ED 067 744

TITLEINSTITUTION

SPONS AGENCYPUB DATENOTEAVAILABLE FROM

DOCUMENT RESUME

EA 004 592

Student Fees.Harvard Univ., Cambridge, Mass. Center for Law andEducation.Office of Economic Opportunity, Washington, D.C.Mar 7268p.; Revised editionCenter for Law and Education, 38 Kirkland Street,Cambridge, Massachusetts 02138 ($2.00)

EDRS PRICE MF-$0.65 HC-$3.29DESCRIPTORS *Court Cases; Equal Protection; *Fees; Guidelines;

*Legal Aid; *Legal Problems; Public Schools; *SchoolLaw; Student Rights; Students

ABSTRACTThis packet is designed to assist legal services

offices in challenging fees assessed for textbooks, studentactivities, materials, or similar items. The material includes (1)draft paragraphs for a complaint in a Federal or State court; (2)

excerpts from a brief submitted to the U.S. Supreme Court in supportof a petition for writ of certiorari in Johnson vs New York StateEducation Department from an adverse Second Circuit decision; (3) a

copy of the Seventh Circuitts order in Williams vs Page (holding thata cause of action exists in a complaint alleging violation of equalprotection); (4) a "model brief" in support of a State court action,and (5) a discovery checklist. (Author/JF)

U.S. DEPARTMENT OF HEALTH.EDUCATION & WELFAREOFFICE DF EDUCATION

THIS DOCUMENT HAS BEEN REPRO.DUCED EXACTLY AS RECEIVED FROMTHE PERSON OR ORGANIZATION ORIG!NATING IT. POINTS OF VIEW OR OPIN-IONS STATED DO NOT NECESSARILYREPRESENT OFFICIAL OFFICE OF EDU-CATION POSITION OR POLICY.

FILMED FROM BEST AVAILABLE COPY

41701,117 flirt

Prepared by theCenter for Law and Education

38 Kirkland StreetCambridge, Massachusetts 02138

(617) 495 -466f

The Center for Law and Education is aninter-disciplinary research institute establishedby Harvard University and the United States Officeof Economic Opportunity to promote reform in edu-cation through research and action on the legalimplications of educational policies, particularlythose affecting equality of educational oppor-tunity.

The research reported herein was performedpursuant to a grant from the Office of EconomicOpportunity, Washington, D.C. 20506, but the

O opinions expressed should not be construed asrepresenting the opinions of any aaency of theUnited States Government.

I

HARVARD UNIVERSITYCENTER FOR LAW AND EDUCATION

38 Kirkland StreetCambridge. Nfaccachtisetts n2138

n17-4.6-46(41

TO: Legal Services Offices

FROM: Center for Law and Education

RE: Packet on School Fees [Revised edition, March 19721

Many school districts, tight-pressed for funds, are askingstudents to pay various sorts of fees--for text books, studentactivities, materials or similar items. These fees can be chal-lenged on a variety of grounds in federal court, and often, instate courts. To aid you in contesting these fees this Packetwas prepared. It contains: (1) draft paragraphs for a complaintin a federal or state court action, (2) excerpts from a brief sub-mitted to the U.S. Supreme Court in support of a petition for writof certiorari in Johnson v. New York State Educ. Dept., from anadverse Second Circuit decision, (3) a copy of the seventh circuit'sorder in Williams v. Page (holding cause of action exists in com-plaint alleging a violation of equal protection), (4) a "modelbrief" in support of a state court action and (5) a discoverychecklist.

Whether to sue in state or federal court is a difficultquestion. Its final resolution may depend on the outcome of theJohnson case, and/or the precedent in a particular federal juris-diction. In general, state courts offer Plaintiffs a betterchance because there is weightier state precedent. Fees havebeen viewed with disfavor by courts often considered "conservative"in Arkansas, Kansas, Oklahoma, Georgia, and Idaho. In addition,federal equal protection action can ask for relief only for poorpersons, while state actions ask for a ban on fees charged to allpersons. Unless, then, there is a good reason for going intofederal court (a.k.a., the complete absence of a "free" or "common"school clause in state constitution or statutes, and the mostunfriendly state judges compared to angels on the federal side),state suits seem advisable.

We would appreciate attorneys with pending cases forwardingto us copies of court orders obtained so that we may include themin future printings of this racket.

2

TABLE OF CONTENTS

Page

Introduction to Packet

Contents ii

Complaint Sample Paragraphs 1

Brief in Johnson v. New York State EducationDepartment, excerpts 5

Court Order, Williams v. Page 22

Memorandum re: Model Brief 23

Model Brief, Table of Contents 26

Model Brief 27

Discovery Checklist 65

SAMPLE PARAGRAPHS FOR A COMPLAINT ALLEGING A VIOLATION OF THE STATECONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE U. S.

CONSTITUTION WHERE A SCHOOL DISTRICT CHARGES FEES

1. [Identification of parties, jurisdiction, etc. Federal Court

jurisdiction is based on 28 U.S.C. 1331, 1337, 1343; the claim

arises under the Fourteenth Amendment, 42 U.S.C. 1983 and 1988; the

Court is empowered to grant declaratory relief by 28 U.S.C. 2201

and 2202.]

2. [Statement of facts.]

3. [Class Action Allegation] The plaintiffs bring this action

on behalf of themselves and all persons similarly situated. Plain-

tiffs represent a class of persons whose children attend 1

s

(defendant's) schools and are charged compulsory fees as an inci-

dent to attendance at school or as an incident to full access to

[essential] educational benefits made available by the

(defendants). In addition, , plaintiffs, who are too poor

to pay fees, represent a separate class of persons whose children

attend 's [defendants'] schools and are financially unable

to pay the fees and whose children have been denied benefits of the

educational services offered by (defendants). Finally, plaintiffs

(persons who have been penalized for failure to pay fees)

represent a separate class of persons whose children have been

penalized for their failure to pay fees. Plaintiffs

members of this latter group are too poor to pay fees.

The members of the respective class are so numerous that

joinder of all members is impractical.

4

are

Sample Paragraphs, Complaint, p. 2

The questions of law and fact under the Fourteenth Amendment

to the United States Constitution are common to [plain-

tiffs too poor to pay fees] and the class of persons which they

represent. The questions of law and fact under the state statutes

are common to [plaintiffs whose children have been

penalized] and the class of persons they represent. In addition,

the claims of the named plaintiffs are typical of the claims of the

class and they will fairly and adequately protect the interests

of the class. Defendants have acted or refused to act on grounds

generally applicable to the class, thereby making appropriate final

injunctive and declaratory relief with respect to the class as a

whole. The questions of law and fact common to the members of the

class also predominate over any questions affecting only individual

members, and a class action is superior to other available methods

for the fair and efficient adjudication of the controversy.

4. [Statement of Claims under the Federal Constitution, Equal

Protection Clause] [plaintiffs too poor to pay fees]

and the class of persons they represent are financially unable to

pay the required fees. Defendants have singled out this class

of persons and denied their children the full benefits of educa-

tional services made available to wealthier children by the defen-

dants, in violation of the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution.

[If there is an equal protection clause in the state consti-tution this should be contained in an additional cause of actionsimilar to the above.]

5

2

Sample Paragraphs, Complaint, p. 3

5. [State action only; statement of claim under state consti-

tutional provisions] [The sections requiring free schools or

common schools, any sections which give children a right to edu-

cation, and related statutory provisions should be cited; if a

state constitution provides for common schools it should be

also noted that "The courts have decided, and the original defi-

nition requires, that common schools be public schools which

are free of all charges. "]

The defendants' fees policy places a charge on a portion

of the school system's educational services, which

[applicable provisions of state laws of constitution] require[s]

to be provided free of charge. In addition, the defendants' fees

policy operates as an incidental charge, or admissions fee, for

some students and results in a denial of access to all educational

benefits, which the [state laws or constitution] re-

quire [s] be provided free of charge.

6. [State action only; statement of ultra vires claim] The

defendants, as public officials, have only the power and authority

expressly granted or fairly implied by the state legislature.

The authority to charge school fees has not been granted. There

is no statute expressly authorizing the fees policy and it can-

not be fairly implied from other statutes which grant defendants

authority. Therefore, the defendants' fees policy exceeds their

statutory authority and is ultra vires.

7. [Prayer for relief] WHEREFORE, on behalf of themselves and

all others similarly situated, plaintiffs respectfully pray that

this court:

Sample Paragraphs, Complaint, p. 4

a. Enter a judgment that the defendants' fees policy

violates the Fourteenth Amendment to the United States Consti-

tution on its face and as applied; and preliminarily and per-

manently enjoin the defendants and their agents from requiring

plaintiffs [names of those too poor to pay fees] and the class of

persons they represent--those who are financially unable to pay

the required fees - -to pay schools fees as a condition to receiving

any element of the educational services offered by the defendants,

or as an incident to attendance at any of the defendants' schools.

b. [State action only] Enter a judgement that the fees

policy violates the state constitution, sections

and permanently enjoin the defendants and their agents from re-

quiring plaintiffs and the class of persons they represent to pay

school fees for any element of educational services offered by de-

fendants, or as an incident to attendance at school.

c. [State action only] Enter a judgement that the fees

policy and punishment thereto exceed defendants' statutory author-

ity and permanently enjoin the defendants and their agents from

punishing plaintiffs and the class of persons they represent.

d [Optional, depending on circumstances] Award damages

to plaintiffs who have paid unauthorized and invalid fees since

[September, 1970], valued at $

e. Granting such other and further relief as the needs of

justice may require.

Excerpts From:

in Om

Onprrittr Oaurt of tip ainitat *tarsOCTOBER TERM, 1971

No. 71-5685

DAISY JOHNSON, ET AL., PETITIONERS,

v.

NEW YORK STATE EDUCATIONDEPARTMENT, ET AL.

ON PETITION FOR WRIT OF CERTIORARI TOTHE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF THE CENTER FOR.LAW AND EDUCATION HARVARD UNIVERSITY,

AND THE UNITED MINISTRIES IN PUBLICEDUCATION, IN SUPPORT OF THE PETITION

14

B.

TII

E C

OU

RT

OF

APP

EA

LS

DE

CID

ED

FOU

RT

EE

NT

H A

ME

ND

-

ME

NT

ISS

UE

S IN

A W

AY

IN

CO

NFL

ICT

WIT

H D

EC

ISIO

NS

OF

TH

IS C

OU

RT

.

1.Pr

elim

inar

y St

atem

ent:

the

Proc

edur

al P

ostu

reT

he p

roce

dura

l pos

ture

of

this

cas

e is

sign

ific

ant.

The

dist

rict

cou

rt d

ism

isse

d th

e co

mpl

aint

for

failu

re to

sta

te

a cl

aim

with

out

requ

estin

g th

at a

thre

e-ju

dge

cour

t be

con-

vene

d, e

ven

thou

gh th

e co

mpl

aint

sou

ght,

in p

art,

the

en-

join

ing

of S

ectio

n 70

1 of

the

Edu

catio

n L

aw.

(Ant

i. at

13.

)

(See

28

U.S

.C. 2

281,

228

4.)

The

Cou

rt o

fA

ppea

k af

firm

ed.

The

inqu

iry

acco

rdin

gly

mus

t foc

us o

nw

heth

er p

lain

tiffs

'cl

aim

is s

ubst

antia

l. Se

e e.

g. C

alif

orni

aW

ater

Srr

rire

s C

.C

ity o

f R

eddi

ng, 3

04 U

.S. 2

52, 2

55. W

e m

aint

ain

that

it is

,gi

ven

past

dec

isio

ns o

f th

is C

ourt

with

whi

ch th

eru

ling

belo

w c

onfl

icts

, and

the

requ

irem

ent t

hat o

nm

otio

n to

dis

-m

iss

the

wel

l-pl

eade

d al

lega

tions

of

the

com

plai

nt a

nd a

lli-

davi

ts m

ust h

e ta

ken

as tr

ue.8

The

maj

ority

bel

ow s

ugge

sted

that

this

mig

ht n

othe

apr

oper

cas

e fo

r a

thre

e-ju

dge

cour

t.(S

lip O

p. a

t -1(

;60,

IL

8.)

How

ever

, eve

n if

the

loos

e;-

cour

t vie

wed

the

ease

as

invo

iv-

lug

only

an

appl

icat

ion

of th

e st

atut

ory

sche

me.

'no

t re-

quir

ing

a th

ree-

judg

e co

urt,

the

mot

ion

to d

ism

iss

shou

ldha

ve b

een

deni

ed.

26, 1

971)

, hol

ding

that

it v

iola

tes

the

Four

teen

thA

men

dmen

t to

sus-

pend

a s

tude

nt f

or th

ree

days

bec

ause

of

the

failu

re o

fhi

s pa

rent

s to

pay

a sc

hool

fee

. The

thru

st o

f th

ede

cisi

on is

that

edu

catio

n is

a f

un-

dam

enta

l rig

ht, a

nd th

at a

stu

dent

's r

ight

to a

n ed

ucat

ion

can

not

beco

nditi

oned

on

fact

ors

over

whi

ch h

e ha

s no

con

trol

.8

Gar

dner

v. T

oile

t Goo

ds A

ssoc

iatio

n, 3

87 U

.S. 1

67,

172

(196

7);

Coo

per

v. P

ate,

:378

U.S

. 546

.9

The

com

plai

nt c

halle

nges

, int

er a

lia, t

he a

pplic

atio

n of

the

sta-

tuto

ry s

chem

e to

indi

gent

stu

dent

s. (

App

. at

13.1

.1; T

hird

Cla

im.)

See

also

Bod

die

v. C

onne

ctic

ut, 9

1 S.

CL

780

, 787

, and

the

diss

entin

gop

inio

n of

Jud

ge K

aufm

an b

elow

. CI

diss

ent a

ndw

ould

hol

d th

atpl

aint

iffs

hal

e es

tabl

ishe

d at

the

very

leas

t a s

ubst

antia

lcl

aim

that

as a

pplie

d in

... D

istr

ict N

o. 2

0 ..

New

Yor

k E

duca

tion

Law

§70

3de

priv

es in

dige

nt c

hild

ren

of th

e eq

ual p

rote

ctio

n of

the

law

s."

(Slip

Op.

at 4

663-

4664

; em

phas

is a

dded

; foo

tnot

e om

itted

.)

15

Giv

en th

e al

lega

tions

of

the

com

plai

nt a

nd a

ffid

avits

, the

adm

issi

ons

of th

e lo

cal d

efen

dant

s an

d pe

rtin

ent s

ubst

an-

tive

case

law

, it c

an n

ot b

e sa

id th

at "

it ap

pear

s be

yond

doub

t tha

t the

pla

intif

f[s]

can

pro

ve n

o se

t of

fact

s in

sup

-po

rt o

f [t

heir

] cl

aim

whi

ch w

ould

ent

itle

them

to r

elie

f."

Con

ley

v. G

ibso

n, 3

55 U

.S. 4

1, 4

5-46

; 2A

Moo

re's

Fed

eral

Prac

tice,

§ 1

2.08

, at 2

271-

74 (

2d e

d., 1

968)

, quo

ted

in W

il-lia

ms

v. P

age,

F. 2

(1(C

.A. 7

, 197

1), d

iscu

ssed

abov

e at

12-

13.1

-0T

he th

ree-

judg

e co

urt p

roce

dure

may

not

be

wor

king

as

orig

inal

ly e

nvis

ione

d.n

How

ever

, fru

stra

tion

at th

e pr

oces

sca

n no

t he

it ba

sis

for

pena

lizin

g- p

lain

tiffs

who

se c

laim

ssa

tisfy

the

stan

dard

for

con

veni

ng th

e st

atut

ory

cour

t.

2.T

he S

tand

ard

for

lleri

ewin

g th

e C

halle

nged

Cla

ssi-

fica

tion.

Eac

h of

the

low

er c

ourt

s co

nsid

ered

the

stan

dard

of

equa

lpr

otec

tion

revi

ew a

pplic

able

in th

is c

ase,

i.e.

, "ra

tiona

l re-

latio

nshi

p to

a le

gitim

ate

stat

e en

d" (

JIr

Don

ald

v. B

oard

of E

lect

ion

Com

mis

sion

ers.

394

U.S

. 802

, 809

), o

r "n

eces

-sa

ry to

pro

mot

e a

com

pelli

ng s

tale

inte

rest

." I

tv.

Uni

on F

ree

Scho

ol D

istr

ict.

395

U.S

. 621

, 627

. The

dis

tric

tco

n rt

pur

port

ed to

app

ly th

e co

mpe

lling

inte

rest

sta

ndar

d,fi

ndin

g it

satis

fied

. (31

9 F.

Stip

p. a

t 278

.) W

hile

app

rovi

ngth

is c

oncl

usio

n, th

e C

ourt

of

App

eals

hel

d th

at d

ecis

ions

"Fin

ally

, the

cou

rt b

elow

sug

gest

ed th

at it

mig

ht b

e ne

cess

ary

for

plai

ntif

fs to

am

end

the

com

plai

nt "

to a

ttack

the

cons

titut

ion-

ality

of

the

vote

r's a

ctio

n."

(Slip

Op.

at 4

660,

n. 8

.) H

owev

er, p

lain

-tif

fs d

id a

llege

the

vote

r's a

ctio

n an

d ch

alle

nge

the

stat

utor

y sc

hem

eas

den

ying

Fou

rtee

nth

Am

endm

ent r

ight

s to

indi

gent

stu

dent

s. (

App

.at

7, 1

2-13

.) T

his

sure

ly w

as a

dequ

ate.

"T

he F

eder

al R

ules

rej

ect

the

appr

oach

that

ple

adin

g is

a ga

me

of s

kill

in w

hich

one

mis

-st

ep b

y co

nmel

may

be

deci

sive

to th

e ou

tcom

e an

d ac

cept

the

prin

-ci

ple

that

the

purp

ose

or p

lead

ing

is to

fac

ilita

te a

pro

per

deci

sion

on

the

mer

its."

Cw

ilt y

v. M

son,

:355

U.S

. 41,

.16.

uSee

the

disc

ussi

on b

y th

e m

ajor

ity a

nd J

udge

Kau

fman

bel

ow.

(Slip

Op.

at 4

650-

4655

, 466

4-46

66.)

16

of th

is C

ourt

"wou

ld in

dica

teth

at [

the

ratio

nal b

asis

]st

anda

rd.

.. i

s al

so a

ppro

pria

tein

cas

essu

ch a

s th

is."

Itth

en u

phel

dth

e ch

alle

nged

stat

utor

y sc

hem

e.(S

lip. O

p.at

4655

-465

6,46

56-4

663;

expl

anat

ion

adde

d.)

We

dem

onst

rate

belo

w th

at th

elo

wer

cou

rts

appl

ied

each

stan

dard

"in

a w

ay in

con

flic

t with

app

licab

lede

cisi

ons

ofth

is c

ourt

;.

.."

Sup

rem

eC

ourt

Rul

e19

(1)(

b). W

ew

ish

to s

tres

s at

the

outs

et,

how

ever

,ou

r vi

ew th

atth

e ch

al-

leng

ed s

tatu

tory

sche

me

shou

ldbe

judg

edby

the

com

pelli

ngst

ate

inte

rest

test

. It "

mus

t he

clos

ely

scru

tiniz

ed a

ndca

re-

fully

con

fine

d"(H

arpe

rv.

Vir

gini

a St

ate

Boa

rd o

fE

lec-

tions

, 383

U.S

. 663

,67

0) b

ecau

se,

as th

e lo

cal

defe

ndan

tsad

mit,

the

clas

sifi

catio

n at

issu

e bu

rden

sed

ucat

ion,

a "f

un-

dam

enta

lin

tere

st",

and

draw

s lin

esba

sed

upon

wea

lth,

a"s

uspe

ct"

clas

sify

ing

fact

or.

a)E

duca

tion

isa

"fun

dam

enta

l int

eres

t"In

195

4,th

is C

ourt

unan

imou

sly

stre

ssed

the

fund

amen

tal

impo

rtan

ce o

fed

ucat

iona

lop

port

imity

inB

row

n v.

Boa

rdof

Edu

catio

n,34

7 U

.S.

483,

493

.

Tod

ay, e

duca

tion

is p

erha

psth

e m

ost

impo

rtan

t fun

c-tio

n of

sta

tean

d lo

cal go

vern

men

ts. C

ompu

lsor

ysc

hool

atte

ndan

ce la

ws

and

the

grea

t exp

endi

ture

sfo

r ed

uca-

tion

both

dem

onst

rate

our

reco

gniti

onof

the

impo

r-ta

nce

ofed

ucat

ion

toou

r de

moc

ratic

soci

ety.

It i

sre

-qu

ired

in th

epe

rfor

man

ce o

fou

r m

ost b

asic

publ

icre

spon

sibi

litie

s,ev

en s

ervi

ce in

the

arm

edfo

rces

. It i

sth

eve

ry f

ound

atio

nof

goo

dci

tizen

ship

.T

oday

it is

apr

inci

pal

inst

rum

ent i

naw

aken

ing

the

child

tocu

ltura

lva

lues

, in

prep

arin

g hi

mfo

r la

ter

prof

essi

onal

trai

n-in

g, a

nd in

help

ing

him

to a

djus

tno

rmal

ly to

his

en-

viro

nmen

t. In

thes

e da

ys, i

t is

doub

tful

that

any

child

may

rea

sona

bly

be e

xpec

ted

to s

ucce

edin

life

ifhe

is

17

deni

ed th

eop

port

unity

of

an e

duca

tion.

Such

an

op-

port

unity

,w

here

the

stat

e ha

sun

dert

aken

topr

ovid

eit,

isa

righ

t whi

chm

ust b

e m

ade

avai

labl

e to

all

oneq

ual t

erm

s.

Dur

ing

the

Oct

ober

, 197

0T

erm

, the

Cou

rt r

eite

rate

dth

isvi

ew o

n th

eim

port

ance

of

educ

atio

n, q

uotin

gfr

om th

esa

me

part

of

Bro

wn

I in

Pal

mer

v. T

hom

pson

,91

S. C

t.19

40,

1943

, n. 6

.12

In th

isca

se, d

espi

teru

ling

agai

nst

plai

ntif

fs,

the

Cou

rtof

App

eals

maj

ority

char

acte

rize

ded

ucat

ion

as"n

o do

ubt

an a

rea

offu

ndam

enta

lim

port

ance

"(S

lip O

p.at

466

1),

a co

nclu

sion

with

whi

chC

ircu

it Ju

dge

Kau

fman

diss

entin

gag

reed

. (Id

. at 4

667-

4(36

9.)

Oth

er lo

wer

fede

ral

cour

ts h

ave

reco

gniz

ed th

ated

uca-

tion

isa

"fun

dam

enta

lin

tere

st".

In

ilosi

erv.

Eva

ns, 3

14F.

Sup

p.31

6 (D

. Vir

.Is

., 19

70),

the

cour

tin

valid

ated

,on

equa

l pro

tect

ion

grou

nds,

a re

gula

tion

perm

ittin

g th

eex

-cl

usio

n fr

omsc

hool

of "n

on-i

mm

igra

ntvi

sito

rs".

In

stre

ss-

ing

the

impo

rtan

ce o

fed

ucat

ion,

Dis

tric

t Jud

geC

hris

tian

stat

ed (

Id.

at 3

19)

: "W

e ar

e he

rede

alin

g w

ithan

asp

ect

of tw

entie

thce

ntur

y lif

eso

fun

dam

enta

las

to b

e fi

tting

lyco

nsid

ered

the

corn

er s

tone

of

a vi

bran

t and

viab

le r

epub

-lic

an f

orm

of d

emoc

racy

,su

ch a

sw

e so

pro

udly

-esp

ouse

,i.e

., fr

eean

d un

rest

rict

edpu

blic

edu

catio

n."

The

cou

rtre

-je

cted

the

gove

rnm

ent's

argu

men

t tha

tex

istin

g fa

cilit

ies

wou

ld b

ecom

eov

ercr

owde

d,w

ritin

g: "

The

shor

tan

swer

toth

at a

rgum

ent

is th

atfu

ndam

enta

lri

ghts

gua

rant

eed

byth

e C

onst

itutio

nm

ay b

e ne

ither

deni

edno

r ab

ridg

edso

lely

12 I

n Pa

lmer

,th

is c

ourt

dist

ingu

ishe

d th

ecl

osin

g of

swim

min

gpo

ols

invo

lved

in P

alm

er,

and

publ

icsc

hool

s in

Bus

hv.

Gyl

eans

Par

-is

h Sc

hool

Boa

rd, 1

87 F

.Su

pp. 4

2 (E

.D.

La.

, 196

0),

affi

rmed

per

rurl

arn,

365

U.S

.56

9, s

tatin

g:"O

f co

arse

that

cas

e [B

ush]

did

not

invo

lve

swim

min

gpo

ols

but r

athe

rpu

blic

sch

ools

an e

nter

pris

ew

e ha

vede

scri

bed

as 'p

erha

ps th

em

ost i

mpo

rtan

tfu

nctio

n of

stat

e an

d lo

cal

gove

rnm

ents

.' B

row

nv.

Boa

rd o

f h

lrrc

rrtin

n.

.."

Pal

mer

,su

pra,

91

S.C

t. at

194

3,n.

6; s

ee a

lso

1947

(co

nror

ring

opin

ion

oF B

lack

-m

un, .

1.)

18

beca

use

thei

r im

plem

enta

tion

requ

ires

the

expe

nditu

re o

fpu

blic

fun

ds."

314

F. S

tipp.

at 3

20.

(em

phas

is a

dded

.)In

Ord

way

v. H

argr

aves

, 323

F.

Supp

. 115

5 (D

. Mas

s.,

1971

), th

e co

urt h

eld

impe

rmis

sibl

e a

scho

ol b

oard

's e

xclu

-

sion

fro

m r

egul

ar c

lass

es o

f a

preg

nant

girl

. In

the

cour

seof

the

opin

ion,

the

dist

rict

judg

est

ated

: "It

wou

ld s

eem

beyo

nd a

rgum

ent t

hat t

he r

ight

tore

ceiv

e a

publ

ic s

choo

l

educ

atio

n is

a b

asic

per

sona

l rig

ht o

rlib

erty

. Con

sequ

ently

the

burd

en o

f ju

stif

ying

any

sch

ool

rule

or

regu

latio

n lim

it-in

g or

term

inat

ing

that

rig

ht is

on

the

scho

ol a

utho

ritie

s(c

itatio

n om

itted

)."

The

cou

rt f

ound

no

such

just

ific

atio

n.

(Id.

at 1

158.

)"T

he C

alif

orni

a Su

prem

e C

ourt

has

rece

ntly

con

side

red

stat

utor

y C

lass

ific

atio

ns to

uchi

ng u

pon

educ

atio

n, a

nd d

ial-

leng

ed o

u eq

ual p

rote

ctio

n gr

ound

s.Se

rran

o v.

Pri

est,

487

00P.

2d

(197

1). I

n an

opi

nion

, dis

cuss

ing

its o

wn

deci

-

sion

s an

d th

ose

of th

is C

ourt

,co

mm

enta

ries

" an

d ot

her

'3 S

ee a

lso

Van

Dus

artz

v. H

atfi

eld,

C.A

.N

o. 3

-71

Civ

. 243

(D

.M

inn.

, Mem

oran

dum

and

Ord

er, O

ctob

er 1

2,19

71),

hol

ding

edu

catio

na

"fun

dam

enta

lin

tere

st"

for

purp

ose

of d

eter

min

ing

appr

opri

ate

stan

d-ar

d of

equ

al p

rote

ctio

n re

view

.f"

Edu

catio

n ha

s a

uniq

ue im

pact

on

the

min

d, p

erso

nalit

y, a

nd f

utur

ero

le o

f th

e in

divi

dual

chi

ld. I

tis

basi

c to

the

func

tioni

ng o

f a

free

soc

iety

and

ther

eby

evok

es s

peci

alju

dici

al s

olic

itude

. (Fo

otno

te o

mitt

ed.)

Mem

. Op.

at 7

.] H

argr

ave

v.M

cKin

ney,

413

F.2

d 32

0 (C

.A.5

., 19

69),

Har

grav

e v.

Kir

k, 3

13F.

Sup

p. 9

44 (

M.D

. Fla

. 197

0),

vaca

ted

and

rem

ande

d on

oth

ergr

ound

s, s

ub n

om. A

skew

v. H

argr

ave,

401

U.S

. 476

;("

..

.in

tere

sts

whi

ch m

ay w

ell b

e de

emed

fund

amen

tal

.."

413

F. 2

d at

328

); D

ixon

v. A

laba

ma,

294

F.2d

150

(C

.A. 5

, 196

1),

hold

ing

due

proc

ess

requ

ires

not

ice

and

oppo

rtun

ity f

or h

eari

ng p

rior

to e

xpul

sion

of

stud

ents

from

pub

lic c

olle

ge. (

"It r

equi

res

no a

rgu-

men

t to

dem

onst

rate

that

educ

atio

n is

vita

l and

, ind

eed,

bask

toci

viliz

ed s

ocie

ty. W

ithou

t suf

fici

ent

educ

atio

n th

e pl

aint

iffs

wou

ld n

otbe

abl

e to

ear

n an

ade

quat

e liv

elih

ood,

to e

njoy

life

to th

e fu

llest

, or

tofu

lfill

as

com

plet

ely

as p

ossi

ble

the

dutie

s an

d re

spon

sibi

litie

s of

goo

dci

tizen

s."

Id. a

t 157

, per

Riv

es,J.

)14

Com

men

tari

es s

uppo

rt o

ur p

ositi

onth

at e

duca

tion

shou

ld b

e co

n-si

dere

d a

"fun

dam

enta

l int

eres

t."C

oons

, Clu

ne a

nd S

ugar

man

, Edu

-ca

tiona

l Opp

ortu

nity

: A W

orka

ble

Con

stitu

tiona

l 'Pe

st f

or S

tate

Fin

-an

cial

Str

uctu

res,

57

Cal

. L.R

ev.

305,

382

-389

(19

69);

Kir

p,T

he

Poor

, The

Sch

ools

and

Equ

alPr

otec

tion,

38

Ilar

v. E

d. R

ev. 6

35,

19

pert

inen

t fac

tors

, the

cou

rt c

oncl

uded

: "W

e ar

e co

nvin

ced

that

the

dist

inct

ive

and

pric

eles

s fu

nctio

n of

edu

catio

n 1n

our

soci

ety

war

rant

s, in

deed

com

pels

, our

trea

ting

it as

a`f

unda

men

tal i

nter

est'.

" (4

87 P

.2d

at 1

258;

foo

tnot

e om

it-te

d.) Edu

catio

n is

pre

ciou

s no

t onl

y in

its

own

righ

t, bu

t als

obe

caus

e it

prov

ides

the

tool

s ne

cess

ary

for

exer

cisi

ng o

ther

righ

ts w

hich

this

cou

rt h

as r

ecog

nize

das

fun

dam

enta

lvo

ting

(Har

per

v. V

irgi

nia

Stat

e B

oard

of

Ele

ctio

ns, 3

83U

.S. 6

62)

; spe

ech

(Lov

ell v

. City

of

Gri

ffin

, 303

U.S

. 444

,45

0) ;

asso

ciat

ion

(NA

AC

P v.

Ala

bam

a, 3

57. U

.S. 4

49)

; and

trav

el (

Shap

iro

v. T

hom

pson

, 394

U.S

. 618

, 629

-631

)."

rEld

ucat

ion

unde

rlie

s th

e w

hole

sub

stan

ce o

f th

e po

liti-

cal p

roce

ss a

nd is

ant

eced

ent t

o vo

ting

in th

e or

ders

of

both

time

and

caus

e. A

ll po

litic

al b

ehav

ior

inev

itabl

ym

ust r

e-fl

ect t

he p

rese

nce

or a

bsen

ce a

nd th

e qu

ality

of

educ

atio

n.A

man

's u

nder

stan

ding

- of

pub

lic is

sues

is a

fun

ctio

n of

thos

e co

mm

unic

atio

ns w

hich

are

inte

lligi

ble

to h

im."

15T

he c

ourt

s' s

tate

men

tsar

e no

t mer

ely

rhet

oric

; all

ofth

e ot

her

inst

itutio

ns o

f go

vern

men

t ref

lect

sim

ilar

conc

ern

for

educ

atio

n. T

he la

st f

our

pres

iden

ts o

f th

is n

atio

n ha

veex

pres

sed

agre

emen

t with

the

cour

ts.'6

Con

gres

s ha

sen

-ac

ted

'legi

slat

ion

prov

idin

g fu

ndin

g fo

r ed

ucat

iona

lpr

o-gr

ams.

" E

duca

tion

is m

ade

com

puls

ory

for

at le

ast t

en64

2-64

5 (1

968)

; Mic

helm

an, T

he S

upre

me

Cou

rt, 1

968

Ter

m, F

ore

-w

ard:

On

Prot

ectin

g th

e Po

or th

roug

h th

e Fo

urte

enth

Am

endm

ent,

83Il

arv.

I,.

Rev

. 7, 2

8, 4

8 (1

969)

.15

Coo

ns, C

lunc

and

Sug

arm

an, s

upra

n. 1

4, a

t 368

.16

Pre

side

nt N

ixon

: 196

9 U

.S. C

ode

Con

g. a

nd A

dm. N

ews

at28

30 (

Proc

lam

atio

n on

Am

eric

an E

duca

tion

Wee

k; S

epte

mbe

r 26

,19

69);

Pre

side

nt J

ohns

on: 1

968

Cod

e at

464

8-9

(Pro

clam

atio

non

Am

eric

an E

duca

tion

Wee

k; A

ugus

t 29,

196

8); 1

965

Cod

eat

144

8-9

(Mes

sage

on

Edu

catio

n A

ct o

f 19

65);

Pre

side

nt K

enne

dy: 1

963

Cod

e at

145

0 (E

duca

tion

Mes

sage

to C

ongr

ess;

Jan

uary

29,

196

3);

Pres

iden

t Eis

enho

wer

: 195

8 C

ode

at 5

412

(Edu

catio

n M

essa

ge).

17 S

ee e

.g. E

lem

enta

ry a

nd S

econ

dary

Edu

catio

n A

ct o

f 19

65, 2

0U

.S.C

. 236

-244

, 331

, 332

, 821

-827

, 841

-848

, 861

.870

, 881

-885

,N

atio

nal D

efen

se E

duca

tion

Act

of

1958

, Titl

e 20

U.S

.C. a

nd J

ohn-

son-

O'M

alle

y A

ct, T

itle

25 U

.S.C

.

20

year

s by

New

Yor

k an

d al

lbu

t thr

ee o

fth

e ot

her

stat

es.1

8N

ew Y

ork'

sC

onst

itutio

npr

ovid

es in

Art

icle

XI,

Sect

ion

1:T

he le

gisl

atur

esh

all p

rovi

defo

r th

em

aint

enan

ce a

ndsu

ppor

t of

a sy

stem

of

free

com

mon

sch

ools

,w

here

inal

l the

chi

ldre

nof

this

sta

tem

ay b

e ed

ucat

ed.

And

, in

fisc

al19

68, 3

5 pe

rcen

t of

New

Yor

k's

stat

ean

d lo

cal

tax

dolla

rsw

ere

spen

t on

publ

icsc

hool

ing.

19W

e no

teth

at it

isno

tne

cess

ary

to r

ecog

nize

a fe

dera

lco

nstit

utio

nal r

ight

to a

n ed

ucat

ion

in o

rder

to c

lass

ify

edu-

catio

n a

"fun

dam

enta

lin

tere

st".

In

a se

ries

of

case

s, th

isco

urt h

as h

eld

qual

ific

atio

ns f

orvo

ting

inst

ate

elec

tions

viol

ativ

e of

the

equa

lpr

otec

tion

clau

seof

the

Four

teen

thA

men

dmen

t by

appl

icat

ion

ofth

e m

ore

stri

ngen

t sta

ndar

dof

rev

iew

. Har

per

v.V

irgi

nia,

Sta

teB

oard

of

Ele

ctio

ns, 3

83U

.S. 6

63, 6

70; K

ram

erv.

Uni

on. F

ree

Scho

ol D

istr

ict,

395

U.S

. 621

,62

7, 6

30;

Cip

rian

ov.

C:ty

of

Hou

ma,

395

U.S

. 701

,70

4; E

vans

v. C

omm

on,

398

U.S

. 419

,42

2.T

hese

case

s re

st n

oton

a f

eder

alco

nstit

utio

nal r

ight

tovo

te, b

uton

the

grou

ndth

at "

once

the

fran

chis

eis

gra

nted

,lin

esm

ay n

ot b

edr

awn

whi

char

e in

cons

iste

ntw

ith th

eE

qual

Pro

tect

ion

Cla

use

ofth

e Fo

urte

enth

Am

endm

ent."

Har

per,

supr

a, 3

83 U

.S.

at 6

65; s

ee a

lso

Kra

mer

, supr

a, 3

95U

.S. a

t 629

.20

Inde

ed, i

nH

arpe

r, w

hile

notin

g th

at"t

heis

N.Y

.E

duca

tion

Law

,§

3205

(1)(

a);

Gol

dste

in, T

heSc

ope

and

Sour

ces

of S

choo

lB

oard

Aut

hori

tyto

Reg

ulat

e St

uden

tC

ondu

ct A

ndSt

atus

:N

on-C

onst

itutio

nal

Ana

lysi

s, 1

17U

. Pa.

L.

Rev

. 373

,39

3-4,

n. 7

4 (1

969)

.19

Cal

cula

ted

from

Adv

isor

yC

omm

issi

onon

Int

ergo

vern

men

tal

Re-

latio

ns, S

tate

and

Loc

alFi

nanc

es, T

able

s8

and

12(1

969)

.20

Com

pare

Gri

ffin

v. I

llino

is,

351

U.S

. 12,

18. (

"It i

str

ue th

at a

Stat

e is

not

requ

ired

by

the

Fede

ral C

onst

itutio

nto

pro

vide

appe

llate

cour

ts o

r a

righ

tto

app

ella

tere

view

at a

ll.Se

e, e

.g.,

McK

ane

v. D

ur-

ston

, 153

U.S

.68

4, 6

87-6

88.

..

. But

that

is n

ot to

say

that

aSt

ate

that

doe

sgr

ant a

ppel

late

revi

ew c

an d

oso

in a

way

that

dis-

crim

inat

es a

gain

stso

me

conv

icte

dde

fend

ants

on

acco

unt o

f th

eir

pov-

erty

.");

and

Bro

wn

I,su

pra,

347

U.S

.at

494

. ("S

uch

an o

ppor

-tu

n'ty

[of

an e

duca

tion]

whe

re th

est

ate

has

unde

rtak

ento

prd

vide

it,

is a

rig

htw

hich

mus

tbe

mad

e av

aila

ble

to a

ll on

equ

alte

rms.

")

21

righ

t to

vote

infe

dera

l ele

ctio

ns is

conf

erre

d by

Art

. I, §

2of

the

Con

stitu

tion,

"th

e C

ourt

foun

d it

unne

cess

ary

tode

cide

whe

ther

"the

rig

htto

vot

e in

stat

e el

ectio

ns"

is c

on-

ferr

ed b

yth

e fe

dera

l cons

titut

ion.

Har

per,

supr

a, 3

83 U

.S.

at 6

65. T

hech

alle

nged

stat

utes

wer

e su

bjec

tto

mor

est

rin-

gent

rev

iew

in th

ese

case

s be

caus

evo

ting

was

vie

wed

as"f

unda

men

tal"

and

"pre

serv

ativ

eof

oth

erba

sic

civi

lan

dpo

litic

alri

ghts

"(H

arpe

r,su

pra,

383

U.S

.at

667

)an

d at

the

"fou

ndat

ion

of o

urre

pres

enta

tive

soci

ety.

"K

ram

er,

supr

a, 3

95 U

.S.

at 6

26.z

As

we

have

show

n,ed

ucat

ion

isin

the

sam

e po

sitio

n.

b)W

ealth

isa

"sus

pect

"cl

assi

fyin

gfa

ctor

Our

con

tent

ion

that

the

stat

utor

ysc

hem

e m

ust

be ju

dged

by th

eco

mpe

lling

inte

rest

stan

dard

isbu

ttres

sed

by th

e fa

ctth

at th

ead

mitt

ed im

pact

of th

est

atut

ory

sche

me

is to

cla

s-si

fy s

tude

nts

base

dup

on th

eaf

flue

nce

ofth

eir

fam

ilies

."L

ines

dra

wn

on th

e ba

sis

of w

ealth

or p

rope

rty,

like

thos

eof

race

..

. are

trad

ition

ally

disf

avor

ed."

Har

per

v. V

ir-

gini

a St

ate

Boa

rd o

f Ele

ctio

nC

omm

issi

oner

s,38

3 U

.S.

663,

668.

22

Whi

lere

ject

ing

plai

ntif

f'scl

aim

s, th

eco

urt b

elow

agre

ed w

ithpl

aint

iffs

' alle

gatio

nth

at th

est

atut

ory

sche

me

wou

ldop

erat

e to

stig

mat

ize

poor

chi

ldre

n(s

ee S

tate

men

tsu

pra

at 7

),si

mila

rly

tose

greg

atio

nba

sed

upon

rac

e

21 T

heco

urt q

uote

dfr

om r

ick

Wo

v.H

opki

ns, 1

18U

.S. 3

5637

0an

d R

eyno

lds

v. S

ims,

377

,U

.S. 5

23,

561-

62, r

espe

ctiv

ely.

22 S

ee a

lso

Gri

ffin

v.

Illin

ois,

351

U.S

. 12;

Bur

ns v

. Ohi

o,36

0U

.S. 2

52;

Dou

glas

v.

Cal

ifor

nia,

372

U.S

. 353

;W

illia

ms

v. I

llino

is,

399

U.S

.23

5; M

cDon

ald

v. B

oard

of

Ele

ctio

nC

omm

issi

oner

s,39

4U

.S. 8

02,

807.

("[

A]

care

ful

exam

inat

ion

on o

ur p

art i

ses

peci

ally

war

rant

ed w

here

lines

are

draw

non

the

basi

s of

wea

lthor

rac

e, H

ar-

per

v. V

irgi

nia

Boa

rd o

fE

lect

ions

,su

pra,

two

fact

ors

whi

ch w

ould

inde

pend

ently

rend

er a

clas

sifi

catio

nhi

ghly

susp

ect a

nd th

ereb

yde

-m

and

am

ore

exac

ting

judi

cial

scr

utin

y.D

ougl

asv.

Cal

ifor

nia,

372

U.S

. 353

..

; McL

augh

linv.

Flo

rida

,37

9 U

.S.

184

..

.")

(dic

-tu

m).

22

in th

e du

al s

yste

m. S

ee B

row

n I,

sup

ra, 3

47U

.S. a

t 494

.23

We

note

als

o th

at p

oor

child

ren,

pun

ishe

dhe

re f

or r

ea-

sons

who

lly b

eyon

d th

eir

own

cont

rol,

"are

a p

rim

e ex

-am

ple

of a

'dis

cret

e an

d in

sula

r' m

inor

ity .

..

for

who

m.

..

heig

hten

ed ju

dici

al s

olic

itude

is a

ppro

pria

te."

Gra

-ha

m, v

. Ric

hard

son,

91

S. C

t. 18

48, 1

852

(quo

ting

Uni

ted

Stat

es v

. Car

olen

e Pr

oduc

ts C

o., 3

04 U

.S. 1

44,

152-

153,

n.

4). In

eas

es w

hich

we

have

cite

d, lo

wer

fed

eral

cou

rts

and

the

Cal

ifor

nia

Supr

eme

Cou

rt h

ave

conc

lude

dth

at th

em

ore

rigo

rous

sta

ndar

dof

rev

iew

is p

artic

ular

ly a

ppro

-pr

iate

whe

n a

case

invo

lves

bot

h th

e in

tere

stin

edu

catio

n,an

d w

ealth

cla

ssif

icat

ions

. Van

Dus

artz

v.

Hat

fiel

d, C

.A.

No.

3-7

1 C

iv. 2

43 (

D. M

inn.

, Oct

ober

12,

197

1)M

em. O

p.at

(, R

) ; H

argr

ave

v. M

ckin

ney,

sup

ra a

t41

3 F.

2d 2

28;

Serr

ano

v. P

r'est

, 487

P.2

d 12

41, 1

250-

1259

(S. (

't. C

al.,

1971

). S

ee a

lso

Hob

son

v. H

anse

n, 2

69 F

.St

ipp.

401

, 513

(19

67),

aff

irm

ed, s

ub n

om. S

mac

k v.

Hob

son,

408

F.2d

175

(D

.C. C

ir.,

1969

).24

23 I

n hi

s di

ssen

ting

opin

ion,

Cir

cuit

Judg

e K

aufm

anst

ated

: "In

shor

t, th

e le

gisl

ativ

e sc

hem

e he

re c

reat

es tw

o cl

asse

sof

chi

ldre

n, n

otph

ysic

ally

sep

arat

e ye

t une

qual

the

poor

suf

fer

whi

le th

e ri

ch r

e-ce

ive

the

full

bene

fits

of

the

stat

e's

educ

atio

nal p

rogr

am.

But

'Min

esdr

awn

on th

e ba

sis

of w

ealth

or

prop

erty

, lik

eth

ose

of r

ace

..

..

,

are

trad

ition

ally

dis

favo

red.

'H

arpe

r v.

Vir

gini

a B

oard

of

Ele

ctio

ns,

383

U.S

. 663

, 668

(19

66).

" (S

lip O

p. a

t 467

0.)

2tO

ur c

onte

ntio

n th

at, o

n th

e fa

cts

of th

is c

ase,

wea

lthis

a "

sus-

pect

" cl

assi

fyin

g fa

ctor

is c

onsi

sten

t with

Jam

es v

.V

altie

rra,

402

U.S

. 137

. The

low

er c

ourt

in V

altie

rra

held

that

Art

icle

XX

XIV

of

the

Cal

ifor

nia

Con

stitu

tion

viol

ated

the

equa

lpr

otec

tion

clau

se o

fth

e Fo

urte

enth

Am

endm

ent,

focu

sing

on

the

fact

that

on

its f

ace

Ar-

ticle

XX

XIV

"ap

plie

[d]

only

to `

low

inco

me

pers

ons'

..

.."

(31

3 F.

Supp

. at 4

.) I

n re

vers

ing

this

Cou

rt v

iew

edpl

aint

iffs

' cha

lleng

e as

dire

cted

to th

e fa

ce o

f th

e pr

ovis

ion:

"[A

]ppe

llees

cont

end

that

Ar-

ticle

XX

XIV

den

ies

them

equ

al p

rote

ctio

nbe

caus

e it

dem

ands

am

anda

tory

ref

eren

dum

whi

le m

any

othe

r re

fere

ndum

son

ly ta

ke p

lace

upon

citi

zen

initi

ativ

e."

(402

U.S

. at 1

41-1

42.)

In c

ontr

ast,

the

adm

itted

impa

ct o

f th

e st

atut

ory

sche

me

here

isto

app

ortio

n ed

ucat

iona

l opp

ortu

nity

alon

g lin

es o

f w

ealth

. Val

tierr

a

23

3.T

he D

ecis

ion

Bel

ow C

onfl

icts

with

this

Cou

rt's

Rul

ings

on

the

Scop

e of

the

Four

teen

th A

men

d-m

ent i

n G

riff

in v

. Illi

nois

, 351

U.S

. 12,

Dou

glas

v. C

alif

orn

;a. 3

72 U

.S. 3

53an

d Su

bseq

uent

Cas

es

a)T

he F

ourt

eent

h A

men

dmen

t pri

ncip

les

es-

tabl

ishe

d in

Gri

ffin

-Dou

glas

and

sub

sequ

ent

case

s

In G

riff

in v

. Illi

nois

, 351

U.S

. 12,

this

Cou

rthe

ld th

at th

eIl

linoi

s sy

stem

of

crim

inal

, app

ella

te r

evie

w,

chal

leng

edby

indi

gent

def

enda

nts

beca

use

of it

sfa

ilure

to p

rovi

defo

r fr

ee tr

ial t

rans

crip

ts in

the

circ

umst

ance

sof

thei

r ca

se,

viol

ated

the

Four

teen

th A

men

dmen

t by

deny

ing

them

the

"ade

pt:d

e ap

pella

te r

evie

w a

ccor

ded

to a

ll[w

ith)

mon

eyen

ough

to p

ay th

e co

sts

in a

dvan

ce."

Gri

ffin

, sup

ra, 3

51U

.S. a

t 18.

The

sta

te "

conc

ede[

d] th

at.

.pe

titio

ners

need

ed a

tran

scri

pt in

ord

er to

get

ade

quat

eap

pella

tere

view

of

thei

r al

lege

d tr

ial e

rror

s."

Gri

ffin

, sup

ra, 3

51U

.S. a

t 16.

Thi

s C

ourt

dec

ided

Gri

ffin

on

the

prem

ise

that

Illin

ois

was

not

req

uire

d by

the

Fede

ral C

onst

itutio

n to

aff

ord

any

appe

llate

rev

iew

."B

ut th

at is

not

to s

ay th

at a

sta

teth

at d

oes

gran

t app

ella

te r

evie

w c

ando

so

in a

man

ner

that

. dis

crim

inat

es a

gain

st s

ome

conv

icte

dde

fend

ants

on

acco

unt o

f th

eir

pove

rty.

" G

riff

in, s

upra

,35

1 U

.S. a

t 18.

25Fi

nally

, em

phas

izin

g its

ant

ipat

hy to

wea

lth c

lass

ific

atio

ns,

may

sug

gest

that

fac

ial

raci

al c

lass

ific

atio

ns a

re m

ore

care

fully

scr

u-tin

ized

than

thos

e ba

sed

upon

wea

lth, b

utco

nstr

uing

Val

tierr

a to

fore

clos

e ou

r ar

gum

ent o

n w

ealth

cla

ssif

icat

ion

requ

ires

acc

epta

nce

of th

e pr

opos

ition

that

this

Cou

rt li

mite

d,su

b si

lent

io, m

ore

than

15

deci

sion

s ho

ldin

g pr

actic

es h

avin

g an

impa

ctal

ong

lines

of

wea

lth v

io-

lativ

e of

the

Four

teen

th A

men

dmen

t. (S

ee c

ases

cite

d su

pra

at 2

1,n.

22,

and

infr

a at

23-

25,

29.)

23 I

tis

clea

r, th

eref

ore,

that

the

deci

sion

bel

ow c

anno

tbe

sup

-po

rted

by

any

righ

t-pr

ivile

ge r

atio

nale

. See

als

oG

raha

m v

. Ric

hard

-so

n, 9

1 S.

Ct.

1848

, 185

2.

24

the

Cou

rt s

tate

d: "

The

reca

n be

no

equa

l jus

tice

whe

reth

e ki

nd o

f tr

ial a

man

get

s de

pend

son

the

amou

nt o

fm

oney

he

has.

" G

riff

in, s

upra

, 351

U.S

. at 1

9.G

riff

in h

as h

ad a

ste

ady

grow

th. F

or e

xam

ple,

in D

ou-

glas

v. C

alif

orni

a, 3

72 U

.S. 3

53, i

ndig

ent

crim

inal

def

en-

dant

s ch

alle

nged

an

appe

llate

cou

rt's

fai

lure

to a

ppoi

ntco

unse

l to

pres

ent t

heir

app

eals

. The

cou

rt r

elie

dup

on a

rule

req

uiri

ng s

uch

appo

intm

ent o

nly

if it

dete

rmin

ed,

afte

r ex

amin

ing

the

reco

rd, t

hat c

ouns

el w

ould

be h

elpf

ulto

the

defe

ndan

t or

the

cour

t. T

his

Cou

rt, v

iew

ing

the

proc

edur

e as

one

in w

hich

"th

e ri

chm

an c

an r

equi

re th

eco

urt t

o lis

ten

to a

rgum

ent o

f co

unse

l bef

ore

deci

ding

onI"

the

mer

its, b

uta

poor

man

can

not"

, hel

d th

at "

an u

ncon

-st

itutio

nal l

ine

[had

] be

en d

raw

n be

twee

n ri

ch a

ndpo

or.'_

'D

ougl

as, s

upra

, 372

U.S

. at 3

57.

In s

ix c

ases

in a

dditi

on to

Gri

ffin

and

Dou

glas

, thi

s C

ourt

has

held

vio

lativ

e of

the

Four

teen

thA

men

dmen

t pro

ce-

dure

s no

min

ally

ava

ilabl

e to

all

crim

inal

def

enda

nts

orac

cuse

d pe

rson

s, b

ut a

ctua

lly a

vaila

ble

ina

less

ade

quat

efo

rm to

indi

gent

s be

caus

e of

thei

r po

vert

y."

Fina

lly,

info

ur c

ases

, the

Gri

ffin

pri

ncip

le h

as b

een

appl

ied

inin

-st

ance

s w

here

som

e re

quir

emen

t im

pose

d by

the

Stat

em

ade

entir

ely

unav

aila

ble

to th

e in

dige

nt d

efen

dant

are

med

y fu

lly o

pen

to m

ore

affl

uent

pers

ons.

For

exa

mpl

e,in

Bur

ns v

. Ohi

o, 3

60 U

.S. 2

52, p

aym

ent o

fa

$20

fee

was

requ

ired

to in

voke

the

crim

inal

, app

ella

te ju

risd

ictio

n of

28 E

skri

dge

v. W

ashi

ngto

n St

ate

Bd.

, 357

U.S

. 214

(fr

ee tr

an-

scri

pt f

or a

ppea

l onl

y if

tria

l jud

ge c

oncl

udes

just

ice

prom

oted

);Sw

enso

n v.

Bos

ler,

386

U.S

. 258

(no

pro

visi

on f

or c

ouns

el to

bri

efap

peal

of

conv

icte

d in

dige

nt);

Dra

per

v. S

tate

of

Was

hing

ton,

372

U.S

. 487

(fr

ee tr

ansc

ript

for

app

eal o

nly

if tr

ial j

udge

mak

es c

erta

infi

ndin

gs);

Lon

g v.

Dis

tric

t Cou

rt, 3

85 U

.S. 1

92 (

no p

rovi

sion

for

free

tran

scri

pt f

or in

dige

nt's

app

eal f

rom

den

ial o

f ha

beas

corp

uspe

titio

n); G

ardn

er v

. Cal

ifor

nia,

393

U.S

. 367

(no

pro

visi

on f

or f

ree

tran

scri

pt o

f he

arin

g de

nyin

g ha

beas

cor

pus

petit

ion,

whe

rea

de n

ava

hear

ing

on p

etiti

on in

app

ella

te c

ourt

); R

ober

tsv.

LaV

alle

e, 3

89U

.S. 4

0 (n

o pr

ovis

ion

for

free

tran

scri

pt f

or in

dige

ntac

cuse

d of

test

imon

y of

witn

esse

s at

pre

limin

ary

hear

ing)

.

25

the

Ohi

o Su

prem

e C

ourt

.Si

nce

the

rem

edy

was

ful

lyav

aila

ble

to m

ore

affl

uent

pers

ons,

the

Cou

rt h

eld

that

the

fee

requ

irem

ent

was

vio

lativ

e of

the

Four

teen

th A

men

d-m

ent a

s co

nstr

ued

in G

riff

in??

Dur

ing

the

past

two

term

s, th

is C

ourt

has

aga

inde

mon

-st

rate

d its

ant

ipat

hy to

wea

lthcl

"ss

ific

atio

n. I

n tw

oca

ses

" [a

]ppl

ying

the

teac

hing

of th

e tir

iffi

n ca

se",

the

Cou

rtha

s he

ld "

that

an in

dige

nt c

rim

inal

def

enda

ntm

ay n

ot b

eim

pris

oned

in d

efau

ltof

pay

men

t of

a fi

ne b

eyon

d th

em

axim

um a

utho

rize

d by

the

stat

ute

regu

latin

g th

e su

b-st

antiv

e of

fens

e."

Will

iam

sv.

Illi

nois

, 399

U.S

. 240

, 241

;se

e al

so T

ate

v. S

hort

, 91

S. C

t. 66

8.

b)T

he C

ourt

of

App

eals

err

oneo

usly

cons

true

dG

riff

in-D

ougl

as a

nd th

eir

prog

eny

The

re is

a s

trik

ing

para

llel

betw

een

the

pivo

tal f

acts

inG

riff

in-D

ougl

as a

nd th

isca

se. (

1) P

lain

tiffs

hav

e a

righ

tun

der

stat

e la

w to

atte

nd p

ublic

scho

ol, a

s pe

titio

ners

inG

riff

in-D

ougl

as h

ada

righ

t und

er s

tate

law

to a

ppea

l the

irco

nvic

tions

. (2)

Her

e,as

in G

riff

in-D

ougl

as, s

omet

hing

,un

avai

labl

e to

indi

gent

s,"

isan

ess

entia

l too

l for

enj

oy-

27Se

e al

so S

mith

v. B

enne

tt, 3

65 U

.S. 7

08 (

$4 f

iling

fee

for

appe

llate

rev

iew

of

deni

al o

f ha

beas

corp

us p

etiti

on);

Lan

e v.

Bra

wn,

372

U.S

. 477

(fi

ling

of tr

ansc

ript

avai

labl

e to

indi

gent

onl

y on

requ

est o

f pu

blic

def

ende

rne

cess

ary

for

appe

llate

juri

sdic

tion

to r

e-vi

ew d

enia

l of

cora

m n

obis

pet

ition

); W

illia

ms

v. O

klah

oma

City

, 395

UPS

. 458

(fi

ling

of "

case

mad

e" in

app

ella

teco

urt n

eces

sary

to in

voke

juri

sdic

tion

to r

evie

w c

rim

inal

con

vict

ion)

.28

It i

s tr

ue th

at th

e C

ourt

of

App

eals

sug

gest

ed th

at th

e "f

ixed

allo

wan

ce"

plai

ntif

fs r

ecei

ved

unde

r N

ewY

ork'

s W

elfa

re la

w "

was

inte

nded

to c

over

this

as

wel

las

oth

er c

ontin

gent

nee

ds."

(Sl

ip O

p.46

49, n

. 3.)

Of

cour

se th

e su

gges

ted

inte

nt o

f th

e la

w is

irre

leva

nt;

whe

ther

or

not t

he p

aren

tsw

ere

able

to p

ay th

e fe

e is

a q

uest

ion

offa

ct. Sinc

e th

is c

ase

was

dec

ided

on a

mot

ion

to d

ism

iss,

pla

intif

fs' a

ffi-

davi

ts a

nd a

llega

tions

of

thei

r in

abili

tyto

pay

the

fees

mus

t be

take

nas

true

. See

e.g

. Coo

per

v. P

ate,

378

U.S

. 546

; Gar

dner

v. T

oile

tG

oods

Ass

ocia

tion,

. 387

U.S

. 167

, 172

.

26

mee

t of

the

righ

t. (3

) W

ithou

t boo

ks, s

imila

rto

an

in-

dige

nt w

ithou

t a tr

ansc

ript

or

an a

ttorn

ey,

a st

uden

t fro

man

indi

gent

fam

ily is

den

ied

the

full

bene

fit o

f th

e ri

ght

"acc

orde

d to

all

[with

] m

oney

eno

ugh

topa

y th

e co

sts

inad

vanc

e."

Gri

ffin

v. I

llino

is, 3

51 U

.S. 1

2, 1

8.T

he e

qual

pro

tect

ion

clau

se is

as c

lear

ly v

iola

ted

whe

nth

e qu

ality

of

educ

atio

n a

child

rec

eive

s de

pend

sup

on th

eaf

flue

nce

of h

is p

aren

ts,

as w

here

"th

e ki

nd o

f tr

ial a

man

gets

dep

ends

on

the

amou

nt o

f m

oney

he

has.

" G

riff

in,

supr

a, 3

51 U

.S. a

t 19.

Ind

eed,

in th

is c

ase,

unl

ike

Gri

ffin

,ch

ildre

n ar

e pu

nish

ed f

or "

no a

ctio

n, c

ondu

ctor

dem

eano

rof

thei

rs"

(Lev

y v.

Lou

isia

na, 3

91 U

.S. 6

8, 7

1),

but i

nste

adbe

caus

e of

thei

r fa

mili

es' i

ndig

ency

who

lly b

eyon

d th

eir

own

cont

rol.

Des

pite

the

obvi

ous

para

llels

bet

wee

n G

riff

in-D

ougl

as,

thei

r pr

ogen

y, a

nd th

isca

se, t

he lo

wer

cou

rts

reje

cted

plai

ntif

fs' p

over

y cl

aim

. (T

he D

istr

ict C

ourt

did

not

even

men

tion

the

clai

m.)

We

subm

it th

at th

e co

urt b

elow

de-

cide

d th

e Fo

urte

enth

Am

endm

ent i

ssue

s "i

na

way

inco

nflic

t with

app

licab

le d

ecis

ions

of

this

cou

rt;

..

." (

Su-

prem

e C

ourt

Rul

e 19

(1)

(b).

)T

he C

ourt

of

App

eals

rej

ecte

d th

e po

vert

y co

nten

tions

beca

use

" [t

]he

reas

onin

g of

[th

e]ca

ses

[rel

ied

upon

by

plai

ntif

fs]

" is

that

the

Stat

e is

req

uire

d to

pro

vide

thes

ese

rvic

es a

nd a

cces

s be

caus

e to

do

othe

rwis

e w

ould

be

tode

priv

e in

dige

nts

of d

ue p

roce

ss. O

bvio

usly

, tho

ugh,

due

proc

ess

is n

ot in

volv

ed h

ere.

" (S

lip O

p. a

t 466

1.)

The

cou

rtal

so a

rgue

d th

at "

such

mon

ey a

s th

e Sc

hool

Boa

rd h

asto

spe

nd is

bei

ng s

pent

in s

uch

a w

ay a

s to

ben

efit

all

stud

ents

(i.e

. on

teac

hers

' sal

arie

s, b

uild

ing

mai

nten

ance

and

the

like)

. (fo

otno

te o

mitt

ed.)

" (S

lip O

p. a

t 466

2.)

Fina

lly, w

hile

ack

now

ledg

ing

that

stu

dent

s w

hose

fai

nilie

s

29 T

he c

ourt

cite

d: B

oddi

e v.

Con

nect

icut

, 91

S.C

t. 78

0; G

riff

in v

.Il

linoi

s, 3

51 U

.S. 1

2; B

urns

v. O

hio,

360

U.S

. 252

; Sm

ithv.

Ben

-ne

tt, 3

65 U

.S. 7

08; G

ideo

n v.

Wai

nwri

ght,

372

U.S

. 335

.

27

coul

d af

ford

text

s w

ould

no d

oubt

rec

eive

a b

ette

r ed

uca-

tion,

the

cour

t sai

d th

at th

isw

as d

ue to

thei

r ow

n m

eans

and

not b

ecau

se th

e St

ate

prov

ided

them

mor

e. (

Slip

Op.

at 4

663.

)A

ny s

urfa

ce p

laus

ibili

ty o

f th

isre

ason

ing

does

not

with

-st

and

scru

tiny.

Fir

st, a

s no

ted

by J

udge

Kau

fman

in d

is-

sent

, Gri

ffin

"re

sted

by

itsow

n la

ngua

ge s

quar

ely

on th

eeq

ual p

rote

ctio

n gu

aran

tee,

as w

ell a

s on

due

pro

cess

."(S

lip O

p. a

t 475

1.)

See

Gri

ffin

,su

pra,

351

U.S

. at 1

3, 1

8.2°

Seco

nd, n

o di

stin

ctio

n ca

n be

mad

e be

caus

e th

isca

se in

-vo

lves

edu

catio

n ra

ther

than

the

crim

inal

pro

cess

. The

Four

teen

th A

men

dmen

t mak

esno

suc

h di

stin

ctio

n be

twee

ncr

imin

al a

nd o

ther

mat

ters

and

this

Cou

rt h

as n

ot s

o co

n-st

rued

it.3

' The

Gri

ffin

opi

nion

em

phas

izes

the

impo

rtan

ceof

fai

rnes

s in

the

crim

inal

proc

ess,

but

edu

catio

n is

at

leas

t as

impo

rtan

t,:is

our

argu

men

t at p

ages

16-

21de

mon

stra

tes.

Mor

eove

r, e

duca

tion

may

ser

ve to

mak

e un

-ne

eded

pro

tect

ion

in th

e cr

imin

al p

roce

ss.3

2T

hird

,it

coul

d ha

ve b

een

argu

ed in

Gri

ffin

-Dou

glas

whe

re a

ppel

late

rev

iew

was

nom

inal

ly a

vaila

ble

to th

ein

dige

nt, a

s th

e lo

wer

cou

rt d

id h

ere,

that

"suc

h m

oney

as th

e [S

tate

had

] to

spe

nd [

was

] be

ing

spen

t in

such

a w

ay a

s to

ben

efit

all [

defe

ndan

ts1"

, tha

t is,

on s

alar

ies

for

judg

es a

nd c

lerk

s, b

uild

ing

mai

nten

ance

,et

c., a

nd th

at"S

ee a

lso

Gri

ffin

, sup

ra, 3

51 U

.S.

at 3

4 (d

isse

ntin

g op

inio

n of

Har

lan,

J.)

; and

Will

iam

s v.

Illi

nois

, 399

U.S

.23

5, 2

41, e

xpla

inin

gG

riff

in a

s fi

ndin

g "a

vio

latio

n of

the

Equ

al P

rote

ctio

nC

laus

e..

.31

See

e.g

. Bod

die

v. C

onne

ctic

ut, 9

1 S.

Ct.

780;

har

per

v. V

ir-

gini

a St

ate

Boa

rd o

f E

lect

ions

, :38

3 U

.S. 6

63; B

row

nv.

Boa

rd o

f E

du-

catio

n, 3

47 U

.S. 4

83.

32 S

vc C

oons

, Chi

ne a

nd S

uvrm

an,

supr

a, n

. 14,

at 3

62. r

Asi

defr

om r

educ

ing

the

crim

era

te (

the

inx

crs:

. rel

atio

n is

str

ong)

, edu

-ca

tion

also

sup

port

s ea

ch a

ndev

ery

othe

r va

lue

of a

dem

ocra

tic s

o-ci

ety

..

." (

foot

note

om

itted

.).1

See

als

o Jo

hnso

nv.

Ave

ry, 3

93 in-

mat

es-1

83, 4

87. (

"Jai

ls a

nd p

enite

ntia

ries

incl

ude

amon

g th

eir

n-m

ates

a h

igh

perc

enta

ge o

f pe

rson

s w

ho a

re to

tally

or f

unct

iona

lly il

-lit

erat

e, w

hose

edu

catio

nal a

ttain

men

tsar

e sl

ight

, and

who

se in

telli

-ge

nce

is li

mite

d."

foot

note

om

itted

.)

28

to th

e ex

tent

the

affl

uent

def

enda

nt h

ad a

mor

e ad

equa

teap

peal

, thi

s w

as a

res

ult o

f a

priv

ate

supp

lem

ent.

In f

act,

sim

ilar

cont

entio

ns w

ere

urge

d in

dis

sent

by

Just

ice

'Har

-la

n in

bot

h G

riff

in a

nd D

our/

N.3

.33

A m

ajor

ity o

f th

is C

ourt

held

, how

ever

, tha

t in

cert

ain

cont

exts

the

Four

teen

thA

men

dmen

t req

uire

s m

ore

than

sim

ply

faci

al n

eutr

ality

?*St

rict

ly s

peak

ing,

itw

ould

app

ear

that

in G

rif

f in

-D

ougl

as, a

nd th

is c

ase,

Fou

rtee

nth

Am

endm

ent o

blig

atio

nsco

uld

be s

atis

fied

by

way

s ot

her

than

fur

nish

ing

free

atr

ansc

ript

, cou

nsel

or

book

s. T

hus,

the

stat

e co

uld

rele

ase

an in

dige

nt d

efen

dant

35

and

the

curr

icul

um c

ould

be

othe

r1.

4,th

an te

xtbo

ok o

rien

tate

d. H

owev

er, t

o th

e ex

tent

that

(7)

furn

ishi

ng a

tran

scri

pt, c

ouns

el o

r bo

oks

is th

e m

ost l

ikel

yst

ate

resp

onse

, the

aff

irm

ativ

e ac

tion

here

is p

reci

sely

anal

ogou

s to

Gri

ffin

- D

ougl

as.

Thi

s C

ourt

has

app

rove

d af

firm

ativ

e re

med

ial a

ctio

n to

prov

ide

equa

l edu

catio

nal o

ppor

tuni

ty. T

he B

row

n 1

opin

-io

n st

ated

that

the

oppo

rtun

ity o

f an

edu

catio

n "w

here

the

stat

e ha

s un

dert

aken

to p

rovi

de it

, is

a ri

rht w

hich

mus

t be

mad

e av

aila

ble

to a

ll on

equ

al te

rms.

" B

row

n I,

supr

a, 3

47 U

.S. a

t 483

, 493

. The

reaf

ter,

in G

riff

in v

. Sch

ool

Boa

rd o

f Pr

ince

Edw

ard

Cou

nty,

Va.

, 377

U.S

. 218

, 233

,th

is C

ourt

hel

d th

at th

e di

stri

ct c

ourt

had

the

auth

ority

to d

irec

t pub

lic o

ffic

ials

to e

xerc

ise

thei

r po

wer

to r

aise

fund

s ad

equa

te to

ope

rate

a r

acia

lly n

on-d

iscr

imin

ator

ysc

hool

sys

tem

. And

fin

ally

, in

the

past

term

, the

Cou

rtup

held

una

nim

ousl

y th

e or

der

of a

dis

tric

t cou

rt w

hich

33 G

riff

in, s

upra

, 351

U.S

. at 3

4; D

ougl

as v

. Cal

ifor

nia,

372

U.S

.35

3, 3

61-3

62.

34 "

Dis

sent

ing

opin

ions

her

e ar

gue

that

the

Illin

ois

law

sho

uld

beup

held

sin

ce b

y its

term

s it

appl

ies

to r

ich

and

poor

alik

e. B

ut a

law

nond

iscr

imin

ator

y on

its

face

may

be

gros

sly

disc

rim

inat

ory

in it

sop

erat

ion.

" G

riff

in, s

upra

, 351

U.S

. at 1

8, n

. 11;

see

als

o lV

illia

ms

v.Il

linoi

s, 3

99 U

.S. 2

35, 2

42.

35 "

(3)

The

rem

edy

for

the

disc

rim

inat

ion

is s

impl

e, c

lear

and

eff

ec-

tive

i.c.,

give

the

appe

llant

a tr

ansc

ript

(an

d a

law

yer)

or

else

let

him

go;

. .."

Coo

ns, C

lune

and

Sug

arm

an, s

upra

n. 1

4, a

t 362

.

29

requ

ired

sta

te o

ffic

ials

to p

rovi

de s

ubst

antia

l, ad

ditio

nal

stud

ent t

rans

port

atio

n. S

wan

n v.

Cha

rlot

te-M

eckl

enbe

rgB

oard

of

Edu

catio

n, 4

02 U

.S. 1

. See

als

o U

nite

d St

ates

v.

Scho

ol D

istr

ict 1

51 o

f C

ook

Cou

nty,

Illi

nois

, 301

F. S

upp.

201,

232

(N

.D. I

ll. 1

969)

, aff

irm

ed a

s m

odif

ied,

432

F.2d

1147

(C

.A.7

, 197

0) c

ert.

deni

ed, 4

02 U

.S. 9

43; H

osie

r v.

Eva

ns, 3

14 F

. Sup

p. 3

16, 3

20 (

D. V

is. I

s., 1

970)

.O

ur c

onte

ntio

n th

at p

lain

tiffs

pre

sent

a s

ubst

antia

lcl

aim

is b

uttr

esse

d by

dec

isio

ns o

f th

is C

ourt

inva

lidat

ing,

on

Four

teen

th A

men

dmen

t gro

unds

, fee

s in

two

addi

tiona

lar

eas.

In

each

cas

e, th

e C

ourt

'sop

inio

n st

ress

ed th

e fu

nda-

men

tal i

nter

est i

nvol

ved.

See

Har

per

v.V

irgi

nia

Stat

eB

oard

of

Ele

ctio

ns, 3

83 U

.S. 6

63; B

oddi

e v.

Con

nect

icut

,91

S. C

t. 78

0. I

n st

riki

ng d

own

Vir

gina

's $

1.50

poll

tax,

this

Cou

rt s

tate

d in

Har

per:

"w

ealth

or

fee

payi

ngha

s

..

. Ix

rela

tion

to v

otin

g qu

alif

icat

ions

; the

rig

ht to

vot

eis

too

prec

ious

, too

fun

dam

enta

l to

be s

o bu

rden

ed o

r co

n-di

tione

d."

Har

per,

sup

ra, 3

83 U

.S. a

t 670

. The

Bod

die

case

invo

lved

fee

s fo

r th

eco

mm

ence

men

t of

divo

rce

litig

a-tio

n. T

he C

ourt

hel

d th

at th

e du

e pr

oces

s cl

ause

proh

ibite

dC

onne

ctic

ut f

rom

den

ying

acc

ess

to th

e co

urts

to in

dige

nts

seek

ing

divo

rces

in g

ood

faith

, em

phas

izin

g "t

heba

sic

posi

tion

of th

e m

arri

age

rela

tions

hip

in th

isso

ciet

y's

hier

arch

y of

val

ue. .

.."

Bod

die,

sup

ra, 9

1 S.

Ct.

at 7

84.

Thi

s ca

se to

o, a

s w

e ha

ve s

how

n, in

volv

es a

fun

dam

enta

lin

tere

st. H

ere,

as

in H

arpe

r, "

wea

lth o

r fe

e pa

ying

has

..

.no

rel

atio

n to

[an

educ

atio

n] ;

the

righ

t to

[an

educ

a-tio

n] is

too

prec

ious

, too

fun

dam

enta

l to

be s

obu

rden

ed o

rco

nditi

oned

."

4.T

he D

ecis

ion

Bel

ow C

onfl

icts

with

Rul

ings

of

this

Cou

rt A

pply

ing

the

"Com

pelli

ng S

tate

Int

eres

t"St

anda

rd o

f R

evie

w

We

mai

ntai

n fo

r th

e re

ason

s se

t for

th a

bove

that

the

chal

leng

ed le

gisl

ativ

e sc

hem

e m

ust b

e ju

dged

by

the

"com

-

30

pelti

ng s

tate

inte

rest

" st

anda

rd.

The

dis

tric

t cou

rt p

ur-

port

ed to

app

ly th

is te

st, f

indi

ngit

satis

fied

. (31

9 F.

Sup

p.at

278

.) T

he c

ourt

rea

sone

dth

at th

e cl

assi

fica

tion

was

adeq

uate

ly ju

stif

ied

by th

e ad

optio

nof

a s

chem

e w

hich

wou

ld, i

n th

e co

urt's

vie

w:

1) a

dvan

ce th

e le

gisl

atur

es"l

egiti

mat

e in

tere

st in

cons

ervi

ng th

e St

ate'

s fi

scal

re-

sour

ces.

..

." (

1d. a

t 279

;) 2

) in

sure

"tha

t as

man

y as

poss

ible

of

[New

Yor

k's]

chi

ldre

nre

ceiv

e te

xtbo

oks"

(Id

.at

279

-28

0;)

and

3)fu

lfill

" M

lle le

gisl

atur

e's

desi

re to

fost

er th

e st

udy

of c

erta

insu

bjec

ts [

the

scie

nces

, mat

he-

mat

ics

and

fore

ign

lang

uage

s]. .

.."

(Id

. at 2

80.)

The

maj

ority

bel

ow a

ppro

ved

the

dist

rict

cou

rt's

con

-cl

usio

n on

the

com

pelli

ngin

tere

st te

st (

Slip

Op.

at

4655

-

465(

;), t

here

by in

corp

orat

ing

the

dist

rict

judg

e's

erro

neou

sap

plic

atio

n of

the

stan

dard

.36

The

deci

sion

bel

ow c

onfl

icts

with

rul

ings

of

this

cou

rt in

thre

e re

spec

ts: 1

) by

fai

ling

adeq

uate

ly to

con

side

r th

eav

aila

bilit

y of

less

one

rous

alte

rnat

ives

for

ach

ievi

ng th

est

ate'

s ob

ject

ives

; Sha

piro

v. T

hom

pson

, 394

U.S

. 618

, 631

, 633

-638

; 2)

byap

prov

ing

a sc

hem

eun

der

whi

ch th

e st

ate

prot

ects

"the

fis

cal i

n-te

grity

of

its p

rogr

ams"

thro

ugh

"inv

idio

us d

istin

ctio

nsbe

twee

n cl

asse

s of

citi

zens

";G

raha

m v

. Ric

hard

son,

91

S. C

t. 18

48, 1

853;

and

3)

byfa

iling

ade

quat

ely

to w

eigh

"the

inte

rest

s of

thos

e w

ho a

redi

sadv

anta

ged

by th

e cl

as-

sifi

catio

n" (

Kra

mer

v. U

nion

Free

Sch

ool D

istr

ict,

395

'U.S

. 621

, 626

), n

amel

y, in

dige

nt s

tude

nts

with

out b

ooks

.

a)T

he tr

eatm

ent o

fal

tern

ativ

es f

or s

atis

fyin

gth

e st

ate'

s in

tere

sts

The

dis

tric

t cou

rt b

egan

its a

naly

sis

corr

ectly

, rec

og-

nizi

ng b

y re

fere

nces

toal

tern

ativ

es th

at th

eav

aila

bilit

y

351n

app

rovi

ng th

e di

stri

ctco

urt's

com

pelli

ng in

tere

stan

alys

is,

the

cour

t bel

ow r

efer

red

spec

ific

ally

only

to th

e le

gisl

ativ

e de

sire

"to

prom

ote

educ

atio

n in

[ce

rtai

n]fi

elds

.." (

Slip

Op.

at 4

655-

4656

.)

31

of a

less

one

rous

alte

rnat

ive

for

achi

evin

g th

e st

ate'

sgo

al

mus

t be

cons

ider

edw

here

the

com

pelli

ngin

tere

st te

st a

p-

plie

s. (

319

F. S

upp.

at

279.

) T

he d

istr

ict j

udge

erre

d,

how

ever

, in

givi

ng f

ull

cons

ider

atio

n to

onl

y on

eal

ter-

nativ

e, i.

e., "

gran

ts .

..

spre

ad th

inly

." (

Id. a

t27

9-28

0.)

Exp

ress

ing

the

view

that

text

sfo

r gr

ades

7 to

12

are

mor

e

cost

ly th

an th

ose

for

grad

es1-

6, J

udge

Tra

via

stat

ed th

at

the

alte

rnat

ive

of "

gran

ts .

..

spre

ad th

inly

" am

ong

all

stud

ents

(gr

ades

1 to

12)

coul

d, in

vie

w o

f th

eco

st f

acto

r,

resu

lt in

a la

rger

num

ber

of s

tude

nts

bein

gw

ithou

t boo

ks.

(1(1

. at 2

80.)

The

cou

rtco

nclu

ded

that

"N

ewY

ork

Stat

e

has

a le

gitim

ate,

com

pelli

ng in

tere

st in

seei

ng to

it th

atas

man

y as

poss

ible

of

its c

hild

ren

rece

ive

text

book

s."

(hl.

at 2

80.)

Plai

nly,

ther

e w

ere

othe

ral

tern

ativ

es f

or s

atis

fyin

gth

e

thre

e st

ate

inte

rest

sdi

scus

sed

by th

e co

urts

belo

w. F

irst

,

appa

rent

ly w

ithou

t add

ition

alex

pend

iture

s, b

ooks

coul

d

be p

rovi

ded

with

out c

ost

only

to th

ose

stud

ents

in g

rade

s

1 to

12

from

indi

gent

fam

ilies

, a p

ract

ice

sim

ilar

to o

ne

used

in th

e pa

st in

New

Yor

k st

ate.

"Se

cond

, as

plai

ntif

fs

poin

ted

out i

n th

e C

ourt

of A

ppea

ls, s

tate

law

coul

d in

-

clud

e te

xts

for

grad

es1-

6 in

the

defi

nitio

nof

"or

dina

ry

cont

inge

nt e

xpen

ses"

for

whi

ch a

loca

ldi

stri

ct c

an le

vy

a ta

x ev

enin

the

abse

nce

ofvo

ter

appr

oval

. (Se

ePl

ain-

tiffs

' Bri

ef b

elow

at 1

3-14

,an

d se

e su

pra

at 4

,n.

4.)

38

37 F

orm

er S

ectio

n 32

09of

the

Edu

catio

n L

aw,

repe

aled

by

Soci

al

Serv

ices

law

Sec

tion

131a

(Ch.

517

, Law

s of

1970

), r

equi

red

wel

fare

offi

cial

s to

"fu

rnis

h in

dige

ntch

ildre

n w

ith s

uita

ble

..

.bo

oks,

to e

n-

able

them

to a

ttend

" sc

hool

.T

his

prov

isio

n w

as in

effe

ct a

s ea

rly

as

1927

. (Se

e N

.Y. L

aws

of 1

928,

Ch.

646

,Se

ctio

n 62

7 F.

) M

ore-

over

, the

New

Yor

k la

w to

impl

emen

tG

ideo

n v.

Wai

nwri

ght,

372

U.S

. 335

, req

uire

s th

eap

poin

tmen

t of

coun

sel

for

pers

ons

"fin

an-

cial

ly u

nabl

e to

obt

ain

coun

sel.

..

." N

.Y, C

ode

ofC

rim

inal

Pro

ce-

dure

, Sec

tion

308.

38 T

he m

ajor

ity b

elow

app

ears

to h

ave

sugg

este

dth

at u

nder

Jam

es

v. V

altie

rra,

02

U.S

. 137

, the

sta

te's

righ

t to

invo

lve

the

elec

tora

te

in th

e fi

nanc

ing

proc

ess

is u

nlim

ited.

(Sl

ip O

p. a

t46

59-4

660.

) H

ow-

ever

, the

ineq

uity

here

can

not b

eju

stif

ied

by th

is r

atio

nale

."A

citi

-

32

Und

er e

ach

of th

ese

alte

rnat

ives

, cos

ts to

the

stat

e w

ould

appa

rent

ly n

ot b

e hi

gher

, and

all

stud

ents

in g

rade

s 1

to12

, inc

ludi

ng th

ose

from

indi

gent

fam

ilies

, cou

ld h

ave

text

s, th

e m

axim

um p

ossi

ble

impa

ct. A

nd, a

ccor

ding

ly,

each

alte

rnat

ive

wou

ld a

lso

fost

er d

evel

opm

ent i

n th

epa

rtic

ular

sub

ject

s to

whi

ch th

e le

gisl

atur

e re

ferr

ed.

It is

set

tled

that

legi

slat

ion

abri

dgin

g fu

ndam

enta

l in-

tere

sts

is in

valid

if th

ere

are

such

nar

row

erm

eans

or

less

rest

rict

ive

alte

rnat

ives

for

acc

ompl

ishi

ng g

over

nmen

tal

purp

oses

. Kra

mer

v. U

nion

, Fre

e Sc

hool

Dis

tric

t, su

pra,

395

U.S

. at 6

32; C

ity o

f Ph

oeni

x v.

Kol

odzi

ejsk

i, 39

9 U

.S.

204,

212

-213

; NA

AC

P v.

Ala

bam

a, 2

77 U

.S. 2

88, :

107

-:30

8;Sh

elto

n v.

Tuc

ker,

364

U.S

. 479

, 488

; Sha

piro

v. T

hom

p-so

n, s

upra

, 394

U.S

. at 6

31. "

The

bre

ath

of le

gisl

ativ

eab

ridg

men

t mus

t be

view

ed in

the

light

of

less

dra

stic

mea

ns f

or a

chie

ving

the

sam

e ba

sic

purp

ose.

" Sh

elto

n v.

Tuc

ker,

sup

ra, 3

64 U

.S. a

t 488

.T

he r

evie

w o

f al

tern

ativ

es m

ust b

e a

sear

chin

g on

e.Sh

apir

o v.

Tho

mps

on, s

upra

, 394

U.S

. at 6

33-8

;se

e al

soC

arri

ngto

n v.

Ras

h, 3

S0 U

.S. 8

9, 9

5-6;

Will

iam

sv.

Illi

nois

,39

9 U

.S. 2

35, 2

44-5

. The

inco

mpl

ete

cons

ider

atio

n of

alte

rna-

tives

dem

onst

rate

s th

e w

isdo

m o

f th

e Se

vent

h C

ircu

it's

deci

-si

on in

Will

iam

s v.

Pag

e,F.

d(1

971)

, the

cas

ew

ith w

hich

the

Cou

rt o

f A

ppea

ls d

ecis

ion

conf

licts

, re-

quir

ing

an "

evid

entia

ry h

eari

ng"

on s

imila

r cl

aim

s. h

ere,

in th

e ab

senc

e of

suc

h a

hear

ing,

the

alte

rnat

ives

con

-si

dere

d in

the

dist

rict

cou

rt's

opi

nion

wer

e th

ose

deve

-lo

ped

by c

ourt

.

ten'

s co

nstit

utio

nal r

ight

s ca

n ha

rdly

be

infr

inge

d si

mpl

y be

caus

e a

maj

ority

of

the

peop

le c

hoos

e th

at it

be.

" L

ucas

v. F

orty

-Fou

rth

Gen

-er

a! A

ssem

bly

of C

olor

ado,

377

U.S

. 713

, 736

-737

; Fla

il v.

St.

Hel

ena

Pari

sh, S

choo

l Boa

rd,

197

F.Su

pp. 6

49(E

.D.

La.

,19

61),

affi

rmed

per

cur

iam

368

U.S

. 515

("N

o pl

ebis

cite

can

lega

lize

an u

n-ju

st d

iscr

imin

atio

n."

197

F. S

upp.

at 6

59.)

33

b)T

he "

fisc

al r

esou

rces

" ar

gum

ents

The

re a

re th

ree

basi

c fl

aws

in th

e di

stri

ct c

ourt

's "

fisc

alre

sour

ces"

arg

umen

t, ap

prov

ed b

y th

e C

ourt

of

App

eals

.Fi

rst,

we

have

not

ed a

bove

the

avai

labi

lity

of o

ptio

nsw

hich

wou

ld a

ppar

ently

not

invo

lve

addi

tiona

l exp

endi

-tu

res,

con

trar

y to

the

assu

mpt

ions

of

the

dist

rict

judg

e.Se

cond

, the

dis

tric

t cou

rt r

ejec

ted

cons

ider

atio

n of

any

alte

rnat

ive

invo

lvin

g in

crea

sed

expe

nditu

res.

(31

9 F.

Sup

p.at

279

.) H

owev

er, s

tate

s ha

ve a

dopt

ed n

ew p

roce

dure

s in

-vo

lvin

g ex

pend

iture

s of

fun

ds in

res

pons

e to

man

y de

ci-

sion

s of

this

Cou

rt. G

riff

in-D

ougl

as a

nd th

eir

prog

eny

and

the

land

mar

k de

cisi

on in

Gid

eon

v. W

ainw

righ

t, 37

2 U

.S.

335,

hol

ding

that

cou

nsel

mus

t be

furn

ishe

d to

indi

gent

crim

inal

def

enda

nts

in s

tate

pro

ceed

ings

are

obvi

ous

exam

ples

. Con

stitu

tiona

l rig

hts

wou

ld b

e ho

llow

if s

tate

sco

uld

avoi

d im

plem

enta

tion

sim

ply

by p

lead

ing

that

ex-

pend

iture

s w

ere

requ

ired

39

Thi

rd, t

he k

ind

of c

lass

ific

atio

n in

volv

ed h

ere

cann

ot b

eju

stif

ied

by th

e po

ssib

ility

of

incr

ease

d co

sts.

In

Shap

iro

v. T

hom

pson

, sup

ra, 3

94 U

.S. a

t63

3, th

is C

ourt

sta

ted:

We

reco

gniz

e th

at a

Sta

te h

as a

val

id in

tere

st in

pres

ervi

ng th

e fi

scal

inte

grity

of

its p

rogr

ams.

It m

ayle

gitim

atel

y at

tem

pt to

lim

it its

exp

endi

ture

s w

heth

erfo

r pu

blic

ass

ista

nce,

pub

lic e

duca

tion,

or

any

othe

rpr

ogra

m. B

ut a

Sta

te m

ay n

otac

com

plis

h su

ch a

purp

ose

by in

vidi

ous

dist

inct

ions

bet

wee

n cl

asse

sof

citiz

ens.

It c

ould

not

for

exa

mpl

e re

duce

exp

endi

ture

sfo

r ed

ucat

ion

by b

arri

ng in

dige

nt c

hild

ren

from

its

scho

ols.

Sim

ilarl

y, in

the

case

s be

fore

us,

app

ella

nts

mus

t do

mor

e th

an s

how

that

den

ying

wel

fare

ben

e-fi

ts to

new

res

iden

ts s

aves

mon

ey. T

he s

avin

g of

wel

-

39 S

ee a

lso

the

disc

ussi

on s

upra

at 2

8-29

.

34

fare

cos

ts c

anno

t jus

tify

an o

ther

wis

e in

vidi

ous

clas

-si

fica

tion.

(em

phas

is a

dded

;fo

otno

te o

mitt

ed)

4°

Her

e, th

e sa

ving

of

cost

s fo

red

ucat

ion

cann

ot "

just

ify

anot

herw

ise

invi

diou

s cl

assi

fica

tion.

"T

he c

ourt

s di

ctum

oned

ucat

ion

alm

ost p

reci

sely

cove

rs th

is s

ituat

ion.

Whi

lech

ildre

n ar

e no

t bar

red

from

sch

ool,

they

are

, on

this

re-

cord

, "ba

rred

" fr

oman

ess

entia

l too

l of

an e

duca

tion!

'

c)T

he s

peci

al in

tere

sts

of th

e ch

ildre

ndi

sad-

vant

aged

by

the

clas

sifi

catio

n

The

gov

erni

ng s

tand

ards

,as

we

note

abo

ve, r

equi

re th

atgr

eat w

eigh

t be

give

n to

the

"int

eres

tsof

thos

e w

ho a

redi

sadv

anta

ged

by th

e cl

assi

fica

tion.

"K

ram

er v

. Uni

onFr

ee S

choo

l Dis

tric

t, 39

5 U

.S.

621,

626

; City

of

Phoe

nix

v. K

olod

ziej

ski,

399

U.S

. 204

, 209

-212

;E

vans

v. C

ornm

an,

398

U.S

. 419

. Atte

ntio

n to

this

fact

or d

emon

stra

tes

that

this

is a

n ev

en c

lear

erca

se f

or a

pplic

atio

n of

the

Four

-te

enth

Am

endm

ent t

han

Gri

ffin

-Dou

glas

and

thei

r pr

ogen

y,w

here

the

Cou

rt a

ssum

edon

ly th

at th

e in

tere

sts

ofth

epe

titio

ners

in th

e cr

imin

alpr

oces

s w

ere

the

sam

e as

mor

eaf

flue

nt p

erso

ns. H

ere,

ther

e is

a so

und

basi

s fo

r ar

guin

gth

at th

e "i

nter

ests

of

thos

ew

ho a

re d

isad

vant

aged

" by

the

chal

leng

ed c

lass

ific

atio

nch

ildre

n fr

om in

dige

nt f

am-

ilies

in g

rade

s 1

to 6

are

stro

nger

than

thos

e w

ho h

ave

text

s, o

ther

ele

men

tary

stu

dent

s an

dst

uden

ts in

gra

des

4° T

he C

ourt

fol

low

ed S

hapi

ro d

urin

g th

epa

st te

rm in

Gra

ham

v.

Ric

hard

son,

91

S.C

t. 18

48, 1

853.

41 A

ny r

elia

nce

by th

e lo

cal d

efen

dant

son

the

colle

ctio

n of

fee

s to

defr

ay c

osts

wou

ld n

ot s

uppo

rta

conc

lusi

on th

at th

e st

ate

inte

rest

isco

mpe

lling

. "W

ear

e th

us le

ft to

eva

luat

e th

e st

ates

ass

erte

d in

ter-

est i

n its

fee

and

cos

t req

uire

men

tsas

a m

echa

nism

of

reso

urce

allo

-ca

tion

or c

ost r

ecou

pmen

t. Su

cha

just

ific

atio

n w

as o

ffer

ed a

nd r

ejec

ted

in G

riff

in v

. Illi

nois

, 351

U.S

. 12

(195

6)."

Bod

die

v. C

onne

ctic

ut, 9

1S.

Ct.

780,

788

.

35

7 to

12.

We

take

this

pos

ition

on

the

basi

s of

legi

slat

ion

and

liter

atur

e w

hich

rec

ogni

ze b

oth

the

criti

cal i

mpo

rtan

ceof

ear

ly c

hild

hood

edu

catio

n an

d th

e ne

ed f

or s

peci

al a

t-te

ntio

n to

the

educ

atio

nal p

robl

ems

of th

e po

or.4

2.

Firs

t, in

.196

5, C

ongr

ess

enac

ted

the

Ele

men

tary

and

Seco

ndar

y E

duca

tion

Act

, Pub

. Law

89-

10. T

itle

I of

the

law

(20

U.S

.C. 2

41a-

241m

) is

a c

ompr

ehen

sive

pro

gram

for

prov

idin

g fe

dera

l fin

anci

al a

ssis

tanc

e to

loca

l sch

ool

syst

ems

with

con

cent

ratio

ns o

f ch

ildre

n" f

rom

low

inco

me

fam

ilies

. The

con

gres

sion

al d

ecla

ratio

n of

pol

icy

in S

ec-

tion

241a

beg

ins

by r

ecog

nizi

ng "

the

spec

ial e

duca

tiona

lne

eds

of c

hild

ren

of lo

w-i

ncom

e fa

mili

es."

Sch

ool s

yste

ms

are

requ

ired

by

the

law

, im

plem

entin

g re

gula

tions

and

othe

r st

atem

ents

of

gove

rnin

g cr

iteri

a pr

omul

gate

d by

the

Off

ice

of E

duca

tion

to c

once

ntra

te T

itle

I pr

ogra

ms

inth

ose

atte

ndan

ce a

reas

with

"hi

gh c

once

ntra

tions

of

chil-

dren

fro

m lo

w in

com

e fa

mili

es.

..

." 2

0 U

.S.C

. 241

e (

a)(1

); 4

5 C

.F.R

. Par

t 116

, § 1

16.1

7(d)

; U

nite

d St

ates

Of-

fice

of

Edu

catio

n, E

SEA

Pro

gram

Gui

de 4

4, M

arch

18,

1968

, § 1

.1.4

3

Seco

nd, i

n A

pril,

197

0, C

ongr

ess

amen

ded

Titl

e O

ne in

Pub.

Law

91-

230.

Sec

tion

132

(a)

reco

gniz

es th

e im

port

ance

of p

roje

cts

at th

e el

emen

tary

leve

l, re

quir

ing,

with

cer

tain

exce

ptio

ns, t

hat T

itle

One

fun

ds b

e us

ed "

in p

resc

hool

prog

ram

s an

d in

ele

men

tary

sch

ools

ser

ving

are

as w

ith

42 I

t is

prop

er f

or th

e co

urt t

o co

nsid

er th

ese

mat

eria

ls, B

roum

v.

Boa

rd o

f E

duca

tion,

347

U.S

. 483

, 494

, n. 1

1; S

kinn

er v

. Okl

ahom

a,31

6 U

.S. 5

35, 5

45, n

. 1 (

conc

urri

ng o

pini

on o

f St

one,

C.J

.); G

riff

inv.

Plin

ois,

sup

ra, 3

51 U

.S. a

t 19;

Wes

t Coa

st H

otel

Co.

v. P

arri

sh,

300

U.S

. 379

, 399

; Map

p v.

Ohi

o, 3

67 U

.S. 6

43, 6

51-5

2, n

. 7.

The

ir u

se h

ere

seem

s pa

rtic

ular

ly a

ppro

pria

te s

ince

pla

intif

fs n

eed

only

show

that

thei

r cl

aim

s ar

e su

bsta

ntia

l.43

The

term

"ed

ucat

iona

lly d

epri

ved

child

ren"

, is

defi

ned

to in

clud

e"c

hild

ren

who

are

han

dica

pped

or

who

se n

eeds

for

... s

peci

al e

duca

-tio

nal a

ssis

tanc

e re

sult

from

pov

erty

, neg

lect

, del

inqu

ency

, or

cultu

ral

or li

ngui

stic

isol

atio

n fr

om th

e co

mm

unity

at l

arge

. 45

C.F

.R. P

art 1

16,

116.

1 (i

) (e

mph

asis

sup

plie

d.)

36

the

high

est

conc

entr

atio

ns o

f ch

ildre

nfr

om lo

w-i

ncom

e

fam

ilies

. .. .

""T

hird

, ava

ilabl

e ex

pert

evid

ence

sup

port

s th

eco

nclu

sion

of th

e C

ongr

ess.

45 I

tpr

esen

ts th

e fo

llow

ing

pert

inen

t pro

p-

ositi

ons

: 1)

a ch

alle

nge

to e

arlie

r no

tions

of g

enet

ical

ly

dete

rmin

ed a

nd f

ixed

inte

llige

nce

Hun

t (19

69, a

t 191

-2);

Blo

om (

1964

, at 8

7-90

) ;

Blo

om, D

avis

and

Hes

s (1

967,

at

12)

; 2)

a su

gges

tion

that

ther

e is

con

side

rabl

epl

astic

ity in

inte

llige

nce

in th

e pr

e-sc

hool

and

earl

y el

emen

tary

yea

rs

Blo

om (

1964

, at 8

7-90

;12

6-9)

; 3)

and

acco

rdin

gly,

a s

ug-

gest

ion

that

ear

lyed

ucat

ion

is c

ritic

alB

loom

(19

65, a

t

127-

8) ;

Blo

om, H

ess

and

Dav

is (

1967

, at 1

2, 1

6,22

); H

unt

(196

9, p

refa

ce a

t VII

I).

It is

not

ewor

thy

that

both

Hun

t

(196

9, a

t 209

) an

dB

loom

, Hes

s an

d D

avis

(196

7, a

t 30)

refe

r to

the

abse

nce

ofbo

oks

in th

e ho

me

as o

neof

the

unde

rlyi

ng c

ause

s of

the

educ

atio

nal d

efic

ienc

ies

exhi

bite

d

by p

oor

child

ren.

The

exp

ert e

vide

nce

also

appe

ars

to s

uppo

rtpl

aint

iffs

'co

nten

tion

that

the

book

dis

trib

utio

npr

oced

ure

will

ad-

vers

ely

affe

ct p

oor

child

ren

"psy

chol

ogic

ally

(and

] em

o-

tiona

lly.

..

." (

App

., 15

.) M

any

child

ren

from

cul

tura

llyde

priv

ed f

amili

es b

egin

scho

ol n

ot h

avin

g ha

dad

equa

te

`4 T

he R

epor

t of

the

Sena

teC

omm

ittee

on

Lab

or a

ndPu

blic

Wel

fare

(Sen

ate

Rep

ort 9

1.63

4, 9

1st

Con

gres

s, 2

d Se

ssio

n) p

rovi

des

the

fol-

low

ing

ratio

nale

for

the

amen

dmen

t (at

20)

: "T

his

requ

irem

ent i

n

part

C w

as a

dopt

edby

the

Com

mitt

ee o

n th

eba

sis

of g

row

ing

evid

ence

whi

ch ;

tclic

ates

that

the

earl

y ye

ars

of e

duca

tion

are

of p

aram

ount

impo

rtan

ce in

a c

hild

'sde

velo

pmen

t." T

he R

epor

tal

so s

tate

s th

at

Titl

e I

has

focu

sed

fede

ral

mon

ies

"on

wha

t may

wel

l be

the

mos

t

cruc

ial p

robl

em c

halle

ngin

g ou

rsc

hool

sys

tem

s to

day:

how

to e

duca

te

succ

essf

ully

the

child

ren

ofA

mer

ica'

s po

or."

(Id

. at 7

.)45

See

Ben

jam

in S

.B

loom

, Alli

son

Dav

is a

ndR

ober

t Hes

s, C

ompe

n-

sato

ry E

duca

tion

for

Cul

tura

l Dep

riva

tion

(Hol

t,R

ineh

art a

nd W

in -

rton

, Inc

.,1967)

[cite

d: (

Blo

om, D

avis

,H

ess,

196

7)];

Ben

jam

inS.

Blo

om, S

tabi

lity

and

Cha

nge

in H

uman

Cha

ract

eris

tics

(Joh

n W

iley

and

Sons

, Inc

.1964)

[cite

d: B

loom

(1964)];

J. M

cVic

ker

Hun

t,T

he C

halle

nge

ofin

com

pete

nce

and

Pove

rty,

"Pap

ers

on th

e R

ole

ofE

arly

Edu

catio

n" (

Uni

vers

ityof

Illi

nois

Pre

ss,

1969

) [c

ited:

Hun

t

(1969)].

37

oppo

rtun

ities

for

"st

imul

atio

n,la

ngua

ge d

evel

opm

ent,

and

inte

llect

ual d

evel

opm

ent.

.."

(B

loom

, Dav

is, H

ess,

1967

,

at 1

5). T

heir

expe

rien

ce d

oes

not p

repa

re th

em w

ell

for

copi

ng w

ith th

ere

quir

emen

ts o

f pu

blic

sch

ools

. (Id

. at 2

1.)

Thi

s fr

eque

ntly

mea

ns th

at "

[a]

sea

ch y

ear

of s

choo

l goe

sby

, the

cul

tura

lly d

isad

vant

aged

child

suf

fers

fur

ther

fru

s-tr

atio

n an

d fa

ilure

." (

Id.)

It

wou

ld a

ppea

r cl

ear

that

the

situ

atio

n in

volv

ed in

this

cas

e w

ould

aggr

avat

e th

e pr

oble

m.

Thu

s, th

e pa

rtic

ular

ly v

ital

inte

rest

s of

indi

gent

chi

ldre

nin

edu

catio

nal o

ppor

tuni

ties

espe

cial

ly b

ooks

duri

ngth

eir

elem

enta

ry s

choo

ling

adds

fur

ther

sup

port

to th

esu

b-

stan

tialit

y of

pla

intif

fs' c

ase.

Plai

nly,

it c

an n

ot b

e sa

idth

ese

child

ren

are

"sub

stan

tially

less

inte

rest

ed"

in b

ooks

than

thos

e w

ho r

ecei

ve th

em. C

ityof

Pho

enix

v. K

olod

ziej

-sk

i, 39

9 U

.S. 2

04, 2

12,

5.T

he D

ecis

ion

Bel

ow I

s N

otSu

ppor

ted

by th

isC

ourt

's R

idin

g in

Dan

drid

ge v

.W

illia

ms,

397

U.S

.

471

The

Cou

rt o

f A

ppea

ls m

ajor

ityre

lied

heav

ily o

n th

isC

ourt

's d

ecis

ion

in D

andr

idge

v.

Will

iam

s, 3

97 U

.S. 4

71, i

nre

ject

ing

plai

ntif

fs c

laim

s. F

irst

,th

e co

urt r

ead

Dan

drid

ge

to e

stab

lish

that

the

com

pelli

ngin

tere

st s

tand

ard

is in

ap-

plic

able

in th

e ci

rcum

stan

ces

of th

is e

ase.

(Slip

Op.

at 4

661-

4662

.) S

econ

d,th

e co

urt b

elow

pur

port

ed to

app

ly th

e"r

easo

nabl

e ba

sis"

sta

ndar

d in

acc

ord

with

its

appl

icat

ion

in D

andr

idge

. (Sl

ip O

p. a

t 465

6-46

58.)

Dan

drid

ge d

oes

not

swee

p so

broa

dly.

Firs

t, th

is c

ase

is f

actu

ally

diff

eren

t fro

m D

andr

idge

beca

use

of th

e ad

mis

sion

s of

the

loca

lde

fend

ants

as

to th

e

"ess

entia

l" n

atur

e of

text

s, a

nd th

e im

pact

of th

eir

abse

nce.

At a

min

imum

, her

c is

atr

iabl

e is

sue

as to

whe

ther

this

situ

atio

n in

volv

er',

in p

ract

ical

effe

ct, a

tota

l den

ial o

f ed

u-ca

tion.

Dan

drid

ge, i

n co

ntra

st, i

nvol

ved

adi

lutio

n of

wel

-

38

fare

ben

efits

. In

addi

tion,

unl

ike

Dan

drid

ge, i

t is

adm

itted

that

stu

dent

s ar

e di

vide

d al

ong

lines

of

wea

lth, a

nd th

eC

ourt

of

App

eals

agr

eed

with

pla

intif

fs' c

onte

ntio

n th

atth

is s

tigm

atiz

es p

oor

stud

ents

, sim

ilarl

y to

rac

ial s

egre

ga-

tion

in th

e du

al s

yste

m. C

ompa

re D

andr

idge

v. W

illia

ms,

supr

a, 3

97 U

.S. a

t 485

, u. 1

7; P

alm

er v

. Tho

mps

on, 9

1 S.

Ct.

1940

, 196

5-19

66 (

diss

entin

g op

inio

n of

Whi

te, J

.)46

Seco

nd, i

n M

indr

:dge

, thi

s C

ourt

exp

ress

ed th

e st

anda

rdto

be

appl

ied

as f

ollo

ws:

"It

is e

noug

h th

at th

e St

ate'

sac

tion

be r

atio

nally

bas

ed a

nd f

ree

from

invi

diou

s di

scri

-m

inat

ion.

" 39

7 U

.S. a

t 487

. (em

phas

is a

dded

.) T

he c

ourt

belo

w r

efer

red

to "

limite

d re

sour

ces"

(Sl

ip O

p. a

t -I6

58),

iden

tifie

d th

e le

gisl

atur

e's

goal

in th

e ch

alle

nged

sch

eme

tohe

the

fost

erin

g of

cer

tain

sub

ject

s, te

rmed

its

actio

n"c

lear

ly ju

stif

ied

in te

rms

of th

e go

als

it so

ught

ther

eby

toad

vanc

e" a

nd c

oncl

uded

that

the

Dan

drid

ge s

tand

ard

was

satis

fied

. (Sl

ip O

p. a

t 465

8.)

It in

quir

ed n

o fu

rthe

r.W

e su

bmit

that

this

ana

lysi

s di

d no

t sat

isfy

eith

er b

ranc

hof

the

Dan

drid

ge s

tand

ard.

Fir

st, e

ach

of th

e co

urts

bel

owre

ferr

ed to

sta

te e

ffor

ts to

con

serv

e lim

ited

reso

urce

s. F

rom

this

vie

wpo

int,

the

stat

utor

y sc

hem

e is

com

plet

ely

irra

-tio

nal.

A m

illio

nair

e's

child

ren

in g

rade

s 7

to 1

2 ar

e fu

r-ni

shed

fre

e te

xts,

har

dly

a m

etho

d of

con

serv

ing

reso

urce

s.M

eanw

hile

, chi

ldre

n of

the

poor

in g

rade

s 1-

6 ar

e de

nied

an

esse

ntia

l edu

catio

nal t

ool.

Seco

nd, p

rovi

ding

boo

ks to

the

child

ren

of th

e af

flue

nt in

gra

des

7-12

, but

den

ying

them

topo

or c

hild

ren

in g

rade

s 1-

6 do

es n

ot m

axim

ize

the

impa

ct o

fst

ate

aid,

ano

ther

sta

ted

obje

ctiv

e. T

hird

, stu

dent

s w

hom

ust d

o w

ithou

t tex

ts in

the

elem

enta

ry g

rade

s w

ill n

ot b

ehe

lped

"in

the

fiel

ds o

f sc

ienc

e, m

athe

mat

ics

[and

] fo

reig

nla

ngua

ges"

by

havi

ng te

xts

in th

e se

cond

ary

grad

es.

44 W

hile

we

reco

gniz

e th

e im

port

ance

of

the

inte

rest

s in

volv

ed in

Dan

drid

ge, t

he w

ealth

cla

ssif

icat

ion

and

the

impa

ct o

n ed

ucat

ion

mak

eth

is a

n ap

prop

riat

e si

tuat

ion

for

appl

icat

ion

of th

e co

mpe

lling

in-

tere

st s

tand

ard,

as

we

have

sho

wn

abov

e at

15-

22.

39

The

re a

re o

ther

sta

te p

olic

ies

whi

chm

ust b

e w

eigh

edin

ass

essi

ng th

e "r

atio

nalit

y"of

the

legi

slat

ive

sche

me.

The

pol

icy

man

ifes

ted

in N

ewY

ork'

s co

mpu

lsor

y sc

hool

atte

ndan

ce la

w [

Edu

catio

n L

aw §

3205

(1)

(a)]

is n

ot s

atis

-fi

ed b

y ha

ving

chi

ldre

n si

t boo

kles

sin

the

clas

sroo

m. W

eno

te a

lso

that

the

legi

slat

ure'

sst

atem

ent o

f po

licy,

fro

mw

hich

the

cour

t ide

ntif

ied

the

stat

e's

inte

rest

her

e, r

efer

red

not o

nly

to p

rom

otin

g ce

rtai

n su

bjec

ts,

but a

lso

stat

ed in

part

: "T

he s

ecur

ity a

nd w

elfa

reof

the

natio

n re

quir

e th

efu

llest

dev

elop

men

t of

the

men

tal r

esou

rces

and

skill

s of

its y

outh

. Thi

sca

lls f

or m

ore

adeq

uate

edu

catio

nal o

ppor

-

tuni

ties

and.

..

(pro

mot

ing

cert

ain

subj

ects

) ...

." (

Quo

ted

in S

lip O

p. a

t 465

8; e

mph

asis

add

ed.)

Giv

en a

ll of

thes

eco

nsid

erat

ions

, He

do n

ot b

elie

ve th

at th

esc

hem

e m

ay b

ete

rmed

"ra

tiona

lly b

ased

."It

is c

lear

er th

at th

e si

tuat

ion

is n

ot "

free

from

invi

di-

ous

disc

rim

inat

ion.

" T

heSt

ate

requ

ires

pla

intif

fs to

atte

ndsc

hool

. The

y ar

e w

ithou

t ess

entia

lbo

oks,

and

ther

efor

e,th

e lo

cal d

efen

dant

s ad

mit,

hav

e a

less

ered

ucat

iona

l op-

port

unity

than

stu

dent

s fr

om m

ore

affl

uent

fam

ilies

.Fu

r-th

er, t

he c

ourt

belo

w c

once

des,

they

may

be

stig

mat

ized

,si

mila

rly,

we

subi

nit,

to b

lack

stu

dent

s in

the

dual

sys

tem

.W

isco

nsin

v. C

onst

antin

eau,

91

S.C

t. 50

7, 5

10. N

one

of th

is is

due

to a

ny "

act

ion,

con

duct

or

dem

eano

r of

thei

rs.

.."

Lev

y v.

Lou

isia

niz,

391

U.S

. 68,

72.

41 A

nd,

fina

lly, i

t wou

ldap

pear

that

ther

e ar

eal

tern

ativ

es w

hich

wou

ld b

oth

serv

eth

e st

ate'

s in

tere

sts

and

avoi

d th

ese

cons

eque

nces

.Car

ring

-

ton

v. R

ash,

380

U.S

. 89,

95

-96;

Dea

n M

ilk C

o. v

. City

of

Mad

ison

, 340

U.S

. 349

48

47 S

ee a

lso

Cha

ndle

r v.

Sou

th B

end

Com

mun

itySc

hool

Cor

pora

tion,

C.A

. No.

71S

51

(N.D

. Ind

., A

ug. 2

6, 1

971)

, the

dist

rict

cou

rt s

choo

lfe

es c

ase

disc

usse

d ab

ove

at n

. 7; (

"....

Def

enda

nt h

erei

n ha

s to

tally

faile

d to

pre

sent

any

rea

son

why

the

plai

ntif

f-st

uden

ts s

houl

d in

cur

sanc

tions

for

thei

r pa

rent

s' f

ailu

re to

pay

sch

ool

fees

." M

em. O

p. a

t 6.)

48 C

onsi

dera

tion

of a

ltern

ativ

es is

pro

per.

Car

ring

ton,

like

Dan

drid

gew

ritte

n by

Mr.

Jus

tice

Stew

art,

held

vio

lativ

e of

the

equa

l pro

tect

ion

40

If th

is is

not

"in

vidi

ous

disc

rim

inat

ion,

" w

e ar

e qu

iteat

a lo

ss to

kno

w w

hat i

s.6.

The

Sta

tuto

ry S

chem

e D

enie

s D

ue P

roce

ssO

f L

awT

he lo

wer

cou

rt's

con

clus

ion

that

this

cas

e pr

esen

ts n

odu

e pr

oces

s is

sues

49

conf

licts

with

dec

isio

ns o

f th

is C

ourt

re-

cogn

izin

g th

at th

e du

e pr

oces

s cl

ause

doe

s pr

otec

t aga

inst

arbi

trar

y 'g

over

nmen

t inf

ring

men

t of

impo

rtan

t ind

ivid

ual

inte

rest

s, in

clud

ing

educ

atio

n. M

eyer

v. N

ebra

ska,

262

U.S

.39

0; P

ierc

e v.

Soc

iety

of

Sist

ers,

268

U.S

. 510

; Bol

ling

v.Sh

arpe

, 347

U.S

. 497

;5°

see

also

Will

iam

s v.

Illi

nois

, 399

U.S

. 235

, 259

-266

(co

ncur

ring

opi

nion

of

Har

lan,

J.)

Mor

e-ov

er, d

espi

te it

s vi

ew o

n th

e du

e pr

oces

s cl

ause

, the

low

erco

urt e

xpre

ssed

agr

eem

ent w

ith p

lain

tiffs

' alle

gatio

n th

atpo

or c

hild

ren

mig

ht b

e st

igm

atiz

ed in

the

oper

atio

n of

the

stat

utor

y sc

hem

e. S

ee W

isco

nsin

v. C

onst

antin

eau,

91

S. C

t.50

7, 5

10.

In M

eyer

, thi

s C

ourt

rev

erse

d th

e co

nvic

tion

of a

teac

her

unde

r a

Neb

rask

a la

w w

hich

for

bid

the

givi

ng o

f in

stru

c-tio

n in

a la

ngua

ge o

ther

than

Eng

lish

toa

stud

ent b

elow

the

nint

h gr

ade.

The

Cou

rt s

tres

sed

the

impo

rtan

ce o

f ed

u-ca

tion

and

note

d N

ebra

ska'

s co

mpu

lsor

y at

tend

ance

law

.

clau

se a

Tex

as C

onst

itutio

nal p

rovi

sion

pro

hibi

ting

a pe

rson

mov

ing

toT

exas

whi

le a

mem

ber

of th

e ar

med

for

ces

from

vot

ing

inan

y st

ate

elec

tion

whi

le a

mem

ber

of th

e ar

med

for

ces.

The

Cou

rt d

iscu

ssed

alte

rnat

ives

whi

ch th

e st

ate

coul

d em

ploy

to s

atis

fy it

s pu

rpor

ted

obje

c-tiv

es. 3

80 U

.S. a

t 95-

96. T

he o

pini

on r

efer

red

neith

er to

the

com

-pe

lling

inte

rest

sta

ndar

d, n

or to

a f

eder

al c

onst

itutio

nal r

ight

to v

ote.

It d

id r

efer

to th

e im

port

ance

of

votin

g (3

80 U

.S. a

t 94,

96)

, but

the

sam

e is

true

as

to e

duca

tion.

See

16-

21 a

bove

.In

Dea

n M

ilk th

is C

ourt

hel

d in

cons

iste

nt w

ith th

e co

mm

erce

clau

se a

n or

dina

nce

forb

iddi

ng th

e sa

le o

f m

ilk in

Mad

ison

unl

ess

pro-

cess

ed a

nd b

ottle

d at

an

appr

oved

pla

nt w

ithin

fiv

e m

iles

of M

adis

on.

The

rul

ing

was

bas

ed, i

n pa

rt,

upon

the

appa

rent

ava

ilabi

lity

of "

reas

on-

able

and

ade

quat

e al

tern

ativ

es ..

.." (

340

U.S

. at 3

54.)

'We

subm

itth

at it

is m

ore

appr

opri

ate

to e

valu

ate

alte

rnat

ives

her

e w

here

the

criti

cal p

erso

nal i

nter

ests

of

indi

gent

stu

dent

s ar

e in

volv

ed.

'9 S

lip O

p. a

t 466

1. (

"Obv

ious

ly, t

houg

h, d

uepr

oces

s is

not

invo

lved

here

.")

5° S

ee d

iscu

ssio

n ab

ove

at 1

6-21

on

the

impo

rtan

ce o

f th

e in

divi

-du

al in

tere

st in

edu

catio

n.

41

Mey

er, s

upra

, 262

U.S

. at

400.

The

rul

ing

rest

ed, i

n pa

rt,

on th

e pr

emis

e th

atth

e la

w a

rbitr

arily

bur

dene

d "t

he o

p-po

rtun

ities

of

pupi

ls to

acq

uire

know

ledg

e" in

vio

latio

nof

the

due

proc

ess

clau

se. 2

62 U

.S. a

t401

-403

.91

Mr.

Jus

tice

Har

lan

prem

ised

his

con

curr

ence

in W

illia

ms

v. I

llino

is, 3

99 U

.S. 2

35, 2

59-2

66,

on th

e du

e pr

oces

s cl

ause

,

term

ing

the

issu

e w

heth

erth

e ch

alle

nged

legi

slat

ion

"ar-

bitr

arily

infr

inge

s a

cons

titut

iona

llypr

otec

ted

inte

rest

... .

"39

9 U

.S. a

t 259

.52

App

lyin

g a

stan

dard

exp

ress

edin

his

opin

ion,

"he

con

clud

ed th

at th

e Il

linoi

s pr

oced

ure

was

viol

ativ

e of

the

clue

pro

cess

cla

use.

Thi

s ca

se in

volv

es a

due

pro

cess

vio

latio

n, g

iven

thes

e

cont

rolli

ng p

rinl

eipl

es :

Firs

t, an

impo

rtan

t ind

ivid

ual

inte

rest

is s

igni

fica

ntly

burd

ened

. In

16ye

r "t

he o

ppor

tuni

ties

of p

upils

to a

cqui

rekn

owle

dge"

wer

e in

frin

ged

by a

rule

for

bidd

ing

the

teac

h-of

for

eign

lang

uage

s. H

ere,

the

burd

enin

gof

the

sam

ein

tere

st r

esul

ts f

rom

the

failu

re o

f th

e st

ate

to p

rovi

de in

-di

gent

s an

adm

itted

ly e

ssen

tial

educ

atio

nal t

ool.

The

dep

-ri

vatio

n is

mor

e ex

trem

e in

this

cas

e, e

xten

ding

toal

l ele

-m

ents

of

the

curr

icul

um in

whi

ch b

ooks

are

used

.

51 I

n B

ollin

g v.

Sha

rpe,

347

'U.S

. 497

, thi

s C

ourt

hel

d th

at o

pera

tion

of a

dua

l sch

ool s

yste

m in

the

Dis

tric

t of

Col

umbi

a vi

olat

ed th

e du

epr

oces

s cl

ause

of

the

Fift

h A

men

dmen

t. T

he C

ourt

con

clud

ed: "

Segr

e-ga

tion

in p

ublic

edu

catio

n is

not

rea

sona

bly

rela

ted

to a

ny p

rope

rgo

vern

men

tal o

bjec

tive,

thus

it im

pose

s on

Neg

ro c

hild

ren

of th

eD

istr

ict o

f C

olum

bia

a bu

rden

that

con

stitu

tes

anar

bitr

ary

depr

ivat

ion

of th

eir

liber

ty in

vio

latio

n of

the

Due

Pro

cess

Cla

use.

" 34

7 U

.S. a

t 500

."7

'2 T

he m

ajor

ity h

eld

viol

ativ

e of

the

equa

l pro

tect

ion

clau

se th

eIl

linoi

s pr

oced

ure

allo

win

g im

pris

onm

ent

of a

n in

dige

nt c

rim

inal

defe

ndan

t, in

def

ault

ot p

aym

ent

of a

fin

e, b

eyon

d th

e m

axim

um a

utho

r-iz

ed b

y th

e st

atut

e re

gula

ting

the

subs

tant

ive

offe

nse.

Will

iam

s, s

upra

,39

9 U

.S a

t 241

.53

".th

e na

ture

of

the

indi

vidu

al in

tere

st a

ffec

ted,

the

exte

nt to

whi

ch it

is a

ffec

ted,

the

ratio

nalit

y of

the

conn

ectio

n be

twee

n le

gis-

lativ

e m

eans

and

pur

pose

, the

exi

sten

ceof

alte

rnat

ive

mea

ns f

oref

fect

uatin

g th

e pu

rpos

e, a

nd th

e de

gree

of c

onfi

denc

e w

e m

ay h

ave

that

the

stat

ute

refl

ects

the

legi

slat

ive

conc

ern

for

the

purp

ose

that

wou

ld le

gitim

atel

y su

ppor

t the

mea

nsch

osen

." W

illia

ms,

sup

ra, 3

99U

.S. a

t 260

(co

ncur

ring

opi

nion

).

42

Seco

nd, t

here

are

sig

nifi

cant

que

stio

nsab

out "

the

ratio

n-al

ity o

f th

e co

nnec

tion

betw

een

legi

slat

ive

mea

ns a

nd p

ur-

pose

. .."

Will

iam

s v.

Illi

nois

, sup

ra, 3

99 U

.S.

at 2

60 (

con-

curr

ing

opin

ion)

. Pro

vidi

ng b

ooks

to c

hild

ren

of a

fflu

ent

fam

ilies

in g

rade

s 7-

12 a

ndde

nyin

g th

em to

poor

chi

ldre

nin

gra

des

1-6

isa

who

lly ir

ratio

nal m

etho

d of

fur

ther

ing

the

purp

orte

d st

ate

inte

rest

s of

cons

ervi

ng r

esou

rces

and

max

imiz

ing

the

impa

ct o

f st

ate

aid.

Fur

ther

, New

Yor

k's

purp

ose

can

not b

e un

ders

tood

onl

y by

con

side

ring

the

law

sim

med

iate

ly in

volv

ed in

this

case

. The

den

ial o

f te

xts

toch

ildre

n is

ent

irel

y in

cons

iste

nt w

ithth

e po

licy

man

ifes

ted

by th

e st

ate'

s co

mpu

lsor

yat

tend

ance

law

. [N

.Y. E

duca

tion

Law

§ 2

205

(1)

W.]

Sur

ely,

the

stat

e in

tere

st r

efle

cted

in§

3205

(1)

(a)

is n

ot s

atis

fied

by

havi

ngst

uden

ts s

it bo

okie

ssits

in th

e cl

assr

oom

.T

hird

, the

re is

an a

sser

ted

stat

e in

tere

st in

pro

mot

ing

deve

lopm

ent i

n ce

rtai

n su

bjec

tsta

ught

at t

he s

econ

dary

ZN

.3lr

's.

We

subm

it, h

owev

er, t

hat i

t is

not

such

as

to o

utw

eigh

the

impa

ct o

f th

e ch

alle

nged

sch

eme

on th

e cr

itica

l int

er-

ests

of

the

plai

ntif

fs [

Will

iam

sv.

Illi

nois

, sup

ra, 3

99 U

.S.

at 2

62-2

63 (

conc

urri

ng o

pini

on)]

,54

part

icul

arly

in v

iew

of

the

appa

rent

"ex

iste

nce

of a

ltern

ativ

em

eans

for

eff

ectu

at-

ing

the

[sta

te's

] pu

rpos

e[s]

..

. ."

Will

iam

s, s

upra

, 399

U.S

. at 2

60 (

conc

urri

ng o

pini

on).

55Fo

urth

, a s

tude

nt's

inte

rest

inan

edu

catio

n is

a p

erso

nal

one.

Mey

er, s

upra

, 262

U.S

. at 4

01; a

ccor

ding

ly,

it is

pat

-en

tly a

rbitr

ary

for

that

inte

rest

to b

e bu

rden

ed d

ue to

a ci

r-cu

mst

ance

ove

r w

hich

the

child

has

no c

ontr

ol, t

he in

dig-

ency

of

his

fam

ily. S

ee L

evy

v. L

ouis

iana

,39

1 U

.S. 6

8, 7

2 ;5

6

51 O

ne c

omm

enta

ry n

otes

abo

ut M

eyer

:"T

he in

divi

dual

's in

tere

stin

edu

catio

n is

per

sona

l and

impo

rtan

t, im

port

ant e

noug

hto

sub

due

the

argu

ably

rat

iona

lpu

rpos

e of

the

stat

e to

dem

ocra

tize

its c

hild

ren

and

thus

to a

void

the

divi

sion

s of

sect

and

cre

ed."

Coo

ns, C

lune

and

Suga

rman

, sup

ra n

. 15,

at 3

76-

ss S

ee d

iscu

ssio

n of

alte

rnat

ives

sup

raat

:30-

32.

56 L

evy

was

dec

ided

on

equa

l pro

tect

ion

grou

nds

and

we

cite

itab

ove

in s

uppo

rt o

fou

r ar

gum

ent b

ased

on

that

cla

use.

How

ever

,

43

Rob

inso

n v.

Cal

ifor

nia,

370

U.S

. 660

, 667

and

n. 9

; Bod

die

v. C

onne

ctic

ut, 9

1 S.

Ct.

780,

788

."Fi

fth,

our

due

pro

cess

con

tent

ion

is b

uttr

esse

d by

the

ackn

owle

dged

stig

mat

izat

ion.

Wis

cons

inv.

Con

stan

tinea

u,91

S.C

t. 50

7, 5

10. A

s Ju

dge

Kau

fman

sta

ted

in d

isse

nt b

elow

(Slip

Op.

at 4

670)

:

The

psy

chol

ogic

al a

nd s

ocia

l im

pact

of

the

badg

eof

infe

rior

ity im

plie

d by

thei

r di

sfav

ored

trea

tmen

t mus

tex

tend

far

bey

ond

the

clas

sroo

ms

..

..

The

end

urin

gle

sson

they

are

thus

taug

ht in

the

publ

ic s

choo

ls th

eyat

tend

with

out b

ooks

is th

at w

ealth

bre

eds

favo

red

trea

tmen

t whi

le d

isad

vant

age

lead

s on

to s

till g

reat

erha

ndic

aps.

Thi

s st

igm

atiz

atio

n is

muc

hm

ore

than

sim

ply

the

refl

ectio

nof

pri

vate

ineq

ualit

y; it

is d

irec

tly a

ttrib

utab

leto

the

op-

erat

ion

and

inte

ract

ion

of th

e st

ate'

s ed

ucat

ion

law

s in

the

scho

ols

whi

ch p

oor

child

ren

are

requ

ired

by

stat

e la

w to

atte

nd. A

nd u

nlik

e G

onst

antin

eau,

ther

e is

not e

ven

a cl

aim

of a

ny a

ttem

pted

rem

edia

l ben

efit

to th

ose

stig

mat

ized

.

C.

AL

TE

RN

AT

IVE

LY

, TIL

E C

OU

RT

OF

APP

EA

LS

DE

CID

ED

IM

POR

-

TA

NT

QU

EST

ION

S O

F FE

DE

RA

L L

AW

WH

ICH

HA

VE

NO

T B

EE

N

BU

T S

HO

UL

D B

E S

ET

TL

ED

BY

TH

IS C

OU

RT

We

argu

e th

roug

hout

that

the

cour

t bel

ow d

ecid

ed f

ed-

eral

que

stio

ns "

in a

way

in c

onfl

ict w

ith a

pplic

able

dec

isio

ns

"the

con

cept

s of

equ

al p

rote

ctio

n an

d du

epr

oces

s, b

oth

stem

min

g fr

omou

r A

mer

ican

idea

l of

fair

ness

, are

not

mut

ually

exc

lusi

ve."

Bol

ling

v. S

harp

e, 3

47 U

.S. 4

97, 4

99.

57 S

ee a

lso

Cha

ndlt:

r v.

Sou

th B

end

Com

mun

itySc

hool

Cor

pora

tion,

No.

71

S 51

(N

.D. I

nd.,

Aug

. 26,

197

1) [

"T

he s

choo

lfe

e co

llect

ion

proc

edur

e as

app

lied

to th

ese

min

or p

lain

tiffs

, con

ditio

ns th

eir

pers

onal

righ

t to

an e

duca

tion

upon

the

vaga

ries

of

thei

r pa

rent

'sco

nduc

t,an

into

lera

ble

prac

tice

cond

emne

d by

this

Cou

rt in

Car

pent

er,

et a

l. v.

Arn

old,

70

S 54

(19

70).

" IN

Iem

. Op.

at 6

.]

44

of th

is c

ourt

; ....

" [S

upre

me

Cou

rt R

ule

19(1

) (b

).]

How

-ev

er, t

his

case

can

be

view

ed a

s pr

esen

ting

new

que

stio

ns.

Acc

ordi

ngly

, in

the

alte

rnat

ive,

we

subm

it th

at th

e C

ourt

of

App

eals

"de

cide

d an

impo

rtan

t que

stio

nof

fed

eral

law

whi

ch h

as n

ot b

een,

but

sho

uld

be, s

ettle

dby

this

cou

rt; .

"(I

d.)

The

fee

s at

issu

e he

re p

rese

nt a

nim

port

ant q

ueiti

onju

st a

s th

e on

es in

volv

ing

the

crim

inal

pro

cess

,vo

ting

and

divo

rce

litig

atio

n di

d in

Gri

ffin

, and

its

prog

eny,

Har

per

and

Bod

die.

Con

clus

ion

For

the

reas

ons

expr

esse

d in

this

bri

ef a

nd in

the

petit

ion,

this

Cou

rt s

houl

d ag

ree

to r

evie

w th

ede

cisi

on o

f th

e C

ourt

of A

ppea

ls f

or th

e Se

cond

Cir

cuit

inth

is c

ase.

By:

J. H

AR

OL

D F

LA

NN

ER

Yt1

,1&

RO

BE

RT

PR

ESS

MA

NPA

UL

R. D

IMO

ND

JEFF

RE

Y K

OB

RIC

IC

Cen

ter

for

Law

and

Edu

catio

n,H

arva

rd U

nive

rsity

TH

E U

NIT

ED

MIN

IST

RIE

S

IN P

UB

LIC

ED

UC

AT

ION

Nov

embe

r, 1

971

UNITED STATES COURT OF APPEALSFOR THE SEVENTH DISTRICT

June 9, 1971WILLIAMS, ET AL.

V.

Pm;E, ET A.L.No. 18526

Appeal from the United Slates District Courtfor the Northern District of Illinois

Before: Swygert, J; Kiley, C.J., Fairchild, C.J.ORDER

This action for declaratory and injunctive relief anddamages was brought pursuant to the Civil Rights Act of1871, 42 ' 1983, and jurisdiction was claimed under28 U.S.C. 1242, 2201, 2202, 2281, 2282 and 2284. Uponmotion of the defendants and after receiving briefs of theparties, the district court dismissed the complaint and thecause for failure to state a claim upon which relief could begranted.

The complaint alleges that graduation participation isan essential part of a child's education and the complaintmay be construed as claiming that in the schools concernedthe activities for which the fees are required have beenrecognized by the school administrators, teachers, parentsand students as integral parts of the school experience,from which indigent children are being excluded. Untilthese and related factual questions are explored at an evi-dentiary hearing, the precise contours of the constitutionalrights which plaintiffs claim were violated are not readilydiscernible.

As Professor Moore has stated the rule, ''[Al complaintshould not be dismissed for insufficiency nuless it appears

to a certainty that plaintiff is entitled to no relief underany state of facts whirl, could he proved in support of theclaim." 2A J. Moore, Federal Practice 12.08, at 2271-74(2d ed. 1968). This is especially true in actions broughtunder 42 U.S. § 1983, Escalera v. New York City HousingAuthority, 425 F.2d 853, 857 (2(1 Cir. 1970). Applying thatstandard to the instant complaint, the complaint should nothave been dismissed without receiving evidence, The judg-ment. of the district court is reversed and the causeremanded for further proceedings.

cert. denied,40 U.S. LawWeek 3288,(Dec. 21, 1971)

HARVARD UNIVERSITYCENTER FOR LAW AND EDUCATION

38 Kirkland StreetCambridge, Massachusetts o2t38617-495-4666

TO: Legal Services Offices

FROM: Center for Law and Education

RE: Memorandum of Law for Challenges to School Fees

The following legal memorandum was written for a particularcase in Elma, Washington, by Steve Randels, Seattle Legal Services,and Patricia Lines and Robert Pressman, Center for Law and Education.It has "modular" components--separable sections. Now that the Elmacase is settled, the facts can be rewritten, and all or part of thesame brief is being reused in another similar Washington case. Somesections might also be incorporated into briefs in other states.Thus, headings are not numbered, Discussion which focuses specifi-cally on Washington law and factual and legal discussions all beginon new pages, and can be deleted or rearranged. This approach wasadopted to aid legal services offices suffering from a shortage ofsecretaries.

Section I, which is not included in this "modular brief," wouldbe a statement of facts. In Elma, the fees charged to studentsranged from $15 to $25, and covered items such as magazines, studentactivities and towel service. Students were harassed and sometimesreceived failing grades for failure to pay the fees. The fees wereestablished by the local school board, and not by the state legis-lature.

Section II argues that the fees policy violates the state con-stitution. Since the Washington State Constitution does not providefor "free" schools, Part A argues that a provision for a system of"common schools" requires free schools.* Part B argues that a freeschool requirement precludes even the smallest fees. Adverse casesallowing charges are not cited in the brief. See, e.g., Vincent v.County Board of Education, 222 Ala. 216, 131 So. 893 (1931); Robertsv. Bright, 222 Ala. 677, 133 So. 907 (1931); Bryant v. Whisehart,167 Ala. 325, 52 So. 525 (1910).

Since an early attorney general's opinion seems to excludehigh schools from the definition of common schools in Washington,

* Even in the absence of an express constitutional provision pre-scribing a system of public or common schools, state courts mightbe found to require that such schools be free once they are organ-ized. Dicta in Massachusetts, for example, defines public schoolsas those ". . . which are open and free to all the children andyouth of the town in which they aregaTuated, who are of properage or qualifications to attend them . . . ." Jenkins v. Andover,103 Mass. 94, 99 (1869) (emphasis added).

23 26

Memorandum: Challenges to School Fees, p. 2

reliance is also placed on an ultra vires argument (Section III) .

This is a somewhat old-fashioned argument--predating the New Dealand an era when courts were regularly striking down legislationsimply because it was "unreasonable." Where the state constitution-al argument is strong, Section III could well be omitted.

Section IV presents the case for a violation of the federalconstitution's equal protection clause because it discriminates a-gainst the poor. Only cursory reference is made here to the adverseSupreme Court dicta in Dandridge v. Williams, 397 U.S. 471 (1970)and James v. Valtierra, 402 U.S. 137 (1971), relating to thestandard of review. If it comes up, Dandridge might be distin-guished on the grounds that it is not an education case. It shouldalso be classified as a case which does not involve a fundamentalright (welfare payments) or a suspect classification (family size,and hence is not a case requiring "active review." See Brief,Section IV.

James v. Valtierra makes major inroads on the argument ap-pearing in Part IV(c) (1) , which maintains that economic classifi-cations should be treated like racial classifications. In James,the Court upheld a California state constitutional provision whichrequired that low-rent housing projects be approved by a majorityvote in a referendum in the community where the project would belocated. The Court distinguished its earlier decision in Hunterv. Erickson, 393 U.S. 385 (1969) , where it struck down a city char-ter provision which had required a similar referendum before thecity could adopt open housing ordinances. The Court in James alsoobserved that the record did not support a claim that the Califor-nia law in fact discriminated against a racial minority.

The Court found the California law justified in that it gavethe citizens of a community a "voice in a decision which may leadto large expenditures of local governmental funds for increasedpublic services and to lower tax revenues." Justices Marshall,Brennan and Blackmun dissented on grounds that the referendum re-quirement violated the equal protection rights of the poor. JusticeDouglas abstained.

This case makes it fairly clear that a majority on the SupremeCourt will require the "far heavier burden of justification" onlyfor racial classifications, and not for other classifications,even economic classifications.

James should be distinguished on the ground that education ismore important than low-rent public housing. This must be consi-dered together with the fact that economic classifications aremore onerous than the kinds of classifications to which courts ap-ply the traditional equal protection test (military status, resi-dency, etc.). Therefore, the two factors together require thesame degree of justification as would be required in cases involvingonly fundamental rights or only racial classifications. See Note,Eguai Protection, 82 Harv. L. Rev. 1067 (1969). Essentially, thecourts seem to be balancing the equities. The nature of classifi-cation as well as the nature of the right which is in jeopardy are

24 27

Memorandum: Challenges to School Fees, p. 3

both factors which must be considered when valuing the relativeimportance of the citizen's interest and the competing interestof the state.

Secondly, James should be distinguished on the ground, thatthe countervailing state interest--preserving democratic decision-making--is vastly more important than any countervailing stateinterest which could be forwarded to justify school fees or exclud-ing children from school for inability to pay such fees. See John-son brief at 22, n. 24.

Superficially, James seems to go even further and deny equalprotection to any groupings save racial. This is a misreading.First, the Court would not overrule the lines of non-racial equalprotection cases so obliquely. Second, the Court has more recentlyobserved, in Townsend v. Swank, 92 S. Ct. 502, n. 8 (1971),that:

. . . a classification which channels one class ofpeople, poor people, into a particular class of lowpaying, low status jobs would plainly raise substan-tial questions under the Equal Protection Clause.

If damages are claimed, authority may be found in Bond v.Public Schools of Ann Arbor School District, 383 Mich. 293, 178 N.W.2d 484 (1970) and Op. of the Att'y General of Wyo., 1971 Op. no. 4(June 11, 1971). In both, the existence of a previous decisionby the attorney general of the state was deemed necessary to putthe school district on notice that it should not charge fees.

The Center will be happy to review and comment on briefs ifgiven at least one week to do so.

23 28

TABLE OF CONTENTS

I. STATEMENT OF FACTS

II. THE FEES POLICY VIOLATES THE STATE CONSTITUTION, p. 27

A. The Constitution and Laws of the State of Washington Provide fora System of Public Schools to be Maintained at Public Expense andFree of charge, p. 27

1. Washington State Constitution and law

2. Case law from other states

B. The Constitutional Requirement for Free Public Schools PrecludesConditioning Full Participation in a Course or an Essential SchoolActivity on Payment of a Fee, p. 32

III. THE FEES POLICY IS INVALID BECAUSE IT EXCEEDS THE STATUTORY AUTHORITYOF THE SCHOOL BOARD, p. 36

A. Charging School Fees Exceeds the Statutory Power of the Board, p. 36

B. Taking Punitive Action Against a Child Because He Does Not PayCompulsory School Fees Exceeds the Powers Delegated School Boards, P. 43

IV. THE FEES POLICY VIOLATES THE UNITED STATES CONSTITUTION BY DENYINGEQUAL PROTECTION TO CHILDREN OF THE POOR, p. 45

A. The Fees Policy Singles Out Children of the Very Poor forDiscriminatory Treatment, p, 47

B. Under the Traditional Test, the Fees Policy is Invalid Since ThereIs No Reasonable Relation Between the Denial of Equal Benefits tothe Children of the Poor and The Purpose Behind the Fees Regulation, p.48

C. Officials Must Show a Compelling Governmental Interest Before TheyCan Discriminate Against the Children of the Poor or Infrinrw Upona Child's Fundamental Right to Education , p. 52

1. "Suspect" classifications include classifications based oneconomic status , p. 52

2. Children of the Poor have a fundamental Right to education, p. 56

D. When a Case Involves Both a Suspect Classification and a Fundamental Right, the State's Interest Must Give Way, p. 62

26

29

THE FEES POLICY VIOLATES THESTATE CONSTITUTION

A. The Constitution and Laws of the State of Washington Provide for aa System of Public Schools to be Maintained at Public Expense andFree of Charge.

In a compact with the United States, entered into when admitted to

the Union, the State of Washington promised to guarantee certain funda

mental rights to its citizens. One of these guarantees was for "the

establishment and maintenance of systems of public schools . . . which

shall be open to all . . . ." Wash. Cons. art. XXVI (1889) . The

framers of the Washington Constitution made further provision for public

education in Article IX which reads in part:

1. Preamble. It is the paramount duty of the state tomake ample provision for the education of all childrenresiding within its borders, without distinction orpreference on account of race, color, caste or sex.

2. Public School System. The legislature shall providefor a general and uniform system of public schools. The

public school system shall include common schools andsuch high schools, normal schools and technical schools asmay hereafter be established.

As required by the Constitution, the legislature has provided for a

system of public schools in this state. It has also defined public

schools as follows (R.C.W. 28A.01.055):

Public schools shall mean the common schools as referred toin Article IX of the state Constitution and those schoolsand institutions of learning having a curriculum belowthe college or university level as now or may be establishedby law and maintained at public expense.

27

30

As defined in P.C.W. 28A.01.060(emphasis added):

"Common schools" means schools maintained at publicexpense, in every school district and carrying on aprogram from kindergarten through the twelfth gradeor any part thereof including vocational educationalcourses otherwise permitted by law.

In an early case, the Washington Supreme Court found a model training

school which was selective in admitting students was not a "common school"

and therefore was not entitled to funds from the common school fund.

The court defined "common school" to mean one which is free and open

to all. School District No. 20 v. Bryan, 51 Wash. 498, 502-504,

99 P.28 (1909) (emphasis added):

The words "common school" cannot be arbitrarily defined,but must be considered in connection with the general schemeof education outlined in the Constitution of the State. . . .

LA/mP le provision for the education of children was 'madeparamount, and the duty was imposed upon the Legislatureof providing a general and uniform system of public schools.The system must be uniform in that every child shall havethe same advantages and be subject to the same disciplineas every other child . . . .

. . . To summarize, a common school, within the meaning ofour Constitution, is one that is common to all children ofproper age and capacity, free and subject to and under thecontrol of qualified voters of the school district.

See also the dicta in a later case, Lichtman v. Shannon, 90 Wash. 186,

190-191, 155 P. 783 (1916):

. . Public schools are usually defined as schools . . .

maintained at public expense by taxation and open withoutcharne to the children of all residents of the town ordistrict.

The constitutional mandate and these judicial interpretations require

that public schools in Washington be free and open to all. This precludes

conditioning; the benefits of public education upon payment of a fee. To

hold otherwise would require parents of school age children to finance

schools from private resources when the Constitution and laws of this

28

31

state require that they be maintained at public expense. To hold

otherwise would also deny to children of parents who are unable to pay

the fees access to the public schools as guaranteed to them in the

Washington State Constitution.

.29

Since this is the first fees case in this state, more specific

authority from other states is also relevant. Kansas has a constitu-

tional provision similar to that contained in the constitution of this

state (Kan. Const. art., Sec. 2):

The Legislature shall encourage the promotion ofintellectual, moral, scientific and agriculturalimprovement, by establishing a uniform system ofcommon schools. . . .

The Kansas Supreme Court struck down a statute permitting a school system

to require pupils attending high school to pay a fee of $2.50 to help

meet expenses. Before deciding whether this constitutional mandate

referred to "a system of free common schools or pay common schools,"

the Court thoroughly examined and analyzed relevant law and legal

history. Board of Education v. Dick, 70 Kan. 434, 438, 78 P. 812,

813-14 (1904). The court observed that

The phrase "common schools" is synonymous with public schools.""Common or public schools are, as a general rule,

schools supported by general taxation, open to all of suita-ble age and attainments, free of expense, and under the con-trol of agents appointed by the voters."

The court then consulted' numerous law dictioneries, all of which de-

fined common schools as "free" or "gratuitous" and concluded (Ibid.):

We think it follows, therefore, both from authority andreason, that the phrase "common schools" was used inthe Constitution in its technical sense, which meansfree schools, and that the common schools of Kansas arefree schools.

In Special School District No. 65 v. Bangs, 144 Ark. 34, 221 S.W.

1060 (1920), the Supreme Court of Arkansas struck down tuition charges

assessed against high school students. School officials argued that the

district was not required to establish high schools, and therefore,

constitutional provisions did not apply. The court ruled to the con-

trary. Once high schools were established, they became "common schools"

3033

as contemplated by the State Constitution and had to be free of charge.

See also, Dowell v. School District Not 1, 220 Ark. 828, 250 S.W. 2d

127, 129-30 (1952); Mariadahl Children's Home v. Bellegarch School

District No. 23, 163 Kan. 49, 180 P. 2d 612 (1947); Moore v. Brinson,

170 Ga. 680, 154 S.E. 141 (1930); Claxton v. Stanford, 160 Ga: 573,

128 S.E. 887 (1925); Board of Education v. Corey, 63 Okla. 178, 163

P. 949, 953 (1917); Irvin v. Gregory, 86 Ga. 605, 13 S.E. 120 (1891).

These cases hold that wherever a constitution requires "common"

"public!, or "free" schools, it is unlawful to charge tuition of any

kind.

To conclude, the constitution of this state requires the public

schools to be free of charge to the students eligible to attend them.

3134

B. The Constitutional Requirement for Free Public Schools PrecludesConditioning Full Participation in a Course or an Essential SchoolActivity on Payment of a Fee.

Although it is clear from the above tent the State Constitution

mandates that public schools be "free," there still seems to be a question

of "how free?" Accordin7 t.n school officials, small chary es for a few

limited and specific roods or services are nermissible. We maintain

otherwise. The question is, then, "What is free?" Webster's Inter-

national Dictionary (2nd Ed., at 1003) defines "free" to mean "given or

furnished without cost or payment; gratuitous; or free admission."

This definition of "free" should make it clear that even the smallest

charge is illeral.

The relevant cases from other states indicate that a fees charge

need not be a full tuition charge to contravene a requirement that

public schools be free. Even the smallest charge to defray the cost of

the academic program -- teaching, facilities and textbooks -- have been

deemed as invalid as a full assessment for tuition. On the other hand,

it seems ressonl.ble for school officials to charge admission for

attendance at a school concert or athletic event. However, even this

may be invalid if attendance is required or punitive action is taken

against the non-paying student. Thus, the Supreme. Court of Idaho struck

down a variety of academic and non-academic fees where the sanction for

non-payment was the withholding of the student's transcript. Paulson v.

Minidoka Countz School District No. 311, 93 Idaho 469, 463 P. 2d 935

(1970). The Idaho Constitution provided for a ":;stem of public, free

oomnon schools." The school fees were essentiall:; tho name as those in

32 35

in the case at bar. The Minidoka School District had charged each

Student attending high school:

School District Fees $ 2,50Textbook Fees 10.00Activity Ticket 3.50Student Council Fee 1.00Newspaper 1.00Annual (Yearbook) 5.60Cap and Gomm Fee 1.00Class Fee .40

$ 25.00

In subsequent years, the fees remained the same, but were itemized

only as "Textbook Fees" (112.50) and "School Activities Fees" ($12.50).

All of these, even the fees for so-called "extra-curricular activities,"

were struck down (93 Idaho at 472, 463 P. 2d. at 938):

A levy for such purposes, imposed generally on all studentswhether they participate in the extra-curricular activitiesor not, becomes a charge on attendance at school. Such acharge contravenes the constitutional mandate that theschool be free.

Under the test applied by the court, a fee would be invalid if it

was prerequisite to participation in school, or any "necessary element

of any school activity." Ibid.

This test was applied again in Bond v. Public Schools of Ann Arbor

School District, 383 Mich. 693, 178 N.J. 2d 484 (1970). Parents sued

to declare certain fees unconstitutional and to recover fees paid.

They dill not allege that any student was penalized for failure to pay.

The trial court had found in favor of the plaintiffs as to general foes,

interscholastic athletic fees, and materials tickets (the latter being

charged for specialized courses such as photography, art, home economics

and industrial arts). However, it had erroneously upheld the requirement

3336

Nor does it matter how small the fee charge ie. If such charges

are prohibited by a state's constitution, then a charge of $1.00 would

be as invalid as a charge for full tuition. To hold otherwise would

be opening the door to a limitless number of future increases in the

charge. This spectre swayed the court in Young v. Trustees of Foun-

tL12;11=Graded g 1222 64 S.C. 131, 41 S.E. 824 (1902). Plaintiffs

sought an injunction against a $2.00 fee required for attendance at

a local grade school. The fee was to cover incidental expenses in-

cluding heating and equipment costs. Pupils were to be suspended

for non-payment. By statute, the state had instituted a system of

free schools. The court granted the injunction (64 S.C. at 136,

41 S.E. at 826):

If the trustees have the right, under the act of 1896,to charge an incidental fee of $2.00 from each scholar,they have the right to increase it to $10.00 per scholar.In other words, if the right exists, there is no limitin said act of 1896 to such power of trustees.

In State ex rel. Little v. Resents of the Universit of Kansas, 55

Kan. 389, 40 P. 656 (1895), the issue involved an annual library fee

of $5.00 and a graduation fee of $5.00, with exclusion or suspension

the penalty; for non-payment. The laws of Kansas required that admis-

sion to the university was to be free to state residents. The court

concluded that even incidental fees were illegal (55 Kan. at 39Q, 40

P. at 658):

If the regents may collect five dollars for the useof the library, why may they not collect also for theuse of the rooms of the building and the furniture?Why may they not impose fees for walking in the campus, orfor the payments of instructors? All these things have

cost money.. If they collect for one thing, it is notapparent why they may not collect for another.

Allowing even the smallest fee to stand is a dangerous precedent. In

the face of an unqualified constitutional guarantee for public schools,

there can be no such compromises.

34 37

that children purchase textbooks, miscellaneous supplies and equipment

and had refused to permit recovery for payment of the general fees.

18 Mich. App. 506, 171 N.W. 2d 557 (1969). On appeal, the Supreme

Court of Michigan found in favor of the plaintiffs on these issues. The

"curt expressly adopted the reasoning of the Idaho Court in the Paulson

case. They also found it invalid to distinguish between tuition charges

and charges for materials (383 Mich. at 702 , 178 N.W. 2d. at L88):

AT.,nlyin; either the "necessary elements of anyschool Is activity" test or the "integral fundamentalDart of the elementary or secondary education" test,it is clear that books and school supplies are anessential part of a system of free public elementaryand secondary schools.

It should be noted that no child was barred from the Ann Arbor Schools

because of his inability to pay. 18 Mich. App. 506, 171 N.W. 2d. 557,

593. The issue concerned whether students who were "financially able"

could be compelled to pay fees including those charred for textbooks

and miscellaneous supplies

In Wyoming, where the state constitution requires a system of

"free" elementary schools, the attorney general has ruled that no fees

may be charged for any "necessary element" of a pupil's education in

high school. The attorney general reasoned that once high schools were

created, they became part of the same system, and had to be free.

The ruling extended to cover all fees relating to the curriculum, or

courses at a school. Extracurricular fees were not covered tr except

that the opinion noted that the school district participation in extra

curricular activities should be free to those who could not afford to

pay fees. Opinion of the Attorney General of Wyoming, 1971 Op, no. 1+,

June 11, 1971.

THE FEES POLICY IS INVALID BECAUSE IT EXCEEDSTHE STATUTORY AUTHORITY OF THE SCHOOL BOARD

A. Charring School Fees Exceeds the Statutory Power of the Board.

School Boards do not have unlimited power and authority. Like

any municipal corporation, the Board has only as much authority as

it has received from the legislature by statute. An action which

is not specifically authorized by statute, and cannot be fairly

implied from specific statutory authority is ultra vires . 1See

Board of Directors of the Independent School District of Waterloo, Ia.

v. Green, 259 Ia. 126, 147 N.W. 2d 854 (1967); Coggins v. Board of

Education of City of Durham, 233 N.C. 763, 23 S.E. 2d 527 (19114);

Gustafson v Wethersfield Townshi Hi h SchoC. District 1.1, 319

I11. App. 255, 49 N.E. 2d 311 (1943); Seattle High School

Sharpies, 159 Wash. 424, 298 P. 974 (1930); Rhea v. Board of

Education of Devils Lake, 41 N.D. 4499 171 N.W. 103 (1919); Mat

thews v Board of Education of School District No 1, 127 Mich.

530, 86 N.W. 1036 (1901); cf., Sullivan v. Houston Independent School

District, 307 F. Supp. 1328, 1340,1345 n. 1 (S.D. Tex. 1969). Under

1. This doctrine should not be confused with federal or stateconstitutional limitations on school authorities. A school rulewhich is permissible under the Constitution may still be invalidbecause the legislature has not delegated the power to school officialsto pass the rule. Compare ?laugh v. Board of Trustees of the Universityof Mississippi, 237 U.S. 589 (1915), and Hughes v. Caddo Parish SchoolBoard, 57 F. Supp. 508 (W.D. La. 1945) , affirmed 323 U.S. 685 (1945))with Wright v. Board of Education of St. Louis, 295 Mo. 466, 246 S.W.43 (1922). Of course, if the legislature authorizes an act, it mustcomply with constitutional standards.

this doctrine, the Courts will invalidate acts which are arbitrary

and unreasonable, or otherwise exceed its authority as delegated by

the legislature.2

2. For example, the courts have forbidden school officials fromrequiring a child to perform chores (State v. Board of Education ofthe City of Fond du Lac, 63 Wis. 234, 23 N.W. 102 (1885)) and requiringschool patrols. Re Student Patrols, Att. Gen. Op., 11 Pa. Dist. andCounty Rev. 660 (1929). Other acts deemed to be ultra vires haveincluded restrictions on students' social activities (Dritt v. Snodgrass,66 !1o. 286, 27 Am. E. 343 (1877) (dicta); State v. Osborn, 32 Mo. Op.536 (1888)), unless the restriction was confined to that which wouldbe necessary to assure performance of studies. Magnum v. Keith,147 Ga. 603, 95 S .E . 1 (1918) .

In Washington, the Supreme Court has fully recognized the

ultra vires rule (Seattle !firth School v. Sharpies, 159 Wash. 424,

428, 298 P. 971+, 995 (1930):

. as the school district is a municipalcorporation created by the legislature, it, actingthrough its board of directors, can exercise onlysuch powers as the legislature has granted inexpress words, or those necessarily or fairlyimplied in or incident to powers expressly granted,or those essential to the declared objects andpurposes of the municipal corporation.

When applied to the facts in the instant case, this rule requires

that the assessment of fees 'or other charges must be expressly

authorized by statute, or, at least, it must be necessary to the

accomplishment of some duty or implied under some power which the

state has expressly granted to the school board. A review of rele-

vant Washington statutes reveals no specific authority to charge

students compulsory fees in public schools. In fact, tuition charges

are expressly prohibited. R.C.W. 28A.58.230. Therefore, the court

must decide whether the power to charge incidental fees may be

implied from the general grants of authority contained in R.C.W.

28A.58.010:

A school district shall possess all theusual powers of a public corporation, and . .

may . transact all business necessary formaintaining school (sic).

Alternatively, the power could be viewed as an incident of the specific

authority to furnish and maintain school buildings (R.C.VI. 28A.58.102)

or to operate libraries (R.C.W. 28A .58 .100 This seems doubtful,

however, since the Washington legislature has omitted to grant school

officials specific authority to charge fees in public schools, while

it has granted such authority to officials of educational institutions

in many other situations. For example, tuition and incidental fees

associated with state universities and community colleges are provided

for with great particularity. See,2412, R.C.W. 28B.15.100, and 28B.15.500.

R.C.W. 28A.34.010 permits the charging of fees for nursery schools

established in connection with common schools. R.C.W. 28A.70.110

authorizes the payment of teacher certificate fees. Nonresident

children and adults may be charged tuition unless other arrangements

can be made (R.C.W. 2811.58.240). Moreover, those sections of the code

which detail methods of raising revenue for schools appear to limit

a school's revenue raising activities to public taxation. See

28A.01.060; and see generally R.C.W. 28A.40 through 28A.56.

In sum, the power to charge fees for materials or service, while

apparently precluded in the context of the common schools, is speci

fically granted in other contexts. Moreover, the machinery for raising

revenue is outlined in detail, and appears to restrict school boards

to public taxation as a source of revenue. The express mention of

one thing in a statute can imply the exclusion of another. Bradley v.

Department of Labor and Industries, 52 Wash. 2d 780, 329 P. 2d 196

(1958); Washington Natural Gas Co. v. Public Utility Dist. No. 1 of

Snohomish County, 77 Wash. 2d 90; 459 P. 2d 633 (1969). This would

bar a finding that the power to charge fees, though not specifically

provided for, would exist by implication from other general grants

of authority.

Finally, in a recent opinion the Attorney General for the State

of Washington found that a school district did not have the authority

to charge either a general tuition fee or a special tuition fee for

certain courses. A.G.O. 65-66 No. 113. He also concluded that the

district cannot require students to purchase books, supplies and

instructional materials from the district where the same were not

supplied free of charge. Ibid. pp. 3-6. See also A.G.O. No. 51-53-494,

where the Attorney General ruled against febs for materials:

There a school district does not have sufficientfunds to pay for the cost of instructional materials,may such school district levy and collect a fee ofS3.00 per pupil to be used to partially offset thecost of instruction materials, including but notbeing limited to art paper, penmanship paper, chartpaper, tagboard, paints, ink, modeling clay, yarn,paper fasteners, pins and other similar items?

In neither opinion did the Attorney General rule on the board's

duty to supply these materials, but this is not the question raised

in the instant case either.

In the absence of an express statutory authorization, the courts

in other states have refused to imply authority to charge fees,

and have usually found fee assessments to be ultra vires. Compare

Young v. Trustees of Fountain Inn Graded School, 64 S.C. 131, 41 S.E.

824 (1902) with Felder v. Johnston, 127 S.C. 215, 121 S.E. 34 (1924).

In Younic, the court struck down a school board's attempt to require

students to pay an incidental fee. In reviewing various sections of

the statute in question, the court rejected the conclusion that

charging fees was essential or incidental to the various other powers

specifically conveyed (64 S.C. at 138-39, 41 S.E. at 827):

. . . Surely the legislature could not have morepointedly fixed the specific duties of a boardof trustees of a school district than is heredone . . We honor the motives of this body ofpublic-spirited citizens in their effort to advancethe education of the children but we dare notadd to the law.

In Felder the court upheld a similar action since the legislature

had passed a specific law allowing school districts to make the

assessments.

See also Morris v. Vandiver, 164 Miss. 476, 143 So. 228 (1933).

The Supreme Court of Mississippi examined relevant statutes to find

where the school board at an agricultural high school might have

received authority to charge $13 in fees to cover costs of an athletic

program, literary events, library privileges, public speaker, orches-

tra and band and entertainment at assemblies. It found no specific

authorization, and it held that the general powers of the Board to

maintain discipline or do that which is necessary for the business

management of the schools could not be extended to provide authority

for such charges (164 Miss. at 493, 145 So. at 233):

4144

. . We do not think the power broad enoughto authorize the board to impose charges notspecifically authorized by law, and to enforcepayment by refusing permission to attend theschool where students are eligible to attend.

4245

B. Taking Punitive Action Against a Child Because He Does Not PayCompulsory School Fees Exceeds the Powers Delegated School Boards.

Even if the board had authority to charge fees, it is doubtful

that school officials may punish children for failure to pay the

assessment, in the absence of specific statutory authorization.

Although school boards have indisputable power to adopt appropriate

and reasonable disciplinary rules and procedures, there are limits

on the exercise of this authority. Excessive punishment can be

deemed ultra vires, even if a school rule was itself valid.3 In

other words, even if it were appropriate for a board to require

students to make some payment for some service, it would be inap-

propriate to punish non-payment by expulsion, denial of access to a

course, failing or poorer grades, withholding a transcript or by

similar injury to the child's academic privileges.

3. For example, in Iowa the Supreme Court decided that a schoolboard could not withhold a atudentle diploma because she had refused to wear a cap and gown at a commencement exercise. The 0ourtnoted that the board might have excluded the student from the exerciao, but struck down the actual punishment imposed because Uintaexcessive and beyond the scope of the board's authority. The Courtsaid (Valentine v, Independent School District, 191 Ia. 1100,

1104.01 183 N.W. 434, 436-437 (1921),

. we hold that such rule is unreasonable and anullity as a condition precedent to receive the honors

of graduation and a diploma. The wearing of a cap andgown on commencement night has no relation to educationalvalues, the discipline of the school, scholastic grades,or intellectual advancement.

See also Perkins v. Independent School District of West Des Moines,56 Ia. 474, 9 N.W. 346 (1880); State v. Vanderbilt, 116 Ind. 14118 N.E., 267-68 (1888).

This was the reasoning of the Attorney General for the State

of Washington, who advised against excessive punishments for a

child who lost a book from the school library. A school district

wished to require reimbursement for the lost book, which it could

legally do, but it also wished to punish the child who failed to

make up the loss by refusing to transmit his transcript on his

transfer to another public school. The attorney general ruled

(AGO 61-62, No. 48):

It is our opinion that if the board of directorsof a school district were to adopt a rule orregulation under which it would refuse to transmita student's credits to a school to which thestudent has transferred until fees for lost bookswere paid, the rule would be struck down by thecourts as being, arbitrary and capricious if thesane were ever tested.

Furthermore, if such rule and regulation wereadopted and a student was prevented from enrollingin a proper class in the district to which hetransferred, the rule, under certain circumstanceswould conflict with our compulsory education law(chapter 28.27 ROW) and with the statutory rightof every child between the ages of six andtwentyone years to attend the public schoolsin the district in which he resides.

In another opinion, the Washington Attorney General ruled that

a student's diploma could not be withheld because of an unsatis

fied claim for damaged or unreturned books (quoted in AGO 61-62,

No. 48, p. 3):

. we see no grounds that would reasonablyjustify a school board in imposing such a severepenalty . . . the withholding of a certificateof graduation. It would be an injustice to thestudent to put into effect such drastic rules.

The policy of the state and the paramount objectof our educational system is to keep the boysand girls in school and not to drive them out byharsh rules for such a trivial offense as losinga book or two.

4447

THE FEES POLICY VIOLATESTHE UNITED STATES CONSTITUTION

BY DENYING EQUAL PROTECTIONTO CHILDREN OF THE POOR

The Fourteenth Amendment to the United States Constitution provides

that "no state shall . . . deny to any person within its jurisdiction

the equal protection of the laws." Literally interpreted, this provision

prohibits an unequal treatment of school children. However, the courts

traditionally have allowed differential treatment of persons where it is

reasonably related to the legitimate purpose contained in the law or regu-

lation creating the differential treatment (the "reasonable relation"

test).4 This test does not apply where a fundamental right is in jeopardy

or when the classification of those receiving differential treatment is

suspect. When either of these factors exist, than a stricter test applies.

In these more difficult situations the courts will subject the classifi-

cation to strict scrutiny, and will require a compelling state interest

or purpose (the "compelling interest and higher relevance" test) .5

4. Cases where the Court has applies the "reasonable relation" testinclude Rine ldi v. Yeager, 384. U.S. 305 (1966); Carrington v. Rash,

380 U.S. 89 (1965); Morey v. Dowd, 354 U.S. 457 (1957); F.S.Ro sterGuano Co. v. Virginia, 253 U.S. 412 (1920); Gulf, Colorado & desternKy. v. Ellis, 165 U.S. 150 (1897); See Tussman and ten Broek, TheEqual Protection of the Laws, 37 Calif. L. Rev. 341, 346 (1949).

5. Cases where the Court has required a compelling state interest include

Shapiro vs Thompson, 394 11.S. 618 (1969); Harper v. Virgonia State Bd. of

Elections, 383 U.S. 663 (1966); Douglas v. California, 372 U.S. 353 (1963);Griffin v. Illinois, 351 U.S. 12 (1956); Brown v. Board of Education

347 U.S. 483 (1954) ; see, also, Chandler v. South Bend Community School

Corp., sir. no. 71 S 51, N.D. Ind., Aug. 26, 1971.

In other words, depending on the nature of the interest which is

thr.atened by the classification, the courts will apply a different

standard of review. In an ordinary case - where no important, right is

in jeopardy and the classification is not "suspect" -- the court applies

what has been described as "restrained review." In other cases, such

as the instant case, the court applies "active review" and requires

officials to justify their action by showing that an overiding and

compelling state interest is at stake. Dunham v. Pulsifer, 312 F.

Supp. 411, 415-417 (D. Vt. 1970); Note, Equal Protection, 82 Harv.

L. Rev. 1067 (1969). Before proceeding further, therefore, this court

must decide whether to apply "restrained" or "active" review to the

case at bar. As will be shown, the stricter standard, must be used

because children have a fundamental right to education, and because

economic status (poor and nonpoor) is a suspect classification. How-

ever, as discussed in the next section even under the less stringent

traditional standard, the fees policy is invalid.

4649

A. The Fees Policy Singles Out Children of the Very Poor ForDiscriminatory Treatment

Children of the very poor are among those who cannot afford the

necessary fees. Particularly for those whose only source of income is

welfare payments, extra funds are wholly Ilnavailable, since the state

has calculated the amount of the welfare check to cover only vital

necessities. Because of the facto of life, the fees policy effectively

creates two classes of citizens: (1) indigents who are unable to pay

the charges and (2) all others, who are full; able to pay. Those who

do not pay are granted fewer opportunities and privileTes, and are sub-

jected to humiliating treatment. Thus, the fees policy of the school

officials in the instant case prevent the very poor from obtainin:-, the

full educational services and benefits made available to other children.

Williams v. Page, no. 18536, 7th Cir., June 9, 1971 (holding a cause

of action exists where complaint alleges fees policy excludes indi-

gent children from integral parts of school experience); Chandler

v. Louth Bend Community School au., oil% no. 71 S 51, N.D. Ina. ,

August 26, 1971 (invalidating fees policy in South Bend). Cf.,

Griffin v. Illinois, 351 U.S. 12, 17-18 (1956).

It might be argued that the policy "should be upheld since

. it applies to rich and poor alike. But /facially7 non-

discriminatory provisions7 may be grossly discriminatory in

rtheir7 operation'' Id. at 17, n. 11, cf. Guinn v. United States

238 U.S. 34? (1915) and Lane v. Wilson, 307 U.S. 268 (1939).

4750

B. Under the Traditional Test, the Fees Policy is Invalid Since ThereIs No Reasonable Relation Between the Denial of Equal Benefits toThe Children of the Poor and The Purpose Behind the Fees Regulation.

Nearly all laws create classifications, but not all classifications

are unconstitutional, the "traditional" standard by means of which

courts have determined which classifications violate the Equal Protection

clause is as follows (F.S Royster Grano Co. v. Virginia, 253 U.S. 412,

415 (1920):

the classification must . . . rest uponsome ground of difference having a fair andsubstantial relation to the object of the leg;is-lation, so that all persons similarly circumstancedshall be treated alike.

This test will frequently be applied to the administrative actions

of school officials, See Dunham v. Pulsifer, 312 F. Supp. at 416:

The traditional equal protection test looks simplyto the reasonableness of the regulatory scheme inlight of its possible intended purposes. Under thistest a classification is valid if it is not arbitraryand has a reasonable connection with some permissiblelegislative or administrative purpose.

In such a case the court exercises "rostrained review."6

This

rule requires an analysis of the relation between the purpose of the

regulation and the means of achieving it. Thus, barring longhaired

males from athletics was adjudged to be an invalid classification,

since there was no showing that long hair affected athletic performance

6. See cases cited note 4 Supra.

48 51

team spirit or discipline. Dunham v. Pulsifer, 312 F. Supp. at 419.7

The primary purpose of the fees policy is to raise funds to provide

extra educational services and materials to children. Denying educa-

tional services and benefits to any child is plainly self-defeating.

However, under the traditional test, if the primary purpose is imper-

missible, the Court will attribute a second Purpose to the policy, if

possible .8

In the case at bar another Purpose could conceivably be inferred:

the fees policy was designed to conserve public funds. The fee charges

shift part of the cost of education toe parents whose children

7. The court held that "even under the traditional restrained standardthe evidence fails to show a link of reasonableness between the code a..1r1

the furtherance of some permissible objective of the athletic program."Ibid. Additional examples of invalid classifications under this testare legion. For example, the United States Supremo Court has held thatrequiring an indigent to serve a prison tern when he cannot nay a fineviolates the equal protection clause. Tate v. Short, 401 U.S. 395(1971), The Court observed that the requirement had no rational basis:it did not serve a penal purpose, and it did not aid the State in col-lecting the fine, since the man was too poor to pay it. Id. at 4302.See also Williams v. Illinois, 399 U.S. 235 (1970). Likewise, requirin,:

only those prison inmates who unsuccessfully ampealed their cases topay for their transcripts was found to have no rational basis. The

Court reasoned that if the repayment provision was intended to reimbursethe state's costs, the law was too narrow, and if it was to avoidfrivolous appeals, it was too broad since many nonfrivolous appeals raa7

also fail. Rinaldi v. Yeager, 384 U.S. 305 (1966).

8. Thus, in Goesaert v. Clear ", 335 U.S. 464 (1948) the court upheld ailichigan law prohibiting bartending licenses to most women. The Courtheld that the primary and most probable purpose - monopolizing jobs formen - was impermissible, but that another valid purpose - avoiding socialand moral problems - could be inferred.

are deriving direct benefits from the school system. However, the denial

of services or benefits to children because their parents fail or cannot

do a specific act does not bear a reasonable relation to this purpose.

If this were the purpose to shift some education costs to parents of

school children the appropriate solution would be to bring some action

against the parents, and not the children. Moreover, takin; such an

action against one who cannot pay is manifestly futile, See Tate v. Short,

401 U.S. 395 (1971). Thus, there is no reasonable relation between

this purpose and means of implementing it.

The manifest unreasonableness of punishing children for the

parents' failure to pay a fee persuaded the Court in one of the

few fees cases brought in federal Courts, in Chandler v. Soyth Bend

Community School Corp., cir. no. 71 S 51, U.D. Ind., Aug. 26, 1971,

where the court ruled:

. . riefendant herein has totally failed to present any reasonwhy Plaintiffstudents should incur sanctions for their parents'failure to pay school fees. The school fee collection procedureas applied to these minorPlaintiffs, conditions their personal,right to an education upon the vagaries of their parents'conduct, an intolerable practice condemned by this Court .

Although the . plaintiffs nn Wyman v. Jones, 39 Law Week4085, Jan, 12, 19717 did not advance an equal protection challenge,per se, the welfar7worker visits being attacked on Fourth Amen,:...

ment grounds, the Court applied the traditional equal protectionanalysis generally used in determining the validity of denyingwelfare benefits. C.f.,,Dandridge, supra, The visits are foundreasonable because the Court finds that such incursions servemore of a rehabilitative than a purely investigative function;

5053

thus the welfare procedure stands in a definite relationshipto the goals of the A.F.D.C. program, a means of determiningthe needs of the childrenbeneficiaries. Applying the sameanalysis to the instant facts, we would conclude that aschool serves an educational mission and that suspendingstudents for obligations owed by their parents supportsnone of its goals with respect to its studentbeneficiaries.

The Court did not rule on the legality of fees as between parent

and school officials.

The Court in Johnson v. New York State Education Dept., 319

F. Supp. 271 (E.D. I.Y. 1970), affirmed, 449 F. 2d 871 (2d Cir. 1971)

found to the contrary. The circuit court relied primarily on

James v, Valtierra, 402 U.S. 137 (1971), a case which does not apply

here because (1) in James plaintiffs challenged the California

constitutional provisions for referendum alleging that on its face

it discriminated against the poor, (2) the right to an education is

vastly more important than the right to low rent housing claimed

in Jones, (3) the countervailing state interest in J_ames.public

participation in governmental decisions--was much more important

than the interest here ( to save a relatively small amount of

money). The Chandler decision is clearly more thoughtful, and

reflects the entire scope of the Court's Fourteenth Amendment

decisions, not just one isolated case.

51

54

C. Officials Must Show a Compelling Governmental Interest Before TheyCan Discriminate Against the Children of the Poor or Infringe Upon aChild's Fundamental Right to Education.

Although the traditional test alone provides a sufficient grounds

for invalidating the fees requirements when applied to indigent plaintiffs,

a stricter standard of review should be adopted in the instant case. This

more stringent "active reviev.4' is appropriate in at least two kinds of

cases -- those involving a "suspect classification" or those involving

an infringement upon a fundamental right. Both elements appear in the

case at bar.

1. "Suspect" classifications include classifications based oneconomic status.

The most familiar "suspect" classifications are those based on race.

When faced with unequal treatment of races the Supreme Court has

typically departed from the traditional "reasonable relation" test and

required a showing of clear and compelling need. In fact, where the

"trait" on the basis of which the legislative classification is made is

an individual's race, the Supreme Court has come close to ,:stablishing a

er se rule of unconstitutionality.' Like discrimination on account of

race, discrimination on account of economic status is abhorrent to the

basic principles of democracy. It can be equally humiliating;

it can be equally arbitrary; and, when it concerns an impressionable

child or youth, it can be equally debilitating. An economic

distinction among children like a racial distinction, "generates

a feeling of inferiority as to their status in the community

that may effect their hearts and minds in a way unlikely ever to

be undone." Brown v. Board of Education, 347 U.S. at 49h.

9. In dicta, however, the Court continues to recognize the possibilitythat a state mli.ght justify racial classifications by means of some com-pelling state interest, McLaughlin v. Florida, 279 U.S. at 194. Possibly

the Court would allow a benevolent racial classification, designed tocompensate for past discrimination, but such a case has not yet come before it.

52 55

Distinctions based on race or economic status are serious indeed,

Although difficult to compare distinctions based on poverty seem

inherently less susceptible to explanation than are distinctions

which usually appear before the Court in equal protection cases- -

unsuccessful prisonerappellants, Rinaldi v. Yeager, 384 U.S. 305

(1966), large family size, Dandridge v. Williams, 397 U.S. 471

(1970), or servicemen, Carrington v. Rash, 380 U.S. 89 (1965).

Therefore, the courts must require more than a rational basis to

justify so invidious a discrimination. Thus, the Supreme Court

has frequently made analysis between classifications based on

wealth and race: "Lines drawn on the basis of wealth and property,

like those or race are traditionally disfavored." Harper v.

Virginia Board of Elections, 383 U.S. at 668. "In criminal trials

a State can no more discriminate on account of poverty than on

account of religion, race, or color." Griffin v. Illinois, 351

U.S. at 17 (1956). "And a careful examination on our part is

especially warranted where lines are drawn on the basis of wealth

or race, two factors which independently render classifi

cation highly suspect and thereby demand a more exacting judicial

scrutiny." McDonald v. Board of Election Commissioners of Chicago,

394 U.S. at 807 (1969). See, also, Hobson v. Hansen 269 F. Supp.

401, 507-08 (D.D.0. 1967), aftld sub nom. Smticilobson, 408

F. 2d 175 (D.C. Cir. 1969).

The Supreme Court first departed from the traditional test to

strike down an economic classification in Griffin vgIllinois, 351

U.S. 12 (1956). In Griffin the Court found a violation of the

equal protection clause where the state denied the opportunity for an

effective appeal of a criminal conviction to an indigent who could not af

ford to pay for the required transcript. Although the Court in Griffin did

not directly discuss the different standards of review, it did,

in fact, require Illinois to show a compelling need for its harsh

rule. Under the traditional test, the requirement might have been

justified on fiscal grounds. The costs of providing transcripts

free to appellants would be exceedingly high, and a state has a

valid interest in cost savings and recoupment. The Supreme Court

in Griffin did not even consider this possible rationale, however.

The Court's decision in Griffin was further clarified in Boddie v.

Connecticut, 401 U.S. 371 (1971):

5457

We are thus left to evaluate the States assertedinterest in its fee and cost requirements as amechanism of resource allocation or cost recoup-ment. Such a justification was offered and re-jected in Griffin v. Illinois. . . .

In Boddie the Court held that it violated the due process clause of the

Fourteenth Amendment for a state to deny access to divorce courts to

those who are financially unable to pay the fees. In both cases the

State was able to show some reasonable basis for its action, but the

court required more. In both Griffin and Boddie the Court rejected the

traditional test of constitutionality and required a "countervailing

state interest of overriding significance." 401 U.S. at 377. See,

also Id. at 380.

There is a striking parallel between the pivotal facts in Griffin,

Boddie, and the case before the court. In all three situations all

persons similarly situated had a right to receive some service -- a

right to appeal, a right to dissolve a marriage, or a right to attend

school. In order to secure this right fully, these persons were re-

quired to pay some cost or fee. Although most people could do so,

indigents could not and were, therefore, denied their rights -- full

access to the judicial process or full access to school. According to

Griffin, the nature of the right involved is not of primary importance.

The Court assumed in Griffin that Illinois was not required by the fed-

eral constitution to afford any appellate review. "But that is not to

say that a state that does grant appellate review can do so in a manner

that discriminates against some convicted defendants on account of their

proverty" 351 U.S. at 18. Certainly, the constitution forbids making the

quality of education a child receives depend upon the affluence of his

parents, as readily as it forbids a situation where "the kind of trial a

man gets depends on the amount of money he has" Griffin v. ILlinois, Id.

at 19.

55 58

2. Children of the poor have a fundamental right to education.

Other equal protection cases where the Supreme Court has required

a showing of compelling state interest include those where the

classification infringed upon some "fundamental interest." This has

included the right to vote, Kramer v. Union Free School, 395 U.S.

621 (1969), Harper v. Virginia State Board of Elections, 383 U.S. 663

(1966), to procreate, Skinner v. Oklahoma, 316 U.S. 535 (1942), to

travel, Shapiro v. Thompson, 394 U.S. 618 (1969), and access to the

courts and judicial due process, Griffin v. Illinois, 351 U.S. 12

(1956), Boddie v. Connecticut, 401 U.S. 371 (1971). In these cases,

the governmental action "must be closely scrutinized and carefully

confined" Harper v. Virginia State Board of Elections, 383 U.S. at

670 and cannot be upheld on a showing 'of rationality alone Kramer v.

Union Free School District; 395 U.S. at 627-8.

These rights are of no greater importance than the right to an

education. As early as 1954, a unanimous Supreme Court declared

the fundamental importance of educational opportunity. In Brown v.

Board of Education, 347 U.S. 483, 493 (1954), Chief Justice Warren

wrote:

Today, education is perhaps the most important functionof state and local governments. Compulsory schoolattendance laws and the great expenditures for educationboth demonstrate our recognition of the importance of edu-cation to our democratic society. It is required in theperformance of our most basic public responsibilities, evenservice in the armed forces. It is the very foundation of

good citizenship. Today it is a principal instrument inawakening the child to cultural values, in preparing him forlater professional training, and in helping him to adjustnormally to his environment. In these days, it is doubtfulthat any child may reasonably be expected to succeed in lifeif he is denied the opportunity of an education. . . .

5 ti 59

This precept has been adopted whole heartedly in lower courts. For

example, in Wolf v, Legislature, Civ. No. 182646, Salt Lake County,

Utah, 3d District Court, Opinion, Jan, 8, 1969, the court held:

Education, today, is probably the most importantfunction of state and local governments. It is afundamental and inalienable right and must be soif /constitutional7 rights guaranteed to anindividual . are to have any real meaning.Of what value would be the right to assemble,the right to speak, the right to participate inone's own religion, if an individual were to bedenied an education

In Sullivan v, Houston Ind, School District, 333 F. Supp. 11491

1172 (S.D. Tex. 1971), the court ruled:

Education . is a priceless commodity.

Furthermore, it is a fundamental right of everycitizen. Just as the Supreme Court has declared thatUnited States citizenship cannot be revoked except byvoluntary expatriation so courts should declarethat an individualos guarantee of an education,only quantitatively less basic than the right ofcitizenship, cannot be annulled, even temporarily, except in the most extreme circumstances.

And in Ordway, v, Hargraves, 323 F. Supp. 1155, 1158 (D. Mass, 1971), the

Court noted that "It would seem beyond argument that the right to receive

a public school education is a basic personal right." Finally, in

Chandler v, South Bend Comnunity School Corp., Civ. No. 71 S cl, N.D.

Ind., Aug. 26, 1971, the court found education "a substantial right

implicit in the 'liberty' assurance of the Due Process clause," and

a necessary element in the effective exercise of rights guaranteed

by the first eight amendments to the U.S. Constitution.

51 Go

Our lest four presidents have agreed with the courts. In an education

.sage to Oongrees on January 29, 1963, President Kennedy said:

Education is the keystone in the arch of freedom and progress.nothing has contributed more to the enlargement of this Nation'sstrength and opportunities than our traditional system offree, universal elementary and secondary education, coupledwith widespread availability of college education.

For the individual, the doors to the schoolhouse, to thelibrary, and to the college lead to the richest treasuresof our open society: to the power of knowledge - to the trainingand skills necessary for productive employment - to the wisdom,the ideals, and the culture which enrich life - and to thecreative, self-disciplined understanding of society needed forgood citizenship in today's changing and challenging world.

For the Nation, increasing the quality and availability ofeducation is vital to both our national security and our domesticwell-being. A free nation can rise no higher than the standardof excellence set in its schools and colleges. Ignorance andilliteracy, unskilled workers and school dropouts - theseand other failures of our educational system breed failuresin our social and economic system: delinquency, unemployment,chronic dependence, a. waste of human resources, a loss of pro-ductive power and purchasing power, and an increase in tax-supported benefits. The loss of only 1 year's income due tounemployment is more than the total cost of 15 years of.education through high school. Failure to improve educa-tional performance in thus not only poor social policy,it is poor economics.

1963 U.S. Code Cong. and Adm. News, 1450 (89th Cong., 1st Sess.);

See also 1969 Code at 2830 (President Nixon) (Proclamation on American

Education Week, September 26, 1969); See also 1968 Code at 4648-9

(President Johnson) (Proclamation on American Education Week, August 29,

1968); 1965 Code at 1448..1449 (President Johnson) (Message on Education

Act of 1965); 1958 Code at 5412 (President Eisenhower) (Message on

Education).

Not only is education precious to the individual in its own right,

but it also provides the tools necessary for exercising other rights

which the Supreme Court has recognized as fundamental voting,

Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966),

speech, Lovell v. City of Griffin, 303 U.S. 444, 450

58 61

(1938), association, NAACP v, Alabama, 357 U.S. 449

(1958), and travel, Shapiro v. Thompson, 394 U.S. 618 (1969).

The enactment by Congress of laws providing funding for educational

programs also attests to its significance. See e.g. Elementary and

Secondary Education Act of 1965, 20 U.S.C. 236..244, 331-332, 821-827,

841-848, 861-870, 881-885; National Defense Education Act of 1958,

Title 20 U.S.C.; Johnson- O'Ialley Act, Title 25 U.S.C. See also Coons,

Clune, and Sugarmen, Private 'Wealth and Public Education 409-424;

Kirp, The Poor, the Schools, and Equal Protection. 38 Harv. Ed. Rev.

635, 642-645 (1968); Michelman, The Supreme Court. 1968 Term. Forward:

Protecting the Poor through the Fourteenth Amendment, 83 Harv. L. Rev.

(1969); Goldstein, Developing Trends in the Law of Student Rights,

118 U. Pa. L. Rev. 612, 616 (1969).

Finally, it should be noted that the case is even more onerous here

because of the special educational needs of the children of the poor.

The governing standards require that great weight be given to the

"interests of those who are disadvantaged by the classification."

Kramer v. Union Free School District, 395 U.S. at 626. Attention to this

factor demonstrates that this is an even clearer case for application

of the Fourteenth Amendment than Griffin and its progeny. Here, there

is a sound basis for arguing that the "interests of those who are

disadvantaged" are stronger than the interests of other students. We

take this position on the basis of legislation and literature which

recognize both the critical importance of early childhood education and

the need for special attention to the educational problems of the poor.

It is proper for the court to consider these materials, Brown v. Board

of Education, 347 U.S. 433, 494 n. 11 (1954); Skinner v. Oklahoma,

316 U.S. 535, 545n1 (1942) (concurring opinion of Stone, C.J.);

Griffin v. Illinois, 351 U.S. at 19; West Coast Hotel Co, v, Parrish,

300 U.S. 379, 399 (1937); Mann v, Ohio., 367 U.S. 653, 651-2, n. 7

(1961). 62

Congress has recognized the need for compensatory educational

services to children of the poor in the Elementary and Secondary

Education Act of 1965, Pub. Law 69 -10. Title One of the law (20.u.s.c.

241a - 241m) is a comprehensive program for providing federal financial

assistance to local school systems.with concentrations of children from

low income families. The congressional declaration of policy in Section

241a reads as follows:

In recognition of the special educational needs of chil-dren of low-income families and the impact that concentrationsof low-income families have on the ability of local educationalagencies to support adequate educational programs, the Congresshereby declares it to be the policy of the United States toprovide financial assistance (as set forth in this part) to localeducational agencies serving areas with concentrations of chil-dren from low-income families to expand and improve their educa-tional programs by various means (including preschool programs)which contribute particularly to meeting the special educationalneeds of educationally deprived children. (emphasis added)

School systems are required by the law, implementing regulations and

other statements of governing criteria promulgated by the Office of

'lducation to concentrate Title I programs in those attendance areas

with "high concentrations of children from low income families. "

20 U.S.C. 241e(a) (1). Available expert evidence supports the con-

clusion of the Congress. See Benjamin S. Bloom, Allison Davis and

Robert Hess, Compensator;; Education for Cultural Deprivation (Holt,

Rinehart and Winston, Inc., 1967); Benjamin S. Bloom, Stability and

Change in Ewan Characteristics (John Wiley and Sons, Inc. 1964);

J. UcVicher Hunt, The Challer4e of Incompetence and Poverty, "Papers

on the Role of Early Education" (University of Illinois Press, 1969).

Thus, for children of the poor, education may be the only means

by which they can escape the depressing and cyclical effects of poverty.

6360

Their special need for education makes the denial of full access to

the schools particularly harsh and unjust. This circumstance further

strengthens the importance of the individual's interest in this kind

of case. In as far as the court is balancing the compelling interests

of the state against the fundamental interests of the individual,

these special considerations for children of the poor should banish

any thought that the fees policy might be justified.

In one of the two adjudicated fees cases in the federal Courts,

the importance of education compelled the Court in Chandler v. South

Bend Community School Corp, to apply the stricter standard of justi-

fication. This Court, in fact, found the fees policy void of any

rational basis, and would have invalidated it under any standard,

as discussed above. The Court in Johnson v New York State Education

Dept., 319 F. Supp 271 (E,D, N.Y. 1970), affirmed, 449 F. 2d 871

(1971) did not finally decide which standard to use,

6164

D. When a Case Involves 3oth a Suspect Classification and a FundamentalRight, the State s Interest Must Give Way.

As discussed above, either of two conditions would trigger "active"

review in this case -- the fact that the class receiving unequal treat-

ment are poor, and the fact that they have a fundamental right to edu-

cation. Either alone would be sufficient. Thus, in the absence of a

compelling interest, a school may not prevent only its athletes from

wearing long hair. Dunham v. Pulsifer, 312 F. Supp. 411 (D.Vt. 1970).

The classification of students into athletes and non-athletes is not so

invidious or suspect that this alone ..yould trigger active review.

Rather, the court found that a right to privacy was involved; the

penumbra of the First and Ninth Amendments to the federal constitution

made the right to determine hair style a particularly personal richt

which could not be abridged without a showing of compelling school

interest. Id. at 418-19. In contrast, in Griffin v. Illinois, the court

did not attach great weight to the right to an appeal, but it found the

classification itself (poverty) so highly suspect that the more stringent.

test again seemed appropriate.

In some cases both elements exist, and the courts will sometimes

find that the combined forces of both make it particular:1y appropriate

to apply the "compelling state interest" test. See, ear., Van Ducartz

v. Hatfield, C.A. no. 3-71 civ. 243, D. Minn., Oct. 12, 1971; Har

grave ,v. McKinney, 413 F. 2d 328 (5th Cir. 1969) ; Serrano v. Priest,

487 R. 2d 1241, 1250-59 (S. Ct. Cal, 1971). Thus, it is not neces

sary that the unequal treatment go as far as to expel students from

school. It is sufficient that access to some portion of the school

program, even the athletic program, has effectively been denied to students

because they are poor. As in Brown v Board of Education, 347 U.S. 483

(1954), the separation of children into "separate but equal" schools is in

valid, so are even partial deprivations of poor children invalid.

6265

School officials in the case at bar have no overridins or compellin,.;

interest in punishins poor children for failure to pay fees. The

school's interest in shifting the financial burden to -parents, or raising

funds to 'Provide extra services to children is not served if the funds

thus raised aid only a particular group of children. The punishment does not

indeed, it cannot -- *prompt the parents of these children to produce

the funds, for they do not have them. The school has no greater

chance of increasins itc revenues, but the children have an ever

diminish-1 n!..7 educational opportunity. The school's interest in conservir-7

existing funds is also questionable because the amount of money which

could be collected from noor students is negligible. Even if conserva

tion of funds were considered a rational basis for the policy in

question, it is hardy;; sufficient to justify the great injustice which

is done to those who are unable to ":3a7 the reauired fees. Cost savin:7s

was explicitly rejected in Shapiro v. Thomp.son, where the Court said

(394 U..% at 635, emphasis added, footnotes omitted):

We recognize that a State has valid interest in pre-serving the fiscal integrity of its programs. It maylegitimately attempt: to limit its expenditures whether forpublic assistance, public education, or any other program.But a State may not accomplish such a purpose by invidiousdistinctions between classes of citizens. It could not forexample reduce expenditures for education by barring_ indigentchildren from its schools. Similarly, in the cases beforeus, appellants must do more than show that denying welfarebenefits to new residents saves money. The saving of welfarecosts cannot justify an otherwise invidious classification.

63 66

Cost savings was rejected in effect in Griffin v. Illinois, 351 U.S.

12 (1956) , and all of its progeny, and in Gideon v. Wainwright,

372 U.S. 335 (1963). It was explicitly rejected as a justification

in Boddie v. Connecticut, 401 U.S. 371 (1971). It should be re

jected here.

DISCOVERY CHECKLIST

1. Written statements of fees policies, school board resolutions,minutes and records of votes, etc.

2. For each fee charged, list amount, dates, type of course oractivity (compulsory or elective?), whether all students inthe particular grade affected are required to pay the fee,or whether payment must be made only by participants in theclass or activity.

3. Names of students who have failed to pay fees.

4. Names of students who failed to pay fees and were disciplinedfor failure.

5. Description of disciplinary action.

6. Names of personnel responsible for administering fees policies.

7. Fees charged by persons other than representatives of theschool districts (e.g., student or parents organizations) .

8. Type of activity where fee required under #7, to whom paid,how much, dates, relation to school activities, cooperationof school officials.

9. Action taken against student not paying fees under #7.

10. Fee waiver policies.

11. Names of students who havehad fees waived, fee, date, amount,person authorizing waiver, documents relating to waiver,school board resolutions, minutes, etc.

12. Names of transfering students where school officials have with-held transcript for failure to pay fees, dates, fee, amount,other circumstances.

13. Academic action taken with respect to students who have failedto pay fees (exclusion from courses, Haling grades on courses,withholding of diplomas), etc.

14. Notices of fee charges given to parents or students.

15. Notice of action to be taken if fee is not paid.

16. Publicity attendant on the failure of a student to pay fees.

65 :4