Educational issues and judicial oversight.

• Author: Friedelbaum, Stanley H.

1. INTRODUCTION

   Few services have been more closely associated with the states, both historically and functionally, than public education and all of the auxiliary activities to which it has fallen heir. Support for the operation of public school systems remained among the most costly obligations of the states even as other sources began to materialize. Though educational funding assumed a major role among the budgetary concerns of state and local governments following the close of the Second World War, heated debate accompanied proposals for federal assistance. Education lay within the scope of traditional state functions. The dual functions of control and responsibility still represented seemingly untouchable components.

   Fears of federal intervention and of the extension of nationally devised requirements were looked upon as sufficiently disturbing to discourage any quest for major infusions of "outside" support. Yet the states had to confront the consequences of mammoth growth. A multiplicity of services had developed as essential supplements in the instructional process. No longer did it appear possible to maintain all of the old arrangements though supervision and accountability continued to be lodged primarily in the states.

   Federal aid to education, when it came to pass in the mid-1960s, threatened to change the image of public education or at least some of its major elements. Theretofore, a national presence had been limited to the military academies and to foreign bases where schools were required to provide for the needs of the children of military personnel and of federal employees who served overseas. But successive acts of Congress changed so limited a perception of federal participation in the educational process. Yet if the flow of national monies began to assume more substantial proportions, the states continued to be the principal actors. State initiatives were not replaced despite the introduction of a growing number of federal programs.

   Federal courts were reluctant to intervene except on a few occasions when they moved to affirm the constitutional rights of students and teachers. In the course of the turbulent era of the 1960s, the United States Supreme Court demonstrated a commitment to the "safeguarding [of] academic freedom.... [as] a special concern of the First Amendment." (1) And, in an unusual display of support for freedom of expression during the Vietnam conflict, the Court sustained the right of students to protest by reminding officials that state-operated schools could not be "enclaves of totalitarianism." (2) Nevertheless, judicial intervention proved to be limited as minimal censorship of student speech and publication was upheld. (3) If the mien of public education had been altered, state control continued to prevail without material change.

   The school desegregation cases gave rise to increases in state funding, in some cases for purposes of evasion and in others to assure compliance with judicially prescribed criteria. (4) A marked redistribution of students, especially in the elementary and middle schools, led to budgetary support for busing unparalleled in previous years. (5) Proponents of integration achieved substantial victories in the federal courts and in the states, particularly in the Deep South. (6) Schools were compelled to provide the means necessary to afford a semblance of instructional equality and adequate physical facilities. (7)

   Pressures from the United States Supreme Court continued unabated until the early 1990s, when judicial supervision of school districts began to decline. The Court, in Board of Education of Oklahoma City Public Schools v. Dowell, entered upon the first phase of withdrawal with a condemnation of perpetual "judicial tutelage" once the vestiges of de jure segregation had been eliminated. (8) Soon thereafter, the Court redefined steps in the retraction process when, in Freeman v. Pitts, it espoused a formula of gradualism predicated on a "good-faith commitment" tempered by the inherent flexibility of equitable principles. (9) Other results associated with the continuing dilemma of the public schools had already taken shape as incremental increases in the cost of desegregation began to recede. (10) "Heroic measures" were no longer said to be required. (11)

2. THE SCHOOL FINANCING IMBROGLIO

   Even as a renewed resort to state constitutional law had just begun to appear, efforts to correct school funding inequities became evident. A Texas case that reached the Supreme Court, San Antonio Independent School District v. Rodriguez, challenged the validity of the state's system of financing public education. (12) At issue were claims of an excessive reliance on local property taxes and its adverse effects on the poor. (13) Justice Lewis Powell, who wrote for the Court, applied traditional judicial guidelines despite pleas of discrimination by the Mexican-American parents in whose behalf the suit had been brought. (14) The absence of wealth was not held to qualify as a suspect classification requiring strict scrutiny. (15) And, as Justice Powell viewed it, education did not rise to the level of a "fundamental" interest when subjected to equal protection tests. (16) Instead, no more than the usual deferential standards of review applied with the Court's inquiry limited to those found in economic and social regulatory controversies. (17) Thus, within this permissive context, the school finance plan was found to be rationally related to a legitimate state purpose. (18)

   At times disregarded in Rodriguez was Powell's "cautionary postscript" that disavowed any endorsement of then current programs of school funding premised largely on schemes of property taxation. (19) Apparently, the Court had not intended to place "its judicial imprimatur on the status quo." (20) But overt federal intervention, Powell went on to warn, threatened upheaval in inner-city districts without helping the impoverished who suffered most from the inequities. (21) If reform was to be meaningful and to assist those affected, it had to spring from the democratic process, presumably from legislative revision and an overhaul of funding sources. (22) That state legislatures would be reluctant to initiate major changes in patterns of state taxation and the distribution of monies was readily evident in view of the political repercussions that predictably might have resulted. (23) Despite Justice Powell's professed faith in the democratic process, (24) other options, by means less attentive to the foibles of the electorate, seemed to offer better prospects of success.

   It was not surprising that a resort to the courts would be attempted in view of the risks and sensitivity attendant upon a popular resolution of the problem. The first major state case, preceding Rodriguez, was California's Serrano v. Priest (Serrano I) that imparted not only substance but a driving force to the movement for reform. (25) In a departure from previous standards of review, the state's highest court described the existing school finance system as fatally flawed. (26) Funding requirements were said to affect adversely a "fundamental interest" in education and to discriminate on the basis of a district's wealth, designated a suspect classification calling forth a regimen of strict judicial scrutiny. (27) On the basis of a finding that no compelling state interests were involved, the court went on to declare the system unconstitutional. (28) Particularly noteworthy was the majority's resort to novel perceptions of "substantive" equal protection rarely adverted to by the Federal Supreme Court. (29) It was this "new" equal protection that served as the basis of the system's invalidation--described as a scheme that could not withstand examination by the compelling standards now being applied. (30) Neither the legislature nor the executive branch, bounded as each was by the constraints of the democratic process, seemed likely to embrace a similar posture deviating so conspicuously from accepted norms. (31) And a subsequent version of Serrano I made explicit a material grounding in the state constitution and required compliance by a specified date. (32)

   A progression of state cases followed during the next two decades founded, for the most part, in arcane provisions of state constitutions. If, as was often the case, California served as the bellwether of state initiatives, New Jersey's contribution was more inclusive, and the consequences of judicial intervention were far more dramatic. The New Jersey Supreme Court set aside the state's system of financing public education in 1973 when, in the first phase of Robinson v. Cahill (Robinson I), it invoked a "thorough and efficient" clause in the state constitution. (33) An ineffective legislative response led to an impressive clash that moved the court to enjoin the expenditure of school funds until the court's findings were adequately executed. (34) Fears of an impending crisis resulting from the impasse threatened to delay the opening of the school term just a few months away. (35) It was only when, for the first time in the state's history, the legislature enacted an income tax law ensuring adequate support to implement a revised school funding distribution formula that the restraining order was lifted. (36) Thus obscure and enigmatic phraseology, derived from a bygone era, had been revived to assume a significant role in fostering reform of an outdated system of educational finance. (37)

   Additional challenges were undertaken in New Jersey and, despite substantial alterations made in the wake of Robinson v. Cahill in its several stages, the state's highest court returned to the fray. (38) An earlier statute, passed to meet the court's 1973 requirement, was held unconstitutional in 1990 as it applied to impoverished urban school districts. (39) In Abbott v. Burke, the court insisted with renewed vigor that substantial parity of educational expenditures had...