School Choice

LaMorte, M. W. (2011). School Law: Cases and Concepts(10th ed.). Pearson Education (US). https://bookshelf.vitalsource.com/books/9780133000603 Chapter 7: School Finance and School Choice Issues

This chapter focuses on two finance-related issues. The first section provides a historical perspective to the legal attacks on the constitutionality of the financing and adequacy of state school finance plans.* These legal attacks began in the early 1970s and continue to be litigated in several states. The second section examines the legal issues surrounding various states’ responses to the notion of providing increasing parental choice in selecting appropriate educational opportu-nities for their children.

I. SCHOOL FINANCE REFORM

A. Background

Successful court decisions in the early days of public school desegregation efforts revealed that the judiciary would deal with issues that other branches of government were unwilling to be concerned with or were reluctant to recognize. Seizing on the success with desegregation decisions in the courts, many persons who perceived that they were being denied rights due to governmental action or inaction increasingly employed the judiciary in an attempt to redress alleged grievances. One such group of persons brought the issue of equality of educational opportunity before the courts. Their contention in the earliest cases was that many state methods of financing public education were unconstitutional because they violated the Equal Protection Clause for certain classes of people.

Reliance on local revenue to support a large portion of the total public school budget, it was alleged, was unfair because of the disparity in taxable wealth among local school systems.** Because

_____________________ *As part of my university assignment, I had the opportunity to serve as the consultant to the office of the governor, education committees of the legislature, state superintendent of schools, and state board of education regarding Georgia school finance issues for twenty years. Interestingly enough, I also served as consultant to both plaintiffs and defendants (they were friendly hostiles) in McDaniel v. Thomas, the unsuccessful Georgia finance litigation. Although unsuccessful, significant equalization legislation was enacted as a result of the political interest generated by the lawsuit. **Nationally, local revenue has made up approximately 44 percent of the total revenue for elementary and secondary schools, whereas state revenue made up approximately 47 percent and federal revenue nearly 9 percent. Across the country, local support for public elementary and secondary education has ranged from a high of approximately 67 percent to a low of approximately 7 percent. Hawaii is the only state having no official local support for education.

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the property tax is the most commonly used local school tax, many school finance experts have defined school system wealth as the ratio of taxable property divided by the number of students. Consequently, a “property-wealthy” school system would achieve such status by having much valuable taxable property, such as factories, utilities, or natural resources, and few children to educate. Conversely, a “property-poor” school system would have little valuable property and many children to educate. A school system composed largely of trailer parks, where each trailer contained several school-age children, would be an example of a property-poor system. School-district wealth is based on property wealth and not on income wealth; consequently, there may or may not be a relationship in property-poor or wealthy school systems with the income wealth of its inhabitants.

Those who contend that a state’s method of financing the public schools is unfair have often argued that property-wealthy school systems can raise large amounts of money with lower tax rates than can property-poor systems. It is alleged that allowing such a situation under a state-authorized method of financing public education is unfair to both taxpayers and the recipients of school services in property-poor systems. For example, assume that the property-wealthiest school system in a state has a taxable assessed valuation per student (usually expressed on the basis of average daily attendance, membership, or full-time equivalent) of $800,000, and the property-poorest school system has a taxable assessed valuation per student of $50,000. A levy of one mill (one-tenth of 1 percent, also expressed as a tax rate of $1 per $1,000 of property value) would raise $800 per student in the property-wealthiest system and only $50 per student in the property-poorest school system. Because education is a responsibility of the state, school finance reformers have alleged that a state’s allowing a school-financing system in which such disparities operate in favor of property-wealthy school systems denies equality of educational opportunity to those students in property-poorer school systems.

Many school finance issues have been raised since the earliest court cases. Those that have received the greatest sustained court attention addressed (1) the alleged inequality of educational opportunity resulting from statewide school finance systems that make educational funding a function of district property wealth, (2) whether a disputed finance scheme provides each child with at least a basic or adequate education, (3) the importance of local control, (4) and legislative recalcitrance in effecting court-ordered reform. Widely diverse collateral issues have included the effects of municipal overburden and allowing recapture; that is, excess revenue raised in property-wealthy districts to be distributed by the state to property-poor districts. Court attention to these issues will be the subject of the remainder of this section on school finance reform.

B. Early Decisions In one of the earliest decisions, McInnis v. Shapiro, 293 F. Supp. 327 (Ill. 1968), aff’d sub nom, McInnis v. Ogilvie, 394 U.S. 322 (1969), the Illinois method of financing public education was described by plaintiffs as being particularly inequitable because it permitted wide variations in expenditures per student and did not apportion funds according to the educational needs of students. In rejecting this contention, the court declared that the controversy was essentially nonjusticiable because of a lack of judicially manageable standards. The court contended that equal expenditures per student were inappropriate as a standard and that courts were ill equipped to devise an equitable financing plan for the public schools. A virtually indistinguishable case, Burruss v. Wilkerson, 310 F. Supp. 572 (Va. 1969), aff’d mem., 397 U.S. 44 (1970), essentially reached the same conclusion as McInnis.

Questions raised in these early cases revealed the lack of empirical data necessary to have a clear and accurate understanding of the effects of a state’s finance system. Additionally, these

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cases revealed other methodological shortcomings, such as the lack of consensus over the goals of schooling and especially what constituted a “basic” education, an absence of meaningful cost-effectiveness analysis, a clear definition of educational need, and the inexactitude of measurement technology. Courts, it soon became evident, had great difficulty in dealing with broad generalizations or abstractions concerning education, requiring instead quantifiable evidence.

C. Fiscal Neutrality Lack of success in McInnis and Burruss did not dissuade others interested in school finance reform from continuing a legal assault on interdistrict resource inequality. A California case, Serrano v. Priest, 487 P.2d 1241 (Cal. 1971) (Serrano I), provided the court with a judicially manageable standard, which had been missing in McInnis and Burruss. In this case the plaintiffs attempted to demonstrate that the California method of financing public education allowed substantial disparities among the various school districts in the amount of revenue available for education, thereby denying students equal protection of the laws under both the United States and California constitutions.

Furthermore, plaintiffs alleged that under this system, parents in property-poor districts were required to pay taxes at a higher rate than taxpayers in many other districts to provide the same or lesser educational opportunities for their children. In its decision, the California Supreme Court established that education was a constitutionally protected fundamental interest and that “wealth” was a “suspect classification.” When a fundamental interest or suspect classification is involved, the court contended, the state must establish not only that it has a compelling interest that justifies the law, but that the distinctions drawn by the law are necessary to further its purpose. Employing this line of reasoning places the so-called burden of proof on the state. Perhaps most important in this decision was the standard established by the court to determine whether or not a school finance plan was constitutional. Under this standard, which the court called fiscal neutrality, the quality of a child’s education could not be based on the wealth of a child’s local school district but rather had to be based on the wealth of the state as a whole. This provided the court with a judicially manageable standard, in contrast to the “needs” standard in McInnis, as the court merely had to reject the present financing plan as unconstitutional, thereby placing the burden of adopting a constitutionally acceptable finance plan with the state.*

Serrano advanced the notion that the state had the responsibility for financing education. This issue, whether the state or local school districts have ultimate financial control over public schooling, has become central in most school finance decisions.

D. Rodriguez Suits were filed in both state and federal courts in more than three dozen states after the California Serrano I decision in the first “wave” of initial attacks on existing school financing schemes. In many of these suits, plaintiffs were successful in the lower courts in their request that the court endorse the fiscal neutrality standard adopted in Serrano I to remedy wealth disparity. One of these cases, San Antonio Independent School District v. Rodriguez, provided the United States Supreme Court with an opportunity to address this issue.

___________________ *A subsequent decision by a California Supreme Court in Serrano II, 557 P.2d 929 (Cal. 1976), cert. denied, 432 U.S. 907 (1977), again affirmed the trial court’s finding that the California school finance system was unconstitutional under the equal protection provision of the state constitution. Serrano III, 226 Cal. Rptr. 584 (1986) held that there had been full compliance with the original Serrano mandate to improve equity.

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SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. RODRIGUEZ

Supreme Court of the United States, 1973 411 U.S.1

MR. JUSTICE POWELL delivered the opinion of the Court. This suit attacking the Texas system of financing public education was initiated by Mexican-American

parents whose children attend the elementary and secondary schools in the Edgewood Independent School District, an urban school district in San Antonio, Texas. They brought a class action on behalf of schoolchildren throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base. * * * The complaint was filed in the summer of 1968 and a three-judge court was impaneled in January 1969. In December 1971 the panel rendered its judgment in a per curiam opinion holding the Texas school finance system unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The State appealed, and we noted probable jurisdiction to consider the far-reaching constitutional questions presented. * * * For the reasons stated in this opinion, we reverse the decision of the District Court.

The first Texas State Constitution, promulgated upon Texas’ entry into the Union in 1845, provided for the establishment of a system of free schools. Early in its history, Texas adopted a dual approach to the financing of its schools, relying on mutual participation by the local school districts and the State. * * *

Until recent times, Texas was a predominantly rural State and its population and property wealth were spread relatively evenly across the State. Sizable differences in the value of assessable property between local school districts became increasingly evident as the State became more industrialized and as rural-to-urban population shifts became more pronounced. The location of commercial and industrial property began to play a significant role in determining the amount of tax resources available to each school district. These growing disparities in population and taxable property between districts were responsible in part for increasingly notable differences in levels of local expenditure for education.

* * * Recognizing the need for increased state funding to help offset disparities in local spending and to meet

Texas’ changing educational requirements, the state legislature in the late 1940s undertook a thorough evaluation of public education with an eye toward major reform. * * * [It established] the Texas Minimum Foundation School Program. Today, this Program accounts for approximately half of the total educational expenditures in Texas. The Program calls for state and local contributions to a fund earmarked specifically for teacher salaries, operating expenses, and transportation costs. The State, supplying funds from its general revenues, finances approximately 80% of the Program, and the school districts are responsible—as a unit—for providing the remaining 20%. The districts’ share, known as the Local Fund Assignment, is apportioned among the school districts under a formula designed to reflect each district’s relative taxpaying ability. * * *

* * * The school district in which appellees reside, the Edgewood Independent School District, has been

compared throughout this litigation with the Alamo Heights Independent School District. This comparison between the least and most affluent districts in the San Antonio area serves to illustrate the manner in which the dual system of finance operates and to indicate the extent to which substantial disparities exist despite the State’s impressive progress in recent years. Edgewood is one of seven public school districts in the metropolitan

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area. Approximately 22,000 students are enrolled in its 25 elementary and secondary schools. The district is situated in the core-city sector of San Antonio in a residential neighborhood that has little commercial or industrial property. The residents are predominantly of Mexican-American descent: approximately 90% of the student population is Mexican-American and over 6% is Negro. The average assessed property value per pupil is $5,960—the lowest in the metropolitan area—and the median family income ($4,686) is also the lowest. At an equalized tax rate of $1.05 per $100 of assessed property—the highest in the metropolitan area—the district contributed $26 to the education of each child for the 1967–1968 school year above its Local Fund Assignment for the Minimum Foundation Program. The Foundation Program contributed $222 per pupil for a state–local total of $248. Federal funds added another $108 for a total of $356 per pupil.

Alamo Heights is the most affluent school district in San Antonio. Its six schools, housing approximately 5,000 students, are situated in a residential community quite unlike the Edgewood District. The school population is predominantly “Anglo,” having only 18% Mexican-Americans and less than 1% Negroes. The assessed property value per pupil exceeds $49,000, and the median family income is $8,001. In 1967–1968 the local tax rate of $.85 per $100 of valuation yielded $333 per pupil over and above its contribution to the Foundation Program. Coupled with the $225 provided from that Program, the district was able to supply $558 per student. Supplemented by a $36 per-pupil grant from federal sources, Alamo Heights spent $594 per pupil.

Although the 1967–1968 school year figures provide the only complete statistical breakdown for each category of aid, more recent partial statistics indicate that the previously noted trend of increasing state aid has been significant. For the 1970–1971 school year, the Foundation School Program allotment of Edgewood was $356 per pupil. * * * Alamo Heights enjoyed a similar increase under the Foundation Program, netting $491 per pupil in 1970–1971. These recent figures also reveal the extent to which these two districts’ allotments were funded from their own required contributions to the Local Fund Assignment. Alamo Heights, because of its relative wealth, was required to contribute out of its local property tax collections approximately $100 per pupil, or about 20% of its Foundation grant. Edgewood, on the other hand, paid only $8.46 per pupil, which is about 2.4% of its grant. It appears then that, at least as to these two districts, the Local Fund Assignment does reflect a rough approximation of the relative taxpaying potential of each.

Despite these recent increases, substantial interdistrict disparities in school expenditures found by the District Court to prevail in San Antonio and in varying degrees throughout the State still exist. And it was these disparities, largely attributable to differences in the amounts of money collected through local property taxation, that led the District Court to conclude that Texas’ dual system of public school financing violated the Equal Protection Clause. * * *

* * * * * *We must decide, first, whether the Texas system of financing public education operates to the

disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. If so, the judgment of the District Court should be affirmed. If not, the Texas scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.

* * * The wealth discrimination discovered by the District Court in this case, and by several other courts that

have recently struck down school financing laws in other states, is quite unlike any of the forms of wealth discrimination heretofore reviewed by this Court. * * *

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The case comes to us with no definitive description of the classifying facts or delineation of the disfavored class. Examination of the District Court’s opinion and of appellees’ complaint, briefs, and contentions at oral arguments suggests, however, at least three ways in which the discrimination claimed here might be described. The Texas system of school f-nancing might be regarded as discriminating (1) against “poor” persons whose incomes fall below some identifiable level of poverty or who might be characterized as functionally “indigent,” (2) against those who are relatively poorer than others, or (3) against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts. Our task must be to ascertain whether, in fact, the Texas system has been shown to discriminate on any of these possible bases and, if so, whether the resulting classification may be regarded as suspect.

The precedents of this Court provide the proper starting point. The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. * * *

* * * Only appellees’ first possible basis for describing the class disadvantaged by the Texas school financing

system—discrimination against a class of definably “poor” persons—might arguably meet the criteria established in these prior cases. Even a cursory examination, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here. First, in support of their charge that the system discriminates against the “poor,” appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly defined as indigent, or as composed of persons whose incomes are beneath any designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts. A recent and exhaustive study of school districts in Connecticut concluded that “[i]t is clearly incorrect . . . to contend that the ‘poor’ live in ‘poor’ districts. . . . Thus, the major factual assumption of Serrano—that the educational financing system discriminates against the ‘poor’—is simply false in Connecticut.” Defining “poor” families as those below the Bureau of the Census “poverty level,” the Connecticut study found, not surprisingly, that the poor were clustered around commercial and industrial areas—those same areas that provide the most attractive sources of property tax income for school districts. Whether a similar pattern would be discovered in Texas is not known, but there is no basis on the record in this case for assuming that the poorest people—defined by reference to any level of absolute impecunity—are concentrated in the poorest districts.

Second, neither appellees nor the District Court addressed the fact that, unlike each of the foregoing cases, lack of personal resources had not occasioned an absolute deprivation of the desired benefit. The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer-quality education than that available to children in districts having more assessable wealth. Apart from the unsettled and disputed question whether the quality of education may be determined by the amount of money expended for it, a sufficient answer to appellees’ argument is that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages. * * *

For these two reasons—the absence of any evidence that the financing system discriminates against any definable category of “poor” people or that it results in the absolute deprivation of education—the disadvantaged class is not susceptible of identification in traditional terms.

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As suggested above, appellees and the District Court may have embraced a second or third approach, the second of which might be characterized as a theory of relative compa-ative discrimination based on family income. Appellees sought to prove that a direct correlation exists between the wealth of families within each district and the expenditures therein for education. That is, along a continuum, the poorer the family, the lower the dollar amount of education received by the family’s children.

* * * This brings us, then, to the third way in which the classification scheme might be defined—district

wealth discrimination. Since the only correlation indicated by the evidence is between district property wealth and expenditures, it may be argued that discrimination might be found without regard to the individual income characteristics of district residents.* * *

However described, it is clear that appellees’ suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in its districts that happen to have less taxable wealth than other districts. The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: The class is not saddled with such disabilities, subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.

We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. But in recognition of the fact that this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention. They also assert that the State’s system impermissibly interferes with the exercise of a “fundamental” right and that accordingly the prior decisions of this Court require the application of the strict standard of judicial review. * * * It is this question—whether education is a fundamental right, in the sense that it is among the rights and liberties protected by the Constitution—which has so consumed the attention of courts and commentators in recent years.

* * * Nothing this Court holds today in any way detracts from our historic dedication to public education. We

are in complete agreement with the conclusion of the three-judge panel below that “the grave significance of education both to the individual and to our society” cannot be doubted. But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. * * *

* * * * * * It is not the province of this Court to create substantive constitutional rights in the name of

guaranteeing equal protection of the laws. Thus, the key to discovering whether education is “fundamental” is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. * * *

Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not alone cause this Court to depart

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from the usual standard for reviewing a State’s social and economic legislation. It is appellees’ contention, however, that education is distinguishable from other services and benefits provided by the State because it bears a peculiarly close relationship to other rights and liberties accorded protection under the Constitution. Specifically, they insist that education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote. In asserting a nexus between speech and education, appellees urge that the right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively. The “marketplace of ideas” is an empty forum for those lacking basic communicative tools. Likewise, they argue that the corollary right to receive information becomes little more than a hollow privilege when the recipient has not been taught to read, assimilate, and utilize available knowledge.

* * * Even if it were conceded that some identifiable quantum of education is a constitutionally protected

prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provides an education that falls short. Whatever merit appellees’ argument might have if a State’s financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where—as is true in the present case—no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.

Furthermore, the logical limitations on appellees’ nexus theory are difficult to perceive. How, for instance, is education to be distinguished from the significant personal interests in the basics of decent food and shelter? Empirical examination might well buttress an assumption that the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process, and that they derive the least enjoyment from the benefits of the First Amendment. * * *

* * * Thus, we stand on familiar ground when we continue to acknowledge that the Justices of this Court lack

both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues. Yet, we are urged to direct the States either to alter drastically the present system or to throw out the property tax altogether in favor of some other form of taxation. No scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause.

In addition to matters of fiscal policy, this case also involves the most persistent and difficult questions of educational policy, another area in which this Court’s lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels. Education, perhaps even more than welfare assistance, presents a myriad of “intractable economic, social, and even philosophical problems.” * * * The very complexity of the problems of financing and managing a statewide public school system suggests that “there will be more than one constitutionally permissible method of solving them,” and that, within the limits of rationality, “the legislature’s efforts to tackle the problems” should be entitled to respect. * * * On even the

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most basic questions in this area the scholars and educational experts are divided. Indeed, one of the major sources of controversy concerns the extent to which there is a demonstrable correlation between educational expenditures and the quality of education—an assumed correlation underlying virtually every legal conclusion drawn by the District Court in this case. Related to the questioned relationship between cost and quality is the equally unsettled controversy as to the proper goals of a system of public education. And the question regarding the most effective relationship between state boards of education and local school boards, in terms of their respective responsibilities and degrees of control, is now undergoing searching reexamination. The ultimate wisdom as to these and related problems of education is not likely to be divined for all time even by the scholars who now so earnestly debate the issues. In such circumstances, the judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.

* * * The foregoing considerations buttress our conclusion that Texas’ system of public school finance is an

inappropriate candidate for strict judicial scrutiny. * * * * * *

Appellees further urge that the Texas system is unconstitutionally arbitrary because it allows the availability of local taxable resources to turn on “happenstance.” They see no justification for a system that allows, as they contend, the quality of education to fluctuate on the basis of the fortuitous positioning of the boundary lines of political subdivisions and the location of valuable commercial and industrial property. But any scheme of local taxation—indeed the very existence of identifiable local governmental units—requires the establishment of jurisdictional boundaries that are inevitably arbitrary. It is equally inevitable that some localities are going to be blessed with more taxable assets than others. Nor is local wealth a static quantity. Changes in the level of taxable wealth within any district may result from any number of events, some of which local residents can and do influence. For instance, commercial and industrial enterprises may be encouraged to locate within a district by various actions—public and private.

Moreover, if local taxation for local expenditures were an unconstitutional method of providing for education, then it might be an equally impermissible means of providing for other necessary services customarily financed largely from local property taxes, including local police and fire protection, public health and hospitals, and public utility facilities of various kinds. We perceive no justification for such a severe denigration of local property taxation and control as would follow from appellees’ contentions. It has simply never been within the constitutional prerogative of this Court to nullify statewide measures for financing public services merely because the burdens or benefits thereof fall unevenly depending upon the relative wealth of the political subdivisions in which citizens live.

* * * One also must remember that the system here challenged is not peculiar to Texas or to any other State. In its essential characteristics, the Texas plan for financing public education reflects what many educators for a half century have thought was an enlightened approach to a problem for which there is no perfect solution. We are unwilling to assume for ourselves a level of wisdom superior to that of legislators, scholars, and educational authorities in 50 States, especially where the alternatives proposed are only recently conceived and nowhere yet tested. * * *

* * *

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* * * The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States, and we do no violence to the values of federalism and separation of powers by staying our hand. We hardly need add that this Court’s action today is not to be viewed as placing its judicial imprimatur on the status quo. The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative thinking as to public education, its methods, and its funding is necessary to assure both a higher level of quality and greater uniformity of opportunity. These matters merit the continued attention of the scholars who already have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.

Reversed. * * *

MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, dissenting.

* * * I cannot disagree with the proposition that local control and local decisionmaking play an important part

in our democratic system of government. * * * Much may be left to local option, and this case would be quite different if it were true that the Texas system, while insuring minimum educational expenditures in every district through state funding, extended a meaningful option to all local districts to increase their per-pupil expenditures and so to improve their children’s education to the extent that increased funding would achieve that goal. The system would then arguably provide a rational and sensible method of achieving the stated aim of preserving an area for local initiative and decision.

The difficulty with the Texas system, however, is that it provides a meaningful option to Alamo Heights and like school districts but almost none to Edgewood and those other districts with a low per-pupil real estate tax base. In these latter districts, no matter how desirous parents are of supporting their schools with greater revenues, it is impossible to do so through the use of the real estate property tax. In these districts, the Texas system utterly fails to extend a realistic choice to parents because the property tax, which is the only revenue-raising mechanism extended to school districts, is practically and legally unavailable. * * *

* * * * * * If the State aims at maximizing local initiative and local choice, by permitting school districts to

resort to the real property tax if they choose to do so, it utterly fails in achieving its purpose in districts with property tax bases so low that there is little if any opportunity for interested parents, rich or poor, to augment school district revenues. Requiring the State to establish only that unequal treatment is in furtherance of a permissible goal, without also requiring the State to show that the means chosen to effectuate that goal are rationally related to its achievement, makes equal protection analysis no more than an empty gesture. In my view, the parents and children in Edgewood, and in like districts, suffer from an invidious discrimination violative of the Equal Protection Clause.

This does not, of course, mean that local control may not be a legitimate goal of a school financing system. Nor does it mean that the State must guarantee each district an equal per-pupil revenue from the state school financing system. Nor does it mean, as the majority appears to believe, that, by affirming the decision below, this Court would be

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“imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.” On the contrary, it would merely mean that the State must fashion a financing scheme which provides a rational basis for the maximization of local control, if local control is to remain a goal of the system, and not a scheme with “different treatment be[ing] accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute.” * * *

* * *

Notes and Questions Rodriguez was a five-to-four decision. Joining Justice Powell in the majority opinion were Chief Justice Burger and Justices Stewart, Blackmun, and Rehnquist. In addition to upholding the constitutionality of the Texas method of financing public schools, the Court held that education was not a fundamental interest requiring strict scrutiny under the Equal Protection Clause. The Court also concluded that school finance reform should flow from state legislative processes.

Some observers have contended that, if the Court had mandated equality of educational opportunity for public school students, floodgates would have opened resulting in judicial attacks on statewide inequality in other governmental services, such as police and fire protections, recreational facilities, and health care. Do you agree with this contention? Does the fact that most state constitutions contain language committing the state to a responsibility for providing education negate this contention?

Despite the Rodriguez outcome, plaintiffs in Louisiana attempted to distinguish between practices in Louisiana and Texas in a suit alleging that the Equal Protection Clause of the Fourteenth Amendment was violated by the Louisiana school finance system. Nevertheless, a federal district court found the issues indistinguishable from Rodriguez and dismissed the case. See Scarnato v. Parker, 415 F. Supp. 272 (La. 1976), aff’d, 430 U.S. 960 (1977).

E. Post-Rodriguez Litigation Proponents of the school-finance-reform movement viewed the Rodriguez decision as essentially eliminating the federal courts as a viable battleground. The decision also ushered in a second wave of finance cases that turned its attention to state courts. Besides relying on fiscal neutrality and state equal protection grounds, litigation was brought under state constitutional provisions requiring public education to be “uniform,” “adequate,” or “thorough and efficient.” Largely due to the vagueness of these provisions, the absence of quantifiable standards, the differences among states in their constitutional language or the specific statutory provisions that were challenged, and remedies sought by plaintiffs, state court holdings were not uniform. Consequently, plaintiffs were successful in only approximately half the cases brought during this second wave of school finance lawsuits.

Several school finance scholars have suggested that success by plaintiffs in Kentucky, Montana, and Texas in 1989 inaugurated a third wave of litigation. During this period, adequacy emerged as a prominent issue in funding litigation, and there was a reliance on the education clauses in state constitutions. Emphasis in these suits was placed on broad reform measures that recognized there should be an adequate education for all students and state-level accountability for teachers and administrators. During this wave, adequacy increasingly

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emphasized educational outcomes and, in a handful of cases, the need to concentrate on students in low socioeconomic areas.

Perhaps the most dramatic decision during this third wave occurred in Kentucky. That state’s Supreme Court ordered the restructuring of the entire educational system. The court’s order in Rose v. Council for Better Education was the most radical judicial response of any school finance suit to that time.

ROSE v. COUNCIL FOR BETTER EDUCATION

Supreme Court of Kentucky, 1989 790 S.W. 2d 186

CHIEF JUSTICE STEPHENS delivered the opinion of the court. The issue we decide on this appeal is whether the Kentucky General Assembly has complied with its

constitutional mandate to “provide an efficient system of common schools throughout the state.” In deciding that it has not, we intend no criticism of the substantial efforts made by the present General

Assembly and by its predecessors, nor do we intend to substitute our judicial authority for the authority and discretion of the General Assembly. We are, rather, exercising our constitutional duty in declaring that, when we consider the evidence in the record, and when we apply the constitutional requirement of Section 183 to that evidence, it is crystal clear that the General Assembly has fallen short of its duty to enact legislation to provide for an efficient system of common schools throughout the state. In a word, the present system of common schools in Kentucky is not an “efficient” one in our view of the clear mandate of Section 183. The common school system in Kentucky is constitutionally deficient.

In reaching this decision, we are ever mindful of the immeasurable worth of education to our state and its citizens, especially to its young people. The framers of our constitution intended that each and every child in this state should receive a proper and an adequate education, to be provided for by the General Assembly. This opinion dutifully applies the constitutional test of Section 183 to the existing system of common schools. We do no more, nor may we do any less.

* * * The complaint included allegations that the system of school financing provided for by the General

Assembly is inadequate; places too much emphasis on local school board resources; and results in inadequacies, inequities and inequalities throughout the state so as to result in an inefficient system of common school education in violation of Kentucky Constitution, Sections 1, 3 and 183 and the equal protection clause and the due process of law clause of the 14th Amendment to the United States Constitution. Additionally the complaint maintains the entire system is not efficient under the mandate of Section 183.

The relief sought by the plaintiffs was a declaration of rights to the effect that the system be declared unconstitutional; that the funding of schools also be determined to be unconstitutional and inadequate; that the defendant, Superintendent of Public Instruction, be enjoined from further implementing said school statutes; that a mandamus be issued, directing the Governor to recommend to the General Assembly the enactment of appropriate legislation which would be in compliance with the aforementioned constitutional provisions; that a mandamus be issued, directing the President Pro Tempore of the Senate and the Speaker of the House of Representatives to place before the General Assembly appropriate legislation which is constitutionally valid; and that a mandamus be issued, directing the General Assembly

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to provide for an “equitable and adequate funding program for all school children so as to establish an ‘efficient system of common schools.’”

* * * The trial judge identified four issues before him: (1) The necessity for defining the phrase “an efficient

system of common schools” as contained in Section 183 of the Kentucky Constitution; (2) Whether education is a “fundamental right” under our Constitution; (3) Whether Kentucky’s current method of financing its common schools violates Section 183, and (4) whether students in the so-called “poor” school districts are denied equal protection of the laws.

“Efficient,” in the Kentucky constitutional sense, was defined as a system which required “substantial uniformity, substantial equality of financial resources and substantial equal educational opportunity for all students.” Efficient was also interpreted to require that the educational system must be adequate, uniform and unitary. Because of the language of Section 183, the trial court ruled that education, indeed, is a fundamental right in Kentucky.

In ruling on the issue of whether Kentucky’s method of school financing violates Section 183 and underpinning the point with extensive findings of fact, the trial court declared that students in property-poor school districts are offered a minimal level of educational opportunities, which is inferior to those offered to students in more affluent districts. Such “invidious” discrimination, based on the place of a student’s residence, was determined to be unconstitutional. The trial court ruled that the school finance system violates the equal protection guarantees of Section 1 and 3 of the Kentucky Constitution.

In its judgment, the trial court ruled: (1) The Kentucky finance “system” of its common schools is unconstitutional and discriminatory; and (2) The system of common schools is not efficient within the purview of Section 183 of the Kentucky Constitution. The Court indicated it would appoint a “small select committee,” the purpose of which was to review all relevant data, provide additional analysis, consult with financial experts and propose remedies to “correct the deficiencies in the present common school financing system.” * * *

* * * If one were to summarize the history of school funding in Kentucky, one might well say that every

forward step taken to provide funds to local districts and to equalize money spent for the poor districts has been countered by one backward step.

It is certainly true that the General Assembly, over the years, has made substantial efforts to infuse money into the system to improve and equalize the educational efforts in the common schools of Kentucky. What we must decide, based solely on the evidence in the record as tested by the Kentucky Constitution, Section 183, is whether the trial court was correct in declaring that those efforts have failed to create an efficient system of common schools in this Commonwealth.

* * * The evidence in this case consists of numerous depositions, volumes of oral evidence heard by the trial court, and a seemingly endless amount of statistical data, reports, etc. We will not unduly lengthen this opinion with an extensive discussion of that evidence. As a matter of fact, such is really not necessary. The overall effect of appellants’ evidence is a virtual concession that Kentucky’s system of common schools is underfunded and inadequate; is fraught with inequalities and inequities throughout the 177 local school districts; is ranked nationally in the lower 20–25% in virtually every category that is used to evaluate educational performance; and is not uniform among the districts in educational opportunities.

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When one considers the evidence presented by the appellants, there is little or no evidence to even begin to negate that of the appellees. The tidal wave of the appellees’ evidence literally engulfs that of the appellants.

In spite of the Minimum Foundation Program and the Power Equalization Program, there are wide variations in financial resources and dispositions thereof which result in unequal educational opportunities throughout Kentucky. The local districts have large variances in taxable property per student. Even a total elimination of all mismanagement and waste in local school districts would not correct the situation as it now exists. A substantial difference in the curricula offered in the poorer districts contrasts with that of the richer districts, particularly in the areas of foreign language, science, mathematics, music and art.

The achievement test scores in the poorer districts are lower than those in the richer districts, and expert opinion clearly established that there is a correlation between those scores and the wealth of the district. Student–teacher ratios are higher in the poorer districts. Moreover, although Kentucky’s per capita income is low, it makes an even lower per capita effort to support the common schools.

Students in property-poor districts receive inadequate and inferior educational opportunities as compared to those offered to those students in the more affluent districts. That Kentucky’s overall effort and resulting achievement in the area of primary and secondary education are comparatively low, nationally, is not in dispute. Thirty-five percent of our adult population are high school dropouts. Eighty percent of Kentucky’s local school districts are identified as being “poor,” in terms of taxable property. The other twenty percent remain under the national average. Thirty percent of our local school districts are “functionally bankrupt.”

Evidence relative to educational performance was introduced by appellees to make a comparison of Kentucky with its neighbors—Ohio, Indiana, Illinois, Missouri, Tennessee, Virginia, and West Virginia. It also ranked Kentucky, nationally in the same areas. In the area of per pupil expenditures, Kentucky ranks 6th among the 8 states and ranks 40th, nationally. With respect to the average annual salary of instructional staff, Kentucky again ranks 6th among its neighbors and 37th nationally. In the area of classroom teacher compensation, Kentucky is 7th and 37th. Our classroom teacher average salary is 84.68% of the national average and our per pupil expenditure is 78.20% of the national average.

When one considers the use of property taxes as a percent of sources of school revenue, Kentucky is 7th among our neighboring states and 43rd nationally. The national average is 30.1% while Kentucky’s rate is 18.2%. If any more evidence is needed to show the inadequacy of our overall effort, consider that only 68.2% of ninth grade students eventually graduate from high school in Kentucky. That ranks us 7th among our eight adjacent sister states. Among the 6 of our neighboring states that use the ACT scholastic achievement test, our high school graduates’ average score is 18.1, which ranks us 4th. Kentucky’s ratio of pupil to teacher is 19 to 2 which ranks us 7th in this region. In spite of the appellants’ claim, at both the trial level and on appeal, that appellees’ statistics are not current, all the above figures are based on a 1986 study, which was published in 1987.

* * * The numerous witnesses that testified before the trial court are recognized experts in the field of primary

and secondary education. * * * Without exception, they testified that there is great disparity in the poor and the more affluent school districts with regard to classroom teachers’ pay; provision of basic educational materials; student–teacher ratio; curriculum; quality of basic management; size, adequacy and condition of school physical plants; and per year expenditure per student. Kentucky’s children, simply because of their

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place of residence, are offered a virtual hodgepodge of educational opportunities. The quality of education in the poorer local school districts is substantially less in most, if not all, of the above categories.

Can anyone seriously argue that these disparities do not affect the basic educational opportunities of those children in the poorer districts? To ask the question is to answer it. Children in 80% of local school districts in this Commonwealth are not as well-educated as those in the other 20%.

Moreover, most of the witnesses before the trial court testified that not only were the state’s educational opportunities unequal and lacking in uniformity, but that all were inad-equate. Testimony indicated that not only do the so-called poorer districts provide inadequate education to fulfill the needs of the students but the more affluent districts’ efforts are inadequate as well, as judged by accepted national standards.

As stated, when one reads the record, and when one considers the argument of counsel for the appellants, one can find no proof, no statement that contradicts the evidence about the existing inequalities and lack of uniformity in the overall performance of Kentucky’s system of common schools.

* * * Uniform testimony of the expert witnesses at trial, corroborated by data, showed a definite correlation

between the money spent per child on education and the quality of the education received. As we have previously stated in our discussion of the history of Kentucky’s school finances, our system does not require a minimum local effort. The MFP, being based on average daily attendance, certainly infuses more money into each local district, but is not designed to correct problems of inequality and lack of uniformity between local school districts. The experts stated that the PEP, although a good idea, was and is underfunded.

The disparity in per pupil expenditure by the local school boards runs in the thousands of dollars per year. Moreover, between the extreme high allocation and the extreme low a-location lies a wide range of annual per pupil expenditures. * * * The financing effort of local school districts is, figuratively speaking, a jigsaw puzzle.

It is argued by the appellants that the so-called permissive taxes are at least part of the solution to equalizing local financial efforts. There are two easy answers that dispose of this argument. First, the taxes are permissive. Responding to obvious voter resistance to the imposition of taxes, 89 districts have enacted the tax on gross utility receipts; 5 districts have enacted the occupational tax; 82 districts have also enacted a special building tax, normally for a specific project for one time only, and not affecting teacher pay, instructional equip-ment, or any of the specific needs of educational opportunity. * * *

Secondly, according to the testimony of the expert witnesses, even if all permissive taxes were enacted, the financial effort would still be inadequate, and because the population of the districts is in direct proportion to the amount of money that could and is raised by these taxes, the overall problem of an unequal local effort would be exacerbated by such action. Clearly, the permissive taxes are not the solution to the problems. Rather, they contribute to the disparity of per pupil expenditures.

Additionally, because the assessable and taxable real and personal property in the 177 districts is so varied, and because of a lack of uniformity in tax rates, the local school boards’ tax effort is not only lacking in uniformity but is also lacking in adequate effort. The history of school financing in Kentucky certainly corroborates the trial court’s finding as to the lack of uniformity and the lack of adequacy of local and state funding of education in the state. Based on the record before us, it is beyond cavil that the trial court’s finding was correct.

* * *

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We find no authority that would justify the appointment of the “special committee” which was to advise the trial court. While the purpose of the committee was undoubtedly an admirable one, and while the members of the committee did an excellent job, their work product essentially is not a proper tool in the formulation of a judicial decision. A judge must make his or her own decision, and must use only the evidence in the record, and the available legal precedents. A judge may not delegate part of his or her authority to non-judicial persons or institutions. We therefore hold the appointment of the committee was im-proper, and, obviously the assessment of the committee expenses against the Board of Education was improper as well.

We have decided this case solely on the basis of our Kentucky Constitution, Section 183. We find it unnecessary to inject any issues raised under the United States Constitution or the United States Bill of Rights in this matter. We decline to issue any injunctions, restraining orders, writs of prohibition or writs of mandamus. We have decided one legal issue—and one legal issue only—viz., that the General Assembly of the Commonwealth has failed to establish an efficient system of common schools throughout the Commonwealth.

Lest there be any doubt, the result of our decision is that Kentucky’s entire system of common schools is unconstitutional. There is no allegation that only part of the common school system is invalid, and we find no such circumstance. This decision applies to the entire sweep of the system—all its parts and parcels. This decision applies to the statutes creating, implementing and financing the system and to all regulations, etc., pertaining thereto. This decision covers the creation of local school districts, school boards, and the Kentucky Department of Education to the Minimum Foundation Program and Power Equalization Program. It covers school construction and maintenance, teacher certification—the whole gamut of the common school system in Kentucky.

While individual statutes are not herein addressed specifically or considered and declared to be facially unconstitutional, the statutory system as a whole and the interrelationship of the parts therein are hereby declared to be in violation of Section 183 of the Kentucky Constitution. Just as the bricks and mortar used in the construction of a schoolhouse, while con-tributing to the building’s facade, do not ensure the overall structural adequacy of the school-house, particular statutes drafted by the legislature in crafting and designing the current school system are not unconstitutional in and of themselves. Like the crumbling schoolhouse which must be redesigned and revitalized for more efficient use, with some component parts found to be adequate, some found to be less than adequate, statutes relating to education may be reenacted as components of a constitutional system if they combine with other component statutes to form an efficient and thereby constitutional system.

Since we have, by this decision, declared the system of common schools in Kentucky to be unconstitutional, Section 183 places an absolute duty on the General Assembly to re-create, re-establish a new system of common schools in the Commonwealth. As we have said, the premise of this opinion is that education is a basic, fundamental constitutional right that is available to all children within this Commonwealth. The General Assembly should begin with the same premise as it goes about its duty. The system, as we have said, must be efficient, and the criteria we have set out are binding on the General Assembly as it develops Kentucky’s new system of common schools.

As we have previously emphasized, the sole responsibility for providing the system of common schools lies with the General Assembly. If they choose to delegate any of this duty to institutions such as the local boards of education, the General Assembly must provide a mechanism to assure that the ultimate control remains with the General Assembly, and assure that those local school districts also exercise the delegated duties in an efficient manner.

The General Assembly must provide adequate funding for the system. How they do this is their decision. However, if ad valorem taxes on real and personal property are used

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by the General Assembly as part of the financing of the redesigned system of common schools, the General Assembly has the obligation to see that the all such property is assessed at 100% of its market value. Moreover, because of the great disparities of local tax efforts in the present system of common schools, the General Assembly must establish a uniform tax rate for such property. In this way, all owners of real and personal property throughout the state will make a comparable effort in the financing of the state system of common schools.

* * *

Notes The Rose decision departed significantly from previous school finance decisions. It not only broadened the scope of court examination of related school finance issues but also ordered an unprecedented restructuring of the state’s entire educational system.

Significant reforms were incorporated by the legislature in the Kentucky Education Reform Act, which emerged as a result of the Rose decision. In addition to providing signifi-\cantly greater funding equity, the law also attempted to reduce historic links between low per-sonal income and property wealth and per-pupil revenues. Input measures included a substantial increase in funding for education, which resulted in improvement in teacher salaries and teacher–student ratios. Many innovations were introduced, such as rewarding outstanding schools and providing intervention procedures for low-performing ones and allowing schools to have greater autonomy and authority to manage themselves through school-based decision-making councils. Unfortunately, however, there has not been appreciable improvement in measurable output measures. When comparing Kentucky with other states, for instance, there has been no appreciable gain in test scores or graduation rates.

F. Results to Date To date, there has been school finance litigation in over forty states, and court decisions in those states have been nearly equally divided between those effecting reform and those upholding state schemes. It appears that the judicial caldron continues to boil since the Rodriguez decision with no end in sight. Court suits brought in the 1970s and 1980s primarily focused on equal protection and equity claims citing disparities in resources among school districts. Plaintiffs were unsuccessful in about two-thirds of these cases. However, since 1989, plaintiffs have been successful about two-thirds of the time, mainly due to the shift in their emphasis from equity claims to an emphasis on the state’s duty to provide an “adequate” education. In the most recent litigation, the focus has often been on the state not meeting established educational standards, or alleged noncompliance with court-ordered remedial mandates.

School finance litigation has often been subject to lengthy delays and may last for several years. And if a funding system has been found to be unconstitutional and there is no court-established deadline, it has often taken considerable time to effect a satisfactory legislative remedy—especially when funding is a major consideration. Litigation in New Jersey, for instance, went on for over three decades. To date, there have been no school finance decisions by state appellate or supreme courts in Delaware, Iowa, Mississippi, Utah, or Hawaii (which essentially has full-state funding because there is only one school district).

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The following lists the states in which finance provisions have been upheld and those states where the judiciary has sought to effect reform. Also briefly discussed are some of the legal rationale employed and outcomes effected.

1. DECISIONS UPHOLDING STATE FINANCE PROVISIONS The highest courts in Alabama, Alaska (lower court in Moore v. State (2007) upheld plaintiffs), Colorado, Florida, Georgia, Illinois, Indiana, Louisiana, Maine include Maryland (mixed verdict), Michigan, Minnesota, Missouri, Nebraska, New York, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island (new finance law 2010, Woonsocket School Committee v. Carcieri initiated in 2010), Virginia, and Wisconsin have concluded that their state methods of financing public education are not constitutionally or statutorily deficient.* Many of the decisions upholding states’ plans espoused the legal rationale enunciated by the Supreme Court in Rodriguez. In their decisions, the courts agreed that education was unquestionably high on the list of priorities of governmental concern and responsibility; however, this did not automatically entitle public education to a classification as a fundamental right that would trigger a higher standard of judicial review for purposes of equal protection analysis. Public education in many of these cases was viewed as merely another public service battling for scarce resources in the political arena. The proper arena, these courts contended, was the legislature and not the courtroom. Additionally, decisions upholding existing state finance plans strongly favored the preservation of local control of education. Although courts found that disparity in local wealth and expenditures existed in many instances, they contended that this was not unconstitutional. In several cases, courts recognizing that there were inequities, asserted that the state should ensure that every child had a basic or adequate education but that the matter was not for the judiciary to decide—it was nonjusticiable. The highest court in New York declared that even if gross wealth disparities were present among school systems, plaintiffs had not shown that these disparities resulted in students from property-poorer districts receiving “less than a sound basic education.” A few courts complained that there were no judicially manageable standards on which to base a decision. In decisions upholding state finance plans, however, it was emphasized that if reform was needed it was not the province of the judiciary to effect it; rather, it should be instituted by the legislative branch.

In several states, where finances schemes were upheld by the courts, the public awareness generated by the lawsuits brought about an increased recognition of the problems raised in the suit and a heightened desire to address those problems. In a few instances, this resulted in a greater legislative receptiveness to address these problems and make changes in constitutional provisions, statutory funding schemes, and/or increased funding for education.

Original court decisions upholding state finance schemes have been reversed in a handful of states. These earlier decisions upholding a state’s scheme in Arizona, Idaho, Ohio, North Carolina, Washington, South Carolina, and Texas have been replaced by decisions holding their present finance systems unconstitutional.

2. DECISIONS EFFECTING REFORM In decisions effecting school finance reform, the courts have generally held that statutes or constitutional provisions governing state and local financing of public education were unconstitutional based on equal protection grounds, that delivery of ____

_______________ *See list of selected school-finance-related cases and citations on pages 306–311.

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educational opportunity was not adequate, that local control was not a rational basis for justifying disparate educational opportunities, that accountability is an essential component for providing an adequate education, that there has not been sufficient compliance with a court’s previous decision, or more recently that cost-basis analysis was required. These so-called reform states include Arizona, Arkansas, California, Connecticut, Idaho, Kansas, Kentucky, Massachusetts, Montana, New Hampshire, Nevada, New Jersey, New York (New York City only), North Carolina, Ohio, South Carolina, Tennessee, Texas, Vermont, Washington, West Virginia, and Wyoming.

Several legal rationales are woven through the decisions invalidating school finance schemes. In the second wave of decisions, which followed after Rodriguez, courts often held that either district wealth or per-pupil expenditure disparities, or both, were unconstitutional, based either on equal protection grounds or on the wording pertaining to education in their state constitutions. Although these courts usually imposed strict scrutiny for equal protection analysis, they commonly declared that contested schemes failed to satisfy even the less-stringent rational basis standard. In assessing the local control issue, these decisions usually reasoned that finance schemes, rather than preserving local control, thwarted it by requiring property-poor school systems merely to administer state-financed educational programs. However, the most pervasive theme threading through these decisions was the courts’ recognition of the irrationality of the contested finance schemes. During this second wave, several decisions ordered legislative restructuring of the basic formula for the distribution of state funds or the receipt of local revenues. The intent of this restructuring was to eliminate or reduce local property-wealth disparity as a factor influencing expenditure variation among school districts or their ability to provide an education that was in conformance with such constitutional requirements as providing a “uniform,” “adequate,” or “thorough and efficient” education. Unfortunately, although plaintiffs may have been successful in obtaining decisions directing a legislature to change the system that had been held to be unconstitutional, often legislative response has not been timely or in accordance with a court’s decision. Legislators in such states frequently cited political or economic exigency as their reason for delay or inaction.

Legislative recalcitrance in addressing state supreme court decisions made some courts more activist during the third wave of school finance litigation. Kentucky, as we have seen, required a complete restructuring of the entire education system. A decision in Ohio (2002) required an overhaul of the educational system, and a decision in New Hampshire (2002) required standards of accountability to ensure delivery of an adequate education. Recognizing that legislative inaction had often been based on budgetary restraints, the Ohio court stated that “[w]e are not unmindful of the difficulties facing the state, but those difficulties do not trump the constitution.” And the New Hampshire court stated that “[w]e hold, therefore, that to the extent the minimum standards for school approval excuse compliance solely based on financial conditions, it is facially insufficient because it is in clear conflict with the State’s duty to provide a constitutionally adequate education.” Heretofore, similar views regarding fiscal difficulties had been expressed by state supreme courts in Kentucky, Texas, and Montana.

Litigation has continued in some states,* generally as a consequence of dissatisfaction on the part of original plaintiffs or new parties with the quantity or quality of reforms enacted by legislatures in response to court orders. Litigation in New Jersey, which had gone on for over

________________________ *There have been multigeneration decisions in California, Connecticut, Idaho, Illinois, Kansas, Michigan, Montana, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Tennessee, Texas, West Virginia, Wisconsin, and Wyoming.

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three decades, finally ended in 2009. The New Jersey Supreme Court unanimously held the state’s most recently enacted funding system met the constitutional requirement to provide a “thorough and efficient education.”*

To date, no court has retreated from its initial requirement that inequities be corrected. Standards for alleviating disparities, after being promulgated by courts, have not been relaxed in subsequent orders. New York’s highest court had upheld that state’s finance system in an earlier decision; however, in 2003, the court held that the state’s method of funding New York City schools violated the New York Constitution’s education article.

Listing of Selected School-Finance-Related Cases**

Alabama Ex parte James, 836 So.2d 813 (Ala. 2002)

Alaska Moore v. State, Case No. 3AN-04-9756 Civil, Alaska Super. Ct. (2007) Matanuska-Sustina Borough School District v. State, 931 P.2d 391 (Alaska 1997)

Arizona Hull v. Albrecht, 960 P.2d 634 (Ariz. 1998) Roosevelt Elementary School District No. 66 v. Bishop, 877 P.2d 806 (Ariz. 1994) Shofstall v. Hollins, 515 P.2d 590 (Ariz.1973)

Arkansas Lake View School District No. 29 v. Huckabee, 91 S.W.3d 472 (Ark. 2002) Dupree v. Alma School District No. 30, 651 S.W.2d 90 (Ark. 1983)

California Serrano v. Priest, 226 Cal. Rptr. 584 (1986) (Serrano III) Serrano v. Priest, 557 P.2d 929 (Cal. 1976), cert. denied, 432 U.S. 907 (1977) (Serrano II) Serrano v. Priest, 487 P.2d 1241 (Cal. 1971) (Serrano I)

Colorado Lobato v. Colorado, 218 P.3d 358 (Colo. 2009) Lujan v. Colorado State Board of Education, 649 P.2d 1005 (Colo.1982)

Connecticut Horton v. Meskill, 486 A.2d 1099 (Conn. 1985) (Horton III) Horton v. Meskill, 445 A.2d 579 (Conn. 1982) (Horton II) Horton v. Meskill, 376 A.2d 359 (Conn. 1977) (Horton I)

_____________________ *The decision is conditioned on funding being kept at levels required under the new formula for three years and a “mandated review and retooling of the formula’s weights and other operative parts after three years of implementation.” **These state court, several federal court, and United States Supreme Court decisions primarily address the constitutionality of the financing, equity, adequacy, or compliance with court orders of state school finance plans.

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Florida Coalition for Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So.2d 400 (Fla. 1996)

Georgia McDaniel v. Thomas, 285 S.E.2d 156 (Ga. 1981)

Idaho Idaho Schools for Equal Educational Opportunity v. State, 129 P.3d 1199 (Idaho 2005) (ISEEO V) Idaho Schools for Equal Educational Opportunity v. State, 97 P.3d 453 (Idaho 2004) (ISEEO IV) Idaho Schools for Equal Educational Opportunity v. State, 976 P.2d 913 (Idaho 1998) (ISEEO III) Idaho Schools for Equal Educational Opportunity v. State Board of Education, 912 P.2d 644 (1996) (ISEEO II) Idaho Schools for Equal Educational Opportunity v. Evans, 850 P.2d 724 (Idaho 1993) (ISEEO I) Thompson v. Engelking, 537 P.2d 635 (Idaho 1975)

Illinois Lewis v. Spagnola, 710 N.E.2d 798 (Ill. 1999) Committee for Educational Rights v. Edgar, 672 N.E.2d 1178 (Ill. 1996) Blase v. Illinois, 302 N.E.2d 46 (Ill. 1973) McInnis v. Shapiro, 293 F. Supp. 327 (1968), aff’d sub nom. McInnis v. Ogilvie, 394 U.S. 322 (1969)

Indiana Bonner v. Daniels, 907 N.E.2d 516 (Ind. 2009)

Kansas Montoy v. Kansas, 138 P.3d 755 (Kan. 2006) Montoy v. Kansas, 120 P.3d 306 (Kan. 2005) Montoy v. Kansas, 112 P.3d 923 (Kan. 2005) Montoy v. Kansas, 102 P.3d 1160 (Kan. 2005) Montoy v. Kansas, 62 P.3d 228 (Kan. 2003) Unified School District No. 229 v. Kansas, 885 P.2d 1170 (Kan. 1994) Kentucky Board of Education of Boone County v. Bushee, 889 S.W.2d 809 (Ky. 1994) Rose v. Council for Better Education, 790 S.W.2d 186 (Ky.1989)

Louisiana Jones v. State Board of Elementary and Secondary Education, 927 So.2d 426 (La. 2005) Charlet v. Legislature, 713 So.2d 1199 (La. 1998

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Livingston School Board v. Louisiana State Board of Education, 830 F.2d 563 (5th Cir. 1987) Scarnato v. Parker, 415 F. Supp. 272 (1976), aff’d, 430 U.S. 961 (1977)

Maine School Administrative District No. 1 v. Commissioner, Department of Education, 659 A.2d 854 (Me. 1995)

Maryland Maryland State Board v. Bradford, 875 A.2d 703 (Md. 2005) Hornbeck v. Somerset County Board of Education, 458 A.2d 758 (Md. 1983)

Massachusetts Hancock v. Commissioner of Education, 822 N.E.2d 1134 (Mass. 2005) McDuffy v. Secretary of the Executive Office of Education, 615 N.E.2d 516 (Mass. 1993)

Michigan East Jackson Public Schools v. Michigan, 348 N.W.2d 303 (Mich. App. 1984) Milliken v. Green, 212 N.W.2d 711 (Mich. 1973) (Governor II) Milliken v. Green, 203 N.W.2d 457 (Mich. 1972) (Governor I)

Minnesota Skeen v. State, 505 N.W.2d 299 (Minn. 1993) Van Dusartz v. Hatfield, 334 F. Supp. 870 (1971)

Missouri Committee for Educational Equality v. State, 294 S.W.2d 477 (Mo. 2009) Committee for Educational Equality v. State, 967 S.W.2d 62 (Mo. 1998) Committee for Educational Equality v. State, 878 S.W.2d 446 (1994)

Montana Columbia Falls v. State, 109 P.3d 257 (Mont. 2005) Helena Elementary School District No. 1 v. Montana, 769 P.2d 684 (Mont. 1989) State ex rel. Woodahl v. Straub, 520 P.2d 776 (Mont. 1974)

Nebraska Nebraska Coalition for Educational Equity and Adequacy v. Heineman, 731 N.W.2d 164 (Neb. 2007) Gould v. Orr, 506 N.W.2d 349 (Neb. 1993)

Nevada Guinn v. Nevada, 77 P.3d 1269 (Nev. 2003)

New Hampshire Londonberry School District SAU #12 v. State, 958 A.2d 930 (N.H. 2008) Claremont School District v. Governor, 794 A.2d 744 (N.H. 2002) (Claremont III)

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Claremont School District v. Governor, 703 A.2d 1353 (N.H. 1997) (Claremont II) Claremont School District v. Governor, 635 A.2d 1375 (N.H. 1993) (Claremont I)

New Jersey Abbott v. Burke, 971 A.2d 989 (N.J. 2009) (Abbott XX) Abbott v. Burke, 960 A.2d 360 (N.J. 2008) (Abbott XIX) Abbott v. Burke, 956 A.2d 923 (N.J. 2008) (Abbott XVIII) Abbott v. Burke, 935 A.2d 1152 (N.J. 2007) (Abbott XVII) Abbott v. Burke, 953 A.2d 1198 (N.J. 2006) (Abbott XVI) Abbott v. Burke, 901 A.2d 299 (N.J. 2006) (Abbott XV) Abbott v. Burke, 889 A.2d 1063 (N.J. 2005) (Abbott XIV) Abbott v. Burke, 862 A.2d 538 (N.J. 2004) (Abbott XIII) Abbott v. Burke, 852 A.2d. 185 (N.J. 2004) (Abbott XII) Abbott v. Burke, 832 A.2d 906 (N.J. 2003) (Abbott XI) Abbott v. Burke, 832 A.2d 891 (N.J. 2003) (Abbott X) Abbott v. Burke, 798 A.2d 602 (N.J. 2002) (Abbott IX) Abbott v. Burke, 790 A.2d 842 (N. J. 2002) (Abbott VIII) Abbott v. Burke, 751 A.2d 1032 (N.J. 2000) (Abbott VII) Abbott v. Burke, 748 A.2d 82 (N.J. 2000) (Abbott VI) Abbott v. Burke, 710 A.2d 450 (N.J. 1998) (Abbott V) Abbott v. Burke, 693 A2d 417 (N.J. 1997) (Abbott IV) Abbott v. Burke, 643 A.2d 575 (N.J. 1994) (Abbott III) Abbott v. Burke, 575 A. 2d 359 (N.J. 1990) (Abbott II) Abbott v. Burke, 495 A.2d 376 (N.J. 1985) (Abbott I) Robinson v. Cahill, 360 A.2d 400 (N.J. 1976) (Robinson VII) Robinson v. Cahill, 358 A.2d 457 (N.J. 1976) (Robinson VI ) Robinson v. Cahill, 355 A.2d 129 (N.J. 1976) (Robinson V ) Robinson v. Cahill, 351 A.2d 713 (N.J. 1975) (Robinson IV ) Robinson v. Cahill, 335 A.2d 6 (N.J. 1975) (Robinson III) Robinson v. Cahill, 306 A.2d 65 (N.J. 1973), cert. denied sub nom. Robinson v. Cahill, 414 U.S. 976 (1973) (Robinson II) Robinson v. Cahill, 303 A.2d 273 (N.J. 1973) (Robinson I )

New York Campaign for Fiscal Equity v. State, 861 N.E.2d 50 (N.Y. 2006) (Applies only to New York City) Campaign for Fiscal Equity v. State, 801 N.E.2d 326 (N.Y. 2003) (Applies only to New York City) Reform Educational Financing Inequities Today v. Cuomo, 655 N.E.2d 647 (N.Y. 1995) Board of Education, Levittown Union Free School District v. Nyquist, 439 N.E.2d 359 (N.Y. 1982), appeal dismissed, 459 U.S. 1139 (1983)

North Carolina Hoke County Board v. State, 599 S.E.2d. 365 (N.C. 2004) Leandro v. State, 488 S.E.2d 249 (N.C. 1997)

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Britt v. North Carolina State Board of Education, 357 S.E.2d 432 (N.C. App.), appeal dismissed, 361 S.E.2d 71 (N.C. 1987)

North Dakota Bismarck Public School District No. 1 v. State, 511 N.W.2d 247 (N.D. 1994)

Ohio DeRolph v. State, 780 N.E.2d 529 (Ohio 2002) (DeRolph IV), vacated (DeRolph III) DeRolph v. State, 754 N.E.2d 1184 (Ohio 2001) (DeRolph III) DeRolph v. State, 728 N.E.2d 993 (Ohio 2000) (DeRolph II) DeRolph v. State, 677 N.E.2d 733 (Ohio 1997) (DeRolph I) Board of Education of City School District of Cincinnati v. Walter, 390 N.E.2d 813 (Ohio 1979), cert. denied, 444 U.S. 1015 (1980)

Oklahoma Oklahoma Education Association v. State, 158 P.3d 1058 (Ok. 2007) Fair School Finance Council of Oklahoma v. Oklahoma, 746 P.2d 1135 (Okla. 1987)

Oregon Pendleton School District v. State, 200 P.3d 133 (Or. 2009) Withers v. State, 987 P.2d 1247 (Or. App. 1999) (Withers II) Withers v. State, 891 P.2d 675 (Or. App. 1995), rev. denied, 896 P.2d 1213 (Or. 1995) Coalition for Equitable School Funding, Inc. v. State, 811 P.2d 116 (Or. 1991) Olsen v. Oregon, 554 P.2d 139 (Or. 1976)

Pennsylvania Marrero v. Commonwealth of Pennsylvania, 739 A.2d 110 (Pa. 1999) Bensalem School District v. Pennsylvania, 524 A.2d 1027 (Pa. Commw. 1987) Danson v. Casey, 399 A.2d 360 (Pa. 1979)

Rhode Island City of Pawtucket v. Sundlun, 662 A.2d 40 (R.I. 1995)

South Carolina Abbeville County School District v. State, 515 S.E.2d 535 (S.C. 1999) South Carolina Richland County v. Campbell, 364 S.E.2d 470 (S.C. 1988)

Tennessee Tennessee Small School Systems v. McWherter, 91S.W.3d 232 (Tenn. 2002) (Small Schools III) Tennessee Small School Systems v. McWherter, 894 S.W.2d 734 (Tenn. 1995) (Small Schools II) Tennessee Small School Systems v. McWherter, 851 S.W.2d 139 (Tenn. 1993) (Small Schools I)

Texas Neeley v. West Orange-Cove Consolidated Independent School District, 176 S.W.3d 746 (Tex. 2005) (West-Cove II)

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West Orange-Cove Consolidated Independent School District v. Alanis, 107 S.W.3d 558 (Tex. 2003) (West-Cove I) Edgewood Independent School District v. Meno, 917 S.W.2d 717 (Tex. 1995) (Edgewood IV) Edgewood Independent School District v. Meno, 893 S.W.2d 450 (Tex. 1995) Carrollton-Farmers Branch Independent School District v. Edgewood Independent School District, 826 S.W.2d 489 (Tex. 1992) (Edgewood III) Edgewood Independent School District v. Kirby, 804 S.W.2d 491 (Tex. 1991) (Edgewood II) Edgewood Independent School District v. Kirby, 777 S.W.2d 391 (Tex. 1989) (Edgewood I) San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973)

Vermont Brigham v. State, 889 A.2d 715 (Vt. 2005) Brigham v. State, 692 A.2d 384 (Vt. 1997) Virginia Scott v. Commonwealth, 443 S.E.2d 138 (Va. 1994) Burruss v. Wilkerson, 310 F. Supp. 572 (1969), aff’d, 397 U.S. 44 (1970)

Washington Seattle School District No. 1 of King County v. Washington, 585 P.2d 71 (Wash. 1978) Northshore School District No. 417 v. Kinnear, 530 P.2d 178 (Wash. 1974)

West Virginia State v. Chafin, 376 S.E.2d 113 (W.Va. 1988) Pauley v. Bailey, 324 S.E.2d 128 (W.Va. 1984) Pauley v. Kelly, 255 S.E.2d 859 (W.Va 1979)

Wisconsin Vincent v. Voight, 614 N.W.2d 388 (Wis. 2000) Kukor v. Grover, 436 N.W.2d 568 (Wis. 1989) Buse v. Smith, 247 N.W.2d 141 (Wis. 1976)

Wyoming Campbell County School District v. State, 181 P.3d 43 (Wyo. 2008) (Campbell IV) Campbell County School District v. State, 32 P.3d 325 (Wyo. 2001) (Campbell III) Campbell County School District v. State, 19 P.3d 518 (Wyo. 2001) (Campbell II) Campbell County School District v. State, 907 P.2d 1238 (Wyo. 1995) Washakie County School District No. 1 v. Herschler, 606 P.2d 310 (Wyo. 1980), reh’g denied, 606 P.2d 340 (1980), cert. denied sub. nom. Hot Springs County School District No. 1 v. Washakie County School District No. 1, 449 U.S. 824 (1980)

II. CHOICE

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This section examines issues surrounding states’ and local school boards’ responses stemming from demands for more parental choices in selecting appropriate educational opportunities for their children. The section is not intended to be a definitive treatise on the various schemes labeled “educational choice” or a recitation of their positive and negative aspects. Rather, it is intended to be (1) a brief description of several educational choice plans that have been implemented; (2) an exploration of the newly emerging case law and a discussion of the legal implications springing from the adoption of various choice plans, such as federal and state constitutionality and compliance with state and federal statutory and regulatory provisions; and (3) a basis for class discussion of the concept and its legal implications because choice plans continue to be a viable school reform measure.

A. Choice Plans Unrelenting harsh criticism of the public schools by some political leaders, members of the general public, and educators has brought about reforms that provide parents with increased opportunities to direct their children’s education. Choice proponents have made an attempt to make reforms not only educationally sound and politically attractive but also constitutionally sound. In the process, educational choice plans, especially vouchers, have become highly politicized issues at the federal, state, and local levels. Opponents see some of the choice plans as a direct challenge to the egalitarian notion that the gifted, challenged, able, disabled, persons of color, white, and economically advantaged and disadvantaged all attend the same public school; that is, the “melting pot” idea. Choice proponents argue that bringing a free-market concept—consumer choice—to education will break the monopolistic stranglehold of the educational bureaucracy by introducing much-needed competition and innovation to the public schools. Unfortunately, the notion of educational choice does not describe a single, well-defined plan but is an umbrella term for a host of programs which include such reform measures as public school inter-and intradistrict open enrollment, interdistrict specialized schools, voucher plans, charter schools, educational service providers, and tuition tax credits. According to the National Center for Education Statistics (NCES), in 2007, 16 percent of public-school students were in a chosen public school environment,* an increase from 11 percent in 1993.

1. PUBLIC SCHOOL INTER-AND INTRADISTRICT OPEN ENROLLMENT Under these concepts, students are allowed to attend the school of their choice in their own school district or any district in the state, provided there is room at that school and that their attendance does not create segregation along racial lines. Generally, federal and state monies would follow the student. Minnesota has been the acknowledged leader in this form of choice, having passed a law that allows families to send their children outside their district, as long as the receiving school district has room and desegregation efforts are not jeopardized. Several other states have passed similar legislation.

2. INTRADISTRICT SPECIALIZED SCHOOLS Larger school districts have experimented with plans that provide students with a choice of attending a specialized school other than the one in their attendance zone. These plans, which may incorporate magnet schools, have often been put

____________________ *A “chosen” public school is a public school other than a student’s assigned public school. Such schools may be within-district or out-of-district schools, magnet schools, or public charter schools.

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into place to effect desegregation efforts, retain students who are contemplating dropping out of school, or offer specialized programs for academically advantaged students. In the 2007–08 school year, there were 2,715 magnet schools in the thirty-one states in which they were offered (National Council for Education Statistics).

Magnet schools may emphasize particular educational features such as mathematics, science, arts, or “basics.” In addition to parental application, acceptance at these schools is determined by potential students meeting established criteria. Magnet schools have been considered a valuable tool in those school systems attempting to effect desegregation. Unfortunately, their feasibility is limited to relatively large school districts. To date, only a small number of students nationwide attend magnet-type schools. Although not originally designed to effect desegregation, special schools for the academically advantaged in several large cities have had success. Examples of such schools, which have attained considerable national attention, include Boston’s Latin School, New York City’s Bronx High School of Science, and San Francisco’s Lowell High School.

Minischools, or schools within schools, are variants of the magnet school and attempt to provide educational alternatives within a particular school site. Such schools often have a particular curriculum designed for students who are disabled, pregnant, unruly, or have other special needs and interests.

Majority-to-minority plans seek to assist desegregation efforts by allowing students who come from a school where their race is in the majority to transfer to a school in the district where their race is in the minority. Providing the necessary transportation is essential for these plans.

Second-chance, or continuation, schools are primarily designed for students who are likely to drop out or have dropped out of high school. These programs are often conducted in nontraditional settings and not during normal school hours.

3. VOUCHER PLAN Providing parents with school vouchers, thereby giving them an alternative to sending their children to their assigned public schools, was first proposed by the Nobel Laureate economist Milton Friedman decades ago. He saw vouchers as a solution to what he perceived to be an unresponsive public-school monopoly. They were designed to give parents greater control of their children’s schooling and to provide poor parents an opportunity for private education. Although variants of this plan have become exceedingly complex over the years, the original idea called for parents to receive a voucher redeemable for a specified maximum sum per child per year if spent on approved “educational services.” The role of government would be confined to ensuring that schools met minimum standards. Later variants called for the voucher to have the value of the cost of a public school education. The voucher could be redeemed at any approved school, public or private, thereby providing parents with a measure of choice.

To date, voucher-type plans have not received significant popular support. Voters in Minnesota (1978), California (1980 and 2000), and Michigan (2000) had opportunities to approve voucher-type plans, but the measures were unsuccessful. Until the Zelman decision by the United States Supreme Court in 2002, which upheld the use of vouchers at sectarian schools, twenty-six other states had voted down voucher-type legislation. In 1999, Florida became the first state to offer a statewide voucher program to help parents of students in failing schools off-set the cost of private education; however, that plan was held unconstitutional by the Florida Supreme Court in Bush v. Holmes, 919 So.2d 392 (Fla. 2006). Colorado voters rejected a voucher plan in 1992 and a tuition tax credit plan in 1998; however, in 2003 the Colorado legislature passed the first voucher program after the Zelman decision. This plan was held to be unconstitutional in 2004 by the Colorado Supreme Court, in Owens v. Colorado Congress of

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Parents, 92 P.3d 933 (Colo. 2004). In 2004, Congress approved a voucher plan for the District of Columbia. Other than the Zelman decision, courts have tended to hold voucher-type plans unconstitutional. Courts,

beginning in the late 1990s, addressed several issues regarding vouchers, tuition reimbursement programs, and tax credits for tuition payments. Voucher plans addressed by the courts in the early cases were state attempts to provide vouchers for mostly low-income students in low-achieving schools in Milwaukee, Cleveland, and Florida.

Many of the decisions turned on separation of church and state issues based on the so-called Blaine Amendments.* State constitutions in thirty-seven states have provisions referred to as Blaine Amendments, which explicitly bar public aid to religious institutions. A typical amendment contains the following language “[n]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution.” Blaine Amendments were originally passed as a result of the nativist, anti-Catholic bigotry after the Civil War. There was an assumption that Protestant schools would not be affected by the amendment but that public funds would not go to sectarian-Catholic schools.

In the first school-choice ruling by a state’s highest court, Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998), cert. denied, 525 U.S. 997 (1998), the Milwaukee Parental Choice Program for low-income children was upheld. Under the program, eligible students must reside in Milwaukee, attend public schools or private schools in grades K–3, and meet certain income requirements; there was an opt-out provision under which private schools could not require participation in religious activity provided at that school, and parents had a choice of sending their children to a neighborhood public school, a different public school within the district, a specialized public school, a private nonsectarian school, or a private sectarian school (Wisconsin has a system of per-pupil financing under which public funds follow each child). A major issue in this case was whether the program violated the Establishment Clause of the First Amendment because state aid could be given to parents of qualified students for attendance at either sectarian or nonsectarian private schools, and there were no restrictions on the uses to which the private schools could use the state aid. In its decision, the court stated that it reluctantly applied the Lemon test because five current United States Supreme Court justices have questioned its continued use; yet, the court in its four-to-two decision went to great lengths in stressing that the Milwaukee program had a secular legislative purpose, its principal or primary effect neither advanced nor inhibited religion, and it did not create excessive entanglement between government and religion. In addressing the issue that the program would violate the Equal Protection Clauses of the Fourteenth Amendment, the court stated that was not the case because the statute was not enacted with a purpose or intent to discriminate. The court held that the program, on its face, was race-neutral. It allowed students to be chosen without regard to race to attend schools of their choice, and schools had to comply with antidiscrimination statutes.

Maine had a statute under which tuition grants were made available if a student’s community did not have public school facilities due to insufficient student density. Under the statute, direct grants were made to private nonsectarian schools but not to sectarian schools. Parents who sent their children to sectarian schools challenged the constitutionality of the tuition program in

________________ *These amendments were named after James G. Blaine, a Maine senator and former speaker of the House of Representatives, who led a campaign to amend the Constitution. Although passage of the amendment narrowly failed at the national level in 1875, many states adopted versions of the amendment. In several states, adoption of a Blaine Amendment was made an explicit condition for entering the Union.

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Strout v. Albanese, 178 F.3d 57 (Me. 1999), cert. denied, 528 U.S. 931 (1999), Bagley v. Raymond School Department, 728 A.2d 127 (Me. 1999), cert. denied, 528 U.S. 947 (1999), and Anderson v. Town of Durham, 895 A.2d 944 (Me. 2006), cert. denied, 549 U.S. 1051 (2006). In these decisions, the courts denied the parents’ relief and upheld the statute’s constitutionality by holding that the statute did not violate the Establishment Clause, Equal Protection Clause, and the Free Exercise Clause.

The Vermont Supreme Court in Chittenden Town School District v. Department of Education, 738 A.2d 539 (Vt. 1999), cert. denied, 528 U.S. 1066 (1999), held that a school district’s secondary-education tuition reimbursement policy allowing tuition to be paid to sectarian schools was unconstitutional. Vermont’s tuition reimbursement program, dating back 130 years, provided opportunities for students, whose local school district did not operate a public high school, to attend a public or private high school. The court reasoned that the policy was violative of the state Constitution’s “compelled support” clause, which did not allow the state to interfere with or control an individual’s free exercise of religious worship or compel attendance or support religious worship against that person’s conscience. An Ohio voucher program was upheld by the United States Supreme Court in a five-to-four decision in Zelman v. Simmons-Harris. This ruling ended the speculation over whether voucher programs, which provided tuition money for private religious schools, could overcome the threshold issue of whether they were constitutional under the federal constitution.

ZELMAN v. SIMMONS-HARRIS

Supreme Court of the United States, 2002 536 U.S. 639

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. The State of Ohio has established a pilot program designed to provide educational choices to families

with children who reside in the Cleveland City School District. The question presented is whether this program offends the Establishment Clause of the United States Constitution. We hold that it does not.

There are more than 75,000 children enrolled in the Cleveland City School District. The majority of these children are from low-income and minority families. Few of these families enjoy the means to send their children to any school other than an inner-city public school. For more than a generation, however, Cleveland’s public schools have been among the worst performing public schools in the Nation. In 1995, a Federal District Court declared a “crisis of magnitude” and placed the entire Cleveland school district under state control * * *. Shortly thereafter, the state auditor found that Cleveland’s public schools were in the midst of a “crisis that is perhaps unprecedented in the history of American education.” * * * The district had failed to meet any of the 18 state standards for minimal acceptable performance. Only 1 in 10 ninth graders could pass a basic proficiency examination, and students at all levels performed at a dismal rate compared with students in other Ohio public schools. More than two-thirds of high school students either dropped or failed out before graduation. Of those students who managed to reach their senior year, one of every four still failed to graduate. Of those students who did graduate, few could read, write, or compute at levels comparable to their counterparts in other cities.

It is against this backdrop that Ohio enacted, among other initiatives, its Pilot Project Scholarship Program. The program provides financial assistance to families in any Ohio school district that is or has been “under federal court order requiring supervision and operational management of the district by the state superintendent.” * * * Cleveland is the only Ohio school district to fall within that category.

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The program provides two basic kinds of assistance to parents of children in a covered district. First, the program provides tuition aid for students in kindergarten through third grade, expanding each year through eighth grade, to attend a participating public or private school of the parent’s choosing. Second, the program provides tutorial aid for students who choose to remain enrolled in public school.

The tuition aid portion of the program is designed to provide educational choices to parents who reside in a covered district. Any private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school is located within the boundaries of a covered district and meets statewide educational standards. Participating private schools must agree not to discriminate on the basis of race, religion, or ethnic background, or to “advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion.” * * * Any public school located in a school district adjacent to the covered district may also participate in the program. Adjacent public schools are eligible to receive a $2,250 tuition grant for each program student accepted in addition to the full amount of per-pupil state funding attributable to each additional student. All participating schools, whether public or private, are required to accept students in accordance with rules and procedures established by the state superintendent.

Tuition aid is distributed to parents according to financial need. Families with incomes below 200% of the poverty line are given priority and are eligible to receive 90% of private school tuition up to $2,250. For these lowest-income families, participating private schools may not charge a parental co-payment greater than $250. For all other families, the program pays 75% of tuition costs, up to $1,875, with no co-payment cap. These families receive tuition aid only if the number of available scholarships exceeds the number of low-income children who choose to participate. Where tuition aid is spent depends solely upon where parents who receive tuition aid choose to enroll their child. If parents choose a private school, checks are made payable to the parents who then endorse the checks over to the chosen school.

The tutorial aid portion of the program provides tutorial assistance through grants to any student in a covered district who chooses to remain in public school. Parents arrange for registered tutors to provide assistance to their children and then submit bills for those services to the State for payment. Students from low-income families receive 90% of the amount charged for such assistance up to $360. All other students receive 75% of that amount. The number of tutorial assistance grants offered to students in a covered district must equal the number of tuition aid scholarships provided to students enrolled at partici-pating private or adjacent public schools.

The program has been in operation within the Cleveland City School District since the 1996–1997 school year. In the 1999–2000 school year, 56 private schools participated in the program, 46 (or 82%) of which had a religious affiliation. None of the public schools in districts adjacent to Cleveland have elected to participate. More than 3,700 students participated in the scholarship program, most of whom (96%) enrolled in religiously affiliated schools. Sixty percent of these students were from families at or below the poverty line. In the 1998–1999 school year, approximately 1,400 Cleveland public school students received tutorial aid. This number was expected to double during the 1999–2000 school year.

The program is part of a broader undertaking by the State to enhance the educational options of Cleveland’s schoolchildren in response to the 1995 takeover. That undertaking includes programs governing community and magnet schools. Community schools are funded under state law but are run by their own school boards, not by local school districts. These schools enjoy academic independence to hire their own teachers and to determine their own curriculum. They can have no religious affiliation and are required to accept students by lottery. During the 1999–2000 school year, there were 10 start-up community schools in

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the Cleveland City School District with more than 1,900 students enrolled. For each child enrolled in a community school, the school receives state funding of $4,518, twice the funding a participating program school may receive.

Magnet schools are public schools operated by a local school board that emphasize a particular subject area, teaching method, or service to students. For each student enrolled in a magnet school, the school district receives $7,746, including state funding of $4,167, the same amount received per student enrolled at a traditional public school. As of 1999, parents in Cleveland were able to choose from among 23 magnet schools, which together enrolled more than 13,000 students in kindergarten through eighth grade. These schools provide specialized teaching methods, such as Montessori, or a particularized curriculum focus, such as foreign language, computers, or the arts.

In 1996, respondents, a group of Ohio taxpayers, challenged the Ohio program in state court on state and federal grounds. The Ohio Supreme Court rejected respondents’ federal claims, but held that the enactment of the program violated certain procedural requirements of the Ohio Constitution. * * * The state legislature immediately cured this defect, leaving the basic provisions discussed above intact.

In July 1999, respondents filed this action in United States District Court, seeking to enjoin the reenacted program on the ground that it violated the Establishment Clause of the United States Constitution. * * * In December 2000, a divided panel of the Court of Appeals affirmed the judgment of the District Court, finding that the program had the “primary ef-fect” of advancing religion in violation of the Establishment Clause. * * *We granted certio-rari, and now reverse the Court of Appeals.

The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the “purpose” or “effect” of advancing or inhibiting religion. * * * There is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system. Thus, the question presented is whether the Ohio program nonetheless has the forbidden “effect” of advancing or inhibit-ing religion.

* * * Mueller [tax deductions for private school tuition], Witters [vocational scholarship program that

provided tuition aid to a student studying at a religious institution to become a pastor], and Zobrest [federal program that permitted sign-language interpreters to assist deaf children enrolled in religious schools] thus make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits govern-ment aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits. * * *

* * * We believe that the program challenged here is a program of true private choice, consistent with

Mueller, Witters, and Zobrest, and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion, i.e., any parent of a school-age child

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who resides in the Cleveland City School District. The program permits the participation of all schools within the district, religious or nonreligious. Adjacent public schools also may participate and have a financial incentive to do so. Program benefits are available to partic-ipating families on neutral terms, with no reference to religion. The only preference stated anywhere in the program is a preference for low-income families, who receive greater assistance and are given priority for admission at participating schools.

There are no “financial incentives” that “skew” the program toward religious schools. Witters, * * *. Such incentives “[are] not present . . . where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.” Agostini, * * *. The program here in fact creates financial disincentives for religious schools, with private schools receiving only half the government assistance given to community schools and one-third the assistance given to magnet schools. Adjacent public schools, should any choose to accept program students, are also eligible to receive two to three times the state funding of a private religious school. Families too have a financial disincentive to choose a private religious school over other schools. Parents that choose to participate in the scholarship program and then to enroll their children in a private school (religious or nonreligious) must copay a portion of the school’s tuition. Families that choose a community school, magnet school, or traditional public school pay nothing. * * *

* * * There is also no evidence that the program fails to provide genuine opportunities for Cleveland parents

to select secular educational options for their school-age children. Cleveland school children enjoy a range of educational choices. They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.

* * * Respondents and JUSTICE SOUTER claim that even if we do not focus on the number of participating

schools that are religious schools, we should attach constitutional significance to the fact that 96% of scholarship recipients have enrolled in religious schools. They claim that this alone proves parents lack genuine choice, even if no parent has ever said so. We need not consider this argument in detail, since it was flatly rejected in Mueller, where we found it irrelevant that 96% of parents taking deductions for tuition expenses paid tuition at religious schools. * * *

This point is aptly illustrated here. The 96% figure upon which respondents and JUS-TICE SOUTER rely discounts entirely (1) the more than 1,900 Cleveland children enrolled in alternative community schools, (2) the more than 13,000 children enrolled in alternative magnet schools, and (3) the more than 1,400 children enrolled in traditional public schools with tutorial assistance. * * *

Respondents finally claim that we should look to Committee for Public Ed. & Religious Liberty v. Nyquist, * * *, to decide these cases. We disagree for two reasons. First, the program in Nyquist was quite different from the program challenged here. Nyquist involved a New York program that gave a package of benefits exclusively to private schools and the parents of private school enrollees. Although the program was enacted for ostensibly secular

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purposes, we found that its “function” was “unmistakably to provide desired financial support for nonpublic, sectarian institutions,” * * * [emphasis added]. Its genesis, we said, was that private religious schools faced “increasingly grave fiscal problems.” The program thus provided direct money grants to religious schools. It provided tax benefits “unrelated to the amount of money actually expended by any parent on tuition,” ensuring a windfall to par-ents of children in religious schools. It similarly provided tuition reimbursements designed explicitly to “offer . . . an incentive to parents to send their children to sectarian schools.” * * * Indeed, the program flatly prohibited the participation of any public school, or parent of any public school enrollee. Ohio’s program shares none of these features.

* * * In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a

wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause.

The judgment of the Court of Appeals is reversed. It is so ordered.

* * * JUSTICE STEVENS, dissenting. Is a law that authorizes the use of public funds to pay for the indoctrination of thousands of grammar

school children in particular religious faiths a “law respecting an establishment of religion” within the meaning of the First Amendment? In answering that question, I think we should ignore three factual matters that are discussed at length by my colleagues.

First, the severe educational crisis that confronted the Cleveland City School District when Ohio enacted its voucher program is not a matter that should affect our appraisal of its constitutionality. In the 1999–2000 school year, that program provided relief to less than five percent of the students enrolled in the district’s schools. The solution to the disastrous conditions that prevented over 90 percent of the student body from meeting basic proficiency standards obviously required massive improvements unrelated to the voucher program. Of course, the emergency may have given some families powerful motivation to leave the public school system and accept religious indoctrination that they would otherwise have avoided, but that is not a valid reason for upholding the program.

Second, the wide range of choices that have been made available to students within the public school system has no bearing on the question whether the State may pay the tuition for students who wish to reject public education entirely and attend private schools that will provide them with a sectarian education. The fact that the vast majority of the voucher recipients who have entirely rejected public education receive religious indoctrination at state expense does, however, support the claim that the law is one “respecting an establish-ment of religion.” The State may choose to divide up its public schools into a dozen different options and label them magnet schools, community schools, or whatever else it decides to call them, but the State is still required to provide a public education and it is the State’s decision to fund private school education over and above its traditional obligation that is at issue in these cases.

Third, the voluntary character of the private choice to prefer a parochial education over an education in the public school system seems to me quite irrelevant to the question whether the government’s choice to pay for religious indoctrination is constitutionally permissible. Today, however, the Court seems to have decided that the mere fact that a family

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that cannot afford a private education wants its children educated in a parochial school is a sufficient justification for this use of public funds.

For the reasons stated by JUSTICE SOUTER and JUSTICE BREYER, I am convinced that the Court’s decision is profoundly misguided. Admittedly, in reaching that conclusion I have been influenced by my understanding of the impact of religious strife on the decisions of our forbears to migrate to this continent, and on the decisions of neighbors in the Balkans, Northern Ireland, and the Middle East to mistrust one another. Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy.

I respectfully dissent.

Notes Some legal observers contended that the Zelman decision was a narrow one that only applied to the Ohio factual situation, yet others argued that the decision removed a major impediment to the voucher movement. Voucher proponents argued that the decision moved the discussion from whether vouchers were constitutionally allowable to whether they should be implemented. In that sense, the decision was seen as having the potential for revitalizing a seemingly moribund statewide voucher movement that, at the time of the Zelman decision, had been rejected by voters in twenty-nine states.

Although vouchers had received much attention, at the time of the Zelman decision, they had only been implemented in Milwaukee, Cleveland, and a handful of schools in Florida. The number of students in these three programs represented only one-tenth of 1 percent of all public school students.* To date, reliable research has revealed little or no improvement in test scores of students who have left the public schools for voucher-funded private schools.

Although Zelman was decided by the United States Supreme Court exclusively on separation of church-state grounds, two statewide voucher programs were found unconstitutional on other grounds by state high courts in Colorado, Florida, and Arizona. In a four-to-three decision, the court expressed concern over local school districts maintaining control over locally raised funds in support of the voucher program. In Owens v. Congress of Parents, 92 P.2d 933 (Colo. 2004), the court held that

Irrespective of the fact that the goals of the program and the policy considerations underlying it are laudable, we see no way to reconcile the structure of the program with the requirements of the Colorado Constitution. To hold otherwise would render the local control provisions of article IX, section 15 meaningless. (p. 936)

And in Florida, the statewide voucher program was also found to be unconstitutional. In Bush v. Holmes, 919 So.2d 392 (Fla. 2006), the Florida Supreme Court in its five-to-two decision held that

The Opportunity Scholarship Program contravenes [the constitutional mandate to make adequate provision for the education of Florida’s children—through a system of public education] . . . because it allows some children to receive a publicly funded education through an alter-native system of private schools that are (sic) not subject to the uniformity requirements of the public school system. The diversion of money not only reduces public funds for a public education but also uses public funds to provide an alternative education in private schools that are not subject to the “uniformity” requirements for public schools. (p. 412)

_________________ *The number of voucher students in the 2001–2002 school year were 4,757 in Cleveland; 47 in Florida; and 10,800 in Milwaukee

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A decision by the Arizona Supreme Court held unconstitutional voucher programs that would have allowed disabled students to use the voucher at private sectarian schools. The court’s decision was based on state constitutional provisions “that no public money shall be appropriated to any religious worship, exercise, or instruction, or to the support of any religious establishment,” and “that no tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation.” See Cain v. Horne, 202 P.3d 1178 (Ariz. 2009) (en banc).

Despite vocal and mostly conservative support, voucher plans to date have not received significant popular support. The operation of several forces appears to be the reason for vouchers not having gained wider acceptance. These include separation of church and state issues (resolved at the federal level by the Zelman decision); taking needed money away from the public school system; concern over relinquishing academic and fiscal accountability; issues surround-ing desegregation and the eligibility of disabled students; fear of governmental support for the establishment of an elitist “private” educational system when vouchers act as a tuition subsidy for the flight of wealthy and middle-class children, but are insufficient to grant poorer children access to elite schools; concern on the part of private schools that vouchers would bring about increasing elements of governmental control; and making public schools “dumping grounds” for the difficult to educate.

4. CHARTER SCHOOLS Charter schools, called opt-out schools in England, allow entities other than school boards to establish publicly funded schools. Founders may be teachers, parents, public bodies such as museums and universities, or in some instances, for-profit private organizations. A charter is typically issued by the local school board or state agency, for a period of five years (fifteen years in Arizona), in return for a promise to achieve certain results. They are administered by either a school district, a state education agency, or a chartering organization. Several states have enacted legislation that allows school systems to become charter systems. The theory behind such schools is to allow individuals or groups with innovative educational ideas to put them into practice without being unduly hampered by local or state bureaucracy. Charter schools may offer unconventional hours, experiment with curricula, specialize in certain types of teaching, or design programs tailored to a particular audience or community.

Success of charter schools depends on achieving promised results, parental satisfaction, and the public money that follows each child. Various forms of charter school legislation have been passed in forty states and the District of Columbia since Minnesota first passed such a law in 1991. Charters may be revoked if there is financial mismanagement, discrimination toward students, violation of state or federal laws, or nonfulfillment of the goals specified in the charter. To date, the charter movement has not drawn the degree of political controversy associated with vouchers. There were approximately 100 charter schools in 1994; 1,700 in 1999; 3,300 in 2006; and 4,900 in 2010. In 2009, there were approximately 1.4 million students attending charter schools.

Data have not been favorable about the efficacy of charter schools. The controversial 2003 National Assessment of Educational Progress, funded by the Department of Education, revealed that average achievement was higher in regular public schools than in charter schools for students overall and for low-income students. A 2009 report by the Center Research on Education Outcomes at Stanford University found that 17 percent of charter schools reported academic gains that were significantly better than traditional public schools; 46 percent showed no difference from public schools; and 37 percent were significantly worse than their traditional public school counterparts.

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Denial of a charter school application by a county school board was addressed by the South Carolina Supreme Court in Beaufort County Board of Education v. Lighthouse Charter School Committee, 516 S.E.2d 656 (S.C. 1999). In upholding the denial, the court discussed the failure to meet requirements in such areas as health and safety, civil rights, and racial composition. Specific requirements included adherence to the same health, safety, civil rights, and disability rights requirements that applied to the district’s public schools; approval for new school facilities from the U.S. Department of Education Office of Civil Rights and compliance with the reporting require-ments under the district’s voluntary desegregation plan; and ensuring that charter school enrollment did not differ by more than 10 percent from the racial composition of the school district.

New Jersey’s Charter School Program Act was held not to be unconstitutional in Grant of Charter School Application of Englewood on the Palisades Charter School, 753 A.2d 687 (N.J. 2000). In its holding, the court stated that the choice to include charter schools among the array of public entities providing educational services is a choice appropriately made by the legislature so long as the constitutional mandate to provide a thorough and efficient system of education is satisfied. During the charter approval process, the court asserted, consideration must be given to the racial impact that the movement of pupils to a charter school would have on the district of residence, and there must be strong provisions for nondiscrimination and random selection of students to ensure equal access to charter schools. The local school boards bringing the suit challenged the economic impact of charter schools on their districts. They maintained that having to pay charter schools 90 percent of the local levy budget per pupil would cause dire consequences for the respective school districts (under the statute, the state commissioner could set the amount higher or lower than 90 percent but not to exceed 100 percent). In rejecting this argument, the court maintained that allowing charter schools to operate would not jeopardize the districts’ providing a thorough and efficient education to their remaining students.

A state superintendent of public instruction refused to provide funding for students attending a school district’s home-based charter school. The state superintendent contended that the school did not qualify as a public charter school because it did not meet the state requirement that one-half of the teaching and administrative staff be licensed. The school district had claimed parents were merely unpaid tutors. Agreeing with the state superintendent that the school was not a qualified public charter school, the court in Coquille School District 8 v. Castillo, 159 P.3d 338 (Or. Ct. App. 2007), ruled that it was clear that legislative intent was for parents to be regarded as “teaching staff” under state law.

The Knowledge is Power Program (KIPP) is an innovative charter program started in 1994 to serve poorly achieving black and Hispanic students from disadvantaged neighborhoods. Presently, KIPP is a nationwide network of 82 schools in 19 states serving 20,000 students. Some of its innovative practices include students, parents, and teachers signing a contract agreeing that the students will go to school daily from 7:30 a.m. to 5 p.m. and every other Saturday morning and an extra month in the summer. Students wear uniforms, and there is a culture of “no excuses” and strict discipline. Independent studies have shown KIPP schools to consistently have academic gains, and one study found that the “KIPP schools appear to have a dramatic impact on reading, language, and mathematics achievement for 5th-grade students.” Critics point to the schools’ rigid discipline and the practice of paying for progress.

A recent addition to the charter school movement has been the variously named virtual, cyber, or online learning charter schools. These schools offer state-funded online instruction to students who primarily work on their own at home. These state-funded online charter programs vary considerably among the states. According to a 2008 report by the Center for Digital Education, a majority of states have state-funded programs for statewide operation, district

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programs, or a combination of both; a small number of states have one or two specialized state virtual schools; and another small number of states provide state-funded online expanded learning options or employ online education to provide distance education. There are approximately 50,000 students in online charter school programs. Seventeen states have no state or district virtual charter schools.

The legitimacy of cyberschools under Pennsylvania’s charter school law was upheld in Pennsylvania School Boards Association v. Zogby, 802 A.2d 6 (Pa. Commw. Ct. 2002), appeal denied, 823 A.2d 146 (Pa. 2003). However, a Wisconsin virtual charter school was held not to comport with that state’s statutes, which “prohibit a school district from operating a charter school located outside the district, require that open-enrollment students attend a school in the district, and require that teachers in all public schools, including charter schools, be state-certified.” See Johnson v. Burmaster (unpublished opinion) (Wis. Ct. App 2007) review denied, 749 N.W.2d 662 (Wis. 2008). Since this ruling, Wisconsin has adopted virtual and online programs that address the policy issues raised in Johnson.

5. EDUCATION SERVICE PROVIDERS Public school systems may contract with private firms for a range of educational services such as providing foreign language, reading, or math instruction to broader services such as running several schools. These firms, known as education service providers, furnish services that a school system is unable to provide, or in the case of an entire school or schools that are floundering, they take over complete control. These providers may be for-profit or nonprofit organizations, and they operate in about half of the states.

A teacher’s union sued its school board for contracting with a private company to operate and manage a school. Twenty-four teachers were to be furloughed as a result of the contract. The Pennsylvania Supreme Court held that it would be constitutional under that state’s Public School Code for a local board to enter into such a contract. Doing otherwise, the court contended, would prohibit the local school board from providing the constitutionally required “thorough and efficient system of public education,” given that the Wilkinsburg students were not receiving a quality education. See School District of Wilkinsburg v. Wilkinsburg Education Association, 667 A.2d 5 (Pa. 1995).

6. TUITION TAX CREDITS Although not always labeled as a choice plan, providing tax relief for parents of school-age children is designed to ease the financial burden of nonpublic school attendance. Under such plans, parents are allowed to claim a state income tax deduction from gross income on their state income tax returns or a tax credit for tuition or certain educational expenses incurred at either public or private schools. Courts had not upheld such plans, primarily because of separation of church and state problems, prior to the Supreme Court’s decision upholding a Minnesota tax credit plan in Mueller v. Allen, 463 U.S. 388 (1983). See page 77 for a discussion of Mueller.

Arizona’s Supreme Court upheld a state law that allowed taxpayers to contribute up to $500 to private schools and $200 to public schools every year, and then claim the amount as a credit against state taxes. See Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999), cert. denied, 528 U.S. 921 (1999). However, in a post-Zelman decision, Winn v. Arizona Christian School, 562 F.3d 1002 (9th Cir. 2009), cert. granted sub nom, Arizona Christian School v. Winn, 560 U.S. ___ (2010), a federal appellate court reversed a district court’s decision upholding the constitutionality of a Arizona Tuition Tax Credit plan. Under this plan, which was available to all taxpayers, contributions up to $500 made to a “student tuition organization” (STO) would be treated as a tax credit. Several of the largest STOs receiving funds under this program restricted their schol-

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arships exclusively to their sectarian schools. In fact, it was alleged that in 2003, 91 percent of STO donations were disbursed to students attending private religious schools. In discussing whether the Arizona plan had a genuine secular purpose, the court opined: “. . . we conclude that plaintiffs’ allegations, if accepted as true, leave open the possibility that plaintiffs could reveal the legislature’s stated purpose in enacting [the tax credit plan] to be a pretense.” In its remand the appellate court stated:

. . . We conclude that the plaintiffs’ complaint, which at this stage of the litigation we must view in the light most favorable to the plaintiffs, sufficiently alleges that Arizona’s tax-credit funded scholarship program lacks religious neutrality and true private choice in making scholarships available to parents. Although scholarship aid is allocated partially through the individual choices of Arizona taxpayers, overall the program in practice “carries with it the imprimatur of government endorsement.” . . . We therefore hold, contrary to the district court, that plain-tiffs’ allegations, if accepted as true, are sufficient to state a claim that Arizona’s private school scholarship tax credit program, as applied, violates the Establishment Clause of the United States Constitution. (p. 1005)

B. Legal Implications As we have seen, many legal issues associated with choice plans have been adjudicated. The United States Supreme Court, in Zelman v. Simmons-Harris (2002), held that the Ohio voucher plan did not offend the Constitution’s Establishment Clause, and in 1998 the Wisconsin Supreme Court upheld Milwaukee’s Parental Choice Program in Jackson v. Benson. Although the Supreme Court has ruled in Zelman, separation of church and state issues may still be brought in state courts. State supreme courts have held voucher programs unconstitutional in Colorado (2004), Florida (2006), and Arizona (2009). Because these suits were brought on state grounds, they may not be appealed to the United States Supreme Court. Other legal issues surrounding choice plans will undoubtedly continue to surface. The following is a brief exploration of potential legal issues surrounding various choice plans.

An overall constitutional concern with such choice plans as magnet schools, for instance, includes their being challenged on equal protection grounds under the federal and state constitutions. The question of whether or not there was a rational basis—or a legitimate State purpose—for classifications of selectees made under such a choice plan will be central to many of the cases. Plans that by design or circumstances are not equally available to all students similarly situated, thereby resulting in seemingly unequal treatment for those not eligible or selected under the plan, may be particularly vulnerable. As we saw in Chapter 5, for instance, the United States Supreme Court in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), ruled that race cannot be the sole determinant for student placement. Although their existence may be justified pedagogically, one-race or one-gender classes or schools would be carefully scrutinized, as would restricting the eligibility of disabled students.

Choice plans that had a racial segregative impact would be most vulnerable to challenge. This would certainly be the case if the operation of a choice plan allowed resegregation to take place. Choice plans insensitive to desegregation efforts would also be challenged in those districts that have voluntary diversity plans or remain under court order to strictly comply with desegregation mandates. Complicating the issue further would be the matter of a sectarian school’s acceptance of voucher students if the school had rigid policies tied to enrollment of white students and hiring white-only faculty, both of whom were required to have strongly held religious beliefs. The long-standing issue of providing transportation to students not attending public

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schools would undoubtedly surface, particularly if transportation were tied to vouchers used for sectarian education.

Legal difficulties conceivably might come into play if public schools, and perhaps entire public school districts, could be shown to have become “dumping grounds” if more teachable students were to withdraw because of the availability of choice plans. In such an instance, it would have to be shown that the remaining students constituted an identifiable population that was illegally disadvantaged by the choice plan, such as students who were difficult to educate, disturbed, unruly, disabled, minority, disruptive, unwilling to do their homework, or suffering from learning disorders.

Many school finance issues, which have a potential for legal challenge, would also surface. A central issue would undoubtedly be which funds follow a student in interdistrict choice plans. Although a challenge to federal, state, and categorical funds following a student appears unlikely, controversy might arise concerning local funds (especially from a high-spending district) and state equalization funds following a student. Additional problems could center on which funds follow a student who wishes to attend a lower-spending neighboring district and who would be responsible for supplying the additional funds if the transfer is to a higher-spending district. Another issue may be whether or not all federal, state, and local monies accompany students who attend charter schools. Transportation issues must be considered as well. For instance, would the sending system be responsible for transporting a student to the school district’s border (closest to the student’s home?) and then have the receiving system continue the transportation? Whether charter schools receive funds for capital outlay could also become a legal issue.

On an interesting note, some evidence suggests that parental “choice” decisions are not necessarily made on the basis of a child’s going to a better academic school or district but for such reasons as being closer to child care, better extracurricular activities, “easier grades,” or just “more convenient.” Implementation of choice plans may require a reexamination of state athletic association rules and regulations, because allowing choice in school attendance has the potential to create athletic “powerhouses.” This and allied issues could spur considerable litigation in those states where high school athletics are taken seriously.

Because education service providers that accept vouchers may make affirmative promise regarding their educational offerings and student performance, failure to deliver on such promises could bring lawsuits alleging false advertising and breach of contract. Also, significant legal issues could be raised upon a private contractor or school filing for bankruptcy.

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