Warren E. Burger: We’ll hear arguments next in number 71-1332, San Antonio School District against Rodriguez. Mr. Wright, I think you may proceed whenever you’re ready.
Charles Alan Wright: Mr. Chief Justice and may it please the Court. I would like to take those texts from my argument this morning, a sentence from an article that Professor Coons and his collaborators, Professors Sugarman and Clune, wrote last year. It’s quoted-- cited on page 44 of my initial brief. They said “of all public functions, education in its goals and methods, is least understood and most in need of local variety, experimentation, and independence. That, I think, is wise counsel.I believe that is the argument for reversal in this case. In our view, the Texas system of school finance, imperfect as it is, we conceded its imperfections in our brief. The Texas system does allow through local variety, and experimentation, and independence. Not as much as I would like it too, but that is its goal. That is its rationale and, for that reason, there is a rational basis to it and I will undertake it of course in a moment, our view that the rational basis test is the appropriate test. The view adopted by the District Court that there is a rigid constitutional mandate for the quality of education may not be a function of wealth except the wealth of the state as a whole, and my submission is based on educational assumptions about matters that are, today, not understood and which educators are not ready to form firm judgments and it would seriously inhibit, if it would not destroy, all together the possibilities for local variety experimentation. Dependence of which, as Professors Coons and Elle quite properly speaks of warmly. Proposition one, the proposition adopted by the District Court in this case, would impose a constitutional straightjacket on the public schools of 50 states. It would mean that, hereafter and permanently, or at least until a new book is written and the constitution changes again, that all measurements in terms of school-- of education of public schools must be in terms of per capita or per pupil, student expenditures even though there may be many other things that we ought to be worrying about in an effort to cure the problems of public education. It would not necessarily destroy all local control. There is the variation presented by Professor Coons and his associates described as district power equalizer. If district power equalizing is consistent with the mandate of the Court below and the Court did not undertake to speak to that question at all, it left it completely open, then it would still be possible for an individual school district to decide “we want to spend more money here than that other school district to spend it,” and there would be an elaborate system so that this could be done and its inability to do so would simply depend on the tax rate the district was willing to impose on itself. It would not depend on the taxable property in the district. That would leave local control still in the schools. To that extent, it is far better than any notions of centralized state funding on a single statewide formula, but as we pointed out both in our brief and both of our briefs, and particularly in our reply brief. It seems to us that if district power equalizing is a viable alternative, then this case has seized to be a case about education at all. That we are no longer concerned with whether the children in the Edgewood School District have an education inferior to those in Alamo Heights because this would still be possible if the voters of Alamo Heights decided that they would assume a larger tax burden of the tax rate and the voter is Edgewood. On the district power equalizing solution, this becomes a case for the release of the taxpayers rather than a case to help out school children. Many of the writers who support drastic reform and who would support reform as a matter of constitutional judgment and said that the district power equalizing solution would, itself, be unconstitutional because it would make the number of dollars spent on a child depending on what his friends and neighbors think. I must say that in view of what this--
Byron R. White: So there would still be an equal input and there could be.
Charles Alan Wright: There certainly could be. In fact, the whole reason for having district power equalizing would be to unequal input possible.
Byron R. White: But under the Texas system, it’s impossible for some districts to have a sufficient input even if they’re willing to tax themselves more.
Charles Alan Wright: They have a sufficient input, is that your words, Justice White?
Byron R. White: Yes.
Charles Alan Wright: I would not agree with that, sir, no.
Byron R. White: Why is that?
Charles Alan Wright: Because we believe that our state foundation program has assured to every district the sufficient input for an adequate education and then it has left every district to decide for itself, “what, if anything more?”
Byron R. White: So you think this is really power equalization that you have now.
Charles Alan Wright: No, I don’t think that ours is power equalization. I think that ours is not a book of choice.
Byron R. White: Yes, but you get the same result in the sense that anything over a minimum-- a minimum is guaranteed and districts may make up their own mind.
Charles Alan Wright: That’s right, yes. I, of course, don’t think the proposition, one, appears in the small part of the Fourteenth Amendment so that if the Texas system in this respect resembles power equalizing, it doesn’t bother me but I would think that it should bother my friend, Mr. Gochman, and it should bother Professor Coons because I don’t see how the unequal input of power equalizing can be defended if the constitution says you can’t have any input.
Byron R. White: Well, would you say it would violate the equal protection clause if, in some way, a Court could decide what was the minimum level of education? It was found that many districts in Texas didn’t come up to that level and couldn’t really, under the former, because the property in the district just couldn’t predict the district to limit it and the state foundation program just doesn’t bring it up to a minimum level.
Charles Alan Wright: I think that would be a much harder constitutional case for me to defend, yes. I don’t want to concede that I would necessary loose it because it is not my case.
Byron R. White: Apparently then, we must decide then whether the-- to your view, we must agree with you that the foundation programs brings it up to a minimum level?
Charles Alan Wright: No, I think that simply is not an issue here, that a-- there is hardly so much as an allegation or--
Byron R. White: It would be a violation if it didn’t. Don’t we have to decide it if it does?
Charles Alan Wright: I don’t think you have to decide that. I’m prepared for the purposes of the present argument, Justice White, but without foreclosing, what I may say the next time I’m up before you on a different case, to concede that there is a constitutional minimum that could be required. I think that there were certainly overtones of that in Yoder last term when the Court talked about a basic education in Court of what Thomas Jefferson had to say about it and things of that sort, so that I can understand what is a viable constitutional argument that a minimum education is required, but I don’t think there is any issue between the parties in this case on whether or not Texas is providing minimum education.
William J. Brennan, Jr.: You mean that the-- in effect, if it’s not conceded then at least it’s not denied that the present foundation of contribution to the local school district is sufficient to provide an adequate education?
Charles Alan Wright: That is my understandings of-- that it is not denied. I certainly would not want to put words in the mouths of my friends, but their pleading is not drawn on the theory that the foundation program doesn’t give Edgewood enough. Their theory is that it doesn’t give Edgewood as much as Alamo Heights, that there is the constitutional violation and that is certainly the constitutional violation found by the District Court. The District Court made no finding that we fall below whatever the constitutional minimum may be.
Byron R. White: The difference between or one difference between the power equalization and your system is that under power equalization, if the district chose to tax itself on a higher rate it could get more money even if the pro-- even if the pro-- even if it was a poor property.
Charles Alan Wright: That’s right.
Byron R. White: Not so, under the Texas System Act.
Charles Alan Wright: That’s right.
William H. Rehnquist: And each district would have the same row-a-hoe, so to speak, in raising that additional money under power equalization which it doesn’t have now.
Charles Alan Wright: Well, I wouldn’t want to accept that entirely, Justice Rehnquist, because power equalizing is always put in terms of the taxable property per pupil and, it seems to me, that in terms of what row you have to hoe in order to put a tax rate on yourself, it is really income, your ability to pay, that is important if, in a wealth district, the same rate would be a much smaller proportion of the income. So that, in that sense, in terms of the marginal utility of the dollar, it would still be easier for wealthy people to vote to spend more money that it would for poor people to do so but, as Professor Coon says, it is brought as a matter upon which pragmatism must triumph over principle.
William H. Rehnquist: Do you know of any case from this Court which has ever held it would be unconstitutional for a state simply to get out of the business of public education bag and baggage?
Charles Alan Wright: I don’t know such a case. I would say there were certainly strong implications in the Prince Edward County case that the state could do exactly that if it--
Warren E. Burger: Aren’t there several cases?
William H. Rehnquist: -- Why do you concede that a minimum education may be a constitutional requirement if the state can get out of it entirely?
Charles Alan Wright: Well, I-- of course, you are closer to make my concession in terms of this case. I think I can safely concede it here and that I don’t have to take along that argument in order to win this case. The-- even if the cons-- the minimum is constitutionally required, Texas wins here, but I do think-- I must say, I’m attracted, Justice Rehnquist, as a scholar to the argument that it might be, despite the animations of your previous cases, that today the failure of a state to provide an education all together would inhibit the First Amendment rights that a state has an obligation to teach children to read and to write. I don’t know that I would accept that argument, but I can see the possibilities of the sketching out an argument on that point.
Warren E. Burger: But in the past two or three years, didn’t Justice Black in one opinion, whether part of the holding or not, didn’t he say pretty flatly the state could close all its schools if it wanted to?
Charles Alan Wright: I think he said something of the sort in Palmer v. Thompson, the swimming pool case where it was dictum.
Warren E. Burger: But is there a question, however, that once the state undertakes to furnish education then it must furnish a certain minimal adequate education for everybody? Once they start to go down that road, they must follow through.
Charles Alan Wright: We certainly must do it for everybody, yes. If we’re going to do it for any, then we must do it for every young person in the state.
Potter Stewart: Would that mean that if a county in a state decided to provide public education then, as a constitutional matter, every county in that state have to do it?
Charles Alan Wright: I wouldn’t think so. No, I would think that, unless we can implicate the state in some way to find that this is a state action, just doing it--
Potter Stewart: Constitutionally, as you know, there are many, many decisions that say that county action is state action from the point of view of the Fourteenth Amendment.
Charles Alan Wright: Yes, for some purposes as they are, but whether they are for purposes of the Equal Protection Clause, in this kind of sense, there I would say your decisions are to the contrary. They say that to have things different in one county than it is in another county is not a violation of the Equal Protection Clause. That, of course, would-- those were not education cases, in which, that were being said. In one of them, Maryland had different penalties in one county for a crime than it had in another county to upheld that in a consistent line of this case, Mr. Justice Stewart--
Potter Stewart: There are all sorts of local option in the Sunday closing cases involved.
Charles Alan Wright: Sure.
Potter Stewart: McGowan against Maryland.
Charles Alan Wright: Yes.
William J. Brennan, Jr.: Tell me, I’m just curious. On district power equalization, what about the percentage of ratables which is-- don’t they differ in Texas? They seem to, in some places, assess 30% and some of them 80 and some of them 100?
Charles Alan Wright: They differ very widely in Texas as they do in most states, Justice Brennan, and I think that if a state were do adopt district power equalizing, it, as a practical matter, would have to adopt statewide assessing. I don’t see any other language the scheme would be feasible. Otherwise, you simply use a favorable rate and you cheat. You get more than you’re entitled to, and I think that demonstrates the further encouraging on local government that the ideas presented here by the appellees would represent that very little is to be left of local government if the decision bellow is to be affirmed. We contend, of course, that if we are subject only to the rational basis test that this is not one of those cases in which we must demonstrate a compelling state interest in order to justify the results for which we argue and justify the state plan, and we think that there’re quite a number of very recent cases from this Court, some of them ignored by the lower Court and some more recent, that show exactly that and that show that this Court is not going to impose a constitutional straightjacket on the states in difficult and intractable questions of social reform, welfare, economics. Dandridge, Lindsey, Jefferson v. Hackney, cases of that kind and we think that this is squarely in the area with which we are concerned. The appellees undertake to distinguish these and to suggest that, in some way, education-- the educational needs of the poor are fundamental while their needs for food and for housing are not. And, with respect, this is a distinction that I think simply is not a tenable one, that it is hard to say that a higher salaried school teacher is more fundamental to a poor child than food or a sunroof over his head. I see, Mr. Chief Justice, that the lunch hour is here.
Warren E. Burger: We’ll resume at 1.[Lunch Break] Mr. Wright, you make continue. You have 13 minutes remaining all together.
Charles Alan Wright: Thank you, Mr. Chief Justice. In the time that remains to me, I would like to turn for a moment to the factual assumptions that underlie the judgment below and the arguments of the appellees. I would like to make perfectly clear what our position is with regard to those because there is some suggestion, particularly to the amicus briefs that’s part of the appellees, that Texas is asking this Court to resolve the very vexing questions on the relation of money to quality and education and on whether or not persons who are individually poor are not likely to be found in school districts that are in terms of taxable property, collectively poor. We, of course, are not asking you to settle those questions. Our submission is that these are intensely difficult questions on which no answers in the present state of knowledge are possible and that this Court should not undertake to resolve matters on which educators and social scientists cannot come up with any answers. We had felt it necessary to discuss the questions because, as we understand it, the position of our friends would require you to resolve these issues. The decision below, though it never discusses the issue, makes the implicit assumption that, in education, money is quality. Now, the assumption is explicit in the writings of Professor Coons, his associates, and others who have written on that. The District Court never spoke to it, but the District Court looked at figures about numbers of dollars spent and then announced a constitutional requirement that the quality of education cannot be allowed to vary except as a function of the wealth of the state as a whole and, thus, implicitly assumed what we think no Court can safely assume because, in fact, we are very skeptical that it is even true that, beyond some minimum, quality is money. The District Court did explicitly find that there is a correlation between poor people and poor school districts. The finding of the District Court in that regard is based on the readings at the extremes of a chart that was offered in evidence. Its determination in that regard has been criticized not only in our briefs and in our testimony at the trial, but in the literature. In our brief, we set out the discussion of the finding on that point by Professor Goldstein in his article in the Pennsylvania law review and the issue of the Air Log Journal that was published in Tuesday of this week. There is a lengthy student note that is, again, very critical of the finding in Rodriguez on that point that appears at page 1312, notes 40 and 41 of the Yale note and that the subject has is recurred to again at page 1327 of the Yale note on why you cannot undertake to conclude a correlation between individual poverty and district poverty on the basis of the kinds of figures that the district judge relied on. We’ve presented also in our briefs disinterested studies elsewhere in Kansas and in California that have said “no, this relation does not exist.” The central finding of the Yale note based on virtually complete data of the entire State of Connecticut and on a far more sophisticated statistical analysis than any I have seen anywhere in the literature is that there is no such relation in the State of Connecticut that, indeed, the relation tends to be an inverse one, that it is the poor people who live in the area where the most is being spent on education and the rich people live in the areas where the least is being spent on education.
William O. Douglas: As I read this record, Mr. Wright, I-- it seemed to me that the testimony, and I’m not sure about the findings, pretty clearly demonstrate there is unequal treatment of these respondents who are Americans of Spanish ancestry at educational level. Is that any part of this litigation?
Charles Alan Wright: The racial issue is in the-- this litigation, yes, Justice Douglas. It is a major portion of the plaintiffs’ complaint. The Trial Court did not rely on it in its opinion. It put its holding squarely on the dollar inequality without regard to whether the particular plaintiffs were of Spanish ancestry or Anglo or Black, but the issue is certainly there. We think that the issue is one that is fairly readily answered that, although it is of course quite true that in the Edgewood District in Bexar County, Texas the great majority of the students are of Spanish origin and not as much money is spent there as in other school districts, but we doubt that this would be found to be true as a general matter. But, the poor school districts are not that congruent with racial distributions that it is, in other words, a happenstance that we have a case in which we have particular plaintiffs who are Mexican-American and to live in a district with low taxable resources. Again, on these factual statistical problems, we think that the state of the literature simply does not permit the conclusions that are essential to the position of my friend and that, even their conclusions were sent, we still think that our legal argument would have great merit. But, if there are conclusions are not demonstrable at the present time because they are the essential premises of result for which they are due. We think that the inability to demonstrate the accuracy of these assumptions is fatal to their case.
Warren E. Burger: I assume you use the term “state of the literature” in the-- rather, sense of the state of the human knowledge on this sense.
Charles Alan Wright: Yes, exactly the sense in which I use it, Mr. Chief Justice. I think, with the Court’s permission, I will reserve my remaining time for rebuttal.
Warren E. Burger: Very well. Mr. Gochman.
Arthur Gochman: Mr. Chief Justice and may it please the Court. The Court below held the Texas system unconstitutional because it distributes educational benefits on the basis of district wealth. The Court said, as might be expected, those districts much-- most rich in property also have the highest median family income and the lowest percentage of minority pupils, while the poor districts are poor in income and predominantly minority in composition, and the Court cites one of the exhibits. Another one is on page 98 of the appendix. It pertains to exhibit 3 which shows that the correlation is not only on a district basis of minority discrimination, but on statewide-- on a statewide basis. The Court further found that there was no rational or compelling reason that could be offered for this invidious discrimination. This Court is to decide whether or not to reverse the lower Court and approve district wealth as a proper basis for distributing public school education. The defendants admit that there is a perfect correlation between a property tax base per student and the amount of dollars each child gets for his education. Yes, Mr. Justice Brennan, tax rates do vary in Texas, but the district’s taxing at the highest rates in Texas get the lowest dollars per pupil, and the district’s taxing at the lowest rates gets the highest dollars per pupil and we showed it in exhibits, in Bexar County where my clients live, a metropolitan area, and we showed it statewide.
William J. Brennan, Jr.: Mr. Gochman, do you-- let me be sure I understand you. Do you say that there’s an inevitable correlation between district wealth and income of families?
Arthur Gochman: That is not what I just said a moment ago, but there is. The record shows it to this extent. As to the poorest districts and the richest districts, the poorest people live in the poorest districts and the richest people live in the richest districts, and in Bexar County it perfectly correlates.
William J. Brennan, Jr.: My question is whether this is a necessary correlation.
Arthur Gochman: No, Your Honor. It’s not, but we probably wouldn’t have a lawsuit if it wasn’t that way because it falls-- this kind of a discrimination falls most heavily on the poor. The poor have nowhere to go. Edgewood is a barrio district.
William J. Brennan, Jr.: I asked my question because, and it’s an unfair one, but I ask it from personal experience. I come from a state of varied economic areas. The Minnesota range, the iron range, was the most comparatively poor range as far as family income was concerned. And yet, in my day, it was the iron range that had the best schools. They were the ones with the swimming pools and the tennis courts and the extra facilities and the highest paid teachers. The reason was that the tax rates up there hit the steel companies.
Arthur Gochman: There are probably some accidents like that in Texas but, in the West Orange case which we cite in our motion to affirm, we show how they do away with that happening in Texas by poor people being in a district begets all of the oil refineries. What happened in Orange, the big majority district dissolved itself and then got itself attached to the poor district, the poor people, with the great wealth and attached itself to the district with poor families and great wealth. There is some of that in Texas, but as a whole and especially at the top or the bottom, the richest districts have the least poor people and the least minorities, and the poorest districts have the most poor people and the most minorities.
William J. Brennan, Jr.: Mr. Gochman.
William H. Rehnquist: It doesn’t hold true in the middle unless at least by one of you.
Arthur Gochman: It doesn’t hold true in the middle, but in Bexar County where my clients live, Your Honor, it hold true perfectly up and down the line.
William H. Rehnquist: Is there an exhibit in the--
Arthur Gochman: Yes, Your Honor. In our brief, on page 12, if you go to property tax and then the medium per capita income, they correlate perfectly up and down the line. These seven school districts have 93% of the students in Bexar County.
Warren E. Burger: Mr. Gochman--
William J. Brennan, Jr.: Could you carry your general theory across the state line?
Arthur Gochman: No, Your Honor. I carry the Equal Protection Clause to be “no state shall” and it’s the state’s obligation. The state has set up this school system.
Warren E. Burger: The logic of it, laying aside the Fourteenth Amendment with emphasis on “state,” the logic, however, would apply across state lines, wouldn’t it?
Arthur Gochman: No, Your Honor, I think--
Warren E. Burger: The logic of the Egalitarian concept that you’re arguing.
Arthur Gochman: No, I think we’re talking about--
Warren E. Burger: Well, why? Why do the people in Texas, for example, have better schools than the people in Rode Island? If they are better, I don’t know that they are not.
Arthur Gochman: As a moral proposition, maybe so.
Warren E. Burger: How?
Arthur Gochman: But this is a state. It’s now a state function, not a federal function.
Warren E. Burger: I’ve said-- I said, laying aside that limitation, the logic of your argument would apply with equal force.
Arthur Gochman: I think--
Warren E. Burger: Whether you call it moral grounds or an Egalitarian philosophy or whatever. May I ask you another thing, how would you rate such items as the need for police protection, fire protection, public health facilities, where would you grade them with respect to public education, higher, lower, or on the same level, as the functions of state government?
Arthur Gochman: I think what’s important is the constitutional importance of education, that is, education affects matters guaranteed by the Bill of Rights. It’s preservative of other rights. Unlike some of these other services, it’s related to every important right we have. It’s related to the right to vote, speech, jury service. On a federal jury, you can’t serve if you can’t read, write, understand, and speak the English language. It’s education. This Court has used as the high watermark for measuring the importance of other rights, for example, in measuring the importance of travel. In restricting the poor on travel, the Court said you couldn’t pose the schools to the Board, raising the importance of travel to that level. And, Mr. Justice Blackmun concurring in Palmer says “nice to have everything, but you can’t compare them to education.”
Warren E. Burger: Well, how about public health to education, public health facilities?
Arthur Gochman: Public health, food, lodging, those things are of great economic importance but they’re not matters that are related to those things guaranteed by the Bill of Rights, and any importance educationalized at the eight pegs up and down the ladder. It’s important to the free enterprise system, to the individual not to be poor. It’s important to feel indivi-- fulfill individual potential. It’s universally relevant and it’s the only thing the state provides that it compels you to utilize for this period of time. In fact, I don’t know anything it compels you to utilize for any length of time, but a child has to go to school for 10 years. That’s the importance the state puts on. It molds the character and the personality of the individual and it’s vital for the United States to compete in the world. But, they have sought to rationalize this and say it’s alright on the basis of local control, on the basis of diversity, variety, independence. The one thing the Texas system does not have because those that tax at the highest rates, as I said a moment ago, have the lowest expenditures per pupil and those that tax at the lowest rate, have the highest expenditures per pupil. There is just the reverse of local control. In San Antonio, Edgewood taxes at a rate 20% higher than Alamo Heights, but they raised $30-some a pupil. Alamo Heights raises over $400 a pupil. It is the property tax base that determines how much you have for a child’s education and who set that base, and who set that standard? The state, and they agree that this is a state system of public school education and these school districts were set up by the state for the convenience of the state in affording public school education. They also agree that these district boundaries serve it no educational function and they have no rational basis.
William J. Brennan, Jr.: What’s your answer to Mr. Wright’s suggestion that the state foundation contribution is adequate to provide-- that the contribution is sufficient to provide an adequate education?
Arthur Gochman: We show that it really doesn’t provide any minimum. The minimum is what the school at the bottom gets. For example, he says it guarantees you media-- instructional media, but if you look at Section K of the statute, it says if you put up the matching funds, it guarantees it. And, that’s why Edgewood gets lesser funds from the state program than Alamo Heights but, in addition to that, what is a minimum? What kind of a “more as” is Mr. Wright asking you to get into? What is a minimum? Is a minimum giving him the second grade or giving him 12 years when he comes out at the end equal to an Alamo Heights’ second grade? Are we going to have two classes of citizens, minimum opportunity citizens and first class citizens? I think in Sweatt we took care of that, and I think in McLaurin we took care of that. If we’re going apply equal protection of the laws, to get into minimums is going to get us into a thicket that we’d have to work our way around.
Byron R. White: Your answer is that state contribution does not provide an adequate education?
Arthur Gochman: Yes, and I say that, I pled that, and we proved that but, additionally, it doesn’t make any difference. Once the state provides the service, it has to provide it all on equal terms. It--
Byron R. White: MYour position then, just straight out, that the state must provide equal input into every school district in the state that whatever the system they have, whether it’s property tax or any other system, or whatever the-- whatever scheme you have is going to have equal input is otherwise per student.
Arthur Gochman: No, Your Honor. In fact, for example, take this problem.
Byron R. White: You can have an equal-- overall equal-- unequal input into two districts.
Arthur Gochman: Yes, Your Honor, but if it’s not just flat based on wealth. The perfect correlation here is that the input that you get in is based on what your tax base is and nothing else.
Byron R. White: Well, let’s assume the state just had an income tax, no property tax at all, and it just gave one school district $500 a child and another school district $600.
Arthur Gochman: For no reason? Well, it-- I would say that would violate the Equal Protection Claus, but let’s say it had a program--
Byron R. White: When could it give it one district more than another?
Arthur Gochman: One would be, I would think, power equalizing could be sustained because it does give effective local control and it does-- is this--
Byron R. White: No, but that ends up with wide disparities between school districts is what they get.
Arthur Gochman: Yes, we’re not preaching against disparities in education.
Byron R. White: As long as the local people make up their mind they haven’t have any?
Arthur Gochman: Well, as low as the lo-- as long as there is an equal opportunity for education or if there is going to be a disparity, let it be on a program basis. If a school says that we want to-- if a state says “we want to subsidize people more that go into the sciences,” and one school is heavy in sciences and they get more from the state because science is more expensive to teach, there would be some reason for that diversity but, here, it--
Byron R. White: Well, it’s not under power equalization if, after providing a minimum education if a district decided that they wanted to spend more money on education, they could just-- they could decide to spend it. Is that right?
Arthur Gochman: Yes.
Byron R. White: Now, assuming--
Arthur Gochman: By taxing at a higher rate.
Byron R. White: Yes, and let’s assume one district decided that and they want to spend $800 a student and another district said “well, we just don’t believe in education that well. Well, we’ll just go to 500.” Would that be alright under your--
Arthur Gochman: As long as the 500 provided some, what you would say would be, minimum. The compelling basis for that, if it is to be sustained, and I’m not preaching for power equalizing because that’s not what Texas is looking at. Texas is working on putting in a new program, but you’d have to compare that to James versus Vouch here, Your Honor, and say that this gives the opportunity, a real genuine opportunity for the people in the area to determine their own destiny.
Byron R. White: So you would say that the state may provide unequal inputs.
Arthur Gochman: On some basis, yes. When there’s a compelling interest--
Byron R. White: But that’s only if the state guarantees a minimum, isn’t it?
Arthur Gochman: No, I can’t say that there’s any such thing as a minimum. I would say that that has to-- if it’s an educational--
Byron R. White: I don’t understand your position, but you go ahead with your argument.
William H. Rehnquist: Well, a student in Mr. Justice White’s $500 district is going to be worse off than a student in Mr. Justice White’s $800 district there for reasons quite beyond his control, isn’t he?
Arthur Gochman: Yes, Your Honor, but this system-- Edgewood is a body, for example, 95% Mexican-American, average per capita income of $101,000. In the other system, we wouldn’t have a lawsuit. A person can move from one district to the other but, here, the poor are stuck in the poor district and they have no mobility. The Edgewood people would like to live in Alamo Heights, but they have no way to do it and the only way they can get a fair education is to get out of Edgewood.
William H. Rehnquist: But there’s got to be some consistent principle that governs the decision rather than just saying that this is really bad and the other wouldn’t be quite so bad.
Arthur Gochman: No, what I’m saying is-- and we’re getting into the constitutionality or lack of constitutionality of this power equalizing system.
Byron R. White: Yes, but I just want to-- in deciding the case, I suppose it’s important to know is there any system that you could think of that would satisfy your objections to the present Texas system.
Arthur Gochman: Yes--
Byron R. White: Other than just simply state control. You say you don’t need to go to state control.
Arthur Gochman: Yes, Your Honor. One thing they’re looking at in Texas, for example, is you take all of the non-residential wealth and you tax it statewide and you tax the residential wealth on a countywide basis, and taxing this residential wealth on a countywide basis, each district, by improving its own tax rate, will get itself more money. But, there is a basis because pretty well, on a countywide basis throughout the state, the residential tax basis will be equal or the variance will relate to the higher cost of living.
Byron R. White: Well, as I get your position, it’s not that just the unequal inputs per se violate the Equal Protection Clause. Your fund-- so far, it sounds like you’re saying that the fact that there are some districts that are locked in is what violates the Equal Protection Clause. There’s nothing they can do about you having a better education, either from the State Foundation Program or from taxing at higher rates.
Arthur Gochman: Exactly.
Byron R. White: That seems to be your major point.
Arthur Gochman: Exactly right, discrimination is based on wealth.
William J. Brennan, Jr.: And yet what you-- your answer to Justice White a few minutes ago leave me with the impression that district power equalization could produce precisely the picture of which you complain today.
Arthur Gochman: No, because the discrimination would not be based on wealth and if you’re going to justify power equalization--
William J. Brennan, Jr.: Well, could power equalizing ultimately produce precisely the picture of which you complain in Texas now?
Arthur Gochman: Well, the variances, Your Honor, under the present system are so vast that I can’t imagine any system and, as Dr. Berke testified, no one can imagine any system having vast or disparities. Over half of the teachers in Edgewood are unqualified, according to state standards, to teach school. There are 28 teachers per student in Edgewood, but--
William H. Rehnquist: Did Dr. Berke testify or did he submit an affidavit?
Arthur Gochman: He testified, Your Honor. What happened is we put out his direct testimony in narrative form and attached it to a question on interrogatory. All the evidence was taken by depositions and interrogatories and he actually testified by interrogatories.
William H. Rehnquist: But it wasn’t a question of being present in Court and testified.
Arthur Gochman: That’s right. There was no Courtroom testimony. The Court asked us to take all our testimony by depositions. There are three times the number of councilors per student in Northeast as there is in Edgewood, 2 miles away. The curriculum is much broader and Dr. Cardenas, the Superintendent of the Edgewood school district, says he can’t afford to come near the curriculum they have in this neighboring school district. The turnover of teachers in Edgewood is 50% a year. The turnover statewide in the governor’s report is 20% a year. The schools have to be poorly maintained because they don’t have the money to maintain it. They have leaky roofs. They have one-and-a half times as much space per student and a school district 2 miles away--
Potter Stewart: Well, I gather your answer, to me, is Edgewood at least under power equalization would be able to get out of this situation if it chose to.
Arthur Gochman: That’s right, Your Honor.
Potter Stewart: Whereas, now, it can’t get out of it.
Arthur Gochman: That’s right. It’s taxing at the highest rate in the county and that order. To get out of it, it would have to tax 10-12 times that present rate, which is prohibited. They’re poor anyway.
Byron R. White: Well, now, apparently it would satisfy your position if Edgewood, under some other system, had the opportunity to get out buy chose not to and stayed precisely at the present level of education.
Arthur Gochman: If the discrimi-- if it wasn’t locked in on the basis of wealth and there was some rational and compelling state reason involved--
Byron R. White: No, but if it chose not to. It had the opportunity but decided not to.
Arthur Gochman: Yes, sir.
Byron R. White: You’d leave that to Edgewood, wouldn’t you?
Arthur Gochman: Well, I’d say it would be unconstitutional if Edgewood chose to go that way and had the opportunity to do something else.
Byron R. White: You would say that the majority of the people in Edgewood could lock in a minority in Edgewood who wanted to get out.
Arthur Gochman: Yes, but that is not likely the system. The system is--
Byron R. White: But yours is voluntary with a vengeance, isn’t it?
Arthur Gochman: Pardon?
Byron R. White: This is voluntary with a vengeance, isn’t it?
Arthur Gochman: Yes.[Laughter] Yes, we’re facing that here and we think that if local control is that important, that if they decided to do it that way--
Byron R. White: You must think they did or you wouldn’t say that would be constitutional.
Arthur Gochman: Well, I think that has to be determined at a later time. I can tell the Court it won’t be determined on the Texas financing system because Texas, which has been working on a new system since the Trial Court decision, is not considering this.
William J. Brennan, Jr.: Let me see if I can correctly understand you. Now, you said even if you went to power equalization and Edgewood had the opportunity to get out of this situation, if it chose not to get out of it, the state would not be free to make that choice that you just said to me, that would still, if it chose not to, the choice not to would itself be a violation of the equal protection. Do you say that?
Arthur Gochman: No, if the compelling interest of local control is that strong then you could have that kind of discrimination, that the people in an area can decide for themselves whether they want to lock themselves in to a poor school system.
Byron R. White: What’s your position on that system if there’s something about the compelling system? I mean, that’s really the question. Would it be constitutional or wouldn’t it for Edgewood to have the opportunity but choose not to exercise it?
Arthur Gochman: I would think it would be constitutional.
William H. Rehnquist: Then, in effect, your theory makes the districts equal but it may leave the students utterly unequal.
Arthur Gochman: Yes, but it would have a different basis at least. It wouldn’t lock on to the poor as it does now, and mobility is a serious factor in this case. If this was a rich guy in a poor district, we wouldn’t be in Court. He’d just move. But, the poor have no way out of the present system.
Byron R. White: Well, then your case does a lot depend on these factors.
Arthur Gochman: I think-- yes, I think the factual situation is poor or there wouldn’t be any lawsuit the facts-- if the facts weren’t there. We say the discrimination is based upon the wealth of the districts, but we say that that discrimination falls most heavily upon the poor and the minorities and, in that regard, in the race-- with regard to the racial discrimination, this is not segregation where you happen to prove that the segregation discriminates. The discrimination is there on its face that the minorities get last both in Bexar County and statewide.
William H. Rehnquist: You don’t contend, do you, that Texas setup this system of district school financing with the purpose of discrimination against minorities, do you?
Arthur Gochman: I contend that, objectively, Texas did what it did and it could have done something else. And, what it did discriminates against minorities and that--
William H. Rehnquist: Well, isn’t that a great deal like the findings we had in Jefferson against Hackney where you could say, statistically, minorities were discriminated against but there was no finding of intent to discriminate and, as to Welfare, we have held that.
Arthur Gochman: Exactly, we had to face Jefferson versus Hackney and we say it’s distinguished because of the importance of education, because it falls on helpless children, and because the state created the discrimination.
William H. Rehnquist: Well, doesn’t Welfare fall on helpless children too?
Arthur Gochman: Yes, Your Honor, Welfare-- but on the other two grounds, the importance of education as it relates to the Constitution of the United States and the fact that-- I lost my train of thought on that. The importance of education to the Constitution of the United States and the fact that the state did it, the state made these districts poor, are two distinctions of Jefferson versus Hackney. As to the--
Harry A. Blackmun: The school districts created solely by the state legislature, only, that is they’re meats and bounds?
Arthur Gochman: No. The state setup the system for the convenience of the state, but the boundaries are adjusted by majority votes for joining districts and by the County Board of Trustees, if it’s a county district. But, the problem is nobody is going to join up with Edgewood. From San Antonio independent school district to the Central City school district, the evidence will show, continually took in neighboring districts, but it’s not going to the body of the majority of the people in San Antonio vote to take it in and, thereby, San Antonio independent school district, the Central City just has four times the wealth per student of Edgewood. It would injure its ability to teach its present students by having an election to decide to take in Edgewood and, in that way, the state has locked in Edgewood.
Potter Stewart: But the state legislature or any-- does any statewide agency, State Board of Education, or whatever, have any power to create or change or adjust the boundaries of the school districts within the state?
Arthur Gochman: No. Basically, this is the job of majorities in the adjoining school districts at their independent school districts and if they’re county school districts, the County Board of School Trustees are obviously--
Potter Stewart: This County is Bexar that you pronounce as “Bar”?
Arthur Gochman: It’s “Bear,” yes.
Potter Stewart: “Bear.” How many school districts in Bexar County?
Arthur Gochman: There are about 15, but some of them go into other county lines. The seven that we names in the suit--
Potter Stewart: They do cross county lines?
Arthur Gochman: Yes, sir. The seven that we named in the suit have 93% of the students. One thing they’re asking you to do in this case is to declare constitutional a system that is based on money making a difference and giving incentive matching grants to those schools that have the most money and put up the most money for education, and ask you to declare that system to be unconstitutional on the ground that money makes no difference. Actually, at the trial of this case, they all agreed that money made some difference and money made the difference. Now, they say that a minimum program is enough, which is an admission that money must make a difference, that there must be a maximum program but, again, I want to go into the fact that Sweatt, I think, did away with minimums. And, I want to point the Court to McLaurin because this is what the state did and it’s not-- what will happen is a result that counts in McLaurin. The State of Oklahoma said this child shall sit in the back of the room. This law student shall sit in the back of the room, and they wanted to justify it in Court by saying “well, nobody else would’ve sat with him anyway. So, the statute ought to be upheld because it wouldn’t be any different if we didn’t have it.” And, the Court said what the state did is what is important. I want to say, in concluding, that the San Antonio independent school district, the Central City school district was the named defendant-- a named defendant in this case and they fought as hard at the trial level, got out on a motion to dismiss but, on appeal of this case, after seeing the decision of the trial court and the equity involved in the vast discriminations, filed a brief in support of the decision of the Trial Court. Thank you very much.
Warren E. Burger: Thank you, Mr. Gochman. Mr. Wright, you have six minutes remaining.
Charles Alan Wright: Thank you, Mr. Chief Justice. I’d like to begin to further word on the racial aspects proposed by Justice Douglas in a question to me and also in Mr. Gochman’s argument, in response to that, simply quoted from a book by Professors Coons, Sugarman, and Clune. They say it is not-- the quotation appears on page 24 of our initial brief. “It is not surprising that even the present litigation is understood by many of its close supporters as a racial struggle.” The fact is, otherwise, there is no reason to suppose the system of district based school finance embodies racial bias. No doubt, there are poor districts which are basically Negro, but it is basically clear, almost by definition, the vast preponderance of such districts is White.
William H. Rehnquist: Was Mr. Gochman bound by that comment?
Charles Alan Wright: No, but I think that you are bound to take into account the findings of serious students such as Professor Coons in determining what the Fourteenth Amendment means on a nationwide basis. Professor Coons and his associates supported that statement, Justice Rehnquist, by a figure showing that in California, for example, 59% of minority students live in districts in which the assessed values are above the medium and, therefore, if we had strict equalization they would get less now.
William H. Rehnquist: If I had a case here from Texas and was claiming that “Texas had denied me equal protection,” I think I would feel rather strongly that whatever the figures might show about California was entitled to stand on the record made in the Texas case.
Charles Alan Wright: But I think with respect, sir, that in determining the rule of law that the particular facts of the Edgewood school district or about California or any other particular place are all merely parts of an overall mosaic that you must appraise in deciding does the constitution or does it not require this.
Harry A. Blackmun: Was it any part of the District Court’s rationale in this constitutional decision that this was racially discriminatory?
Charles Alan Wright: No.
Harry A. Blackmun: I didn’t think so.
Charles Alan Wright: There were allegations to that effect.
Harry A. Blackmun: -- and a complaint, but no part of it--
Charles Alan Wright: But the judgment below--
Harry A. Blackmun: No part of the foundation--
Charles Alan Wright: Does not rely on that, no. I’m not here to apologize for the Texas school finance system, though I’ve said repeatedly, it seems to me, far from perfect. I think the Texas system does assure, as evidence in the record shows, more than merely a minimum. It ensures a basic education to every school child in the state and then lets districts, if they have money and want to spend money, go beyond that. As I understand, the argument of my friend Mr. Gochman, it would not matter if Texas were giving each school district $2,000 per student. If Alamo Heights were still free to tax with its heavy resources and spend more than Edgewood was, he would still find this to be impermissible although, for reasons that are not persuasive to me, he regards the same result as quite different if it stands from district power equalizing than it comes out of the mere facts as they are. I said, several times, in my brief, I want to say here and say with the utmost sincerity how much I admire the creative scholarship of Professor Coons and his associates and my colleague Professor Yudof and others who are ripped in the field and I admire also the devotion and ability which Mr. Gochman has persevered in this case. These people have opened the eyes of the whole country to a very serious problem. I think that everyone in this Courtroom would agree that what we want is better education for all children and especially for poor children, that the real differences between us are whether a new system should be adopted because this Court finds that the constitution requires it or whether we look to legislatures to provide remedies, and the difference about whether the proposals they make would, indeed, lead to better education or only more expensive education, whether they would relieve poor children or only children who happen to live in poor school districts. And, indeed, if district power equalizing is to be taken seriously, whether the remedy that has been offered here is not one that is of no benefit to children but only of benefit to taxpayers. Thank you, Mr. Chief Justice.
Warren E. Burger: Thank you, Mr. Wright. Thank you, Mr. Gochman. The case is submitted.