No. 71-1332 - San Antonio Independent School
District v. Rodriguez
This refers to the discussion at Friday!& Conference as to when
Rodriguez (the Texas school property tax case) wW be ready to come
down. Although I have a "court", including your verbal concurrence,
I stated on Friday that I was not quite ready.
In addition to some further verificaticm and checking of
authorities cited in the nctes, I wanted to see the next circulation of
Thurgood's dissent- which I believe he said was about ready for the
prJnter. Potter also may add a "snapper. "
Since the Conference, I have reviewed the situation and from my
viewpoint -unless Thurgood's recirculation requires substantial
revision- I will be ready by our March 16 Conference.
I certainly imply no need for expedited action by Potter and
Thurgood. The case is important and difficult, and we should - as
always - not rush the decisiooal process. I write merely to report my
personal situation, as it now appears to me.
SJncerely,
The Chief Justice
ee: " The Conference
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CHAMBERS OF
THE CHIEF JUSTICE
March 12, 1973
Re: No. 71-1332 - San Antonio Independent School District
v. Rodriguez
Dear Lewis :
Please join me.
Regards,
Mr. Justice Powell
Copies to the Conference
Judge a
Re:
Rodriguez
(1)
I have incorporated most of your rider on page
7, with one small exception.
You stated that the
comparison reflects the extent to which disparities
exist despite "the impressive progress made in recent years
towards a more equitable balance." I would prefer not to
use the latter clause.
As you know State funding in Texas
has its good and bad aspects.
On the plus side, the State
has poured out a lot of money in recent years.
On the
negative side, more has gone to the "rich" than to the
"poor."
Thus, appellees and Justice Marshall have
heavily emphasized that state aid is in some respects
"anti-equalizing" and at best only "mildly equalizing."
I have countered by emphasizing the overall improvement
in the schools without trying to defend the particular
allocation formula.
Therefore, I would conclude the sentence
with the phrase "despite the State's impressive progress
in recent years."
(2)
You have asked whether it wouldn't be a good idea
to state specifically that no PPE is available for
1970-71.
You have placed your finger on a ticklish
problem.
The record contains two kinds of statistical
information• (1) that
w~ich
is organized in an understand-
able manner for presentation in an affidavit or in some
other proper form, and (2)
three coffin boxes full of
computer print outs of statistical evidence.
Several
months ago I set out to unravel the statistical
mishmash to determine what was actually available but
soon tired of the confusing task.
In short, while I
think that PPE are not available for 1970-71 I can't
be sure.
All I know is that it was not presented as
part of any tabular presentation in affidavit form.
Therefore, I think it siafest to simply state, as we do,
that 1967-68 provides the only "compliete statistical
breakdown.
(3)
You have asked me to explain the last two sentences
in fn 35 on page 10.
This is related to my comments
on the first page of this memo.
part~
This is an effort on may
to take some of the heat off the claim that the
foundation program is "anti-equalizing" because it
givies more money to the richer schools.
Note that
Edgewood raises$26 on its own while Alamo rraises $333,
about a ratio of 13 to 1.
But, after state aid which
gave in 1967-68 a roughly comparable amount of money to
each, the ratio was no longer so shocking, indeed it had
drmgped to about 2 to 1, i.e.,® $558 to $248.
(4)
Your changes in fn 38 (p. 10-11) are good.
You have also asked whether we should include the year of
the study by Berke.
Again, you have touched on one of
the anomalies of this case.
The affidavit submitted
draws on statistics for a number of unconnected years.
The median family income stats are based on 1960 figures;
the race statistics are based on an unrelated Civil Rts
Comm'n study which seems to be based also on 1960
figures but it is unclear.
The remainder of the stats
are for a two-year period preceding 1970.
But, I think
the data was gathered in a two-yr period but I think
it reflects 1967-68 statistics.
In sum, I'm simply not
sure enough to state what the dates are.
(5)
I have, as you suggest, resurrected the intro-
ductory paragraph in
(5)
~~the
wealth section (p. 14-15)
The word deletions on p. 16 were Bill's suggestions,
stemming, I think, from a feeling that the added words
were unnecessary.
I was inclined to accept his change be-
cause it seemed to sacrifice nothing and I was in need of
more short sentences.
(7)
Your addition on page 19 is helpful.
(The State
provides 12 years and local districts may, add on a preschool year, so it is most accurate to say 12 years.)
(8)
Changes on
p~27
are good.
(9)
Your question regarding my citation to Eisenstadt
is a good one and requires some exposition.
I have cited
at the end of this paragraph the remainder ol6f all the
so-called fundamental rights cases in order to show that
our theory is consistent with every expression of the
theory heretofore.
The footnote in Eisenstadt is
helpful because it notes that a higher level of review is
i
required if a Grdswold right had been found.
Griswold
involves an iimplicit constitutional right of privacy.
It is, therefore, a Brennan opinion supportive of our
narrow understanding of the meaning of fundamental right.
Of equal importance, I think, is that we have avoided no
case in this iarea (except Weber) and I think that is one
of the strengths of our position.
{10)
Page 33--lgood change.
(11)
Page 39--Good change.
I have made a slight
word change because you had "as to" in two succeeding
sentences.
(12)
I changed the second one to "regarding."
Page 48--good.
(13)
Yes, I have checked the three sources I cite
in fn 114 and they support the statement in text,
But,
this is not a simple matter and is a subject of considerable
debate.
I have emphasized that higher taxes and lower
PPEs are likely if any alternative designed to achieve
greater equality of expenditures is pursued.
Those who
reject this line of aiijnalysis claim that the short ajnswer
is that the legislatures will have to be sensitive to
the urban problems and itake into consideration their
higher "cost" factors, especially higher teacher salaries
necessary to lure qualified teachers into the urban schools.
This is Simon's thesis.
(14)
Your suggested footnote for the final section
dealing with the abrogation of other
ldi~l#dl#iiiiiid
uses of the property tax raises a problem.
An affirmance of
the DC would not necessarily occasion the unprecedented
upheaval of other financing systems for public services .
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Only if the Texas system were struck down on a rational
basis test would the other forms of financing be threatened.
I think we have made this point forcefully on page 48
and I would be reluctantly to restate it again.
In the interest of expedition, I have returned this
draft to the printer.
We can discuss further any of
the points made in our respective memos and make any
further changes in the middle of the week.
LAH
No. 71-1332 Rodriguez v. San Antonio
Independent School District
Here is the 5th Draft of my proposed opinion for the Court ill
this case.
Although there have been a number of changes .of verbiage and
the addittoo. of footnotes (as indicated in the usual way) the basic
structure and rationale of the opinion remains unchanged.
Sincerely,
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CHAMBERS OF"
.JUSTICE WILLIAM 0 . DOUGLAS
March 15, 1973
Dear Thurgood:
Please join me in your dissent in 71-1332,
San Antonio v. Rodriguez.
Mr. Justice Marshall
cc:
The Conference
)
Supreme Court of the United States
Memorandum
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RODRIGUEZ
This case involves the attac f
n the validity of the Texas
bf
system
funding public school education. Under that system,
I -almost half of school revenue yare distributed on a statewide
basis. Each school district/supplements this state aid through a
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property t~.fvithin,..itsAjurisdiction. In view of variations in the
property tax base, and in tax rates, funds derived locanyf ary
widely among the districts.
These variations, in turn, result in
I
substantial disparities1 in per pupil expenditures.
A three-judge district court invalidated the Texas system 1
of dual state and local funding.
The system was held to discriminate
invidiouslyfg;ainst children who live in districts/ with a low property
tax base.
We disagree with the District Court}tnd reverse its
judgment for the reasons stated in our opinion.
Without attempting any comprehensive summary, I will
~
mention only the contours ~f the rationale of our decision:
1\
2.
We were asked, first, to apply the strictest standard of
judicial scrutiny ecause of the acknowledged importance of
education. Yet, free ublic education is ~t a fundamental righy
guaranteed by the Constitution itself. / We have consistently reached
:s
J!f-similar conclusioi'y<vith respect to social and economic legislation ~·
i
.
_g. , public welfare and
,.
1
housin ~
Nor do we thinkf hat the Texas sytem disadvantages fny
defineabl~us
ect class of citizens -the term suspect clasf aving
been limited by our decisionfrimarily to classifications based on
race and alienage.
The appropriate test is whether the Texas plan has a
reasonable or rational basis. We find that it does. Texas assures
----
a basic education/ for every child in the state. Moreover, its
combined use 1of state and local funding/ encourages significant
local control of schools - long regarded as a vital feature of our
.....____......._
-
'
educational system.
But this case represents far mor fthan a challenge to the
manner in which Texas provides for public education. We have
)
3.
here nothing less/ han a direct attack on the way in which Texas and at-rinlft
~ o~er
states -have chosen to raiso/and disburse
state and local tax revenues. We are asked, in effect, to condemn
the state's judgmen; ';, conferring on political subdivisions/me
power to tax local propert to supply or supplement revenues for
local interests.
Appellee~hus would have the judiciary/intrude
into an area/traditionally reserved under our system f o the legis-
I
cases/ have been hailed as the means
through the judiciary - /
of achieving unprecedented advance r4n public education, especially
2''
I
for childrell{who live in urbanized school districts. 1\ It is by no
I
means clear (from the evidence and studies now available) that
the core city
area~ould benefi
from court
invalidatio~ ~f the
Texas type system. Often, the highest tax values are .found - due
to commercial and industrial properties - in districts largely
populate/ by minoritf and relatively impecunious citizens. There
are many unanswered question in this uncharted area.
Several
4.
studies have concluded that
~financing alternativeftesigned to
achieve greater equality of expenditures,j could lead to higher
taxation,fo.nd lower educational expenditures/ in many
~n centers.
In short, and certainly without endorsing either the status
~or the ~isd~m
-
of any particular funding system/ we conclude that
the vastly important/and complex probleniof how best to fund k nd
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/, A
- ,control public educatimy must be left to democratic legislative
processes.
*****
Mr. Justice Stewart, who joins the opinion of the Court,
has filed a concurring opinion.
Mr. Justice Brennan has filed a
dissenting opinion. Mr. Justice White also has filed a dissenting
opinion, in which Justices Douglas and Brennan have joined. Mr.
Justice Marshall has filed a dissenting opinion, in which Mr.
Justice Douglas has joined.
RODRIGUEZ
This case involves the attack on the validity of the Texas
system of funding public school education. Under that system,
almost half of school revenues are distributed on a statewide
basis. Each school district supplements this state aid through a
property tax within its jurisdiction. In view of variations in the
property tax base, and in tax rates, funds derived locally vary
widely among the districts. These variations, in turn, result in
substantial disparities in per pupil expenditures.
A three-judge district court invalidated the Texas system
of dual state and local funding. The system was held to discriminate
invidiously against children who live in districts with a low property
tax base.
We disagree with the District Court and reverse its
judgment, for the reasons stated in our opinion.
Without attempting any comprehensive summary, I will
mention only the contours of the rationale of our decision:
''·"
.
..... ••• .. t
2.
We were asked, first, to apply the strictest standard of
judicial scrutiny because of the acknowledged importanbe of
education. Yet, free public education is not a fundamental right
guaranteed by the Constitution itself. We have consistently reached
a similar conclusion with respect to social and economic legislation -
!· ,g., public welfare and housing.
Nor do we think that the Texas sytem disadvantages any
deftneable suspect class of citizens -the term suspect class having
been limited by our decisions pritn:arily to classifications based on
race and alienage.
The appropriate test is whether the Texas plan has a
reasonable or rational basis. We find that it does. Texas assures
a basic education for every chUd 1n the state. Moreover, its
combined use of state and locai funding encourages significant
local cootrol of schools -long regarded as a vital feature of our
educational system.
But this case represents far more than a challenge to the
manner in which Texas provides for public education. We have
3.
here nothing less than cl direet attack on the way in which Texas ...
and at least 48 ether states ... have chosen to raise and disburse
state and local tax revenues. We are asked, in effect, to condemn
the state's judgment in conferring on political subdivisions the
power to tax local property to supply or supplement revenues for
local interests. Appellees thus would have the judiciary intrude
into an area traditionally reserved under our system to the legislative branch.
It may not be inappeoprtate to note that this, and similar
cases, have been hailed as the means - through the judiciary ..
of achieving unprecedented advances in public education, especially
,,r
r'
for children who live in urbanized school districts. D: is by no
means clear (from the evidence and studies now available) that
the core city areas would benefit from court invalidation of the
Texas type system. Often, the highest tax values are found -due
to commercial and industrial properties - in districts largely
populated by minority and relatively impenunious citizens. There
/
are many unanswered questions in this uncharted area. Several
.,it'
4.
studies have concluded that any financing alternative, designed to
achieve greater equality of expenditures, could lead to higiter
taxation and lower educational expenditures in many urban centers.
In short, and certainly without endorsing either the status
~
or the wisdom of any particular funding system, we coo.clude that
the vastly important and complex problem of how best to fund and
control public education must be left to democratic legislative
processes.
*•***
Mr. Justice Stewart, who joins the opinion of the Court,
has filed a concurring opinion. Mr. Justice Brennan has filed a
dissenting opinion. Mr. Justice White also bas filed a dissenting
opinion, in which Justices Douglas and Brennan have joined Mr.
Justice Marshall has fUed a dissenting opinion, in which Mr.
Justice Douglas has j otned.
. ..
f1'711 .. I
RODRIGUEZ
This case involves the attack on the validity of the Texas
system of funding public school education. Under that system,
almost half of school revenues are distributed on a statewide
basis. Each school district supplements this state aid through a
property tax within its jurisdiction. In view of variations in the
property tax base, and in tax rates, funds derived locally vary
widely among the districts. These variations, in turn, result in
substantial disparities in per pupil expenditures.
·-
A three-judge district court invalidated the Texas system
of dual state and local funding. The system was held to discriminate
invidiously against children who live in districts with a low property
tax base.
We disagree with the District Court and reverse its
judgment, for the reasons stated in our opinion.
Without attempting any comprehensive summary, I will
mention only the contours of the rationale of our decision:
2.
I
I
I
I
We were asked, first, to apply the strictest standard of
I
judicial scrutiny because of the acknowledged importante of
edueattoo. Yet, free public education is not a fundamental right
guaranteed by the Constitution itself. We have cmststently reached
a similar conclusioo with respect to social and eccmomic legislation-
!·g.. , public welfare and housing..
- Nor do we think that the Texas sytem disadvantages any
defineable suspect class of citizens - the term suspect class having
been limited by our decisions primarily to classUicattcms based on
race and alienage.
The appropriate test is whether the Texas plan has a
reasonable or rational basts. We find that it does. Texas assures
a baste education for every ehUd in the state. Moreover, its
combined use of state and local funding encourages significant
local emtrol of schools - long regarded as a vital feature of oo.r
educational system.
.~
But this ease represents far more than a challenge to the
manner 1n which Texas provides for public education. We have
I
'
\
\
I
\
3.
here n<thing less than • d.treet attack on the way 1n which Texas and at least 48 <ther states -have chosen to raise and dlslxtrse
state and local tax revenues. We are asked, in effect, to condemn
the state's judgment In conferring on polltlealsubdivteioo.s the
power to tax local property to supply or supplement revenues for
local interests. Appellees thus would have the judiciary intrude
tnto an area traditiooally reserved under our system to the legislative branch.
It may not be tnappeoprtate to n<te that thts, and similar
cases, have been ha.Ued as the means - through the judiciary of achieving unprecedented advances in public education, especially
for children who live 1n urbanized school distriCts. 1t is by no
means clear (from the evidence and studies now avallable) that
the core city areas would benefit from court invalidation of the
Texas type system. Often, the highest tax values are found - due
to commercial and industrial properties -in distrtets largely
populated by minority and relatively impeaunlous citizens. There
are many unanswered questims in this uncharted area. Several
.-
.,
4.
studies have concluded that any financing altemative, designed to
achieve greater equality of expenditures, could lead to higher
taxattoo. and lower edueational expenditures in many urban centers.
In short, and certainly 'Without endorsing either the status
~or
the wisdom of any particular funding system, we ccnclude that
the vastly important and complex problem of how best to fund and
cootrol public education must be left to democratic legislative
processes.
*****
Mr. Justice Stewart, who joins the opinion of the Court,
has filed a concurring opinion. Mr. Justice Brennan has filed a
.
dissenting opinion. Mr. Justice White also has filed a dissenting
1,'·.
,,
opinion, in which Justices Douglas and Brennan have joined. Mr.
Justice
~.farshall
bas filed a dissenting opinion, in whJeh Mr.
JUstice Douglas has jotned.
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Judge:
Here is the printer's final copy of Rodriguez.
Over the last two months I have spent several hours
helping Putzel's people check my cites, especially the
historical material. The changes made in the first 10 or
so pages are all ones I made during that process to
assure complete accuracy.
I think all the changes are OK, but you might take
a special look at the suggested changes on pages 22 and
44.
lr
With your approval (please initial Putzel's letter),
Spencer can return this to them. They have spent, I
would guess, at least 50 hours on this opinion since
there was a great deal of citation work and lots of
things to make consistent with the dissents. You might
write a short note to Mr. Putzel, indicating that you
realize the difficulty of their task (they, like everyone else around here, are apparently woefully understaffed)
and the consistent quality of their work.
LAH
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Rodriguez a
Judge a
(1}
I would approve both of Justice Blackmun's
suggested changes (see p 42)
(2) P. 18.
I would prefer not to omit that sentence.
He needn't worry about breeding litigation in the school
finance area.
I think any decent
,,,._~l#lli&#li~F
!:1
llil,ilattorney will tell his clients that, after all the
ways in which we foreclose the result, the hall game is
over.
Here the sentence adds symatry. And, without it,
it appears that we are simply disposing of the Texas case
on the basis of the facts found in another State.
(3}
I have incorporated in the master copy every one of
the other suggested changes in the CJ's draft that you
approved.
(4)
I have reviewed the opinion in an effort to drop
any indication that we regard "compelling state interest"
as a li'l talisman.
I have changed the two references
that are of any moment (see pp 35 and 39).
The words
appear in Section I (pp 11, 12, 13) where I explain and quote
from the DC opinion.
Here I think it is merely an accurate
reflection of what the lower ct did.
The only other place
where the word appears is in a quote from Brennan in fn
73.
It is now fair to tell Justices Stewart and Blackmun
that we do not embrace the phrase.
Also the road is now
clear for you in another case (maybe Rosario or Griffiths
to explain that "compelling" is not the critical plhrase.
I would like to reread the master before we send it
back for another printing but here it is for the time
being.
LAH
Judge:
Attached are your riders in Section A of Rodriguez.
I have incorporated the substance of each in the opinion
which is now at the printers.
I have tinkered with the
language a little to avoid redundancy with what we had
said elsewhere and to avoid overstaing our position.
should compare your riders with the printed draft to
t
see whether by fiddling has misstaed or diluted any of
your points.
LAH
•
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You
Rea Rodriguez
Judge a
On page 11 you questioned by use, first, of "Close"
and "strict" interchangeably in connection with the
higher level of scrutiny test and, second, of "interest"
and "right" interchangeably in reference to the
fundarnentality aspect of the equal protection analysis.
The terms have heretofore been used interchangeably in
the Court's many cases.
I think it is appropriate
to continue that usage.
Moreover, as to the use of
"interest" and "right", I have intentionally used
both terms in an effort to avoid the implication that
our opinion is resurrecting the old, and ill-starred,
right-privilege distinction.
Our point is equally valid
no matter how it is phrased, i.e., "constitutionally
fundamental right"
interest."
=
"constitutionally fuddamental
If any particular usage strikes you as
undesirable in any particular portion of the opinion
we can change it but I see no need in systemativally
adhering to one term or the other.
This draft incorporates each of Justice Stewart's
suggested changes as I presently understand them.
After
we recirculate I will make a special effort to talk again
with his clerk to see if there are ways in which we
can further satisfy him without detracting from what we
have already done.
;
--2--
This draft also incorporates a large number of
changes that you have suggested or that I have made
on my own, usually for obvious reasons.
to tone down your footnote 92.
I have tried
Upon rereading it I
came away with a sense of inevitablility about the
status quo.
If, indeed, no alternative other than what
we have today is politically feasible this is the best
reason for the Court to intervene.
In this sense,
the present case is much like Baker v. Carr.
The majority
is so wedded to the status quo and/or so unwilling to
respond to the present disparities in educational expenditures that nothing other than judicial intervention
can break the log jam.
Our
~mphasis,
in my view, should
be on the positive rather than negative side.
That is
why I have so heavily emphasized Texas' recent gains in
expenditure levels.
It is well to point out that any
alternative is going to meet grave political hurdles, but
I hesitate to do more than that.
As far as I'm concerned, we can send this back to the
printer as soon as I incorporate the rest of your changes
on the draft you marked up.
I never finished incorporat-
ing those items before giving it back to you.
LAH
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71-1332 Sa In Antonio v. ~odriguez
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