Lead Opinion
delivered the opinion of the Court. Cole, J., dissents and filed a dissenting opinion at page 659 infra.
This case involves a challenge to the constitutionality of Maryland statutes which govern the system of financing public elementary and secondary schools in the State’s twenty-four school districts, i.e., in the twenty-three counties of Maryland and in Baltimore City. The litigation focuses upon the existence of wide disparities in taxable wealth among the various school districts, and the effect of those differences upon the fiscal capacity of the poorer districts to provide their students with educational offerings and resources comparable to those of the more affluent school districts.
I
Maryland’s public school system is administered pursuant to the provisions of the Education Article of the Maryland Code (1978). The State Board of Education, as head of the State Department of Education, is entrusted with the general care and supervision of the public elementary and secondary schools of the State; it is empowered to determine and carry out the State’s public school policies and to adopt bylaws, rules and regulations for the administration of the system. Subject to the general authority of the State Board, the State Superintendent of Schools is responsible for the administration of the Department. A county Board of Education in each county and a Board of School Commissioners in Baltimore City, together with their local school superintendents, are vested with control over educational matters in their respective school districts. Subject to applicable bylaws, rules and regulations of the State Board, the local authorities are empowered to determine the educational policies within their own school districts.
In addition to the State share of basic current expenses under § 5-202 (b), the State provides an amount equivalent to $100 per student to a school district having a population density of over 8,000 persons per square mile ("density aid”), a criterion met only by Baltimore City. Two-thirds of this amount must be used for certain programs for students with special educational needs that have resulted from educationally or environmentally disadvantaged environments. § 5-202 (c). This subsection also authorizes a State expenditure of $45 per student to qualifying school districts for the same purpose where eligibility for funds is established under Title I of the Elementary and Secondary Education Act of 1965. Other State aid is specially "targeted” to the twelve poorest school districts in the State for use in operating their local systems.
In addition to these appropriations from the State School Fund, the State provides substantially full funding for "categorical aid” to school districts (without adjustment for subdivision wealth) for various educational purposes, including payments for teachers’ retirement and social security, educating handicapped children, vocational education and rehabilitation, student transportation costs, school construction costs, and other programs. § 5-201 (c) et seq.
The State share of basic current expenses in fiscal year 1980 amounted to $331,880,120, or 54 percent of the total; the local school districts appropriated $283,281,866, or 46 percent of the total basic current expenses for the 1980 fiscal year. State "categorical aid” to the school districts in the 1980 fiscal year amounted to $480,000,000 and density, compensatory and targeted aid amounted to $26,000,000.
II
On February 15, 1979, the Boards of Education of Somerset, Caroline and St. Mary’s Counties, and the School Commissioners of Baltimore City, together with taxpayers, students, parents, public officials and the school superintendents in each subdivision (collectively the plaintiffs), filed a declaratory judgment action in the Circuit Court of Baltimore City. Characterizing their respective school districts as fiscally distressed, the plaintiffs claimed that the State’s public school financing system violated (a) the Equal Protection Clause of the Fourteenth Amendment, (b) the equal protection guarantee of Article 24 of the Maryland Declaration of Rights, and (c) § 1 of Article VIII of the Maryland Constitution, which commands the General Assembly to "establish throughout the State a thorough and efficient System of Free Public Schools; and [to] provide by taxation, or otherwise, for their maintenance.”
The complaint alleged that because of the insufficiency of school funds caused by the State’s discriminatory, unequal and inadequate school financing system, the plaintiff school boards were unable to meet their constitutional obligations under state and federal equal protection guarantees or under the "thorough and efficient” clause of § 1 of Article VIII of the Maryland Constitution. In four separate causes of action, the plaintiffs alleged that the State’s public school financing system unconstitutionally discriminates against and disadvantages all students in the State’s fiscally distressed school districts by providing them lesser and inadequate educational opportunity; that the system unconstitutionally operates to the particular disadvantage of poor children attending public schools in the fiscally distressed school districts; that Maryland unconstitutionally discriminates against poor school children throughout the State by systematically denying equal educational opportunity to most of them; and that the State’s public school financing system unconstitutionally discriminates against residents and taxpayers of Baltimore City by compelling them to impose unparalleled tax rates while still offering only a reduced level of education, a duality which promotes continuing "out-flight” of the City’s tax base and threatens the City’s fiscal vitality.
The complaint also asserted that poor children in the plaintiff school districts require extra educational assistance to overcome learning disadvantages but receive less as a result of the State’s discriminatory public school financing system; that families in poor school districts more often suffer low income, low educational attainment and higher unemployment than in the wealthier districts; that as a result children in poor school districts have learning deficiencies that can only be overcome by costly programs of compensatory education; that conditions associated with poverty impede learning progress; that the Lee-Maurer equalization formula fails to take into account that it costs substantially more to provide learning opportunities for poorer children; that these needs are not accommodated under the State’s system of financing its public schools; that instead the system yields reduced and below average educational resources to the economically and educationally disadvantaged public school students; that the plaintiff school districts suffer from "educational overburden” in their higher concentration of poor children with special and greater educational needs; that 70 percent of the State’s poorest children reside in fiscally distressed school districts with below average taxable wealth, with the result that these children are systematically relegated to below average wealth schools with reduced, unequal and inadequate educational offerings; and that although Baltimore City levies taxes at a rate higher than any other subdivision in Maryland, it provides below average public school funding to its students.
The trial before Judge David Ross consumed over four months and produced a voluminous record, numbering many thousands of pages. Believing that the decisive issue in the case rested upon virtually undisputed facts, Judge Ross limited his formal findings of fact essentially to the following: He first found from the evidence that substantial disparities existed in tax wealth among the school districts. Judge Ross set forth a few comparisons to show the extent of the problem:
"While Calvert County had $138,318 of property wealth behind each pupil enrolled on September 30, 1979, St. Mary’s County, Somerset County, Baltimore City and Caroline County had respectively only $34,939, $32,151, $28,375 and $27,762. The ratio of disparity between Calvert County and Caroline County was 5 to 1. In 1978, Montgomery County had a net per capita income of $7,059, while Somerset County had $2,408. Thus, the maximum fifty percent 'piggyback’ income tax the subdivisions are permitted to impose raises in Somerset County only about one-third of the per capita amount it raises in Montgomery County. When wealth is measured by a combination of property and income per pupil enrolled on September 30, 1979 as defined by the Lee-Maurer formula, Worcester County had $129,850 per pupil while Somerset County, its contiguous neighbor, had only $39,107 per pupil, a disparity ratio of more than 3 to 1. If taxable wealth is defined as total property taxable for county purposes plus net taxable income, the disparity between Calvert County with $127,556 per pupil and Caroline County with $39,229 is also more than 3 to 1.”
Judge Ross found as a fact that although the Lee-Maurer "basic current expenses” formula creates a perfect inverse relationship between wealth per pupil and State aid per pupil, State aid under the formula was insufficient to overcome the substantial disparities in local tax wealth. He explained:
"First, the current expense expenditure level specified in the Lee-Maurer formula is less than half the actual State average level óf current expense. For example, in the 1978-79 school year, the average current local and State expense per student was $1,979, while the formula amount was $690. The formula amount was approximately one-fourth of the amount spent per pupil for current expenses in Montgomery County that year. Secondly, the use of categorical aid undercuts the equalization which the Lee-Maurer formula achieves. Although Somerset County received more than six times the basic current expense aid that its neighbor Worcester County received in fiscal year 1981, the former got a total of $595 in categorical aid and the latter $524. The disequalizing effect of categorical aid is obvious. The resulting total State aid to Somerset County was only twice that given to Worcester County despite an equalization effort under the Lee-Maurer formula of more than 6 to 1.”
The trial judge further found from the evidence that the majority of indigent pupils in Maryland are clustered in the poorest subdivisions. He observed:
"The plight of plaintiffs’ subdivisions is exacerbated by the fact that they have large numbers and concentrations of poor children who have special educational needs. For example, only 6% of Montgomery County students are eligible for federal Title I funds compared to 42%, 39%, 28% and 21% in Baltimore City, Somerset County, Caroline County and St. Mary’s County, respectively.”
Finally, as to Baltimore City, Judge Ross said:
"In addition, Baltimore City has less local revenue available for school funding than do the other subdivisions, because it must devote a greater portion of its tax base and its locally raised revenues to nonschool services. For example, in fiscal year 1979 although the two subdivisions raised approximately the same total local revenues per capita, Baltimore City spent $357 per capita for non-education expenditures, while its neighbor Baltimore County spent only $235 per capita. For Baltimore County this represented 47% of its total per capita revenues and left $1,549 to be spent per pupil for education. In contrast, Baltimore City spent 69.5% of its total per capita revenues for*614 non-education expenditures, which left only $789 per pupil for education. The State average for non-educational expenditures is 50% of total local revenue. Although the effective property tax rate in the City is almost twice that of the County (11.89 and 6.02 respectively), the County has almost twice as much in revenues available per pupil for educational expenditures after funding non-educational services.”
Judge Ross held that the State’s scheme of financing its public school system violated Article VIII of the Maryland Constitution and Article 24 of the Maryland Declaration of Rights but that it did not offend the Equal Protection Clause of the Fourteenth Amendment. The trial judge first observed that the Supreme Court in San Antonio School District v. Rodriguez,
"If it takes $2,328 per pupil to provide full and complete schools in one county, it would seem that it would cost substantially the same to do so in the others. On the other hand, if $1,498 per pupil provides full and complete schools in one subdivision it can hardly be said that a system which permits expenditure of $2,328 and comparable amounts in other subdivisions is efficient. This is certainly true if one attributes to 'efficient’ the concept of using the least wasteful means which is clearly a part of the current meaning of that word. It would seem that the system is either not full and complete in*616 the low spending subdivision or it is wasteful in the high spending one.”
For reasons extensively outlined in his opinion, Judge Ross next concluded that even if the language of Article VIII was ambiguous and required construction, its history and contemporaneous construction dictated the same interpretation, i.e., that a statewide free public school system be established which is full, complete and effective by contemporary standards throughout the State.
In summary, Judge Ross found from the evidence:
"that the present financing scheme significantly underfunds the plaintiffs’ schools whose requirements are at least as great as any in the State, while it permits virtually unlimited spending in other subdivisions. As a result the quality of the schools in the plaintiffs’ subdivisions is inferior to those in the wealthier subdivisions with respect to buildings, equipment, materials and staff.”
Consequently, the court found that because the existing system failed to set a qualitative standard of education and to provide equal funding across the State, it was not "thorough and efficient” within the meaning of § 1 of Article VIII of the Maryland Constitution.
Judge Ross next considered whether Maryland’s statutory scheme of financing its public school system violated the equal protection guarantee of Article 24 of the Maryland Declaration of Rights.
"The question is not whether the State is obliged to equalize the educational opportunities of all its children, but whether the State in establishing a statewide system in response to the constitutional mandate can do so unequally.”
Judge Ross noted that "tax resource wealth” is public and is within the entire control of the General Assembly "in trust for all citizens of the State.” He believed that all such revenue sources must be considered in determining how much money will be allocated to the public school system, stating that "[t]he State’s revenues can be collected and spent locally only by express grant of power from the General Assembly.”
Judge Ross said that because of naturally occurring disparities in wealth, local taxation and expenditure will frequently result in unequal distribution of the State’s
"[t]he only practical and realistic way of determining and achieving equality is with respect to the division of the funds committed to education. Each pupil is entitled to a fair share of the funds available for education. This can be accomplished only by dividing the money equally on an accurate per pupil basis across the State.”
Judge Ross recognized that the total amount to be spent on education is limited by the finiteness of revenues and the competing demands on those revenues. It is for the General Assembly, he repeated, which has control over all revenue sources within the State, to consider all such sources "in determining how much will be allocated to public schools.” Judge Ross cautioned:
"The General Assembly may not limit its ability to adequately fund education by permitting the subdivisions to have or retain excessive revenue collecting power nor may it permit unequal distribution of any revenues for public schools.”
The trial judge held that Article 24 "requires mathematical equality among pupils with respect to distribution of funds,” with some variations from exact dollar per pupil equality being permitted if "tailored with mathematical precision to a clearly demonstrated difference in cost.”
Judge Ross deemed it unnecessary to determine whether the Lee-Maurer formula was unconstitutional for failure to
All parties appealed from the trial court’s decree. We granted certiorari prior to decision by the Court of Special Appeals to pass upon the issues of public importance raised in the case.
Ill
We first consider the meaning of § 1 of Article VIII of the Maryland Constitution which requires that the General Assembly establish "a thorough and efficient” system of free public schools throughout the State and "provide by taxation, or otherwise, for their maintenance.” Of course, if the provisions of this section are clear and unambiguous, as the trial judge held, no construction or clarification is needed or permitted. See Brown v. Brown,
(A)
Although the Maryland Constitution of 1776 did not contain any provision relating to public school education, the General Assembly manifested its concern for educational matters in the early days of statehood. See McCarthy v. Bd.
Prior to 1864, the legislature’s efforts to establish a statewide public school system were ineffective. Under the 1825 Act, Baltimore City maintained its own system and a number of counties voted not to establish public schools. Numerous public local laws were enacted by the General Assembly pertaining to public school education in various of the school districts. See, e.g., Acts of 1827, ch. 173; Acts of 1830, chs. 14 and 160; Acts of 1837, chs. 306 and 353; Acts of 1847, ch. 279. The development of public schools was a matter left largely to the counties and to Baltimore City. See L. Blauch, Education and the Maryland Constitutional Convention of 1.864, 25 Md. Hist. Mag. 169 (1930). An effort to include a provision in the Maryland Constitution of 1851 for a "uniform system of common school education” did not succeed. See 2 Maryland Constitutional Convention Debates 339 (1851). A bill to accomplish the same result was introduced in the 1853 session of the General Assembly but was not enacted.
Article VIII of the Constitution of 1864 was fully implemented by ch. 160 of the Acts of 1865, which made comprehensive provision for a uniform system of free public schools throughout the State, including the imposition of a fifteen cent tax on each one hundred dollars of assessable property throughout the State, to be disbursed to the counties and Baltimore City in proportion to population between the ages of five and twenty years. Although the 1864 Constitution did not prohibit school districts from raising additional funds through the imposition of local subdivision taxes to supplement grants from the State school fund, the 1865 statute provided that after January 1, 1867, no county or Baltimore City could impose taxes for the support of the public schools in their respective subdivisions.
The "uniform” public school system established by Article VIII of the Constitution of 1864 was of short-lived duration.
Although no official transcript of the debates of the 1867 Convention was made, considerable historical "evidence exists respecting the Convention’s proceedings. As reported in Perlman, Debates of the Maryland Constitutional Convention of 1867, at 198-203, 243-48, and 251-56, a number of delegates expressed dissatisfaction with the "uniform” public school system created by the 1864 Constitution; they urged its termination. Some delegates assailed the large expense associated with the operation of the uniform system, with its centralized administration, lack of local control, and with the performance of the Superintendent of Public Instruction. Members of the Convention’s Education Committee, in explaining the proposed new article to the delegates, said that it did not provide for a uniform system; that the subject "of incorporating into the constitution a detailed system was thoroughly discussed”; that the committee was of the "unanimous conclusion .. . that the constitution should not be encumbered with the details”; and that the "best plan was to leave the details ... to the legislature.” The comments of Delegate Kilbourne, a member of the Education Committee, appear to reflect the sentiment of the Education Committee. As reported in Perlman, Debates, at 200-01, Kilbourne "wanted this matter left to the Legislature.” He said that
"He had been for abolishing the present system . .. [and] in no shape or form would he consent that the system should continue one day beyond the time indicated in this article, [June 11, 1867] .... The committee had ample evidence of the almost entire voice of the people of Maryland against the system. The reason why he was willing to leave this matter*625 to the Legislature was because he was thoroughly convinced that no section of the State would send a delegate to the Legislature who would not be in favor of abolishing the present system. The enormous expenses of the system, the mode of raising the money and the mode of expending it, and the power of the superintendent, are all reasons why this system should be dispensed with.. . . The whole system has radical, fundamental objections. It would be supposed that it would be right to commit the expenditure of the funds to those who contributed them, but these funds are placed beyond the control of every parent and guardian in the State; those who bear the burdens are denied all share in their direction.”
A number of amendments were nevertheless proposed to the Education Committee’s report. One delegate, Page of Somerset County, urged that the uniform system should be continued throughout the State. Perlman, Debates, at 203. Delegate McMaster of Worcester County also favored continuation of the uniform system. Id. at 245-46. Other delegates sought to amend the committee’s report to include a constitutional provision authorizing Baltimore City to maintain its own separate school system. Id. at 201-04, 243-51. Another amendment sought to substitute an entire new education article in place of the committee’s report; it proposed incorporating detailed provisions into the constitution assuring local control over the public schools. Id. at 253-55. Delegate Barnes urged that "the ends of popular education can best be served by committing the whole question to the control of the several counties, and the city of Baltimore, respectively, to be conducted in each according to the wants and desires of the people.” Perlman, Debates, at 252. According to Perlman, Delegate Barry urged adoption of the education article submitted by the committee "as the Legislature would have the power to create a new system, and it would be perfectly competent to give to the city of Baltimore such a system as she now has, or any system
None of the proffered amendments to the proposed new education article were adopted by the Convention and it was passed with only five dissenting votes. Debates, at 439. A resume of the work of the Convention was printed in The Baltimore Sun after the Convention’s adjournment. It was there reported that the education article "makes it incumbent on .. . [the legislature], at its first session to provide for a new system, all the details of which, including the rate of taxation, are left to it.” Id. at 36.
Perlman’s accounts of the proceedings at the 1867 Constitutional Convention are confirmed by articles appearing in The Baltimore American and Commercial Advertiser, the Baltimore Daily Commercial and the Baltimore Gazette. In various articles, these newspapers reported that it was the intention of the Convention delegates in adopting the new education article to leave implementation of the details of the public school system to legislative determination. For example, Delegate McKaig, a member of the Education Committee, was quoted as saying: "[t]he object of the committee was to leave the Legislature entirely untrammelled.” Baltimore American, June 21, 1867, at 4. Delegate Page was reported to have unsuccessfully introduced a motion to amend the first sec
"I am in favor of reserving to the Legislature full authority to provide for a system of education in each county and the city of Baltimore according to the local wants of each section, and opposed to any amendment which should require the Legislature to provide a uniform system. The construction of the Article reported by the committee leaves, in my opinion, no doubt upon this question. The report does not provide for a uniform system, but only for a thorough and efficient system of education, and I entertain no doubt that under the power contained in this section the Legislature has full authority over the subject. There is also, Mr. President, full authority reserved to the Legislature to provide by taxation for the maintenance of public schools. This authority is properly confided to the Legislature, as they will be able to decide the amount of taxes necessary to be levied and to apportion the taxes to the new assessment which has been made or will hereafter be perfected. No system of public schools can be perfected in a constitution. The details of the system cannot be given. It is a question which no man in his closet can satisfactorily arrange, but must depend upon experience and be subject to amendment and alteration when the practical operation of this system demonstrates the necessity for such amendment.”
Following ratification of the Constitution of 1867, the provisions of Article VIII were implemented by ch. 407 of the Acts of 1868, which enacted a new public education article. The statute made provision for a general system of free public schools throughout the State. Educational matters affecting a county were placed under the superintendence of Boards of County School Commissioners. The Act required imposition of a ten-cent statewide property tax to support the free public school system throughout the State, to be distributed to the City and to the counties on a school-age population basis. The statute specified that the State School Fund was to pay the salaries of teachers in the counties, and the expense of school books and stationery; and that if in apportioning the School Fund among the counties and Baltimore City, the share of any county was inadequate, the county could impose a local property tax sufficient to satisfy the deficiency; and that county voters could also impose other and additional taxes for public school purposes.
The 1868 Act authorized Baltimore City to establish its own system of free public schools and to delegate the superintendence thereof to the local Board of School Commissioners. The Act authorized Baltimore City to levy taxes
The equalizing effect of the even distribution of the proceeds of the State school tax among the school districts on a population basis, as directed by the 1868 statute, was offset by the authority vested in local governments to levy additional property taxes for school purposes and to spend them as each saw fit. As a result, very substantial per pupil spending disparities existed among the State’s school districts for the 55 years immediately following adoption of the 1867 Constitution. Due to the great variance in educational resources and opportunities among the school districts, the legislature, by ch. 844 of the Acts of 1914, directed that a study be made of the State’s public school system and its financing. The study, done by Abraham Flexner and Frank Bachman, reported that from 1870 through 1914, the local subdivisions raised approximately two-thirds of the total funds expended for public school purposes, with the State providing the remaining third. The authors reported that because the State’s wealth was unevenly distributed among its subdivisions, major differences existed between the school districts in per pupil expenditures. They recommended adoption of a financing formula to lessen the impact of wealth-based disparities among the subdivisions whereby the State would provide greater aid to the poorer districts, thereby better equalizing educational opportunities among the State’s school children. Specifically, it was recommended that there be a single state school fund; that the State provide free textbooks, reference and instructional materials to all students; that the State require each subdivision to impose a minimum tax levy as a precondition to receiving its State apportionment; and that the State school fund be distributed in light of three factors: (1) the school population between six and fourteen years of age, (2) school attendance, and (3) the comparative wealth of
The formula recommended by the Flexner-Bachman report was implemented by ch. 382 of the Acts of 1922. That statute, for the first time, provided an equalization formula for reducing the impact of wealth disparities among the school districts. It contained a minimum foundation program to support basic educational needs, while permitting the subdivisions to supplement the foundation level with additional locally generated tax revenues.
The financing formula under the 1922 statute was continued without essential change for a number of years, although through legislative adjustment, the foundation level program was periodically increased, resulting in greater equalization among the school districts.
(B)
It is manifest from the history underlying the adoption of Article VIII of the 1867 Constitution, and from the consistent interpretation and application of its provisions by the legislative and executive branches of the State government for more than one hundred years, that the "thorough and efficient” language of § 1 does not mandate uniformity in per pupil funding and expenditures among the State’s school districts.
In so concluding, we have considered cases from other jurisdictions with state constitutions having a "thorough and efficient” education clause or like provision. Danson v. Casey,
Similarly, Ohio’s Constitution contains a provision requiring "a thorough and efficient system of common schools.” Bd. of Ed. of City Sch. Dist., Etc. v. Walter,
Colorado’s Constitution requires that the legislature create "a thorough and uniform system of free public schools throughout the state ....” In Lujan v. Colorado State Bd. of Educ., Colo.,
In Board of Educ., Levittown, Etc. v. Nyquist,
Turning to the state constitution education article, the court attached significance to the provision’s adoption in 1.894 — "at a time when there were more than 11,000 local school districts in the State, with varying amounts of property wealth offering disparate educational opportunities.” Id. at 368. Additionally, the court explained that the education article made no reference to any requirement that the "education to be made available be equal or substantially equivalent in every district,” nor was "there any provision either that districts choosing to provide opportunities beyond those that other districts might elect or be able to offer be foreclosed from doing so, or that local control of
Olsen v. State,
The Georgia Constitution makes it a "primary obligation” of the state to provide "an adequate education to the citizens of Georgia.” Under that state’s school financing system, the primary fund sources are state and local revenues. The bulk of the state money is distributed for "basic educational needs,” allotted pursuant to the average daily attendance per local district. To receive this aid, each district must contribute a set amount obtained from ad valorem taxation, referred to as "required local effort.” Local jurisdictions, however, may supplement this program with funds generated by local property tax assessments. In McDaniel v. Thomas,
Both the New Jersey and West Virginia Constitutions contain provisions requiring the establishment of a
As in Robinson v. Cahill, supra, the court in Pauley v. Kelly,
In contrast to New Jersey and West Virginia, Maryland has, by legislation, and by regulations and bylaws adopted by the State Board of Education, established comprehensive statewide qualitative standards governing all facets of the educational process in the State’s public elementary and secondary schools. See Code, Education Article; COMAR Title 13A. No evidentiary showing was made in the present case — indeed no allegation was even advanced — that these qualitative standards were not being met in any school district, or that the standards failed to make provision for an adequate education, or that the State’s school financing scheme did not provide all school districts with the means essential to provide the basic education contemplated by § 1 of Art. VIII of the 1867 Constitution. The trial court did not find that the schools in any district failed to provide an adequate education measured by contemporary educational standards. Simply to show that the educational resources available in the poorer school districts are inferior to those in the rich districts does not mean that there is insufficient funding provided by the State’s financing system for all students to obtain an adequate education.
The record in this case demonstrates that Maryland has continuously undertaken to provide a thorough and efficient public school education to its children in compliance with Article VIII of the Maryland Constitution. That education need not be "equal” in the sense of mathematical uniformity, so long as efforts are made, as here, to minimize the impact of undeniable and inevitable demographic and environmental disadvantages on any given child. The current system, albeit imperfect, satisfies this test.
We next consider whether Maryland’s system of financing its public schools violates either the equal protection clause of the fourteenth amendment or the concept of equal treatment embodied in Art. 24 of the Maryland Declaration of Rights (see footnote 4, supra). These provisions are in pari materia and generally apply in like manner and to the same extent; nevertheless, the two provisions are independent of each other so that a violation of one is not necessarily a violation of the other. Attorney General v. Waldron,
It is well recognized that the constitutional guarantee of equal protection of the law is afforded to all persons under like circumstances in the enjoyment of their civil and personal rights. Leonardo v. County Comm.,
We have frequently considered the standard of review to be applied in determining whether the equal protection or equal treatment guarantees of the fourteenth amendment or Article 24 have been violated by a challenged enactment.
"Heightened scrutiny” of a legislative classification is a less exacting standard of review and is applied when a statute impacts upon "sensitive,” although not necessarily suspect criteria of classification (i.e., gender discrimination), or where a statute affects "important” personal rights or works a "significant” interference with liberty or a denial of a benefit vital to the individual. Waldron, supra, 289 Md. at
Where neither a suspect class nor a fundamental right or interest is involved or impaired, or rights or classes which would trigger heightened review are implicated, the least demanding standard of review is applied. Under this standard, a statutory classification will be invalidated only if the means chosen by the legislature are wholly irrelevant to the achievement of the State’s objective. Waldron, supra,
As we observed in Governor v. Exxon Corp., supra,
(A)
(Federal Equal Protection)
We agree with the lower court that Maryland’s system of public school finance does not violate the equal protection clause of the fourteenth amendment to the federal constitution. San Antonio School Dist. v. Rodriguez, supra, is dispositive of the plaintiffs’ federal constitutional claim. In
The Supreme Court declined to apply a strict scrutiny analysis to the Texas system, finding an absence of a suspect classification or an impingement upon a fundamental constitutional right. The Court noted that the Texas financing system did not result in the absolute deprivation of an education to any definable category of the poor; that "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” lacked the traditional indicia of "suspectness” necessary to trigger strict scrutiny equal protection analysis.
Every state appellate court which has considered the question since Rodriguez was decided has held that the state’s school finance system does not offend the federal equal protection clause. See Pauley v. Kelly,
Plaintiffs seek, none too clearly, to distinguish Rodriguez on its facts. They claim that there was no evidence in that case, as there is in the present record, to prove that the great majority of poor children was concentrated in the poorest school districts of the state, that school districts with the greatest number of the poorest families spent the least, and that school districts with the wealthiest families spent the
Moreover, the plaintiffs’ efforts to distinguish Rodriguez must also fail in light of the recent line of Supreme Court decisions establishing purposeful discrimination as a requirement for a successful federal equal protection challenge. See, e.g., General Building Contractors Association, Inc. v. Pennsylvania, U.S.,
(B)
(State Equal Protection)
The plaintiffs maintain that the lower court correctly held that the Maryland system of public school finance violates the equal protection guarantee of Art. 24 of the Maryland
We have heretofore recognized the viability of the Rodriguez fundamental rights test in connection with federal equal protection challenges. See Waldron, supra, 289
"The inclusion in our State Constitution of a declaration of the Legislature’s obligation to maintain and support an educational system is not to be*648 accorded the same significance for purposes of equal protection analysis as would be a counterpart reference to education in the Federal Constitution. The two documents are drafted from discretely different constitutional perspectives. The Federal Constitution is one of delegated powers and specified authority; all powers not delegated to the United States or prohibited to the States are reserved to the States or to the people. (U.S. Const., 10th Amdt.). Great significance accordingly is properly attached to rights guaranteed and interests protected by express provision of the Federal Constitution. By contrast, because it is not required that our State Constitution contain a complete declaration of all powers and authority of the State, the references which do appear touch on subjects and concerns with less attention to any hierarchy of values, and the document concededly contains references to matters which could as well have been left to statutory articulation (e.g., provision for superintendence and repair of canals, art. XV, § 3, scarcely to be classified a fundamental constitutional right on any view).”
In a similar vein, the Supreme Court of New Jersey, in Robinson v. Cahill, supra,
These cases also point out that other public services, such as police, fire, welfare, health care and other social services, which benefit the entire population, are equally as important as education, even though they may not be mentioned in the state constitution. The observation has been made by
We agree with the view expressed in Rodriguez that whether a claimed right is fundamental does not turn alone on the relative desirability or importance of that right. We recognize, as do all the school finance cases, the vital role public education plays in our society. And we share the view expressed in Lujan, supra, that education "can be a major factor in an individual’s chances for economic and social success as well as a unique influence on a child’s
We decline to adopt the overly simplistic articulation of the fundamental rights test set forth in Rodriguez, i.e., that the existence of a fundamental right is determined by whether it is explicitly or implicitly guaranteed in the constitution. Maryland’s Constitution explicitly, not to mention implicitly, guarantees rights and interests which can in no way be considered "fundamental.”
The directive contained in Article VIII of the Maryland Constitution for the establishment and maintenance of a thorough and efficient statewide system of free public schools is not alone sufficient to elevate education to fundamental status. Nor do the budgetary provisions of § 52 of Article III of the Constitution require that we declare that the right to education is fundamental. The right to an adequate education in Maryland is no more fundamental than the right to personal security, to fire protection, to welfare subsidies, to health care or like vital governmental services; accordingly, strict scrutiny is not the proper standard of review of the Maryland system of financing its public schools.
We note our observation in Waldron,
Plaintiffs argue that even if we reject the Rodriguez fundamental rights test, we should still proclaim education’s fundamental character under the theory that it is an important personal right "recognized as vital to the history and traditions of the people of this State.” See Waldron at 715, citing, Bruce v. Dir., Chesapeake Bay Aff.,
The plaintiffs’ only remaining basis for invoking the strict scrutiny standard of review rests upon establishing wealth as a "suspect” classification. Although it appears that the plaintiffs have now abandoned any such contention, we nevertheless note that the Supreme Court has never held that financial status alone, especially absent absolute deprivation of a right, creates a suspect class. See Harris v. McRae,
Plaintiffs next argue that "heightened review” is the appropriate standard for determining the constitutionality of Maryland’s system of public school finance under Art. 24 of the Declaration of Rights because the system affects important personal rights to education and significantly interferes with or denies the exercise of such rights. Under this standard, as Waldron points out (
We proceed then to test the constitutionality of Maryland’s public school financing system under the rational basis standard of review to determine whether it reasonably furthers a legitimate state purpose. In Milliken v. Bradley,
*654 "[n]o single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process.”
Similarly, in Dayton Board of Education v. Brinkman, 433 U.S. 406, 410,
It is evident from the history of public education in this State that Maryland shares this view. Indeed, Maryland’s public school system has been financed by a combination of local tax revenues and State contributions virtually throughout its entire history. Although the General Assembly has never explicitly stated the object of its public school financing system, it is readily apparent that a primary objective is to establish and maintain a substantial measure of local control over the local public school systems — control exercised at the local level through influencing the determination of how much money should be raised for the local schools and how that money should be spent. See Lujan, supra,
"The use of local taxes affords a school district the freedom to devote more money toward educating its children than is otherwise available in the state-guaranteed minimum amount. It also enables the local citizenry greater influence and participation in the decision making process as to how these local tax dollars are spent. Some communities might place heavy emphasis on schools, while*655 others may desire greater police or fire protection, or improved streets or public transportation. Finally, local control provides each district with the opportunity for experimentation, innovation, and a healthy competition for educational excellence.”
In a similar vein, the court in Levittown, in commenting on the virtues of local control, pointed out that funds for the support of the local public schools are raised through the imposition of local taxes and appropriated for school purposes pursuant to a locally approved budget process which is responsive to the needs and desires of the local community. The court noted that, to the extent that the local budget requires expenditures in excess of state aid, a direct correlation exists between the system of local school financing and implementation of the desires of the taxpayer.
"Any legislative attempt to make uniform and undeviating the educational opportunities offered by the several hundred local school districts — whether by providing that revenue for local education shall come exclusively from State sources to be distributed on a uniform per pupil basis, by prohibiting expenditure by local districts of any sums in excess of a legislatively fixed per pupil expenditure, or by requiring every district to match the per pupil expenditure of the highest spending district by means of local taxation or by means of State aid (surely an economically unrealistic hypothesis) — would inevitably work the demise of the local control of education available to students in individual districts.” Id.
As earlier indicated, the Supreme Court in Rodriguez held that the Texas school financing system rested on a rational basis in that it assured every child a basic education while at the same time encouraging a large measure of participation in and control over each district’s schools at the local
The plaintiffs concede the desirability of a sharing between local subdivisions and the State of the financing of the public schools. They say that it is only the severe funding inequalities in poor subdivisions which they challenge and which result from the State’s relegation of the chief funding burden to the localities and its failure to equalize the resulting disparities. The extant inequalities in local wealth, school expenditures and educational resources are unrelated, the plaintiffs contend, to local control over school spending. They suggest that far from promoting local spending options, the heavy impact of local wealth differences on school funding capacity inhibits local choice for all but the most affluent subdivisions. It is a fact, plaintiffs urge, that a system of funding based on unequal wealth does more to diminish than to enhance local choice.
We find plaintiffs’ arguments unpersuasive in light of reason and the cited cases. We hold that Maryland’s system of school finance satisfies the rational basis test. In so concluding, we are mindful of the principle that a statutory
It is also clear from the record in this case that there is no discriminatory purpose in Maryland’s school financing system, a point emphasized in Rodriguez with respect to the Texas system.
The central role of education in our society is, of course, universally accepted. As the Court of Appeals of New York observed in Levittown, supra,
Decree vacated; case remanded to the Circuit Court for Baltimore City for entry of a declaratory decree consistent with this opinion; costs to be paid by the plaintiffs.
Notes
. Federal aid is minimal, constituting approximately 8 percent of the total.
. The subsection provides that the uniform percentage shall be determined as follows:
*605 "The sum of the basic current expenses to be shared for all of the counties shall be multiplied, for the first $624, by 0.45, for the additional $66, by 0.50 and this product shall then be divided by the sum of the wealth of all of the counties; the resulting quotient, expressed as a percentage rounded to the third decimal place, is the uniform percentage.”
. In its entirety. Article VIII of the Maryland Constitution reads as follows:
*608 "Section 1. General Assembly to establish system of free public schools.
The General Assembly, at its First Session after the adoption of this Constitution, shall by Law establish throughout the State a thorough and efficient System of Free Public Schools; and shall provide by taxation, or otherwise, for their maintenance.
"Section 2. Continuance of system in force at adoption of Constitution.
The System of Public Schools, as now constituted, shall remain in force until the end of the said first Session of the General Assembly, and shall then expire; except so far as adopted, or continued by the General Assembly.
"Section 3. School Fund.
The School Fund of the State shall be kept inviolate, and appropriated only to the purposes of Education.”
. Article 24 provides:
"That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.”
Our cases recognize that the concept of equal treatment is embodied in the due process requirement of Article 24. See, e.g., Attorney General v. Waldron,289 Md. 683 , 704,426 A.2d 929 (1981).
. Perlman’s account of the 1867 Constitutional Convention debates is taken from detailed articles appearing in the Baltimore Sun throughout the period of the Convention’s work.
. History indicates that the uniform public school system was favored by the "Unionists” who sought to remove local control of education from the local subdivisions. Because soldiers of the Union Army, then quartered in Maryland, were permitted to vote on the adoption of the 1864 Constitution, some historians speculate that the document’s ratification did not represent the will of a majority of Maryland's citizenry. See L. Blauch, The First Uniform School System of Maryland, 1865-1868, 26 Md. Hist. Mag. 205, 225-226 (1931).
. By ch. 311 of the Acts of 1870, the legislature created a Board of State School Commissioners to superintend the public school system. The name of the Board was changed by ch. 377 of the Acts of 1872 to "State Board of Education.” The office of Superintendent of Public Education was recreated by ch. 428 of the Acts of 1900.
. See, e.g., ch. 121, Acts of 1927 (increasing allowance for high school teachers); eh. 152, Acts of 1929 (establishing aid for handicapped children); ch. 261, Acts of 1933 (adding certain transportation costs to the equalization formula); ch. 502, Acts of 1939 (increasing minimum teachers’ salary); and ch. 1, Acts of 1958 (increasing aid per classroom unit).
. See, e.g., Report of Maryland Commission to Re-Study and Re-Evaluate the Philosophy and Practices of the Finances of the Public Schools (the Green Commission, 1962); Report of Senate Committee on Taxation and Fiscal Matters of 1963 (the Hughes Committee); and Report of the Commission to Study the State’s Role in Financing Public Education (the Hughes Commission, 1971).
. See, e.g., ch. 17, Acts of 1964 (the inclusion of taxable income in the wealth base for equalization purposes); ch. 325, Acts of 1970 (increasing aid to handicapped children); and ch. 4, Acts of 1970 (adding $20,000,000 to the
. In Mills v. Lowndes,
. We recognize the rule that no construction or interpretation of a constitutional or statutory provision, no matter of what duration, can alter its plain meaning or purpose. See Baltimore Bldg. & Const. Trades v. Barnes,
. New Jersey’s legislature appears unwilling or unable to obey the "constitutional mandate” set forth in the Robinson case. The state is now in its seventh round of school financing litigation. See Robinson v. Cahill,
. Our reference, in dicta, in Waldron, supra,
. The Lujan case points out (
. E.g., Article XI-C, Off-Street Parking and Article XI-G, Financing of Loans. See also the following provisions in the Declaration of Rights, which provide: "that Annapolis be the place of meeting of the Legislature,” Article 11; that the jury is judge of both the law and fact, Article 23; that an oath taker is entitled that the manner of administering the oath will be such as those of his religious persuasion "generally esteem the most effectual confirmation by the attestation of the Divine Being,” Article 39; and that monopolies are odious, Article 41.
. The recognized criteria for determining the existence of a suspect class can in no event be established by a political body, including a local school district. Lujan, supra,
Dissenting Opinion
dissenting:
Today, this Court, based upon its review of the evidence in this case and its analysis of what the framers of the Constitution intended 116 years ago, places its imprimatur on an educational system which thwarts the full growth and development of a large segment of the school population. It seems to me that an educational system must be measured in light of what the needs of children are in today’s world and the foreseeable future. We should not be using a hundred year-old yardstick in a time of computer technology.
I believe this Court should be committed to admonishing the legislature that it has not fulfilled its constitutional obligation to "establish throughout the State a thorough and efficient system of Free Public Schools; and [to] provide by taxation, or otherwise, for their maintenance” pursuant to Article VIII, Section I. For this Court to do less, is to render a disservice to the children of this State by approving a system which treats them unequally, thereby also violating Article 24 of the Maryland Declaration of Rights. I, therefore, respectfully dissent.
The quality of education under the present system is determined by the wealth of the subdivision in which the child lives. If he lives in a rich subdivision, he enjoys a fuller educational opportunity; if he lives in a poorer subdivision, he perforce is deprived of various educational advantages. The record in this case abounds with evidence to support the proposition that the school funding system fosters unequal educational treatment of children throughout the State.
The system divides the responsibility to fund education
The record is replete with examples of how the poor jurisdictions’ lack of sufficient funding from the State translates into less of almost every kind of school resource and an inability to compete effectively with the more affluent subdivisions. For instance, the City’s ability to attract and retain better teachers, more guidance counselors, nurses, psychologists, librarians and maintenance crews is gravely impaired, not even to mention its inability to maintain an "acceptable” class size, acquire the necessary quantity and quality of instructional materials and equipment or to supply books and provide the required number of librarians. Evidence at the trial revealed that in the City, elementary school libraries are frequently locked up two or three days a week because the system cannot afford the proper personnel. A few facts illustrate widespread disparities. The City school
The record clearly demonstrates that most of the poor children in this State reside in Baltimore City, Somerset, St. Mary’s and Caroline Counties and are beset with special and greater educational needs. The present school funding system fails to provide the educational resources to satisfy these needs. Despite the fact that many studies have recognized the inequities imposed upon the poorer subdivisions by the State’s school funding system, the General Assembly has not heeded the suggestion for equalization.
Thus, as I see it, the trial court’s ruling that the existing school finance system violates both Article VIII, Section I of the Constitution and Article 24 of the Declaration of Rights is correct. I shall now explain.
I
The majority misinterprets the significance of the history underlying the Education Article of our Constitution. They seek to discern the proper interpretation of a one hundred and sixteen year-old provision of the Constitution by examining comments by some of the convention delegates as reported in unofficial sources (such as newspapers) and by noting some specific actions that historically have been taken under this provision. Newspaper articles and legislative debates are hardly the most reliable sources for extrapolating legislative intent; they certainly are not adequate substitutes for cogent analysis of the purpose of a provision as discerned from its historical context and basic goals. See generally Schneider v. Lansdale,
Society and the education provided therein were vastly different in the period preceding 1867 than they are today. As noted in McCarthy v. Bd. of Education of A. A. Co.,
From 1830 to 1864, schools realized varying success throughout the State. Baltimore City enjoyed by far the greatest growth and achievement. For instance, in 1839 the City had 9 schools, 16 teachers and 1,126 pupils. In 1849 there were 30 schools, 107 teachers and 6,763 students. And
By contrast, education in the counties did not develop as rapidly or as well. For instance, the first sign of the emergence of the Baltimore County school system was in 1848 when the Maryland Assembly passed a law entitled: "An Act to Establish Public Schools in Baltimore County.” In 1849, this county had 60 schools and 1,858 pupils. As of 1864, the system had grown to include 103 schools and an average of 4,205 pupils. See A. Crewe, supra, at 21 & 27. However, the quality of education in the county was hampered by a variety of problems during these years: locating schoolhouses, finding qualified teachers, and coping with the inevitably sparse number of pupils in many areas. See generally id. at 21-26. Governor T. Watkins Ligón noted that education during this period was far from adequate and available to all children in the counties:
The system of public instruction in Maryland (if we except the City of Baltimore, whose public schools are an honor to the State, and reflect the highest credit upon all those entrusted with their management) is in a state of the most utter and hopeless prostration. [1856 Message to the General Assembly 15.]
This obvious difference in educational quality between the City and county schools can be understood upon examining the social and economic character of the counties as opposed to Baltimore City. Population density, wealth and mobility probably were the most important factors distinguishing Baltimore from the surrounding counties. The following chart indicates the relative population densities of selected areas in 1860:
*664 County Area in square Population** miles* Average Density per square mile
Anne Arundel 400 16,568 41.42
Baltimore2 622 50,953 81.92
Baltimore City 78.3 210,200 2684.55
Dorchester 610 16,338 26.78
Kent 315 10,758 34.15
Montgomery 508 12,901 25.40
St. Mary’s 360 8,664 24.07
This chart indicates the vast difference in the number of children accessible to a centralized school in the counties as opposed to the City. Given that a state average of 23% of the population was between the ages of five and twenty, St. Mary’s County would have had only about 5V2 children per square mile who potentially could be attending school. When considering that this is a county average (including heavily populated towns such as Leonardtown), the average in rural areas would be even lower. Because of this low school-age population density in many rural areas of the counties, there certainly were relatively few potential pupils within walking, or even riding, distance of a school. Therefore, the only school that could exist (if in fact any did exist) would have placed all children of varying age and achievement together in a one-room schoolhouse, taught by one teacher that managed as best he could.
In contrast, Baltimore City had an ample potential student body within easy reach of its schools. In 1864 Baltimore had 87 schools and 16,086 pupils — an average of almost 185 students per school. In contrast, Baltimore County (the most densely populated county) had an average
The legislature of course realized this and attempted to alleviate some of the problems in the rural areas. For instance, it enacted Chapter 247 of the 1837 Laws of Maryland, entitled: "An act for the distribution of School Moneys.. .. Harford County.” This Act stated that funds provided to different districts should "increase ... in proportion to the sparseness of school population in the neighborhood of a school . . ..” Measures such as these undoubtedly helped; however, they could only begin to overcome the disadvantages caused by the sparse population and the general lack of societal mobility in rural areas.
Although it is difficult to assess precisely the status of education in this State in 1864, quality schools certainly were not available in many areas. It was even suggested that one-fifth of the population of Maryland could not read. See Debates and Proceedings of the Maryland Constitutional Convention, 1864, at 1245. Thus, the educational situation facing the Constitutional Convention of 1864 was extremely poor in most areas.
The Convention dealt with this troubled area by adopting a mandate for free public education throughout the State. Article VIII provided for the appointment of a State Superintendent of Public Instruction and for a State Board of Education. Section 4 required the General Assembly to provide a "uniform system of free public schools” to be kept open at least 6 months a year. Section 5 further provided that the system be funded by a State tax of at least $.10 per $100 of taxable property throughout the State. The revenue derived from this tax was to be distributed to its subdivisions in proportion to their respective population between the ages of 5 and 20 years. This funding scheme clearly was designed
The only problem that ultimately arose under this constitutional scheme was the way in which it was implemented by appointed State Superintendent Van Bokkelen. The following excerpts suggest the problems caused by this man and the actual reasons for the demise of the system under his supervision:
State Superintendent Van Bokkelen, while awaiting returns from his letters of inquiry to the various counties, visited several northern states to study their school systems. With the information secured from both sources, he drafted a long bill to establish a Uniform System of Public Instruction for the State of Maryland, and a complete commentary explaining its features.* It was a courageous ideal, but, involving as it did an attempt to establish at one leap a system more elaborate than any other State in the Union was supporting at that time, it ran into difficulties almost immediately. While the General Assembly in 1865 enacted school laws which, in the main, followed the State Superintendent’s recommendation, objections were soon voiced to the seeming autocratic domination of this man who appeared to be convinced that the State, lagging so far behind in the fíeld of education, had no time for gradual development.
Uniform textbooks were adopted for the entire State,. .. State Law provided that all schoolhouses should be built and furnished according to plans** and drawings issued from the office of the State Superintendent, or plans from the County Boards which had been submitted to and approved by the Superintendent.
*667 This first State School System lasted from 1864 to 1867, by which time antagonistic public sentiment had been aroused and so crystalized that Superintendent Van Bokkelen’s organization was swept away. A new plan, under the Constitution of 1867, took its place. The people of Maryland had been accustomed to self-determination in respect to their schools, and resented the new system which gave no real authority to the local districts. One writer makes this commentary: * * * "It is clearly apparent that the control of the public school system was highly centralized. The State had its hands on the schools in no uncertain manner and its policies could easily be enforced. While the scheme was intended to insure a uniform system, it obviously was extreme for a State in which the citizens were accustomed to highly localized control of schools. That it was an efficient means of organizing education is hardly to be doubted.”
[A] study of the Annual Reports from the various counties of the State for the two years the system existed not only fails to reveal resentment, but indicates general appreciation by school authorities of the improvements that had been made. Political forces, rather than educational considerations, evidently were largely responsible for the repudiation of Dr. Van Bokkelen’s regime. [A. Crewe, supra, at 35-36 (emphasis supplied) (footnotes omitted).]
As suggested by this commentary, changes in the system ultimately were made largely as a political repudiation of Van Bokkelen and his autocratic control. Furthermore, the delegates in 1867 also seemed to agree that "the constitution should not be encumbered with the details.” Perlman, Debates of the Maryland Constitutional Convention of1867,
The 1867 Constitution provided as its basic guarantee:
The General Assembly, at its First Session after the adoption of this Constitution shall by Law, establish throughout the State a thorough and efficient System of Free Public Schools; and shall provide by taxation, or otherwise, for their maintenance.
That the new provision was meant to perpetuate the essential purpose of the 1864 Education Article (although without an autocratic Superintendent or specific rules) is clear from the language of the provision and from examining several proposed changes that were soundly rejected.
First, on its face, the provision mandates that it is the State’s responsibility to provide for the maintenance of the school system. It also requires that it be a "thorough and efficient system of free public schools.” Therefore, the language suggests that the Convention was still interested in improving the education system and not reverting to an ineffective system of localized education. This demonstrates that the provision’s purpose still was for the State to ensure an effective and universal system of free public schools.
The Convention’s rejection of three proposed changes in the Education Article support his interpretation. A proposal that would have authorized the county boards of education to provide the system of education and funding for their own counties was soundly rejected (90 to 6). The Convention also defeated a motion to authorize varying public schools as they may have been suited to different localities. Finally, a motion to allow Baltimore City to have a separate school system also was defeated. The defeat of these motions demonstrates a singular purpose: to continue State responsibility for the effectiveness of the educational system, not to sanctify local autonomy.
Population and wealth often are in an inverse ratio. Where children are numerous, capital does not always abound. Where the number of schools needed in proportion is greatest, the means to sustain schools is often least. If each county be left to himself; in one-third of the State there cannot be a "thorough and efficient system of Free Public Schools,” without placing a burden upon the people which they cannot bear, and ought not to be required to bear when the circumstances are remembered by which their taxable property has been diminished. The Constitution decrees efficient Free Schools throughout the State. This will be practicable only by a tax upon the property of the whole State, distributed among the counties according to their educational wants, which for practical purposes, means according to population. The children belong to the State in a higher and nobler sense that Sparta claimed, and are entitled to equal educational privileges without reference to the section in which they chance to be born. Education is a State, not a county interest. The commonwealth*670 ‘suffers by ignorance, idleness and crime, whether at its extremities or at its heart. [Report at 36-37 (emphasis supplied).]
■ The iásue the Court should address is whether the current system -of financing public education effectuates the basic purpose of the Education Article of the Maryland Constitution. ‘To -reiterate, this purpose was to improve the discouraging status of education in this State, ensuring an effective and universal system of free public schools. In my opinion, the system of education funding currently in effect in Maryland does not pursue this fundamental purpose.
Under the current system, the State does not ensure an effective and universal system of education. The State fails to collect and then distribute to the counties a state-wide tax adequate to support universal quality education: rather, the present system relies on the various localities to provide the education they can afford. The result is vastly dissimilar educational opportunities for children in the various jurisdictions within this State. This situation does not effectuate the Education Article’s purpose of ensuring an effective and universal system of free public schools. In order to reach this goal, the State must provide as effective an education as its resources allow to all children in this State. A system designed to effectuate the purposes of the Constitution should improve the public school system, not abdicate responsibility to the various localities. The goal should be to pursue an equal basic educational opportunity for all.
One might attempt to argue that such a standard is contradicted by history. For instance, history indicates that school systems were not of equal quality after the institution of the Education Article. Furthermore, as the majority is quick to point out, under the 1867 Constitution local jurisdictions could cause themselves to be taxed to have additional funds for their school systems. However, neither of these points rebuts my analysis of the purpose of this provision.
However, today, the threshold factors, which stifled educational opportunity for Maryland’s children in 1864, have vanished. Even in rural areas, the improvement of roads and modes of transportation allow any subdivision to assemble enough students to divide classes by age and achievement and when supplied with properly trained teachers, books, and equipment, to expose these children to equal educational learning experiences. In my view the purpose of the Education Article in 1867 was to reach this goal; it certainly can be reached today.
It is true that under the 1864, as well as the 1867, Constitution local jurisdictions could supplement State funds. See A. Crewe, supra, at 31. However, this local option to raise additional funds must be viewed in context. At that time, the State apparently was providing sufficient money to fund a basic equal educational opportunity throughout the State.
I also dissent because the majority does not recognize that education is a fundamental right in Maryland; therefore, the majority’s analysis of the State equal protection guarantee is mistaken.
The majority recognizes that education is dealt with explicitly in the Maryland Constitution. The educational guarantee is mentioned in § 52 of Article III, which provides that the State budget include an estimate of appropriations for establishing and maintaining a thorough and efficient system of public schools throughout the State. However, § 1 of Article VIII establishes a clear mandate to the "General Assembly to establish [a] system of free public schools”: "The General Assembly, at its First Session after the adoption of this Constitution, shall by Law establish throughout the State a thorough and efficient System of Free Public Schools; and shall provide by taxation, or otherwise, for their maintenance.” Based on these provisions the trial court found education to be a fundamental right in this State, protected by the equal protection guarantee of Article 24 of the Maryland
Our analysis in Attorney General v. Waldron,
This position was also suggested by the Court in Attorney General v. Johnson,
The majority holds that education is not a fundamental right in Maryland and because there is a rational basis for the constitutional provision there is no denial of equal protection. The majority while recognizing that education is dealt with explicitly in the Constitution further contends that the test for determining if a right is fundamental enunciated in San Antonio School District v. Rodiguez,
In New York, for instance, the constitution includes Articles that arguably would guarantee rights that certainly are not fundamental. Article XIV, governing conservation, provides that "[t]he lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands.” Article XV, § 1 precludes the legislature from selling or disposing of certain canals. Article XVII states in sections 1 and 3 that the state shall provide for the protection of health and the support of the needy. Each of these provisions commands the legislature to act in these areas. Therefore, if New York were to adopt the Rodriguez test, residents would have fundamental rights in these areas just as they would in education. Faced with this dilemma, it was logical for the New York court to reject this test.
The other jurisdictions that made similar arguments are encumbered with like provisions in their constitutions, mandating action by the legislature in non-fundamental areas. For instance, the Idaho Constitution, Article XV, § 4
Two jurisdictions cited by the majority do not have similar provisions covering clearly non-fundamental areas in their constitutions. Although these cases find that education is not a fundamental right, they reach this conclusion as a matter of state law for varied reasons. For instance, the Georgia Court in McDaniel v. Thomas,
For each of these cases in which other jurisdictions analyze their constitutions and find that education is not a fundamental right, one can cite cases from other jurisdictions holding that education is a fundamental right. For instance, in Serrano v. Priest,
The majority, instead of merely mimicking the rationale used in education cases from other jurisdictions, should examine the Maryland Constitution to discern whether the reasons prompting these arguments apply in this State. The majority suggests that the Maryland Constitution has similar provisions to those found in the New York Constitution, under which admittedly there might be good reason for rejecting the Rodriguez test. The majority concludes: "Maryland’s Constitution explicitly, not to mention implicitly, guarantees rights and interests which can in no way be considered 'fundamental.’ ” [Emphasis supplied.] The majority attempts to enumerate examples of these nonfundamental guarantees in footnote 16. However, a closer examination of these illustrations indicates that these provisions could not give rise to any personal right that is not already considered fundamental by this Court.
The majority’s next "example” does provide an affirmative duty, yet it does not guarantee any personal right. Article 11 of the Declaration of Rights provides: "That Annapolis be the place of meeting of the Legislature. ...” This states a clear obligation for the Legislature to meet in Annapolis, which would be violated if that body convened elsewhere. This is the only possible application of the provision; therefore, it cannot be interpreted to guarantee any fundamental right. Article 41 is another provision that establishes a self-executing directive which could not logically guarantee a fundamental right. This Article provides: "That monopolies are odious, contrary to the spirit of a free government and the principles of commerce, and ought not to be suffered.” As this Court already has established in Grempler v. Multiple Listing Bureau,
Therefore, although non-fundamental areas may be mentioned in the Maryland Constitution, that document does not guarantee any rights that should not be considered fundamental. In fact, "education” is the only right that I perceive would be added to those we now consider fundamental. The majority apparently is concerned that if education is deemed fundamental, other services, "such as police, fire, welfare, health care and other social services,” will be evaluated under the strict scrutiny standard of review. The majority suggests this might happen because "many, if not all, of these rights could, within the Rodriguez formulation of fundamental rights be deemed implicitly guaranteed in most state constitutions. ...” However, the majority fails to explain how these services are implicitly guaranteed by the Maryland Constitution. In fact, there is no convincing argument that they are guaranteed by the Constitution. The majority attempts to equate education with these other social services because they are all "important.” However, despite this subjective evaluation, education is guaranteed by our Constitution while these other services are not even mentioned. I believe that this simple fact indicates that education, not every area of government endeavor, is fundamental and that applying the Rodriguez test will not lead to the unmanageable result apprehended by the majority.
Perhaps the most disturbing aspect of the majority opinion is that it fails to analyze the standard for determining fundamental rights under the State Constitution that it
The majority treats education as "social or economic legislation,” yet their analysis is undercut by the Supreme Court’s most recent examination of this subject in Plyler v. Doe,
Public education is not a "right” granted to individuals by the Constitution. San Antonio School District, supra, at 35. But neither is it merely some governmental "benefit” indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. The "American people have always regarded education and the acquisition of knowledge as matters of supreme importance.” Meyer v. Nebraska,262 U.S. 390 , 400 (1923). We have recognized "the public school as a most vital civic institution for the preservation of a democratic system of government,” Abington School District v. Schempp,374 U.S. 203 , 230 (1963) (Brennan, J., concurring), and as the primary vehicle for transmitting "the values on which our society rests.” Ambach v. Norwick,441 U.S. 68 , 76 (1979). As noted early in our history, "some degree of education is necessary to prepare*681 citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.” Wisconsin v. Yoder,406 U.S. 205 , 221 (1972). And these historic "perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists.” Ambach v. Norwick, supra, at 77. In addition, education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society. Id. at 4655.
As this passage suggests, many factors point to the fundamentality of education.
Probably the most significant aspect of education is its nexus to other fundamental rights: a level of education is necessary to ensure effective participation in our political system; education instills interest in the political process and provides the skills necessary to evaluate and to become involved in political debate; "education is the dominant factor affecting political consciousness and participation.” San Antonio School District v. Rodriguez, supra,
Generally, education is the most important function of any state. As stated in Wisconsin v. Yoder,
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. 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. Id. at 493.
The majority contends that even if a fundamental right to education exists "the State’s school finance system is not depriving, interfering with, or impinging upon, much less absolutely eliminating, any child’s right to an adequate education.” Therefore, strict scrutiny should not be invoked. The Court again seizes on the familiar litany of cases reaching this conclusion without analyzing how these cases, and equal protection analysis, should relate to the precise issue presented in this case. An examination of several classic equal protection cases will demonstrate that the heart of the equal protection guarantee is equal treatment, which has been denied in this case.
These cases clearly satisfied the criterion that the State infringe on an individual’s fundamental right. The fundamental rights involved a liberty to act — to travel, to procreate, to vote. The infringement inhibited or prevented the exercise of that right. This is the type of clear deprivation inherent in the traditional equal protection case that the majority insists always must be present. However, an analysis of Reynolds v. Sims,
Reynolds focuses our attention on the essence of the equal protection guarantee — equal or uniform treatment. This unequal treatment usually is manifested in a denial of someone’s liberty to exercise a fundamental right. However, in this case (as in the reapportionment cases), unequal treatment in relation to the fundamental right is the key to the equal protection analysis. The fundamental right in this case is not merely a right to be at liberty to act in a certain fashion — the right to pursue the education an individual might desire. The fundamental right here involves the State’s obligation to provide an education and, therefore, one’s right to receive, a benefit from the State. The majority fails to see the applicability of our equal protection guarantee because, at first glance, this case does not appear to fit under the traditional test, which has not been applied to cases involving the fundamental right to receive something from the State. However, it is clear that children entitled to receive an education have been treated unequally.
Children who happen to reside in poorer counties have been provided an inferior educational opportunity. Judge Ross graphically illustrated this point in his factual findings. As he noted, "[i]n fiscal year 1978, Montgomery County spent $2,328 per pupil using the Maryland State Department of Education’s definition of per pupil expenditures while Caroline County spent $1,498.” Several definitions of per pupil expenditures suggested varying disparities. However, Judge Ross concluded: "regardless of the definition chosen, the reality is that a child in the wealthiest subdivision has approximately twice the amount spent on his education as a child in the poorest subdivision. ... As a result of this lower spending capacity, the
This unequal treatment affects a fundamental right — the right to receive an education from the State. This right to receive an education clearly should be protected just as any right to act is guaranteed. The requisite "infringement” on this right is supplied by the State’s unequal treatment. The State is required to provide a benefit (not merely to protect a right), therefore providing the benefit unequally infringes upon the right to receive that benefit (as surely as direct action by the State normally impairs rights). Therefore, strict scrutiny must be invoked in evaluating the school finance system.
The system cannot withstand strict scrutiny because the defendants cannot show a compelling state interest justifying the infringement. As this Court observed in Waldron the strict scrutiny test "foreordains the invalidation of nearly every classification involving such analysis.” Attorney General v. Waldron, supra,
The state interest advanced as justification is local control; however, this interest certainly is not compelling. In fact, the interest of local control does not even substantially justify the severe inequalities presented in this case. The State has allowed children in the poorer jurisdictions to have an inferior educational experience. The evidence establishing this was substantial.
State Superintendent Hornbeck testified that the plaintiff jurisdictions had less of almost every type of educational
Local control is an elusive term to those jurisdictions that don’t have enough funds to make many decisions about what resources will benefit their children. Whatever benefits local control may entail, they certainly do not justify a system giving a vastly inferior educational opportunity to students in poor jurisdictions throughout the State. Therefore, the school finance system clearly does not pass the test of strict scrutiny.
In my view, equal treatment is required in order to comply with the constitutional mandate. By equal treatment, I mean that every district should be supplied the resources it needs to give each pupil therein a full educational program and as much opportunity for the individual to progress satisfactorily as any other school system.
It is apparent that only the General Assembly could implement this system. Certainly local school systems cannot be responsible for evaluating their own needs. Neither could all the systems be expected to agree on the levels of funding necessary to meet the needs of their children equally. In fact, if left to the individual jurisdictions, some might be unwilling, or unable, to raise sufficient revenue to meet even a commonly agreed upon level of spending. Therefore, it is apparent that the General Assembly must provide the resources necessary to establish equal educational opportunity throughout the State.
I do not propose or suggest how or from what source the necessary funds will come. It is my view that the responsibility of the Court is to advise the General Assembly that it has
. Calvert County has five times the property tax base of Caroline County. Montgomery County has three times the income tax per capita base as Somerset County. Baltimore City has the highest tax rate in the State ($5.97) more than twice as large as Montgomery County ($2.82) but raises only 38% as much revenue per pupil.
See Passano, History of Maryland (1901).
See Census Reports, 1860, at 210-15.
. Because the statistics for the area of Baltimore City and County reflect the areas of these jurisdictions after an annexation by Baltimore City of a belt of County land in 1888, they are not entirely accurate for 1860. However, to the small extent that this overstates the area of Baltimore City and understates that of the County, the density figures would be even larger for the City and smaller in Baltimore County.
. In 1864, apparently only two counties augmented their school funds by additional taxes. See A. Crewe, No Backward Step Was Taken 31 (1949). Furthermore, the same amount of revenue was raised and distributed under the 1867 Constitution. Id. at 38. If these funds were sufficient to provide a uniform education in 1864, they also should have been sufficient to provide basic equal educational opportunity in 1867.
. The Court, of course, recognized in a footnote that "the State equal protection principle is possessed of independent animation ....” Attorney General v. Waldron,