«ABBOTT V BURKE: REAFFIRMING NEW JERSEY'S CONSTITUTIONAL COMMITMENT TO EQUAL EDUCATIONAL OPPORTUNITY I. INTRODUCTION Ever since the ratification of ...»
ABBOTT V BURKE: REAFFIRMING NEW
JERSEY'S CONSTITUTIONAL COMMITMENT TO
EQUAL EDUCATIONAL OPPORTUNITY
Ever since the ratification of the United States Constitution over
two hundred years ago, "America has...been regarded as the land
of opportunity-of equal opportunity."' And for over one hundred years, the states have sought to imbue education with this principle of equal opportunity by establishing public school systems open to all children.2 In fact, the people who fought so hard and argued so elo-
1. JOHN E. COONS ET AL., PRIVATE WEALTH AND PUBLIC EDUCATION 477 (1970) [hereinafter COONS]. -Equality of opportunity represents the defining rhetoric of American free-enterprise democracy." Id. at 11. See, e.g., HORACE MANN BOND, THE EDUCATION OF THE NEGRO IN THE AMERICAN SOCIAL ORDER 4 (1966). -The theory of the democratic State, as expressed by its noblest exponents, depends upon the equalization of opportunity for all of its citizens, irrespective of creed or color." Id.; see also Mark L. Ascher, Curtailing Inherited Wealth, 89 MICH. L. REv. 69, 88 (1990) (stating that "[e]quality of opportunity... is at the very core of American values.").
2. All fifty state constitutions contain explicit provisions that require the state to establish and maintain public school systems open to all children. The degree of imperative in these constitutional commands varies substantially from state to state. For a complete listing of these provisions, see Allen W. Hubsch, Education and Self-Government: The Right to Education Under State Constitutional Law, 18 J.L. & EDUC. 93, 134-40 (1989). For an analysis of these provisions with respect to their use in public school finance reform litiga- tion, see William E. Thro, Note, To Render Them Safe: The Analysis of State Constitutional Provisions in Public School Finance Reform Litigation, 75 VA. L. REV. 1639 (1989).
Generally, state voters approved these constitutional amendments during the latter half of the nineteenth century. But [p]rior to [this] great reform, education was a private affair for both rich and poor.
The elite went to truly private schools and the poor were left essentially with the [Vol. 20:429
HOFSTRA LAW REVIEWquently to gather support for the creation of public schools originally intended that these schools would "permit the poor to compete"3 in society and would be their "strongest hope for rising in the social scale.",4 As Professors Coons, Clune, and Sugarman explain in their book, Private Wealth and Public Education, "the sine qua non of a fair contest system-of equality of opportunity-is equality of train- 5 ing. And that training is what public education is primarily about."
Nearly every American would endorsethe general principle that all children-rich and poor, black and white-deserve an "equal educational opportunity., 6 But there is a "vast gulf "7 between this noble charity school (financed by the rich) and the rate-bill school (the rate-bill was a tuition-like device which "taxed" the parents of attending children). Not only were both inadequate, they became infamous.... The system of private education had become closely identified with a stratified, elitist society, essentially an aristocracy.
COONS, supra note 1, at 47. See infra notes 4, 6.
3. COONS, supra note 1, at 4; see also infra note 6.
4. See COONS, supra note I, at 5. As Thaddeus Stevens once explained so well:
[Public education] is objected to because its benefits are shared by the children of the profligate spendthrift equally with those of the most industrious and economical habits. It ought to be remembered, that the benefit is bestowed, not on the erring parents, but the innocent children. Carry out this objection and you punish children for the crimes or misfortunes of their parents. You virtually establish castes and grades founded on no merit of the particular generation, but on the demerits of their ancestors; an aristocracy of the most odious and insolent kind-the aristocracy of wealth and power.
Id. (quoting Thaddeus Stevens, An Appeal for Tax-Supported Schools, in THE HISTORY OF AMERICAN EDUCATION THROUGH READINGS 114-15 (1964)) (emphasis added).
5. Id, at 3; see also David Chang, The Bus Stops Here: Defining the Constitutional Right of Equal Educational Opportunity and an Appropriate Remedial Process, 63 B.U. L.
REV. 1, 3 n.2 (1983) (contending that "[t]rue *merit' can be rewarded only when the process gives an equally fair chance to each person.").
6. See COONS, supra note I, at 1, 6. "Equality of educational opportunity" does not mean uniform schools; it merely means "equality of opportunity through education," and an equal chance to succeed. Or, as Coons, Clune, and Sugarman put it, "[t]he crucial value to be preserved is the [equal] opportunity to succeed, not the uniformity of success." Id. at 3;
see also Abbott v. Burke, 575 A.2d 359, 368 (N.J. 1990) (Abbott II) (holding that the New Jersey Constitution's "thorough and efficient education" clause requires that the state provide all students with an "equal educational opportunity"). Practically, this means that "poorer disadvantaged students must be given [an equal] chance to be able to compete with relatively advantaged students" and to contribute to the society populated by both. Id at 372; Brown v.
Board of Educ., 347 U.S. 483, 493 (1954) (contending that, "[t]oday, education is perhaps the most important function of state and local governments.... In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.") (emphasis added); Paul D. Carrington, Financing the American Dream: Equality and School Taxes, 73 COLUM. L. REV. 1227 (1973) (stating that "[tihe right to equal educational opportunity is the American Dream incarnate as constitutional law. That every child should have a fair opportunity to rise above his humble
EQUAL EDUCATIONAL OPPORTUNITY1991] principle and the dismal reality that children in property-poor school districts receive grossly inferior educational opportunities.' As the Supreme Court of New Jersey recently pointed out, "[tioday the disadvantaged are doubly mistreated: first, by the accident of their environment and, second, by... [public school systems that provide them with].. an inadequate education." 9 When the states began to create public school systems over one hundred years ago, they divided their territory into hundreds of geographical sub-units, local school districts.10 States also granted the local school board of each district the authority to levy taxes that would provide funding solely for the public schools within each district's boundaries. But this territorial division into local school districts invariably created gross and substantial disparities among districts in the total amount of property wealth located within those districts. 1 Historically, most public school funding has been provided by ad origins and claim the rewards that his efforts and abilities deserve is perhaps our most widely shared idea.").
7. Abbott I, 575 A.2d at 375.
8. For a vivid and detailed description of the severe "substantive lack in the quality of education in [New Jersey's] poorer urban districts," see id. at 394-97.
9. Id at 403.
10. One of the main pu-poses of dividing up state territory into school districts was to ensure local control over the operation of public schools. This principle of providing for local control of public schools, sometimes referred to as "subsidiarity," is akin to the deep-rooted American distrust of centralized authority commonly known as federalism-"the principle that government should ordinarily leave decision-making and administration to the smallest unit of society competent to handle them." COONS, supra note 1, at 14. Quite simply, subsidiarity in public education means that "local people should support and run their own schools." Id. at
15. According to Coons, Clune, and Sugarman, "[t]he primary value that...
[subsidiarity]... purports to guard is independence." lt at 15 n.8. Furthermore, "[l]ocal control creates an incentive to be more efficient if local spenders can make some connection between efforts to economize and the tax rates they have to pay." John J. Treacy & Lloyd W. Frueh, II, Power Equalization and the Reform of Public School Finance, 27 NAT'L TAX J. 285, 287 (1974). Unfortunately, the division of the states into local districts, coupled with America's substantial reliance upon local property taxes to provide funding for its public schools, has permitted pervasive, "systematic wealth discrimination against poor districts."
COONS, supra note 1, at xix. And this wealth discrimination is not a recent development. For instance, around 1900, "the highest taxing (and the poorest) county [in Wisconsin] taxed at a rate sixteen times that of the lowest (and richest), while even the average tax rate of the five richest counties was one-sixth that of the four poorest." Id. at 50.
11. See COONS, supra note 1, at 49-50 (noting that these gross inter-district property wealth disparities did not exist in the middle of the nineteenth century. But the economic revolution of the late nineteenth century turned district-based public school systems into "Frankenstein[s]." In fact, by 1900, gross inter-district property wealth disparities were already widespread.).
HOFSTRA LAW REVIEWvalorem taxes levied upon the property located within each district, with the state government merely supplementing these local property taxes.12 By using school financing formulas 3 that placed a "heavy
12. According to one prominent education finance expert, in 1985 local property taxes amounted to forty-five percent of the total revenue raised for public education in America.
Charles S. Benson & Kevin O'Halloran, The Economic History of School Finance in the United States, 12 J. EDUC. FIN. 495, 506 (1985). In the 1920s and 1930s that figure was over eighty percent, and until the 1970s that figure was over fifty percent; see also JOHN D.
PULUAM, HISTORY OF E ucATnoN IN AMERICA 90 (1969) (noting that, "[b]etween 1930 and 1960, the percentage of locally raised public school funds dropped from about 83 to 55 percent."). This is one of the characteristics that made the foundation plan system of financing public education so inequitable. See COONS, supra note 1, at 63-95.