue to be disparities fn per pupil expendi-

turesx'in Florida, either because some counties may

not desire to spend as much .gs other counties on

the education of their children, or because, in the

poorer Counties, they cannot. Plaintiffs do not

contest the ‘variations in per pupil expenditures

from these causes, but only ‘the unequal impesli-

ment placéd on us by the state because we are

poor.’ We consider this to be a fundamental

distinction between the cases [313 F. Supp. at 949;

App. 51-52]. ~ : ros ai

The McInnis case may also be distinguished*on the

ground that the McInnis plaintiffs argued that the

court was under a judicial duty to allocate the state’s

educational resources according to individual students’

‘

6 RE BE

educational ‘needs.*. However, because the concept .

of education needs. was left undefined (as the court

noted at 293: F.2d at 329, n. 4, 335, 336), the court was —

faced with a ‘definition of standard” problem. By

coutrast,’we have here no problem of defining the

standard by which to allocate educational resources ;

we argue only negatively, that the state is forbidden

to discriminate on the basis of wealth.” re:

Finally, in this ease, in contrast to the McInnis case,

we seck no judicially unmanageable relief. No matter

who prevails here, the Florida state authorities wille

Aarry on exactly as before. If appellants prevail, the

state will continue to disburse MFP funds beeausé no -

county will levy in excess of 10 mills. If appellees

prevail, the state will continue to disburse the same

‘amount of MFP funds because there will be nod Roll-

back Act satietion to prevent it. from doing sa.

2. McInnis and Burruss Should Be Limited to Their Precise Facts

—— —_—_—_ -

Thus far, our discussion of Melnnis and Burruss

has assumed, ‘contrary to fact, that the lower éourt

opinions in those ¢ases had been. adopted in hace +

verba by this Court. As we have shown, even. were

this the case, appellees would nevertheless be entitled”

to an affirmance here. -In fact, this was not thie case.

Each of these. decisions was affirmed per curiam on

Compare our use of the term edueational needs, See feot-

note 23, supra, p. 20.

* There are an enormous number of non-wealth-related financing

systems, many of them allowing the local jurisdiction to set its own

local tax-rate depending on the importance it places on edueation,

that do not violate fhe negative command of the equal protection

clause, See Coons, Chine jafid Sucarman, Private Wealth’ and

Public Education (Marv. Univ. Press 1970), pp. 280-83; Shanks,

‘ Book Review, 84 Harv, L. Rey. 256 (1970).

ae 2 54

jurisdictional papers. This, it seems to us, raises the

problem as to the meaning of a-per curiam aflirmance

on jurisdictional papers when the question is both novel

and difficult—or, to’ put the matter somewhat dif-

ferentiv., how such a per curiam decision should be

read.

Jit camot be cniricaia: that, if we lpok only to the

holdings in Welvvis and Burruss, this Court has twice

held that states are free to distribute eduéational re-

sources te local districts en the basis of theif ability

to pay’ for them, at Jeast in the ‘particular eireum-

<tanees of those exses. =H,

However, the experience of recent \ years clearly

suggests that the proe ‘edure on appeals is becoming

increasing!y similar if not identical to the procedure’

em cortion: avi. At least in the mind of\ the practi-

tioner and perhaps also in the mind of the Court, an

appellant. “ike a petitioner, must first-seck the Court’s

coment to hear his ease. Reasoning thushy) the nota-

tien of probable jurisdiction is: the equivalent to the

grant of certiorari, aud the papers on which\each de-

cision is made are substantially ideéntieal.

In cases presenting novel and difficult issue’ how-

ever, the Comt cannet reasonably treat as as

cases in which the issues must pass an initial dis-

eretionary s¢ reening and, at the same time, treat the |

summary offirmanuce or dismissal (which in redlity is

io tore than a failure-to. note projgble jurisdicti4n)

as anything mere than a denial of certiorari, More-

over, as a practical matter where a novel and difficult

question ix decided by summary affirmanee on juris-

dictional papers, thaf decision ‘should. Yiave no ore ;

effect on future eases, either im this Court or in lower \

courts, than a denial of certiorari.

It may well be that the Coyrt has hesitated to ate

.” that a summary affrmante of a novel and difficult

‘«

question has | no pecebbeuntad value because this would

appear to conflict with the congressional directive to

give appellate consideration to these casés. The most

‘appropriate resolution of this problem might well be

the passage of legislation increasing the area of the

Court's discretionary as opposed to-obligatory review. |

However, saying nothing and leaving a per curiam

‘affirmance standing as an apparently dispositive prec-

edent of the ‘same, factual situation leaves the bench

and bar in ‘contusion, discourages the bench and bar

from assisting. this Court in the resoluticn of novel

and difficult problems affer the rendering of a per

ot)

coin affirmance,” and requires the Court itself. to

act ‘inconsistently and: in confliet with its. own ‘“prece-

“Tn number of ceases the MeInnis decision has been taken to

forechose further discussion, In addition to the Bur PUSS CAS, SCR,

eg., Serrano V, Pricst, Civ, No. 35017 (4 ‘alif. Ct. App:, 2d Dist.,

+ decided September 7, 1970), yow on petition for rehearing before

Calif Sup. Ct. No, 938254 (*We are bound by decisions’of the Su-

preéme Court on questions depending upon the construction: of the

United Statgs Cofistitution. ..,-and a summary affirmance by the

Supreme Court is a decision on the me rits which has pree edential

‘value.’’) . i F*

On the other hand, Judge Friendly, after an ambiguous ‘refer-

—gnee to the Mcinnis case, recently stated that ** This is a develope

ing ‘area of application of the equal protection clause, and. ques-

tions should not be deemed unsubstantial merely because they might

have *beeu so considered twenty years ago”. -MeMillan: vy. Garlick,

430° F 2d 1145,4150 (24 Cir, 1970). After noting. that this area

of the law ‘‘has Pye attracted a’ considerable volume of

scholarly writing’’ (Id. . 7) citing much of the literature we

have cited in footnote 54 gn es Friendly on behalf of a unani-

mous panel ofdered. vitae convening of a three-judge court to con-

sider issues which trench very close to this Court’s holding in

Melunis. Compare the statement of the Fifth Cireuit im the in-

stant case ordering the convening of a three-judge court after this

Court’s decision in Melnnis: ‘Noting that lines drawir on wealth

are suspect and that we are here Yealing with interests which may

well be- deemed fundamental, we cannot say that there is no reason-

ably “arguable theory of equal protection which would support a

" decision in favor of the plaintiffs’; Hargrave v. McKinney, 413

F.2d 320, 324- 25 (Sth Cir. 1969). °

= os aes

Nar

‘Say wher the ultimate resolution of an issue, follow-.

ing -briefs and arguments, turns out to be different

frem what must be regarded as a technical resolu-

tion of the issue. by the per curiam altirmauce.”

Pending legislative resolution of this problem, it”,

‘seems to us that it would be entirely appropriate for

the Court to state that the precedential value of

per curianvattiivmance on jurisdictional papers of cases

involving novel and difficult issues, is limited very

“narrowly to the particular facts of the decided ease.

Certainiy, that should be so with respect to this Court’s

percent ativmanees in Mefunis aud Burruss, cises

which illustrate the problems discussed. above. A

Delphic one-sentence affirmance of a difficult’ and novel /

question must be given the narrowest possible’ read-

ing, limited to its precise facts, because all. that can

be said as a result of such an affirmance is that, given

the complex cof factors presented.in a particular case,

the appe Hants: were not entitled to prevail at the time,

The Court has net dise losed why: it-ruled as it did.

and there is*no way a subsequent court—this Court

or any other—ean know whether precisely those fac-

‘tors which caused the Court to rule as: it did are’

present i'd subsequent Gase, Therefore, a per euriant

‘decision in these @iremmstane es should not be read as

extending beyond the narrow facts of the particular

“ase,

of por curiam ailirmaneces. E.e¢., Baker vy. Carr, 369 U.S. 186, 278 -

(1962); Meflowan v. Maryland, 366 U.S, 420, 511 (1961). See.

also Minersville Nehool District Vv. Gohitis, 310 U.S. 586 (1940),

where the Courtegave plenary consideration to an issne which had

previously been ruled on in a series of per curiam decisions. Gobitis

was, of course, overruled in W cst Virginia State Board of Educa-

tion Vv. Barnette, 31s) US.-624 (1943), -

3,Even the Narzow Holding in McInnis and Burruss Is Incorrect

We wou » Jess than candid. if we did not note

our conviction that Mc/unis. and Burruss were de--

“cided inéorrectly and that ultiviately this Court will

decide not té adhere to: those decisions. We haste -

to. add’ that it is also our view that it would be in-

apprepr iate for the Court to overrule those decisions *

. in thisscase. Nevertheless, it miay be: appropriate to

.dixeuss, if only wis the merits of Melniis uid

Burruss.\\ 2

In gur ‘view “the. nert MeTnnis..or Burruss” case’

should be considered as presenting the narrow ques-

tion ds to “whether elementary or secondary publie

school educ ition may be differentially distr ‘ated with-

ina state on, the basis of ability to pays This Coyrt

has alre ady ruled—we believe correctly—tha uw state

may net discriminate on, the basis of ability, to gay

either i in the distribution of the franchise or ir NCCOSS -

_ to prerequisites for eriminak appeal.” ~ The question

ix, therefore, whether these holdings should be extended

‘to elementary and secondary school education. Ih. ad-

dition to factors we have previously discussed,” special

weight should. be given .to the’ unusnally heavy state —

involvement in this education delivery system. In

many loc ‘alities, the-state-is ue eX¢ ‘lusive, agency which

offers this necessary. ser i al eit

— » if ‘ SS esas s P >

o ILarper and ‘Ghifiin- Biaales Jine of cases. see supra. spp. 24-30.

The importance of elementary and secondary education. and

the fact that elementary and secondiny schooling are. compulsory.

“8This factor, together with the factors listed in the prpvious

footnote, easily distingiishes the case of elementary and secondary

education from, for example, a municipal opera, for which the same

fee is charged of rich and, poor alike. :

c-€

This is not to say. that these considerations are ex-

haustiye or that the’ law in this. area“*—as to when

a state is forbidden. to discriminate on the basis of

ability to pay—is at the end of its development. It

is’ not necessary at this point to define its ultimate

reach,” The Court, in our view, should proceed on,

a ease by case basis. Tfowever, the time has clearly

come, we believe, to titke the next step.”

‘Indeed, ave believe that the. step has already been -

taken, at least in digta. In Shapiro v. Thompson, 394

U.S. 618, 635 (1969), the’ Court stated that a’ state ”

“may not provide benefits to its citizens on the basis

ot their past tax contributions. Is that- not precisely

what the states have done when they make the amount

of funds available for public education depend ¢ on the

amount of a local tax?

Consider the case.in whith the state ‘i imposes a ‘state- 2

‘Wide real estate tax to support its publié education.

system, Suppose further that the state appropriated

to-each local. distriet for the operation of its ‘publie

school system’ the amount of money which ‘was pro-_

_dueed by the state’ real‘estate tax from the district.

Surely, this would. be unconstitutional and in plain

violation of this Court’s dicta i in. Shapiro v, Thompson

supra. We submit that this isin fact the same situ-.

ation -that presently exists whenever’ the state ‘says

to its., local schoo] distrie ts: that . they are, expected.

cre f. Mr. Fubtive Marshall dissenting in Dihiiviiigs Vv. W dliams,

397 U.S2471, 519-30 (1970). Bers cf. -

‘f. Mr. Justice Goldberg : ft | is ‘gaia that the Government

camngt be expected’ to equalize all economic disparities., ‘Of course

_'t fannot, but this. does not mean that-it should not try. to “elim-

inate disparities in certain critical areas

and Governmental Action,’’ 39 N.Y.Us Li Rev. 209, 224 (1964).

Goldberg, ‘‘ Equality:

ae 2

to fund their public education system’ from local real

-estate taxes, despite their varying ‘abilities to. do 80.

While we do not see £4 or expect this Court to. over:

rule McInnis and Burruss in this case, we would re-'

. quest that the Court do nothing which would lrinder.

the continued exploration of: these issues, toward the»

end that when these issues are directly presented td

the Court, it may civail, itself ef this continued studs

and, hopefully, rule otherwise than it did in MeTunis

and Burruss. ik ne +e

II. THIS COURT SHOULD not ABSTAIN FROM DECID-

ING THIS CASE IN DEFERENCE TO. A STATE COURT

There’ are’ two possible bases On whie h abstention y

might be urged in this /ease,- neither of which isy as We ¢

“hall show, sound. The first is that the statute uniler

attack ‘bere, the Millaire Rollback: Act, is of wicertain -

- nicaning ; a’ state,court interpretation. of the Rollback

- Act may either modify the federal constitutional ques- >”

tion, or; by coustr uction,. avoid it. altogether. ~ ‘Fhe

second: abstention argument: which could. be: put/ for-

ward here is that appellees might ‘obtaimthe s oa heh

they seek here-on the basis of séme proviston of Florida.

law not previously. involved in this litigation. The

thrust of this argument is that by sending appellees to:

a state court to seek such relief, the federal constitu-

tional ~guestion might | be avoided. Neithey argument

aoe

is valid. OM Veatadraeereca

z. ‘We agree that wherd the meaning. of the sine’

statute under attach is uncertain. ind a state court

interpretation of. it might avoid or nodify the fees | Sie

constitutional question, ~abstention ‘is proper, “Wise:

-consin. v. Constantineau, 39 U.S.L.W. 4128 ( devided”

J anuary 19, ase ; Fornaris v. ane Tool Co., , 400 Us

)

“eourt on federal grounds,

. :

60°"

4) (1970); Reetz v. Bozanich, 397 U.S. 82 (1970); i

Zwickler V. Koota, 389 U.S, 24%, 249 (1967) ; Harman

! Foras ning, 380 -U.S, 528, 5343S. (3509).

However, this principle. is. inapplicable here bevause

_. there is no conceivable yneertainty in the Millage Roll-

back Act. It speaks with utter clarify, ankAppellants

have not even attempted to identify any uncertainty or

ambigyity-in the statute ander attack, or any interpre-

tation of it which might aveid or modify~the federal

" eomstitutional question.”

2. Appollants* principal ae argunient is that.

appellees may be able to obtain in a-state-vortrt the -

‘snmne relief. ‘they seck ‘here, but on the basis of some pro-_ -

vijon of state law, rither than on the basis of the

Fourteenth Amendment. ie "

Appellants’ pontention lig heen specifically rejected +

c by this ‘Court as to-eases, like the instant one, * brought

‘uludler 42 U.S.C, § 1983. Monroe v. Pape, 365 US: 167 .

(1961): MeNcese v. Board of Bducation, 397 US. 668

(1963). These cases establish the proposition, at least -

as to Section 1983 eases, that the: availabilitysof relief

under state law ina state court docs pot of itself pre-

clide a litigant from first secking, oe ina federal

——

where the Court considered several suggestions pat forth by the-

state as to how, tlie state statute under attack could be interpreted

so ws to avoid or modify the fedéral constititional question. The

Contt. found that each of these suggestions was so eléarly incor-

rect that it- failed to provide the uncertainty which is a preeondi-

tion to abste\tion, even though the «tate statute had never before

_ been interpreted, See alee Zivich{er-v. Koota, siipra, at 249-

“7 Appellees? complaint asserts a cause of action undef Section

1983 (App. 3). ° . .

61 .

In Monroe v. Pape, the Court stated (at 183) :

It is no answer that the, State has a law which

if enforced would give relief. The federal remedy

is suppleménutawy to the state remedy, and the

latter need not be first sought and refiked before

the federal one is invoked. . ;

; This thougiit was elaborated in McNeese (at 671-72): -

al bang under [Sectiori’ 1983] may not be de-

eated because relief was not first sought under

state law which provided a ‘remedy. 7

The purposes (of Section 1983] were sefral-fold

—to override certain kinds of state laws, to pro- '

vide ‘a remedy where. state Jaw was inadequfte, .

“to protide a federal. remedy where the state

" remedy, though adequaté in theory, was not avail-

able jn practice’? and to provide a remedy tn the

federal courts supplementary to any remedy any

State might haye.... om

We would defeat those purposes if we held that

' assertion of a federal claim in a@ federal court

must await an attempt to vindicate the same claim

‘in a state court [citations omitted; emphasis

added]. ace ig ae

Appetlants’ reliance on Reetz v. Bozanich, supra, is -

misplaced. First, he Pectz plaintiffs, unlike appellees

in the instant case, did not and could not rely on

.” Section 1983 as a substaritive basis for federal juris- -

diction (see Appendix in No, 185, Oct. T. 1969, pp..1-2;

Hague v. CLO,307 US. 496, 527-31 (1939) (Stone. J..

(2d Ci¥, 1969)). - Appellees here, relying. gw Section

1983, axsert a persoual interest affecting a bread clase

of citizens, compared to the solely economic interest .—

fos asserted in Reelg.

But even if ga not, have brought their

action uuder Section 1983, abstedtion would be inap-

propriate here. While Reetz d d vend the litigants

to a state court to determine, whether they could get

_ the relief they sought on state-law grounds, the sub-

sequent ease of Wiscgusin v. Constantineau, supra, held

that the possible availability of relief on state-law

. grounds was not adequate ground for_abstention, pre-

sumably whether or not the federal cause of action was

grounded on Section 1983, ** For all we know,” argued

te djesciters in ¢ ‘oustautine au,**the state equrts would

tid this statute invalid under the State Constitution.”

However, the majority rejected this argument. Mr. .

Justice Douglas, “speaking for six members of the

Court, stated: *

Tire ix no ambiguity | iy the «statute [under

~ attack]... Where there is\no ambiguity in the

state statute, the fe deral court should not alistain

but proceed to decide the F deral covstitutional

ela [Slip Op. 6). ° 7

Thix would appear to suggest a clearly that only |

an uecertainty or subiguity inthe statute under attack

would provide the necessary predicate for abstention,

‘ the Lect: case notwithstay ang. The Constantineau

Court appears to have Jord the Reetz\decision only as

affirming the well-eefablished principle, as stated in

decals, Unat er OPP. “should be ordered only where

“the ixsue of state Jaw [as to the meaning of the state -

statute under attack | is uncertain! ? (39 US. at 86)." a

_ While the holding in Rectz-ean be reeonciled with

Constoutincau on the ground that the latter was a

a} Seo Julge Dwyer's exee ‘Ment dixetssion of the abstention doc-

_ thine (App. #/Zand a similar disenssion of that doctrine and of

the Ricts cas€ in Hall . Garson, 430 F.2d 430, 436-37 (5th Cir.

1970). . .

a «°° 63

Section 1983 case” and Reetz was not, the Constantin-

cau opinion does uot appear to rest on this distinction.” | |

A sounder basis for reconciling the holdings in the

cases, if that is to be done, is that in Reetz the plaintiffs

vigorously pressed their non-federal claim side by side

with their federal coustitutional claim. The Reets —

plaintiffs even persuaded the lower court of the validity

of their non-federal claim .°In Co onstantinent, as here,

plaintiffs have pressed only their federal constitutional

cldim. Any state-law claim which appellees may have

here is being urged only by appellaitts. Thus, the

Reetz case merely held that when a litigant presscs-n °

federal constitutional claim and a non-federal claim, a

federal court should first give a state court the oppor-’

tunity to pass on the non-federal claim, rather than

itself passing on thatelaim. (Cf. Ashwander vy. 7.V.A.,

-297 U.S. 288, 346-48 (Brandeis, J., concurring)). But

the Hertz case cannot be interpreted, espetially in light .

of Coustantineaa, as permitting a defendant to dredge

up some von-federal ground which the plaintiff has not

even pressed, and use-this as more or less “reverse

" vemoyal”’ to obtain a federal abstention order.

Thus far, we have assunied the eXisteiice of a state-

law remedy which might give appellees the same relief

they seek here. However, appellants: have not ever

direeted this Court’s attention to the particular provi-

sions of state law under which they sugge-t appellees

might have a substantial possibility of obtaining relief.

Although urgipg this Court to abstain on the basis of

a case entitled The School Board of Broward County, |

. ™ See Appendix in No. 95, Oct. T., 1970, p. 102.

7 Moreover, it is difficult to. understand why ‘abstention should .— °

be ordered any more quickl¢ where a claim is based directly on -

the Fourte entb Amendment, rather than on Section 1983.

4 64

Florida vy. Christian, No. 69-932, Second Judicial Cir-

eit in and’ for Leon County, Flerida,. appellants do

net even advise the Court what state law contentions

hitve bool, or could be, made in that ease.” Whether

the growids of attack were frivolous or substantial is

uot disclosed, nor are we told even the provision of the

Mlorisla constitution upon which the attack is based.

‘therg ix a final consideration whieh militates against.

abeter tion here. In Harman vy. Forssenius, supra, this

Court stressed two, factors, both present in the instant

_ ease, Which influenced its decision not to-abstain:

1. The delicate and sensitive nature of the cousti-

tutional deprivation alleged; and

2. The importance of immediate court relief to a.

broad class of gitizens if the allegations be proved.

The Harman Court stated :

Support for the District Court’s refusal to stay

the proceedings is Fema in the nature of the cole

stitutional deprivation’ alleged and the probable

COPSCOMECHCES of. abstaining. ; '

As this Court has stressed on numerous eccasions,

“ltihe right ta vete freely for the candidate of

one's choice is of the essence of a democratic so-

riety, and any restrictions of that right strike at

the heart of representative government.”

—~ ° ‘

On January 12, 1971 counsel for appellees spoke with counsel

for Broward Caunty, Lewis Hall, Esquire. Mr. Hall advised that

the Broward County case had *’witherett on the vine’? and *‘had .

ben disutissed for tack of prosecutions’ A call to the Clerk of

the Court for Leon Couuty established, howevM® that no formal

order of ‘disinissal hat yet been entered, Nevertheless, no action

has been taken in the case since September 17, 1969, the date on

which the answer was filed. (The complaint was filed on Sep- -

tember %, 1969.) : -

. 65

‘In appraisiag the motion to stay woceedings, the ~*~ *

District Court was thus faced with a claimed im-

pairment of the fundamental civil rights of a

broad class.of citizenis, ; er

Given the importance aud immediacy of the -prob-

lem, and the delay inherent in referring questionis

. of state law to state tribunals, itis evident that

the District Court did not abuse its discretion in

refusing to abstain [380 U.S. at-537;. citations

omitted]. x :

_ These considerations are fully applicable here. Few

rights could be more important than the right of a —

child to au educational opportunity unhobbled by un-

student appellees is irreparable. There is no way that

this Court, or any court, can give them the quality edu-

cation that they are losing each day as‘a-result of the

application of this unconstitutional statute. Thé *im-

mediacy of the problem’ which the Court found in

Harman is present as well in the case at bar.

f its . .

CONCLUSION

For the foregoing reasons, the judgment below should

be affirmed. :

Respectfully submitted,

GILASSIE, PEWwETT,. BEEBE & SHANKS

HersHeEL SHANKS

ALLAN L. [ENDELSOHN

Rovert M. Perce, Jr.

Federal Bar Building West

1819 Hf’ Street, N. W.

Washington, D.C. 20006

RicHARD H. Fraxk

918 Marine Bank Building

Tampa, Florida 33602 °

Attorneys for Appellees

Davip Rvusiw — ules a,

. 1201 Sixteenth Street, N.W.. | eh

Washington, D. C. 20006

Of Counsel )

- effort.

67 .

APPENDIX A

t he Millage Rollback Act, as originally enacted i in 1968,

prov ides as follows: :

236.251 Tax: levy; participation in minimum foundation

ca a ; limitation. a

" (1) Effective July 1, 1968, each school board desiring

lo participate. in the minimum. foundation program for

kindergartens and grades one through twelve shall levy

no more than ten mills of tax on the nonexempt assessed

valuation of the district, exclusive of voted@district build-

ing and bus, required debt service, and the millage required

for junior college minimum effort. If the application 6f

the above. millage limitation creates a condition in any

‘district wherein its 1968-69 current operating budget from

state and district ‘tax sources cannot exceed its 1967-68

current operating budget by at least twelve hundred dol-

lars per instruetion unit, the allocation of state funds shall

*he increased to the extent necessary to prov ide a twelve

hundred dollar increase per instruction unit in Hs-196s- 6 .

operating budget.

(2). For the purposes of this section, current operating

‘ed shall niean the ‘total budget from state sourees as

provided in §§ 236,07(10) and 236.075..and local taxes, ex-

_clusive of the amount collected for building and dus, re-

quired debt service, and- junior ‘college minimum required

(3) The millage limitation of ten mills in this section

may be increased to the exteft necessary to replace any

decrease in funds from Publie Law 8i4 from the previous

vear, oe ‘

68 \

APPENDIXB -

Chapter 70-94, $8 Florida laws, 1970 made certain

changes in the Millagé Rollback Act. Printed below is. the

‘text of the Millage Rollback Act, the words in brackets

being deletions in the Act ‘as originally enacted in 1968 and

the words in italies being the additions made by the 1970

amendments :

Section 8. Section 256,251, Florida Statutes, is

amended to read: |

236.251 Tax leyy;: participation in minimum founda-

tion’ program; limitation.— - |

{(1)] Effective July 1, |1968,] 1970, each school

board desiring to participate in the minimum founda-

tion program for kindergartens and grades one (1)

through twelve (12)-shall levy 10 mpre than ten. (10)

mills of tax othe nonexempt assessed-valuation of |

the district, exclusive of millage voted far: [voted dis- —

trict building and bus,| local capital-improvement, re-’

quired debt service, [and the millage] required, | for]

junior college minimum effort[.|. , required, additional

kindergarten local effort, commissions to tax collector

and tax assessor, deficit in state funding of retirement

“matching, cost of liability insurance due to waiver of

sovereign immunity, capital improvements under. seco

tion 9 of article VII of the state constitution, and the

amount of money necessary to replace any decréase iw

funds from Public Law 874, decrease meaning the dif-

. ference between that amount of money received by the

school district during the current fiscal year’ and the

largest amount of Snoney received by the said district

under the said law subsequent to a” A, 1967. [if

‘the application’ of the above millag@limitation creates

_a condition in any district wherein @s 1968-69 current

ecseatle budget from state and district tax sources’

cannot ¢xeeed its 1967-68 current operating budget by:

at least. twelve hundred dollars per instruction unit,

the allocation of state funds shall be increased to the

extent necessary to provide a twelye hundred dollar

bets its, oe Bae ena ae

inerease per instruction anit in- its 196 8-69 operating Le

. budget. ; . -

(2) For the purposes of this section, current ope rat:

ing» budget shall mean the .total budget from state

-sources.as provided in ‘sections 236,07 (10) and 236.075

and local taxes, exclusive of the amount collected for

building and bus, required debt service, and junior

college minimum required effort. .

(3) The millage limitation of ten sulle in this see-

tion may be increased to the’ extent necessary to re-

place any decrease in funds from Publie Law S74 f

the previous year. |

-«?

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.