Opposition Brief — Klein v. Robinson

TABLE OF CONTENTS

CounTER-STATEMENT OF QUESTION PRESENTED ...........

CouNTER-STATEMENT OF THE CASE

Arcument—There is no basis for granting the peti-

tion, because it is firmly established that the ad-

ministration of state government is not subject to

review in the federal courts under the guarantee

of a republican form of government of Article IV,

§ 4 of the Constitution, and in any event, the order

of the Supreme Court of New Jersey directing

that the appropriations for public education shall

be distributed in accordance with statutory provi-

sions which will best discharge the state constitu-

tional guarantee of equality of educational oppor-

tunity is fully consistent with well established

judicial remedial powers

CoNncLUSION

Cases Cited

Dickey v. Robinson, 414 U. 8. 976 (1973)........----------0--

Griffin v. County Board of Prince Edward County,

377 U. S. 218 (1964)

Highland Farms Dairy v. Agnew, 300 U. S. 608

(1937)

Luther v. Borden, 48 U. 8. (7 How.) 1 (1849)...

Marbury v. Madison, 5 U. S. (1 Cranch) 137 (1803)...

Robinson v. Cahill, 62 N. J. 473, 308 A. 2d 273 (1973)

Robinson v. Cahill, 63 N. J. 196, 306 A. 2d 65 (1973).

4

ii TABLE OF CONTENTS

: PAGE

Robinson v. Cahill, 67 N. J. 333, —— A. 2d ——

(1975) 5,8

Robinson v. Cahill, 118 N. J. Super. 223, 287 A. 2d

187 (Law Div. 1972) 2,3

Rodriquez v. San Antonio Independent School Dis-

trict, 411 U. S. 1 (1973) 3

Ohio ex rel. Bryant v. Akron Metropolitan Park

Dist., 281 U. S. 74 (1980) 7

Swann v. Charlotte-Becklenburg Bd. of Ed., 402 U. S.

1 (1971) - 8

United States Constitution Cited

Article IV, Section 4 1, 6,7

Fourteenth Amendment 3,8

New Jersey Constitution Cited

Article VII, Section IV, Paragraph 1

IN THE

Supreme Court of the United States

Octoser Term, 1975

No. 75-291

»™

—_

HERBERT C. KLEIN,

Petitioner,

v.

KENNETH ROBINSON, et al.,

Respondents.

On Petition for Writ of Certiorari to the Supreme Court

of New Jersey

i

_

BRIEF IN OPPOSITION

Counter-Statement of Question Presented

Does it violate the guarantee of a republican form of

government found in Article IV, 4 4 of the United States

Constitution for a state’s highest court, based upon a

finding that inequalities in expenditures among school dis-

tricts deprive some students of the “thorough and ef-

ficient” education guaranteed by the State Constitution,

PA BUG, 5 RPT FRR mary EN VDP ELKINS TUL MITE DRS IIT RMN RA COROT ENT pA LTA RR TT IE

2

to enjoin the distribution of funds pursuant to sections of

the State’s education laws which aggravate the unconsti-

tutional inequalities in expenditures and to direct that all

legislative appropriations for education shall be distributed

pursuant to sections of the state’s education laws which

further the constitutional goal of equality of educational

opportunity?

Counter-Statement of the Case

This case was commenced by the filing of a complaint

in the Superior Court of New Jersey, Law Division, in

February 1970 which alleged inter alia that the present

system of financing public education in New Jersey vio-

lates various provisions of the United States and New

Jersey Constitutions, and sought to enjoin the continued

operation of the allegedly unconstitutional statutory

scheme.

The court heard testimony between November 1 and 9,

1971, and on January 24, 1972 it issued a lengthy opinion

holding that the entire present system of funding public

education in New Jersey is unconstitutional. Robinson v.

Cahill, 118 N. J. Super. 223, 287 A. 2d 187 (Law Div.

1972). The court found that school districts with high

real property tax bases spent more per pupil than dis-

tricts with low tax bases (118 N. J. Super. at 235-246, 287

A. 2d at 193-199), that the existing system of state aid

for education failed to equalize the capacity of school

districts to provide a quality education (118 N. J. Super.

at 258-265, 287 A. 2d at 205-209), that the amount of

money spent on education does affect the quality of edu-

cation (118 N. J. Super. at 248-257, 287 A. 2d at 200-205)

and that children in school districts with a low real prop-

erty tax base were receiving an education inferior to

3

that provided children in wealthier school districts (118

N. J. Super. at 245-252, 287 A. 2d at 198-202). The court

therefore concluded that the existing system of financing

public schools discriminates against pupils residing in

school districts with low real property wealth (118 N. J.

Super. at 280, 287 A. 2d at 217). The court held that

this discrimination was violative of the Equal Protection

Clause of the Fourteenth Amendment and the comparable

equal protection guarantees of the New Jersey Constitu-

tion. It further held that the inequality of educational

opportunity afforded children in districts with low real

property tax bases violates the guarantee of the Educa-

tion Clause of the New Jersey Constitution that the Legis-

lature provide for the maintenance and support of a

“thorough and efficient” system of free public schools

for all children between the ages of five and eighteen.

N. J. Const., Art. VIII, § IV, para. 1.

On appeal, the Supreme Court of New Jersey affirmed

the trial court findings that significant disparities exist

in expenditures per pupil and that the quality of edu-

cation depends in substantial measure upon dollar in-

put per pupil. Robinson v. Cahill, 62 N. J. 473, 481, 303

A. 2d 273, 277 (1973). But it concluded, as had the

Court in Rodriquez v. San Antonio Independent School

District, 411 U. S. 1 (1973) that these disparities do not

violate the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution, and it also

found no violation of the equal protection guarantees of

the New Jersey Constitution. 62 N. J. at 482-501, 303 A. 2d

at 277-287. On the other hand, the Supreme Court of New

Jersey agreed with the trial court that the system of financ-

ing public education in New Jersey fails to satisfy the

guarantee of a “thorough and efficient” education contained

4

in the Education Clause of the State Constitution. 62 N. J.

at 521, 303 A. 2d at 298. In a supplemental opinion,

the court concluded that the existing system should be

permitted to continue in operation until July 1, 1975 so

that the Legislature could be afforded an opportunity. to

enact legislation which would satisfy the state constitu-

tional guarantee. Robinson v. Cahill, 63 N. J. 196, 306

A. 2d 65 (1973).

A petition for writ of certiorari on behalf of the

Speaker of the General Assembly and President of the

Senate was thereafter filed with the Court, which denied

the petition. Dickey v. Robinson, 414 U. S. 976 (1973).

Although numerous proposals designed to correct the

constitutional defect in the State’s system for financing

public education were placed before the State Legislature,

it failed to enact any changes in the system. In the face

of this legislative inaction, various parties, including Gov-

ernor Brendan T. Byrne, filed motions with the Supreme

Court of New Jersey for supplemental relief to correct

t ese constitutional defects. Other parties, including the

petitioner, filed briefs in opposition to the motion, but

none contended that the granting of the requested sup-

plemental relief, including the distribution of legislative

appropriations for education in a manner more compati-

ble with the state constitutional requirement, would of-

fend any provision of the United States Constitution.

In an opinion dated May 23, 1975, the court concluded

that the enforcement of its original mandate required

that it enjoin, effective July 1, 1976, the distribution of

state aid for public education in accordance with sections

of the education laws providing a fixed amount of aid per

pupil, regardless of the real property tax base of the dis-

trict, and a guarantee of aid at a level not less than that

received in a base year, and that it direct the distribu-

5

tion of all state aid in accordance with sections of the

law which seek to equalize disparities in the capacity of

local districts to fund an adequate program of education.

Robinson v. Cahill, 67 N. J. 333, —— A. 2d —— (1975).

In so holding, the court said:

“The Court has now come face to face with a con-

stitutional exigency involving, on a level of plain,

stark and unmistakable reality, the constitutional ob-

ligation of the Court to act. Having previously

identified a profound violation of constitutional

right, based upon default in a legislative obligation

imposed by the organic law in the plainest of

terms, we have more than once stayed our hand,

with appropriate respect for the province of other

Branches of government. In final alternative, we

must now proceed to enforce the constitutional

right involved.

a” = *

“Tf then, the right of children to a thorough and

efficient system of education is a fundamental right

guaranteed by the Constitution, as we have already

determined, it follows that the court must afford

an appropriate remedy to redress a violation of

those rights. To find otherwise would be to say

that our Constitution embodies rights in a vacuum,

existing only on paper.” 67 N. J. at 339-340, 347.

There have been no amendments to the statutes govern-

ing the financing of public education since the Supreme

Court of New Jersey’s decision and thus, in the absence

of prompt legislative action, the court’s injunctive order

will become effective on July 1, 1976.

PSNI N ELAN LD AIT BLO ELI PL IE sper teint ae tk eee

6.

ARGUMENT

There is no basis for granting the petition, because

it is firmly established that the administration of

state government is not subject to review in the fed-

eral courts under the guarantee of a republican form

of government of Article IV, § 4 of the Constitution,

and in any event, the order of the Supreme Court of

New Jersey directing that the appropriations for

public educatjggn shall be distributed in accordance

with statutory provisions which will best discharge the

state constitutional guarantee of equality of educa-

tional opportunity is fully consistent with well esta-

blished judicial remedial powers.

The sole basis for this petition for writ of certiorari

is the guarantee of a republican form of government

found in Article IV, 4 4 of the United States Constitu-

tion. Since it is firmly established that a claimed viola-

tion of the guarantee of a republican form of government

is non-justiciable and the order of the Supreme Court of

New Jersey sought to be reviewed is in any event fully

consistent with well recognized remedial powers of the

state and federal judiciaries, the petition should be de-

nied.

The thesis of the petition is that the Supreme Court

of New Jersey intruded upon an exclusive legislative

domain by enjoining the distribution of legislative ap-

propriations pursuant to statutory provisions which are

inconsistent with the state constitutional guarantee of

equality of educational opportunity and by directing that

those funds be distributed in accordance with other statu-

tory provisions which more nearly comport with state

constitutional requirements, and that the court thereby

violated the constitutional guarantee of a republican form

7

of government. However, it has been firmly established

since Luther v. Borden, 48 U.S. (7 How.) 1 (1849) that a

state’s governmental structure is not subject to challenge

in the federal courts pursuant to this Clause. See also

Ohio ex rel. Bryant v. Akron Metropolitan Park Dist., 281

U.S. 74 (1930). As stated by Justice Cardozo, speaking

for the Court in Highland Farms Dairy v. Agnew, 300 US.

608, 612 (1937), “[h]low power shall be distributed by a

state among its governmental organs is commonly, if not

always, a question for the state itself... .”, and even if

there were a possible denial of the guarantee of a repub-

lican form of government, “. . . the enforcement of that

guarantee, according to the settled doctrine, is for Con-

gress, not the court.” Therefore, it is clear that the

grounds relied upon in support of the petition are non-

justiciable.

Furthermore, even if there were a basis for reconsid-

eration of this settled interpretation of Article IV, § 4,

the remedial order entered by the Supreme Court of New

Jersey in this matter would not raise a federal constitu-

tional issue. The subject of this petition is simply a re-

medial order of a court to redress a violation of funda-

mental constitutional rights. The New Jersey Constitution

guarantees to every school age child that “[t]he Legis-

lature shall provide for the maintenance and support of

a thorough and efficient system of free public school. .. .”

N. J. Const., Art. VIII, § IV, para. 1. The Supreme

Court of New Jersey affirmed lower court findings that

the State was failing to provide the constitutionally guar-

anteed level of educational opportunity and that one of

the causes of this failure was the distribution of a mini-

mum level of state aid to every school district, including

those with a very high local property tax base, while

providing insufficient state aid to afford the constitution-

ally guaranteed level of education in districts with a small

8

tax base. When the Legislature was unsuccessful over

a period of several years in correcting this constitutional

deficiency, the Supreme Court of New Jersey was com-

pelled, in its vbwn words, to “ ‘afford an appropriate rem-

edy to redress a violation of those rights. To find other-

wise would be to say that our Constitution embodies

rights in a vacuum, existing only on paper.” 67 N. J.

347, A. 2d at . This remedial action, far from

being a denial of federal constitutional rights, was thus

simply the exercise of what has been, at least since Mar-

bury v. Madison, 5 US. (1 Cranch) 137 (1803), a well

recognized judicial power to review the constitutionality

of legislative enactments and to provide an appropriate

remedy where unconstitutionality is found.

The Court has indicated that the vindication of chil-

dren’s rights under the Equal Protection Clause of the

Fourteenth Amendment to receive an education free from

the taints of racial discrimination may call for the exer-

cise of extensive remedial powers by the courts. See

generally, Swann v. Charlotte-Becklenburg Bd. of Ed.,

402 U. S. 1 (1971). For example, in Griffin v. County Board

of Prince Edward County, 377 U. S. 218, 233 (1964), the

Court indicated that, if necessary to prevent further racial

discrimination, the District Court might go so far as to

« _. require the Supervisors to exercise the power that

is theirs to levy taxes to raise funds adequate to reopen,

operate, and maintain without racial discrimination a pub-

lie school system in Prince Edward County like that op-

erated in other counties in Virginia.” The satisfaction of

the guarantee of equality of educational opportunity con-

tained in the Education Clause of the New Jersey Con-

stitution requires a similar breadth of judicial remedial

powers and thus even if a claim of a denial of the guar-

antee of a republican form of government were justiciable,

this case would raise no issue under that clause of the

Constitution.

9

CONCLUSION

It is respectfully submitted for the foregoing reasons

that the Petition for Writ of Certiorari should be

denied.

Respectfully submitted,

Wuium F. Hytanp,

Attorney General of New J ersey,

Attorney for Respondents, Governor

of the State of New Jersey, Treas-

urer of the State of New Jersey,

Commissioner of Education of the

State of New Jersey, New Jersey

State Board of Education, and State

of New Jersey,

State House Annex,

Trenton, New Jersey 08625.

SrerHen Sxuimay,

Assistant Attorney General,

Of Counsel and On the Brief.