The primary concern of the Equal Protection Clause over the course of its history has been with racial classifications. Grounds for an equal protection claim expanded during the final decades of the twentieth century, as the Supreme Court recognized gender, alienage, and illegitimacy as classifications that merited heightened judicial review. In cases concerning persons in these categories, group status by itself is sufficient to establish an equal protection interest.
Group status, although the dominant basis for equal protection concern, is not an exclusive prerequisite. Since the 1960s, the Court has evolved another dimension of equal protection doctrine that is implicated whenever a fundamental right is denied selectively. If a state allowed Democrats but not Republicans to use a public park for political rallies, for instance, the Republicans would have a claim that their freedom of speech was abridged. They also would have an equal protection claim based not on their group status but on the fact that a fundamental right had been denied in a selective manner.
The federal constitution by its specific terms provides no right to an education. When the Court determined that racially segregated public schools were unconstitutional in Brown v. Board of Education (1954), however, it described public education as “perhaps the most important function of state and local governments.” This observation reflected the Court’s “recognition of the importance of education to our democratic society.” Two decades later, in San Antonio Independent School District v. Rodriguez (1973), the Court reviewed a public school financing plan that resulted in significant funding disparities among school districts. Notwithstanding the close relationship between education and constitutionally protected interests such as voting and expression, the Court rejected the notion that the Constitution implied a right to education.
San Antonio Independent School District v. Rodriguez
Citation: 411 U.S. 1.
Issue: Whether a state funding plan for public education, resulting in financial disparities among school districts violated the Equal Protection Clause.
Outcome: The funding plan did not violate the Equal Protection Clause, because it neither created a suspect classification nor burdened a fundamental right.
Author of Opinion: Justice Lewis Powell.
Public education over the course of the twentieth century came to be recognized as one of the most significant functions of state and local government. This role contrasted with conditions after the Civil War when the Fourteenth Amendment was framed and ratified. At that time, taxpayer supported education had not taken hold in the South and was unevenly developed in the North. Given these circumstances, as the Supreme Court noted in Brown v. Board of Education (1954), it was not surprising that debates over the Fourteenth Amendment made slight reference to public education.
The evolution of public education by 1954 had reached a point that the Court in Brown was constrained to assess it “in the light of its full development and its present place in American life throughout the nation.”
By then, public education was universally provided, and mandatory attendance through high school was the norm. In Brown, the Court described “education [a]s perhaps the most significant function of state and local governments and noted its importance . . . to our democratic society.” The Court further characterized it as “the very foundation of good citizenship, a principal instrument in awakening the child to cultural values, in preparing for later professional training, and in helping him to adjust normally to his environment.” So central had education become to personal development that the Court was “doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” It thus observed that “where the state has undertaken to provide it, it is a right that must be made available to all on equal terms.”
The notion of public education as a right that had special significance was restated in Bolling v. Sharpe (1954). This decision reached the same result with respect to the federal government that the Brown ruling obtained with respect to the states. The Brown decision rested on the Equal Protection Clause of the Fourteenth Amendment, which operates against the states. No comparable provision applies to the federal government so, in Bolling v. Sharpe, the Court inferred an equal protection guarantee from the Due Process Clause of the Fifth Amendment. In thus striking down segregation of public schools in Washington, D.C., the Court determined that segregation was not reasonably related to any legitimate purpose. It thus imposed “a burden that constitutes an artificial deprivation of liberty in violation of the Due Process Clause.”
For nearly two decades after the Brown and Bolling decisions, the Court persisted in its demand for desegregation at first “with all deliberate speed” and eventually with remedies “that promise realistically to work now.” By the early 1970s, however, it had limited the reach of the desegregation mandate. This result was achieved by rulings that conditioned the duty to desegregate upon proof of segregative intent, Keyes v. School District No. 1 (1973); limited the use of interdistrict remedies even when they were the only practical means for achieving racially mixed schools, Milliken v. Bradley (1974); and permitted resegregation of public schools to the extent this condition was not intentionally induced by the state, Pasadena City Board of Education v. Spangler (1976).
Taken together, these decisions indicated that desegregation would be limited to circumstances where purposeful segregation was provable and would reach no farther or extend no longer than the scope of the violation itself. Desegregation’s primary concern was with the impact of officially separated schools upon educational opportunity. It did not address broader issues of equality in education. Inequality of funding, for instance, was a widespread phenomenon during the separate but equal era. Public spending on education in segregated states typically reflected extreme disparities based on race. In declaring segregated public schools unconstitutional, the Brown Court relied upon desegregation as the means to address inequality. Unlike its rulings in the two decades preceding Brown, the Court made no demand for equalization of spending.
Notwithstanding the desegregation process, issues with respect to public school funding disparities eventually resurfaced. In San Antonio Independent School District v. Rodriguez (1974), the Court reviewed a Texas plan for financing public education on the basis of state funding allocations and local property taxes. Given variations among communities with respect to their wealth, funding disparities statewide and even in a particular municipality were significant. Expenditures in San Antonio’s wealthiest district were $594 per student. In the poorest district, spending was $356 per student. These funding disparities became the basis for arguments that the Texas plan violated the Equal Protection Clause of the Fourteenth Amendment.
Justice Lewis Powell, writing the majority opinion for the Court, commenced his analysis by whether the funding system discriminated against poor persons and, if so, whether indigence was a suspect classification. On this matter, the Court determined that wealth discrimination was a constitutional concern only if a person was unable to pay for a particular benefit and thus was precluded altogether from accessing it. For an example of when wealth discrimination counts, the Court cited Griffin v. Illinois (1956). In this case, the Court invalidated a state law that denied indigent defendants access to trial transcripts necessary for appeal. Absent a showing that the Texas system presented a unique disadvantage to the poor, and because education was not deprived altogether, the Court found no basis for finding that the economic disadvantage was suspect in the same manner as race.
Reminded of the significance that the Brown Court placed on education, the Court acknowledged its value both for the individual and for society. It noted, however, that “the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause.” This determination reflected an unease on the part of the Court that manifests itself periodically when it is asked to identify a right as fundamental. It thus echoed the sentiments expressed of Justice John Harlan, Jr., in Shapiro v. Thompson (1969). Dissenting from the Court’s recognition of a right to travel, which became the basis for striking down a state’s waiting period for collecting welfare payment, Justice Harlan observed that “[v]irtually every state statute affects important rights.” Consistent with this perspective, Justice Powell warned that the Court would become a “super-legislature” if it were to render decisions based upon its own sense of importance.
With these concerns in mind, the Court determined that it had no authority or basis for declaring education a fundamental right. As the Court put it, “the key to discovering whether education is ‘fundamental’” did not lie in comparing its relative importance to other interests. Rather, “the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. Education is not among the rights explicitly protected by the Constitution.”
The argument that education is a fundamental right draws upon the close relationship that the Brown Court perceived between it and “other rights and liberties accorded protection under the Constitution.” The majority acknowledged this connection between education and freedom of expression and voting. Although these interests are constitutionally protected, the Court observed that it had no authority to guarantee “the most effective speech or the most informed choice” (emphasis in original). Insofar as the quality of speech or electoral decision making was to be improved, the Court maintained that the responsibility belonged to the legislature rather than the judiciary.
The Court thus rejected the proposition that education was a fundamental right implied by the Constitution. Having reached this conclusion, it reserved the possibility “that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right.” Such a case, at least from the majority’s perspective, was not presented by the Texas funding plan. Without a suspect classification (such as race) or a fundamental right, the Court would not engage in searching review. Although the plan might be imperfect, the Court found it rationally related to a legitimate state purpose of facilitating local control of education.
Less than a decade after its decision in San Antonio Independent School District v. Rodriguez (1974), the Court reviewed another Texas funding plan that denied state funds to educate children of illegal aliens. At issue, in Plyler v. Doe (1982), was whether the state had denied a “quantum of education” sufficient to trigger constitutional concern. The Court reaffirmed the premise that education is not a right secured by the Constitution. It also observed that education was not a garden-variety benefit. Emphasizing education’s importance to the individual and “our basic institutions,” the Court reasoned that it could not “ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.” Unlike a case of disparate funding, the total and categorical denial of education, as the Court saw it, was an irrational and unconstitutional deprivation. Having previously reserved the possibility that some identifiable quantum of education might be constitutionally significant, the Court determined that a state could not deny basic public education on a categorical basis.
Since the Court’s ruling in San Antonio Independent School District v. Rodriguez, numerous challenges of public school funding disparities have been made under state constitutions. Included among these was a state court case brought under the Texas Constitution, which establishes a state duty to establish, support, and maintain “an efficient system of public free schools.” The state also is required to facilitate a “general diffusion of knowledge” that is “essential to the preservation of the liberties and rights of the people.” The Texas Supreme Court, in Edgewood Independent School District v. Kirby (1989), found that spending on a student’s schooling “has a real and substantial impact on the educational opportunity offered that student.” Measuring the plan against this standard, the Texas Supreme Court determined that the funding system was efficient neither on financial grounds nor in promoting the general diffusion of knowledge.
The Texas high court ruling paralleled outcomes in several other states that had reached the same outcome in reviewing similar plans. As the ultimate authority on the law of its state, the Texas Supreme Court was not subject to review by the United States Supreme Court. Based upon the Texas Supreme Court ruling, students in Texas have educational rights that are broader than what the Court has recognized under the federal Constitution. This outcome reflects the nature of a system of dual sovereigns and the capacity for differentiation in the availability and scope of rights within the union.
Mr. Justice POWELL delivered the opinion of the Court.
. . . However described, it is clear that appellees’ suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts. The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.
We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. But in recognition of the fact that this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention. They also assert that the State’s system impermissibly interferes with the exercise of a ‘fundamental’ right and that accordingly the prior decisions of this Court require the application of the strict standard of judicial review. It is this question—whether education is a fundamental right, in the sense that it is among the rights and liberties protected by the Constitution—which has so consumed the attention of courts and commentators in recent years. . . .
Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that ‘the grave significance of education both to the individual and to our society’ cannot be doubted. But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. Mr. Justice Harlan, dissenting from the Court’s application of strict scrutiny to a law impinging upon the right of interstate travel, admonished that “(v)irtually every state statute affects important rights.” In his view, if the degree of judicial scrutiny of state legislation fluctuated, depending on a majority’s view of the importance of the interest affected, we would have gone “far toward making this Court a ‘super-legislature.’” We would, indeed, then be assuming a legislative role and one for which the Court lacks both authority and competence. . . .
The lesson of these cases in addressing the question now before the Court is plain. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is ‘fundamental’ is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.
Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State’s social and economic legislation. It is appellees’ contention, however, that education is distinguishable from other services and benefits provided by the State because it bears a peculiarly close relationship to other rights and liberties accorded protection under the Constitution. Specifically, they insist that education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote. In asserting a nexus between speech and education, appellees urge that the right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively. The ‘marketplace of ideas’ is an empty forum for those lacking basic communicative tools. Likewise, they argue that the corollary right to receive information becomes little more than a hollow privilege when the recipient has not been taught to read, assimilate, and utilize available knowledge. . . .
Mr. Justice BRENNAN, dissenting.
Although I agree with my Brother WHITE that the Texas statutory scheme is devoid of any rational basis, and for that reason is violative of the Equal Protection Clause, I also record my disagreement with the Court’s rather distressing assertion that a right may be deemed ‘fundamental’ for the purposes of equal protection analysis only if it is ‘explicitly or implicitly guaranteed by the Constitution.’ As my Brother MARSHALL convincingly demonstrates, our prior cases stand for the proposition that ‘fundamentality’ is, in large measure, a function of the right’s importance in terms of the effectuation of those rights which are in fact constitutionally guaranteed. Thus, ‘(a)s the nexus between the specific constitutional guarantee and the nonconstitutional interest draws closer, the nonconstitutional interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly.’
Here, there can be no doubt that education is inextricably linked to the right to participate in the electoral process and to the rights of free speech and association guaranteed by the First Amendment. This being so, any classification affecting education must be subjected to strict judicial scrutiny, and since even the State concedes that the statutory scheme now before us cannot pass constitutional muster under this stricter standard of review, I can only conclude that the Texas school-financing scheme is constitutionally invalid.
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS concurs, dissenting.
. . . In conclusion, it is essential to recognize that an end to the wide variations in taxable district property wealth inherent in the Texas financing scheme would entail none of the untoward consequences suggested by the Court or by the appellants.
First, affirmance of the District Court’s decisions would hardly sound the death knell for local control of education. It would mean neither centralized decisionmaking nor federal court intervention in the operation of public schools. Clearly, this suit has nothing to do with local decisionmaking with respect to educational policy or even educational spending. It involves only a narrow aspect of local control—namely, local control over the raising of educational funds. In fact, in striking down interdistrict disparities in taxable local wealth, the District Court took the course which is most likely to make true local control over educational decision-making a reality for all Texas school districts.
Nor does the District Court’s decision even necessarily eliminate local control of educational funding. The District Court struck down nothing more than the continued interdistrict wealth discrimination inherent in the present property tax. Both centralized and decentralized plans for educational funding not involving such interdistrict discrimination have been put forward. The choice among these or other alternatives would remain with the State, not with the federal courts. In this regard, it should be evident that the degree of federal intervention in matters of local concern would be substantially less in this context than in previous decisions in which we have been asked effectively to impose a particular scheme upon the States under the guise of the Equal Protection Clause.
Still, we are told that this case requires us ‘to condemn the State’s judgment in conferring on political subdivisions the power to tax local property to supply revenues for local interests.’ Yet no one in the course of this entire litigation has ever questioned the constitutionality of the local property tax as a device for raising educational funds. The District Court’s decision, at most, restricts the power of the State to make educational funding dependent exclusively upon local property taxation so long as there exists interdistrict disparities in taxable property wealth. But it hardly eliminates the local property tax as a source of educational funding or as a means of providing local fiscal control.
The Court seeks solace for its action today in the possibility of legislative reform. The Court’s suggestions of legislative redress and experimentation will doubtless be of great comfort to the schoolchildren of Texas’ disadvantaged districts, but considering the vested interests of wealthy school districts in the preservation of the status quo, they are worth little more. The possibility of legislative action is, in all events, no answer to this Court’s duty under the Constitution to eliminate unjustified state discrimination. In this case we have been presented with an instance of such discrimination, in a particularly invidious form, against an individual interest of large constitutional and practical importance. To support the demonstrated discrimination in the provision of educational opportunity the State has offered a justification which, on analysis, takes on at best an ephemeral character. Thus, I believe that the wide disparities in taxable district property wealth inherent in the local property tax element of the Texas financing scheme render that scheme violative of the Equal Protection Clause. . . .
Brennan, William, Jr. “State Constitutions and the Protection of Individual Rights.” Harvard Law Review 90 (1977): 489.
Coons, John, William Clune, and Stephen Sugarman. Private Wealth and Public Education. Cambridge, MA: Belknap Press of Harvard University Press, 1970.
Kurland, Philip. “Equal Educational Opportunity: The Limits of Constitutional Jurisprudence.” University of Chicago Law Review 35 (1968): 583.
Sutton, Jeffrey S. “San Antonio Independent School District v. Rodriguez and Its Aftermath.” Virginia Law Review 94 (2008): 1963.
The right to vote is not enumerated by the Constitution. Given its centrality to a system of representative governance, however, the Court has had no difficulty inferring its existence. In Reynolds v. Sims (1964), the Court established the principle that the apportionment of state legislatures must reflect the principle of “one person–one vote.” The Court thus secured the right to vote against processes that would dilute its weight for some. The relationship between equal protection and voting rights resurfaced as an issue in Bush v. Gore (2000), when the Court extended the antidilution principle to vote recounts.
Bush v. Gore
Citation: 531 U.S. 98.
Issue: Did a selective recount of ballots cast in Florida in a presidential election violate the Equal Protection Clause.
Year of Decision: 2000.
Outcome: The selective recount of ballots diluted the right to vote and thus violated the Equal Protection Clause.
Author of Opinion: Per Curiam.