# Appellees Brief — Askew v. Hargrave > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1479%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellees Brief - **Published:** January 1, 1971 - **Citation:** 401 U.S. 476 ## Text *? ** 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, v. 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. 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 . ™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. 3 . 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 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, a — , ye 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 : ae e @ 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¢ 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. oe 15 ay ar, a Re . e 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 ” a 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, 16 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 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. a 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’. * ae : 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 e ° \ ee \ "depen ding ou the. way.a pe +. £2 ny f o > 5 ey aa | WRX rae 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 @ 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 —_ . — - 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. “ 6 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 _ @ © ¢ ? cot ase aes o 4% * 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 43 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 ? 46 3 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! - eo 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. o ILarper and ‘Ghifiin- Biaales Jine of cases. see supra. spp. 24-30. G2 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-€ oF 58 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 ty 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 3 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 —— © This is fs contrast, for exapiple, to the. Harman cune, supra, 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.. concurring): Kisen v, Eastman, 421 F. 21 560, 563-66 © (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. eB 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 4 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. ee 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.) : - ? 4 . 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- ‘constitutional. restraints. Moreover, the loss to.the/ © 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 i 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 69 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. | -«? --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1479%3A06. Public record. Not legal advice.