*1 et al. v. SOMERSET DAVID W. HORNBECK et al. EDUCATION BOARD OF COUNTY Term, 93, September 1981.] [No. April 1983.
Decided *4 J., The cause argued was before Murphy, Smith, C. Dudley Digges Couch, JJ., and J. Cole, Davidson *5 E. Associate Judges the Court of Orth, Jr., Charles (retired), specially assigned. Appeals Nilson, General, George Attorney A. Assistant Special Sachs, Attorney H. Stephen General and with were whom Heller, General, Attorney Ellen M. Assistant for on the brief Stiller, the State and Shale D. I. Jay with whom were Morstein, Jacobs, Hecht, Julien L. James S. A. William Bernstein, Reynolds Frank, Conaway & Goldman and and McGuckian, County Paul A. Attorney, on for the brief County, Montgomery appellants/eross-appellees. Emory, W. B.
Richard were Nell Strachan and whom with Venable, Baetjer & C. Howard Elliott on the and brief Silard, Lichtman, Rauh, Jr., Joseph L. John with whom were Rauh, Levy, Mary M. James C. Turner and Silard & Lichtman, P.C., Brown, Solicitor, City L. Benjamin Kogler, Jr., City Solicitor, Tony Valentine A. Assistant Bruce and Jones & Jones and Starke Evans brief, on for appellees/cross-appellants. Lee
Amicus curiae Havis. brief filed Amicus curiae brief of The Board of Education of Prince M. filed. Paul Nussbaum and John R. Barr George’s County on the brief.
Amici curiae brief Wohlgemuth filed. Thomas J. for Board Charles A. Reese of Anne County; Education Arundel Judith S. Bresler for Boards of Education Howard and Montgomery Counties; Richard R. Bloxom Board of Edu- for Rymer Thomas A. County; cation of Worcester for Board County Education of Calvert Thompson Ernest Lynn Leonhardt Board Education of Talbot on County the brief.
Amicus curiae brief Maryland, of Women Voters of Inc. Sykes J. Melvin filed. on brief. Committee, Inc.
Amicus curiae brief of Greater Baltimore *6 Smith, on W. Somerville & Case filed. Michael Lower and brief. the J., opinion J., the ofthe Court. delivered C. Cole, Murphy, dissenting opinion page filed at infra. and
dissents constitutionality of to challenge the This involves a case financing govern system the of which Maryland statutes State’s secondary the elementary schools and public i.e., twenty-three districts, in the twenty-four school City. litigation Baltimore The Maryland and in counties of in taxable disparities wide the existence of upon focuses districts, and the effect of the school among various wealth capacity of the dis- poorer the fiscal upon those differences offerings to students with educational provide tricts their the affluent to those of more comparable and resources school districts.
I pursuant is Maryland’s public school administered Article of the provisions to the of the Education (1978). Education, of The of as head the Code State Board Education, is the entrusted with Department State of elementary public the and general supervision care and of State; secondary it is to determine empowered schools of the to carry policies adopt the school and and out State’s bylaws, regulations for administration rules Board, system. Subject general authority to the State responsible is Superintendent the State Schools county A Department. administration of Board Educa- Commissioners in county tion each and a Board School City, together Baltimore with their local school over superintendents, are vested with control educational Subject matters in their districts. respective school Board, bylaws, applicable regulations rules and State the local are to determine educa- empowered authorities policies tional within their own school districts. primarily State’s financed
a combination of local tax State and revenues.1 Section 5-201 (with of the Education Article provides certain exceptions) all funds appropriated Assembly State General support aid in of the public schools shall be included (c) within the General State School Fund. Section 5-201 payment directs from of monies the State School Fund for a specified public number of school expenses, including in sub- (12), the paragraph State share of "basic current expenses,” (a) (3) (with § a term defined in 5-202 mean designated exceptions) expenditures by county "the made from State county public elementary secondary revenue for (b) (1) education.” Section 5-202 provides that each school district shall receive from the State an amount for each year representing the "State share of basic current *7 (b) (2) expenses.” Section 5-202 provides that the annual expenditure for expenses” "basic current in which the State (the will is statutorily prescribed share $690 "foundation” case) amount the at time suit was filed in this multiplied by (b) (3) the number of students enrolled. Section 5-202 specifies eligible that to be receive the State share of basic expenses, current governing body subdivision’s "shall levy an annual provide tax sufficient to an amount of reve- nue elementary secondary and public education purposes equal product to the of county the wealth of the and a percentage uniform year.” determined for each fiscal added.)2 (b) (4) (Emphasis provides Section 5-202 that the State share of expenses basic current for each school district "is the difference county between the share calculated under (3) paragraph of this subsection the basic current (2) [$690], expense to be shared as indicated in paragraph of (a) (7) this subsection.” Section 5-202 defines subdivision’s "wealth” to mean the sum of the assessed valuation of real property, utility operating property, and net taxable income. minimal, 1. constituting approximately percent Federal aid is 8 of the total. 2. provides percentage The subsection that uniform shall be deter-
mined as follows:
605 current formula for "basic present financing The (b), popularly § known as is provided 5-202 expenses,” as formula, its then Lieuten- originators, after the Lee-Maurer The Lucille Maurer. Delegate Blair Lee and ant Governor for differences local "equalize” is intended to formula of current larger amount basic by providing wealth per with lesser wealth pupil districts aid to school expense the formula greater operation, wealth. In than to those with statutory "foundation” per pupil as It sets a works follows: that each ($690) minimal base amount level which is the Of annually per pupil. spend district must and 50 percent of the first pays amount State 55 $624 a group districts as percent remaining The local $66. remaining percent percent $624, 50 pay $66. among the State share local dis-
The actual distribution of that tricts and of the foundation amount each percentage in accordance provide must from local tax revenues varies (a) (7). §by The the district’s "wealth” as defined with 5-202 computed as amount that each local district contributes is school students enrolled follows: The total number multiplied by in the and the $624, product State is all by yielding calculation first-tier share for 0.45, multiplied by is then districts. The total number students multiplied by yielding $66, 0.50, product local — districts’ share. The sum of the the total second-tier two — contribution of all districts is then divided the total resulting percentage wealth of all is a districts.
"uniform tax rate” to each district to raise its applied be *8 expenditure. applied of the rate per pupil share tax $690 pupil yields to each amount per per district’s wealth the pupil expense it toward the basic current must contribute Thus, pays greater the State the balance. the dis- $690; raise, rate trict’s wealth the more the uniform tax will and contribution; conversely, the per pupil smaller the State’s expenses for all of the "The the basic to be shared sum of current $624, 0.45, by multiplied, for the for the first counties shall be additional $66, by by product divided shall then be 0.50 and counties; resulting quotient, the the the sum of the wealth of all of expressed place, is the percentage to the third decimal as a rounded percentage.” uniform wealth, yield, the less its the less the uniform rate will and larger the Each State’s contribution. district’s share is only State, the minimum mandated and each expends considerably per pupil more than the foundation amount. expenditures by additional may These local districts be made without limitation as affecting to amount without level of State aid received under the formula.
In addition to the State share of basic expenses current § (b), provides under 5-202 the State an equivalent amount per to a having student school district a population $100 8,000 aid”), density persons square ("density over per mile City. met only criterion Baltimore of this Two-thirds amount must be for certain programs used for students with special educational needs that have from resulted educa- environmentally or environments. tionally disadvantaged (c). § 5-202 This subsection also authorizes expendi- a State ture per qualifying student to $45 school districts for the purpose eligibility same where for funds is established under Elementary Secondary Title I of the and Education Act of specially "targeted” 1965. Other State aid is to the twelve poorest school districts in the for operating State use in their systems. local
In addition to appropriations these from the State School Fund, substantially provides funding the State full for "cate- (without gorical aid” to adjustment school districts for subdi- wealth) vision purposes, including various educational payments for teachers’ retirement security, social educating children, handicapped vocational education and rehabilitation, costs, student transportation school con- (c) costs, § programs. struction and other et seq. 5-201 expenses year The State share of basic in fiscal current total; $331,880,120, 1980 amounted percent $283,281,866, local school districts appropriated or 46 percent the total expenses basic current for the 1980 fiscal year. "categorical State aid” school districts year $480,000,000 1980 fiscal density, amounted to compensatory targeted $26,000,000. aid amounted to
607 each local expenditures, these educational In addition money sup- for the sums substantial spends subdivision in assessed of differences Because schools. of its local port subdivisions, the amounts among the valuations property vary from spent per pupil taxation and through local raised tax wealth district, the district’s depending upon district educa- enhance the money to spend and/or inclination students. available to its opportunities and tional resources in substantial result discretionary expenditures local These — imbalances the districts imbalances between spending equalization the State’s offset only partially are which districts in some school offerings and other aid. Educational in others. That considerably than greater are therefore depen- financing public its schools system of Maryland’s raised tax revenues part upon in considerable dent of their local support for the expended and local subdivisions entirely clear. systems school is thus public II Education of the Boards of February On Counties, the School Somerset, Mary’s and Caroline and St. City, together taxpayers, with Baltimore
Commissioners of school students, officials and parents, (collectively plain- superintendents each subdivision in the Circuit tiffs), declaratory judgment action filed a respective Characterizing their City. Court of Baltimore distressed, claimed plaintiffs fiscally districts as (a) system violated financing that the State’s Amendment, of the Fourteenth Equal Protection Clause (b) Article guarantee of equal protection (c) § 1 Article VIII Maryland Rights, Declaration of Constitution, the General Maryland which commands of the thorough the State a Assembly throughout to "establish Schools; provide by [to] System efficient of Free Public otherwise, Named as taxation, their maintenance.” as reads Constitution entirety. 3. In its Article VIII follows: *10 of the Comptroller the Trea- action were in the defendants Schools, and, by interven- of Superintendent sury, the State County, Maryland. tion, Montgomery complaint alleged insufficiency The that because of the of by discriminatory, the unequal school funds caused State’s system, inadequate the financing plaintiff school school obligations boards were unable meet their constitutional protection state equal guarantees under and federal or 1§ under the and efficient” clause of of Article "thorough the In separate VIII of Constitution. four causes of action, plaintiffs alleged that the State’s school public financing system unconstitutionally against discriminates all in disadvantages fiscally students the State’s by school districts lesser and providing distressed them system inadequate opportunity; educational that unconstitutionally operates particular disadvantage to the poor attending fiscally of children in the public schools districts; Maryland unconstitutionally distressed school that poor throughout discriminates children against by systematically equal State denying opportu- educational them; nity to most of and that State’s public financing system unconstitutionally against discriminates City residents and of Baltimore taxpayers by compelling impose them to rates unparalleled offering tax while still only education, a duality promotes a reduced level which continuing City’s tax "out-flight” base and threatens City’s vitality. fiscal Assembly "Section 1. General public to establish free schools. Assembly, The General at adoption its Session First after the Constitution, throughout shall Law establish the State a thorough provide by taxation, System Schools; and efficient of Free Public and shall otherwise, their maintenance. "Section 2. adoption Continuance of in force at of Constitu- tion. System Schools, The constituted, of Public as now shall remain in force until the end of the said first Session of the General Assem-
bly, expire; except and shall adopted, then so as far or continued Assembly. the General "Section 3. School Fund. kept School Fund inviolate, State appro- shall be priated only purposes to the of Education.” action, in plaintiffs In asserted their support of their vary widely Maryland’s school districts complaint ability support their taxable wealth and their fiscal education; system financing that under the State’s schools, required its the local school districts are approximately raise from local tax revenues two-thirds of systems; expenses operate the current needed to their school disparities that wealth the school districts are such between plaintiff that the districts are unable to raise revenues com- because, parable at to those of the wealthier districts rate, given yielded per substantially tax the revenue child is districts; yielded than less the more affluent school poorer that this is so even if the subdivisions tax at rates *11 districts; higher than those of the wealthier that an aggravating cause of the reduced school funding capacity — City "municipal Baltimore results from its overburden” large having population factor endemic to cities extreme densities, rates, great poverty high and crime which necessi- expenditures greater tates of local revenues in amount than govern- other school district for non-school services, police protection; mental such as and fire that the necessity greater expenditures for these for nonschool needs sharply every locally limits the proportion raised revenue schools; public dollar which remains available for and that the Lee-Maurer equalization formula does not take City’s municipal Baltimore overburden into account but erroneously instead assumes that local tax revenues are equally available for in public schools each school district. complaint alleged though
The that even the Lee-Maurer formula undertakes equalize for differences local wealth providing larger amount of basic current expense aid to per pupil, school districts with lesser wealth equalization only up occurs to the foundation level of per pupil, $690 which is less than one-half the State-local per average State; revenue child of the school district that because of their lower revenue and spending capacity offerings fiscally educational in the distressed school dis- tricts, e.g., staff, quality quantity professional class sizes, facilities, school equipment supplies, are con-
siderably less than those offered school districts which fiscally distressed; are not that as a result of the fiscal inca- pacity plaintiff districts, school their students suffer from a diminished resources; level of educational that the State’s system’s school financing heavy dependence on disparate local taxable wealth results substantial dif- ferences in educational offerings and among resources school districts. complaint poor also asserted that children in the
plaintiff school districts require extra educational assistance learning overcome disadvantages but receive less as a result of discriminatory public the State’s financing system; poor that families in school districts more often income, suffer low low educational attainment and higher districts; than in unemployment the wealthier that as a result children in poor learning districts have only that by costly deficiencies can be overcome programs of compensatory education; that conditions associated with poverty impede learning progress; that the Lee-Maurer equalization formula fails to take into it account that costs substantially more to provide learning opportunities for poorer children; that these are needs not accommodated schools; under the State’s of financing its instead yields reduced and average below educa- tional resources to economically educationally students; disadvantaged public school plaintiff school districts suffer from "educational overburden” in *12 higher their poor concentration of children with and special greater needs; educational that percent of the State’s poorest fiscally children reside in distressed school districts wealth, with average below taxable with the result these children systematically relegated are average to below reduced, wealth schools with unequal and inadequate educa- tional offerings; and that although City Baltimore levies taxes at a rate higher than other subdivision Maryland, provides it average public below school funding to its students. system’s sought
Plaintiffs a declaration of the finance if unconstitutionality, injunctive with relief together Assembly to enact a school finance General failed comported precepts. with constitutional Judge The trial before David over Ross consumed four produced record, months and voluminous numbering many a pages. Believing thousands of that the issue in decisive virtually facts, rested upon undisputed Judge case Ross lim- his formal of fact findings essentially following: ited He first found from evidence that disparities substantial among Judge existed tax wealth the school districts. Ross forth a comparisons prob- set few to show the extent of the lem: County $138,318
"While of property Calvert had 30, wealth pupil September behind each enrolled on 1979, Mary’s County, County, St. Somerset City County respec- Baltimore Caroline had and $32,151, $27,762. tively only $34,939, $28,375 and County The ratio of between disparity Calvert Caroline 5 to 1. In County Montgomery was $7,059, County capita had a net per income of while $2,408. Thus, County Somerset had maximum fifty percent 'piggyback’ income tax subdi- permitted impose visions are in Somerset raises County only per capita about one-third of the County. amount it Montgomery raises in When wealth is of property measured combination per income enrolled on pupil September formula, 1979 as defined Lee-Maurer $129,850 County Worcester had while per pupil County, only Somerset had contiguous neighbor, its $39,107 per pupil, disparity ratio of more than 3 to 1. If property taxable wealth is defined as total taxable county purposes plus net taxable income, County the disparity between Calvert with $127,556 County per pupil Caroline with $39,229 than is also more 3 to 1.” *13 plaintiff the evidence that the subdi-
Judge Ross found from than per pupil far less in revenues visions were able to raise districts; if were to that each subdivision the affluent school valuation, per tax at a rate of assessed property $2 $100 its $2,766 enrolled on County per pupil raise Calvert would Mary’s 30,1979 contiguous neighbor St. while its September that Worcester only per pupil; County $699 would raise $2,397 neighbor while its County per pupil raise would County only per pupil; and $643 Somerset would raise only County would raise City $568 Baltimore and Caroline per pupil, respectively. and $555 Lee-Maurer although found as a fact that
Judge Ross inverse expenses” perfect current formula creates a "basic per aid relationship per pupil between wealth State the formula was insufficient pupil, State aid under wealth. He disparities substantial local tax overcome the explained: speci- level
"First, expense expenditure the current half the formula is less than fied in the Lee-Maurer expense. current For average level óf actual State year, average example, in the 1978-79 school expense per student was current local and State The $1,979, amount was $690. while the formula approximately amount was one-fourth formula expenses for current spent per pupil the amount Secondly, the use of County year. Montgomery which equalization aid undercuts the categorical Although achieves. the Lee-Maurer formula County than six times the received more Somerset neighbor aid that its expense basic current year County received in fiscal Worcester aid and the categorical a total of got former $595 categorical The effect of disequalizing latter $524. aid to resulting total State aid is obvious. only given twice that County was Somerset effort County despite equalization an Worcester than 6 to 1.” the Lee-Maurer formula of more under *14 In finding spending disparities from the evidence that closely among the school districts were substantial wealth, Ross, in disparities Judge related to subdivision by way year indicated in fiscal example, $2,328 Montgomery County spent per pupil while Caroline $1,498 County only spent per pupil. Judge Ross set forth examples spending disparities among other the school districts, from which he concluded that "a child in the approximately wealthiest subdivision has twice the amount in spent poorest on his education as a child subdivision.” judge The trial further found from the evidence that the majority Maryland in are clustered in the indigent pupils poorest He observed: subdivisions. plight plaintiffs’
"The subdivisions is they large num- exacerbated fact that have poor bers and concentrations of children who have only special example, educational needs. For 6% County eligible students are for Montgomery 42%, 39%, federal Title I 28% compared funds City, County, and 21% Baltimore Somerset County Mary’s County, respec- Caroline and St.
tively.” Finally, City, Judge as to Baltimore said: Ross addition, City
"In Baltimore local reve- has less nue for funding available than do the other subdivisions, greater por- because it must devote a locally tion of its tax base and its raised revenues to example, year nonschool services. For in fiscal although two subdivisions raised approximately per the same total local revenues Baltimore capita, City spent per capita for $357 expenditures, neighbor non-education while its County spent only per capita. Baltimore For $235 County represented Baltimore of its total 47% $1,549 per capita revenues and left spent per to be contrast, In pupil City for education. Baltimore spent of its per capita 69.5% total revenues for only which left expenditures, $789
non-education average for education. The State per pupil for 50% of total local expenditures is non-educational property the effective tax rate Although revenue. (11.89 County City almost twice that of County has almost twice respectively),
and 6.02 educa- per pupil available as much revenues funding after non-educational expenditures tional services.” financing its held that the State’s scheme of
Judge Ross
system violated Article VIII
public school
*15
Maryland
Article 24 of the
Declaration of
Constitution and
Equal
Protection Clause
that it did not offend
Rights but
judge
Amendment. The trial
first observed
ofthe Fourteenth
District v.
Court in San Antonio School
Supreme
that the
(1973),
1278,
He said: *16 $2,328
"If it takes per pupil provide full and com- plete county, schools in one it would seem that it would substantially cost the same to do inso the hand, $1,498 others. On the other if per pupil pro- full complete vides in schools one subdivision it hardly can system be said that permits a which expenditure $2,328 of and comparable amounts in other subdivisions is efficient. certainly This is true if one attributes concept to 'efficient’ the of using clearly least wasteful means part which is of the current meaning of that word. It would seem that the complete is either not full and it in the spending
the low subdivision or is wasteful high spending one.” extensively opinion, Judge in his
For reasons outlined if Article VIII language Ross next concluded that even the of construction, history and ambiguous required was its interpreta- dictated the same contemporaneous construction tion, i.e., system be that a statewide free estab- full, by complete contemporary lished which is and effective throughout standards the State. summary,
In Ross found from the evidence: Judge financing significantly scheme present "that require- schools whose plaintiffs’ underfunds the State, great any are at least as as in the ments permits virtually spending while it unlimited quality of the other subdivisions. As result plaintiffs’ schools in the subdivisions is inferior to respect those in the wealthier subdivisions with and staff.” buildings, equipment, materials sys- existing the court found that because the Consequently, and to tem failed to set a standard of education qualitative State, "thorough it provide equal funding across the was not § 1 of Article VIII ofthe meaning and efficient” within the Maryland Constitution. Maryland’s statutory
Judge Ross next considered whether financing scheme of its violated Maryland of Article 24 of the equal protection guarantee § 1 Article Rights.4 Declaration of He determined that Constitution, VIII unlike the federal consti- tution, right of students and their explicitly guarantees provides:
4. Article 24 ought imprisoned "That no man to be taken or or disseized his freehold, outlawed, exiled, or, privileges, liberties or or or manner, life, destroyed, deprived liberty property, but or his or judgment peers, of his the Law of the land.” recognize concept equal Our cases treatment See, process requirement e.g., embodied in the 24. due of Article Attorney Waldron, 683, 704, General v. 289 Md. A.2d 929 (1981). *17 thorough a and fund to have the State establish parents schools; that public of free system statewide efficient it constitutionally guaranteed, is right is because discriminates invid- fundamental; any system which that thorough and efficient furnishing a iously respect with upon and necessarily impinges schools public of free and, right purposes that fundamental interferes with by the most adjudged analysis, must be equal protection requires the standard, scrutiny, which rigorous strict i.e., unequal that the to demonstrate proponents of the statute compelling governmental necessitated treatment is system of Maryland’s Judge interest. Ross held funding and provides unequal schools financing public its He then noted that unequal distribution of State revenues. school districts was not specific complaint plaintiff pupil probably offer each
that the State has failed to but opportunity, ideal of educational equal unachievable establishing maintaining rather "that in by Article VIII the State has done public schools mandated said, only question, so he is whether unequally.” The constitutionally He unequal funding permissible. is explained: question obliged
"The is not whether the State is of all its chil- equalize opportunities the educational dren, in establishing but whether the State system in to the constitutional response statewide unequally.” mandate can do so
Judge Ross noted that "tax resource wealth” is Assembly "in within the entire control ofthe General trust for all that all such reve- citizens of the State.” He believed determining nue how much sources must be considered money system, stating will be allocated to spent "[t]he State’s revenues can be collected and locally only by from the General express grant power Assembly.” naturally
Judge occurring Ross said that because of wealth, disparities expenditure taxation and will local frequently result of the State’s unequal distribution *18 But, said, he the itself mandates "when Constitution
assets. system, and maintenance of statewide establishment justified the State’s can be unequal distribution of revenues agree most reason and all there is only compelling for the as summary, Judge finance.” In respect none with to school the school requires Ross reiterated that "Article VIII full and standards complete contemporary to be State”; equality Article "requires the that for throughout State”; "key that determinant pupil each the the and that achieving goals funding”; these mandated way and of only practical realistic "[t]he respect determining achieving equality is with and committed to to division the funds education. to a fair the funds pupil Each is entitled share of accomplished for This can be available education. money equally accurate only by dividing the on an per pupil basis across the State.” spent to be on Judge Ross that total amount recognized by the of revenues is limited finiteness education revenues. is for competing on those It General demands all Assembly, he which has control over revenue repeated, State, "in to all such sources sources within consider be to schools.” determining will allocated how much Judge cautioned: Ross ability may Assembly not its
"The limit to General by permitting the subdi- adequately fund education retain excessive revenue visions have permit it distri- power may unequal nor collecting for bution revenues schools.” "requires math- judge The trial held Article with equality among pupils respect ematical distribution funds,” per pupil with from exact dollar some variations being permitted pre- if "tailored with mathematical equality clearly to a difference cost.” cision demonstrated whether Judge unnecessary Ross it to determine deemed Lee-Maurer was unconstitutional failure to formula City’s overburden” into account "municipal take Baltimore quite he held "the entire . .. unconstitutional since shortcoming in the apart possible from Lee-Maurer purposes He concluded that for formula.” nevertheless funding meeting requirements respect constitutional with education, who the taxes” since the pays "it is irrelevant funding for requires "adequate equal State Constitution State”; relies on pupil plan "[a] each in the which illusory adequately revenue and as a result fails to sources satisfy protection.” requirements equal fund will not *19 appealed All from the trial court’s decree. We parties granted prior by Special certiorari to decision the Court of Appeals pass upon public importance the issues of raised in the case.
Ill § 1 meaning We first consider the of Article VIII of the Maryland requires Constitution which the General Assembly thorough establish "a and efficient” of free throughout by schools the State and taxa- "provide tion, otherwise, course, if for their maintenance.” Of provisions unambiguous, of this section are clear and as the held, trial judge no construction or clarification is needed or permitted. Brown, 273, 412 See Brown v. 287 Md. A.2d 396 (1980); Williams, 382, Hopkins Johns Univ. v. 199 Md. 86 (1952). A.2d 892 Contrary position by Judge to the taken Ross, however, not, view, § 1 provisions do our clearly unambiguously compel the enactment of a stat- mandating ute exact equality per pupil funding expenditures among the districts as the State’s school constitutionally required establishing means of and main- taining "thorough a of free and efficient” statewide § 1 meaning by schools. The is no means free from doubt; section, face, language plainly of that on its susceptible meaning. Accordingly, of more than one to ascer- tain and organic effectuate the intent of the framers of the it, people law and the it is essential that we con- adopting 620 history
sider the
underlying
§
the enactment of
1 and its
contemporaneous
construction
charged
officials
with
administration of the government, including the legislature.
Elections,
See
Sup.
406,
Kadan v. Bd. of
273 Md.
329 A.2d
(1974);
702
Hopkins
Williams,
Johns
Univ. v.
supra;
(1942).
Duke,
434,
Johnson v.
24
180 Md.
A.2d 304
In this
regard,
it has been held that
contemporaneous
con-
placed upon particular
struction
provision
Maryland
Constitution
the legislature, acquiesced in and acted
upon without ever having
questioned,
been
followed
continuously and uniformly
very
from a
early period,
strong
furnishes a
presumption that the
rightly
intention is
interpreted.
Wyatt
Commission,
See
v. State Roads
Md.
175
258,
(1938);
Walls,
1 A.2d
292,
v.
Humphreys
169 Md.
(1935);
(A) 1776 did not con- Maryland Constitution of Although the education, the school any relating public tain to provision its concern for educational Assembly General manifested McCarthy v. Bd. early days See matters the of statehood. debates Convention Constitutional 5. Perlman’s account of the 1867 throughout the Sun appearing in the Baltimore taken from detailed articles period of the Convention’s work. 621 (1977). 634, A.2d 1135 Co., 374 A. A. 280 Md. of Education of to establish created a fund of 1813 122 of the Acts Chapter State; throughout system of free schools general equally among to be divided the school fund were proceeds of 1816 directed the of the Acts of Chapter 256 the counties. county superintend in each of commissioners
appointment of the State school county’s proportion ofthe expenditure to establish Acts of 1825 undertook Chapter 162 of the fund. schools, super- under the system primary free
a statewide of Instruction. The of Public Superintendent of a State vision by dis- managed into school districts counties were divided by funded local was to be trict trustees. School construction appor- were to be school fund revenues property taxes. State districts among the school equal on an basis part tioned Resolution basis. See partly school-age population on a Assembly The 47, at its 1833 session. by enacted the General sepa- its own City Baltimore to establish permitted 1825 Act any county, vote of system, and it authorized rate school sys- electorate, school public to establish its to decline tem. 1864, efforts to establish a legislature’s
Prior to Under the system were ineffective. public statewide Act, own City Baltimore maintained its schools. public not to establish number of counties voted enacted the General Numerous local laws were public education in various Assembly pertaining 173; 1827, See, ch. Acts e.g., Acts school districts. 353; 1837, Acts 160; chs. 306 and chs. 14 and Acts of schools was a development ch. 279. City. and to Baltimore See largely matter left to the counties Blauch, Con- Maryland Constitutional L. Education and (1930). 1.864, An effort Mag. vention of 25 Md. Hist. of 1851 for Maryland in the Constitution provision
include a education” did not a "uniform of common school Convention Debates succeed. See 2 Constitutional (1851). intro- result was accomplish A bill to same Assembly but was duced in the 1853 session of the General not enacted.
622 of the Constitution adoption
It until was not schools was system public of free 1864 that a statewide VIII, § 1 of that document Article established this State. Superintendent a State appoint the Governor to required "a uniform develop to responsibility with Public Instruction 2 of the article schools.” Section public of free of Education. Section of a State Board required the creation in each school commissioners appointment the 3 directed Superintendent deter- as the State county in such numbers by the State appointed to be mined, the commissioners by the State duties as directed perform and to Board Assembly. Section by the General or Superintendent Assembly a uniform "provide to directed the General open schools, kept a school shall be by which public of free in each for tuition expense free of supported year.” Section school-district, least six months each for at of not Assembly levy to an annual tax required the General of taxable each one hundred dollars than ten cents on less free State, support the the for property throughout among the schools, distributed the funds be respective their City proportion and Baltimore counties twenty years. This ages of five and population between levying "any Assembly from the General prohibited section counties, unless such upon particular additional school-tax tax.” Sec- its desire for such county express by popular vote its addi- City provide "to tion 5 also authorized Baltimore be may as hereafter present, as at tional school-tax mayor city Assembly, byor by the General provided the General Assem- 6 directed council of Baltimore.” Section the free support fund for the bly provide "a tax of not State, of an annual imposition schools of dollars of taxable on each one hundred less than five cents State,” thereof to be proceeds property throughout fund,” until the and invested public-school as "the known dollars, which the ten million after fund amounted to six discontinued, if the § could be tax required cent provided further Assembly determined. Section 6 General so "forever inviolate as fund would remain that the school State,” therefrom the interest fund of the public-school free *22 only, prescribed as purposes for educational be disbursed by law. fully imple- was of 1864 VIII of the Constitution
Article 1865, compre- which made of the Acts of mented ch. 160 free schools system public for a uniform provision hensive fifteen State, of a including imposition the throughout the property dollars of assessable each one hundred cent tax on State, to the counties to be disbursed throughout the ages between City proportion population Baltimore did Constitution years. Although the 1864 twenty of five and funds raising additional from prohibit not school districts supple- taxes of local subdivision through imposition fund, the 1865 statute school grants ment from the State 1, 1867, county no or Baltimore January that after provided schools support public of the City impose taxes for could respective in their subdivisions. by Article system established
The "uniform” school duration.6 1864 was of short-lived VIII of the Constitution of a new Convention At the Constitutional by its to the Convention reported Education Article was Committee; adopted it was twenty-five member Education identical amendment and was by the Convention without Article VIII wording with what later became form and Debates, Perlman, at See Maryland Constitution of 1867. did not contain Article proposed,
148. As the new Education Constitution, for in the 1864 any provision, as then existed officials, State education appointment designated in spec- taxes mandatory property of State imposition for the the distri- system, or for ified amounts to fund the statewide among the tax revenues and allocation of such bution article contain City. Nor did the new counties and Baltimore Constitution, that the statewide provision, as in the 1864 History system 6. indicates that the uniform was favored sought the "Unionists” local Maryland, some local of education from the who to remove control Army, quartered subdivisions. Because soldiers of the Union then Constitution, permitted adoption were to vote on the of the 1864 represent speculate did not historians that the document’s ratification Blauch, majority Maryland's citizenry. the will of L. See First 1865-1868, System Maryland, Mag. Uniform School 26 Md. Hist. (1931). 225-226 system required only be "uniform.” The new article efficient,”
that the free statewide be "thorough taxation, "by and funded or otherwise.” It also directed that existing expire "uniform” would at the end of the year constitution, first after the adoption of new unless the legislature elected to continue it.
Although transcript no official of the debates of the 1867 made, Convention was considerable historical "evidence respecting proceedings. reported exists Convention’s As *23 Perlman, in Debates of the Constitutional Convention 198-203, 243-48, 251-56, of at a number of delegates expressed pub dissatisfaction with the "uniform” Constitution; system they lic school created the 1864 urged delegates its termination. the large Some assailed expense operation system, associated with the of the uniform administration, control, with centralized lack its of local Superintendent with the of the performance of Public Instruction. Members of the Convention’s Education Com mittee, explaining proposed in new article to the dele gates, system; that it a provide said did not for uniform the subject incorporating "of into the constitution a detailed discussed”; system thoroughly was that the committee was of the "unanimous conclusion .. . that the constitution details”; should not be encumbered with the and that the plan legislature.” "best was to leave the details ... to the The Kilbourne, Delegate comments of a member of the Educa Committee, tion appear to reflect the sentiment of the Edu Perlman, Debates, reported cation Committee. As at 200-01, Kilbourne matter Legisla "wanted this left to the ture.” He said that
"He had been abolishing present system . .. in no he shape [and] form would consent that the system day beyond should continue one the time article, indicated in [June 1867] this .... The committee had ample evidence of the almost entire people Maryland system. voice of the against the why willing reason he was to leave this matter thoroughly he was Legislature was because to the the State would send that no section convinced would not be Legislature who delegate to the system. The enor- present abolishing favor raising the mode of system, expenses mous it, and the expending mode of money and the why are all reasons superintendent, of the power The whole with.. . . dispensed be should It objections. radical, fundamental has right to commit it would be supposed be would who funds to those expenditure placed funds are them, these but contributed every guardian parent beyond the control all are denied State; the burdens those who bear in their direction.” share proposed nevertheless of amendments were
A number Page of delegate, report. One Committee’s the Education system should be the uniform County, urged that Somerset Debates, Perlman, at 203. the State. throughout continued favored County also McMaster of Worcester Delegate 245-46. Other system. Id. at of the uniform continuation include report the committee’s sought to amend delegates City authorizing Baltimore provision constitutional *24 201-04, system. Id. at school separate maintain its own an entire to substitute sought 243-51. Another amendment it report; of the committee’s place article new education into the constitu- provisions incorporating detailed proposed at Id. public the schools. assuring local control over tion popular "the ends of urged that Delegate 253-55. Barnes ques- by committing whole can best be served education counties, city of and the tion to the control of the several to according in each Baltimore, conducted respectively, to be Perlman, Debates, at people.” and desires of the wants Barry urged adoption Perlman, Delegate According to 252. "as by the committee
of the education article submitted system, a new to create power would have the Legislature city of give perfectly competent it be and would has, system as she now system Baltimore such a which may she desire in lieu of it. He was in leaving favor of Legislature, matter to the properly where it belonged.” Delegate Vansant, Id. at 251. a member of the Education Committee, adoption advocated of the proposed new educa- tion article without change, stating that future details of the system "should be left Legislature, to the which would January assemble in next after the adoption of the constitu- tion.” Id. at 255. Similar sentiments were expressed by other delegates, some of whom were on record favoring county as control of the separate schools and/or a City. Baltimore The central theme emerging from the debates was not to encumber the new education article with beyond details those provisions proposed by committee, so as to permit legislature to adopt any system, including system, uniform implement by and to it statute.
None proffered amendments to the proposed new education article were adopted the Convention it and was passed only with dissenting Debates, five votes. at 439. A resume of the work of the printed Convention was in The Baltimore Sun after the adjournment. Convention’s It was there reported that the education article it "makes incum- bent on .. . legislature], [the at its first session to provide for system, a new which, all the details of including the rate taxation, are left to it.” Id. at 36.
Perlman’s accounts of the proceedings at the 1867 Constitutional are Convention confirmed articles appearing in The Baltimore American and Commercial Advertiser, Daily Baltimore Commercial and the Baltimore articles, Gazette. In various these newspapers reported that it was the intention of the Convention dele- gates adopting the new education article to leave imple- mentation of the details of the
legislative example, determination. For Delegate McKaig, Committee, member of the Education quoted saying: was as object "[t]he of the committee was to leave the Legislature entirely American, untrammelled.” Baltimore June *25 1867, at 4. Delegate Page reported was to have unsuccessfully introduced a motion to amend the first sec- thorough, "a require article to of the new education tion 12, Id., system. June public efficient and uniform”free efforts 1867, reported was It (emphasis supplied). at local guaranteeing provision a to include constitutional schools, in system for a separate the public control of by espoused firm City, position blunted the Baltimore were members, favored most of whom by Education Committee control, adopt to the be left free legislature local that the 4. also 12 and at See June system it deemed best. Id. 12, 1867, The Commercial, 4. June at Daily
Baltimore 22, 1867, at Gazette, quoted in its issue June Baltimore saying: Delegate Wickes as full reserving Legislature
"I in to the favor of am a authority system for education provide to to city according of Baltimore county and the each section, opposed local wants each Legislature require the amendment which should ofthe system. The construction a uniform provide leaves, my committee reported Article report The opinion, question. doubt this upon no system, only uniform but for provide not for a does education, I system of thorough and efficient power contained entertain no doubt that under authority has Legislature in this full section also, President, Mr. full subject. over the There is authority provide Legislature reserved to This taxation for the maintenance of schools.
authority Legislature, to the as properly is confided nec- they will be able to decide the amount of taxes essary to levied and to the taxes to apportion be new which has been made will assessment system perfected. hereafter be No schools perfected can be a constitution. details given. question It which no cannot be satisfactorily arrange, man in closet but his can subject to depend upon experience and be must practical oper- amendment and when the alteration necessity ation demonstrates amendment.” such
628 Committee, Delegate Another member of the Education Tarr, delegates they told the Convention that were sent to — accomplish purposes provide "to for the two termination system” the to present provision of and make "for the estab- satisfactory system lishment of a more economical and than Gazette, 22, the one now in existence.” See Baltimore June 1867, at reported 4. articles a of Other that number the objected members of the Education Committee had to the great expense by operation system; entailed of the uniform question the levy of the amount of the tax to the support system, school the according to Chairman of the Education Committee, also the legislature was to determine. See Gazette, 20, 22, 4; Baltimore June 21 and at Baltimore American, 22, 12 at 4. June and
Following pro- ratification of the Constitution of the implemented by visions of Article VIII were ch.
Acts of a public which enacted new article. education provision system The statute for a general pub- made of free throughout lic schools the State. Educational matters county affecting a were under placed superintendence the County required Boards School The Commissioners. Act imposition property support of a ten-cent statewide tax to State, public the free throughout the to be City school-age distributed to the and to the counties on a The population specified basis. statute that the School State counties, Fund was the pay to salaries teachers in the and expense the stationery; of school books and if in the Fund apportioning among School the counties and City, Baltimore the county share of was the inadequate, county impose satisfy could a local property tax sufficient to county deficiency; the could impose voters also other and additional taxes for school purposes. City
The 1868 Act authorized Baltimore to its establish own of free delegate schools and to superintendence thereof to the local Board School Com- missioners. Act City levy The authorized taxes Baltimore necessary to was subdivision as within property upon system.7 educational City’s separate defray pro- distribution effect of even equalizing tax the school districts on among the State ceeds of statute, basis, was offset as directed population addi- levy in local authority governments vested spend them purposes for school property taxes tional result, per very pupil substantial as each saw fit. As *27 dis- among existed the State’s school disparities spending adoption of the years immediately following tricts for the in great the educational Due to variance 1867 Constitution. districts, the school the among and opportunities resources 1914, that a by of the Acts of directed legislature, ch. 844 public system and its study be made of the State’s school study, The Flexner and Frank financing. done Abraham Bachman, local reported through that from 1870 the of the total approximately two-thirds subdivisions raised school with the State expended purposes, funds for reported that remaining the third. The authors providing unevenly among was because the State’s wealth distributed subdivisions, the major its differences existed between They per expenditures. pupil school districts to financing recommended of a formula lessen the adoption impact disparities among of wealth-based the subdivisions whereby provide poorer the aid to the greater State would districts, thereby better educational equalizing opportunities among the State’s school children. it a
Specifically, single was recommended that there be state textbooks, fund; provide school that the State free reference students; and materials to all that the instructional State impose levy each to minimum tax a require subdivision a as precondition receiving its apportionment; State and light the State school factors: fund be distributed three (1) years the school between and fourteen population six (2) (3) attendance, age, school comparative the wealth By 7. ch. 311 legislature the the Acts of created Board of State superintend system. School Commissioners to The name changed by of the Board was Education.” The officeof ch. 377 of the Acts of 1872 to "State Board Superintendent of Public Education was recreated by ch. 428 of the Acts of 1900. Bachman, districts. A. Flexner and F. See Public (1921).
Education in
by the Flexner-Bachman
The formula recommended
That
by ch. 382 of the Acts of 1922.
report
implemented
was
time,
an
formula
statute,
provided
equalization
for the first
disparities among
of wealth
reducing
impact
for
pro-
minimum foundation
It contained a
school districts.
needs, while permitting
basic educational
gram support
the foundation level with
supplement
subdivisions
locally
tax revenues.
generated
additional
under the 1922 statute was con-
financing
formula
years,
change
tinued without essential
number of
through legislative adjustment,
although
foundation
increased,
program
periodically
resulting
level
was
greater equalization among
the school districts.8 Efforts
improve
equalization
provide
the State to
formula to
more
to the
were continuous. A
poorer
funds
subdivisions
gubernatorial
legislative
number of
commissions
financing
studied the
formula and made recommendations
suggested
for its
none of them
that Article
improvement;
required equal per pupil
VIII of the 1867 Constitution
districts,
funding
expenditures among
the State’s school
*28
recognizing
principle
responsibility
instead the
of shared
between
and
governments
public
State
local
for
school edu-
cation and
the need for a measure of local
emphasizing
control and initiative.9 The work of these commissions led to
legislative
the enactment
a number
of
of
enhancements of
equalization
the
formula and of the amount
aid
of State
And,
given
previ-
to the less affluent school districts.10
as
See,
high
e.g.,
121,
(increasing
school
8.
ch.
Acts of 1927
allowance
handicapped children);
(establishing
teachers);
152,
eh.
Acts of 1929
aid for
261,
equalization
(adding
transportation costs to the
ch.
Acts of 1933
certain
formula);
502,
salary);
(increasing
and
minimum teachers’
ch.
Acts of 1939
unit).
1,
(increasing
per
ch. Acts of 1958
aid
classroom
Re-Study
See,
Maryland
and Practices of
e.g., Report
to
and
9.
Commission
Philosophy
the
the Public
Re-Evaluate the
Schools
Finances of
(the
Commission, 1962); Report
on
of Senate Committee
Green
(the
Committee);
Hughes
Report
and
1963
Taxation and Fiscal Matters of
Financing
Study
Role in
Public Education
of the Commission to
the State’s
1971).
(the
Commission,
Hughes
(the
17,
See,
in
e.g.,
of taxable income
the
10.
ch.
Acts of 1964
inclusion
purposes);
(increasing
equalization
children);
ch.
of 1970
aid
wealth base for
to
Acts
$20,000,000
(adding
handicapped
the
and ch. Acts of 1970
expense
basic current
the Lee-Maurer
ously indicated
1973, represented
360 of the Acts
formula,
by ch.
enacted
The latest
improved equalization.
at
major effort
another
—
problem the Task
equalization
the
to consider
commission
—
Relationships
Fiscal
was
Study State-Local
Force
substantially
and its recommendations
in 1979
appointed
level and for other
pupil foundation
per
increase the
have
financing formula
now been
to the
improvements
531, Acts of 1980.11
See ch.
legislature.
adopted
the
(B)
adoption
the
history underlying
from the
It is manifest
Constitution, and from the consis-
of the 1867
Article VIII
provisions by
of its
interpretation
application
tent
government
of the State
legislative and executive branches
years,
"thorough
hundred
that the
for more than one
uniformity
§
1 does not mandate
language
efficient”
per
funding
expenditures among
State’s
pupil
§ 1
more than that the
require
districts.12 The words of
no
law,
"thorough
and effi-
Assembly, by
General
establish
State,
throughout
schools
cient”
of free
language
general
funded
taxation or otherwise. That the
departure
constituted a clear
of this constitutional directive
provisions
from the
and detailed education article
specific
is equally
contained in the 1864 Constitution is clear. It
§
newly adopted
nothing
provisions
clear that
compelled
legislature
requiring
to enact a law
support
appor-
funds raised to
be
1,§
did the
any particular way.
provisions
tioned
Nor
either
inhibit local subdivisions from
explicitly
implicitly,
or
fund,
equalization
propor-
in inverse
for distribution under
new formula
wealth).
per pupil
tion to
subdivision
(D.
1939),
Lowndes,
Supp.
11. In Mills v.
26 F.
Md.
the court
J.)
(Chesnut,
Maryland’s
obligate
did not
it to
concluded that
Constitution
provide any equalization fund.
recognize
interpretation
the rule that no construction or
We
of a
12.
duration,
statutory provision,
no matter of what
constitutional
can alter
*29
plain meaning
purpose.
Bldg.
or
Baltimore
&
its
Barnes,
See
Const. Trades v.
9,
(1981); Hope
County,
Md.
v. Baltimore
spending generated tax public revenues for school purposes in supplementation of amounts to be received from Obviously, the state school fund. light in of the historical evidence, "thorough efficient,” the words in the context usage § of their in are equivalent not the of "uniform.” upon legislature direc- impose Nor do these words system, to tive, public in school so its establishment money must be it that the same amounts of operate fund every school district spent, per pupil, allocated and sys- "thorough that a and efficient” Maryland. To conclude full, educa- complete § 1 means a and effective tem under State, held, judge as the trial system throughout the tional system provides which more require is not to a statewide children. adequate a education to State’s than basic § 1 a the statewide under is development determination; most, legislature at legislative matter for by system, § 1 such a effective is commanded to establish districts, with a provide youth as will the State’s all school § extent 1 encom- school education. To the basic Compliance it is so limited. passes any equality component, § 1 duty compliance with legislature with the 1867 Constitution. Article VIII of cases from other we have considered concluding, In so having "thorough a constitutions jurisdictions with state v. like Danson provision. clause or and efficient” education (1979), a chal- A.2d 360 involved Casey, 484 Pa. Philadelphia which the statutory system lenge to the provi- under a state constitutional district was funded the mainte- provide for requiring legislature that the sion efficient "thorough support nance and scheme, like Pennsylvania’s statutory education.” — funding primary two sources of Maryland’s, contained pur- State funds were distributed and local taxation. state Maryland’s pro- foundation level akin to suant to formula revenues Local tax expenses. current gram basic It was funding. of school major source constituted clause man- "thorough and efficient” contended districts. funding among equality dated exact
633 It Pennsylvania rejected that claim. Supreme The Court of had Pennsylvania Constitution said that the framers of specifically rejected possibility "considered and system Commonwealth’s be of education requiring the Instead, at 367. the court noted that uniform.” 399 A.2d clause, "thorough and efficient” the framers enacting the of local control to meet diverse concept had "endorsed recognized right and had "the of local local needs” educa- expand communities to utilize local tax revenues to by the state.” Id. The court said programs tional subsidized legislative financing public that because the scheme for edu- for the main- providing cation bore a reasonable relation to "thorough system tenance and of a and efficient” support schools, duty. In it had fulfilled its constitutional had not estab- regard, plaintiffs the court noted basic, adequate lished that child was denied a or mini- mum education. Id. at 365.
Similarly, provision Ohio’s Constitution contains efficient of common requiring thorough "a Dist., Walter, City schools.” Bd. of Etc. v. 58 Ohio Ed. Sch. denied, (1979),
St. 2d
court intended to assure funding noted that this formula was comply that each school had the means to with state district Therefore, minimum that even standards. the court held though differing local districts received amounts under the program, to ensure that each child conspicuous Ohio’s efforts (i.e., in adequate received an education terms of established standards) statewide of the state requirements met "thorough constitution’s and efficient” clause. Id. at 825.
Indeed, jurisdictions plaintiff the court noted that several funds,”
alleged to be "starved for actually were offering pro- grams minimum and services excess of the standards. Id. at The court fact financing "[t]he 825-26. stated that a better system could be devised which would be efficient more thorough more is not material.” Id. at 826.
Colorado’s
requires
legislature
Constitution
cre-
thorough
ate "a
and uniform
free public
schools
*31
throughout
Lujan
the state ....” In
v.
Bd.
Colorado State
of
Educ., Colo.,
(1982),
statutory
In Board
Nyquist,
of
Etc. v.
57 N.Y.2d
(1982),
439 N.E.2d
appeal
inequalities” districts, primarily municipal due to for some local support property variances in local assessment overburden and wide significant Additionally, the court assumed that bases. money expended
correlation existed between amounts pro- quantity opportunity of educational quality *32 any allegation that The court noted the absence vided. in districts fell offerings plaintiff the
educational promulgated below the statewide minimum standards York of Regents. the New Board article, to the
Turning the state constitution education in provision’s adoption the significance court attached to — 11,000 local 1.894 "at time when there were more than State, prop- in varying school districts the with amounts erty offering disparate opportunities.” wealth educational the Additionally, explained 368. court that educa- Id. at the any that the requirement tion article made no reference to substantially equal to be or "education be made available in every district,” provision nor was "there equivalent choosing provide opportunities that to either districts beyond might those elect or be able to that other districts so, from or local control of doing offer be foreclosed that 636
education, that program to extent a more were extensive Instead, locally and Id. provided, desired be abolished.” what intended, according was analysis to court’s contemporaneous documentary evidence, was "a State-wide system assuring acceptable minimal facilities and services unsystematized delivery in to the contrast of instruction in Therefore, then existence within the State.” Id. since the minimum state in currently standards were effect met, concededly being the court held that the constitutional mandate of education article was satisfied. State, (1976),
Olsen v.
Or.
P.2d
139
involved a
challenge Oregon’s
provision
constitutional
"a
requiring
general system
uniform and
of Common
The court
schools.”
there said
language Oregon’s
that
"uniform”
Consti-
tution
"the
long
requires
pro-
was satisfied as
as
state
and
vides for a minimum of educational
. .
opportunities .
and
permits
they
the districts to exercise local control over what
desire,
furnish,
and can
over the
at
minimum.”
P.2d
148.
Thompson Engelking,
(1975),
v.
96 Idaho
all of twenty-one, open for a minimum six aged six to per year. Id. 592. months at obligation” "primary makes it a Georgia
The Constitution adequate to the citizens provide the state to "an education of financing system, the Georgia.” Under that state’s school are state and local revenues. bulk primary fund sources educational money the distributed for "basic state is needs,” average daily to the attendance pursuant allotted aid, To receive each district must local district. this per taxation, amount from ad valorem contribute a set obtained jurisdictions, Local "required to as local effort.” referred however, program with funds may supplement In McDaniel v. by local tax assessments. generated property (1981), Thomas, S.E.2d 156 it was claimed 248 Ga. contributions, with the low level these combined that local clause. The violated the state education support, of state relationship evidence that a direct court concluded from the funding level the educa- between a district’s existed provide to opportunities which a school district able tional Nevertheless, it held that children. Id. at 160. its state constitution "do "adequate provisions education” they doing restrict from what can to not local districts district, nor within do improve opportunities educational they require equalize opportunities the state to educational Furthermore, Id. 164. the court found between districts.” at obligation to legislature disregarded had not its education, "adequate” as evidenced provide an massive state financial commitment education. an education must be 'adequate’
The court stated "while designed society, who can function produce individuals legislative government which primarily it is branch ” term Id. at 165. give 'adequate.’ must content Virginia Jersey Both the New and West Constitutions provisions of a requiring contain the establishment *34 638 and efficient” of free
"thorough
schools. In
Cahill,
473,
273,
denied,
v.
303 A.2d
cert.
Robinson
62 N.J.
(1973),
976, 94
292,
S. Ct.
inAs Robinson v.
supra, the
in Pauley
court
v.
(W.
Kelly,
1979),
101 S. Virginia, Maryland Jersey In West contrast New *35 has, by regulations bylaws adopted by legislation, and Education, comprehensive by the State Board of established all facets of qualitative governing statewide standards elementary and process in the State’s educational Article; Code, secondary See Education COMAR schools. in evidentiary present made showing
Title 13A. No was — — that these allegation indeed was even advanced case no any not met in school dis- being standards were qualitative an trict, provision failed make or that the standards education, financing that the State’s adequate with the means provide did not all districts scheme by § 1 contemplated basic provide essential to education trial court not Art. VIII of the 1867 Constitution. The did any provide in failed to an find that the schools district educational adequate contemporary education measured that resources Simply standards. to show the educational in the are inferior to those poorer available school districts not mean there is insufficient in the rich districts does financing the State’s for all funding provided adequate to obtain an education. students Maryland has The record this case demonstrates that continuously provide thorough and efficient undertaken compliance with public school education to its children That Article VIII of the education Constitution. uniformity, "equal” need not be the sense of mathematical made, here, impact as as minimize the long so efforts are demographic of undeniable and inevitable and environmen- disadvantages system, given tal on child. current imperfect, albeit satisfies test.
IV
Maryland’s system financing
We next consider whether
equal protection
either the
clause
its
schools violates
concept
equal
amendment or the
of the fourteenth
Maryland Declaration
in Art. 24 of the
treatment embodied
(see
4,
pari
are in
supra).
provisions
footnote
These
Rights
in like manner and to the same
generally apply
materia and
extent; nevertheless,
provisions
independent
the two
are
necessarily a
a violation of one is not
each other so that
Waldron,
Attorney
v.
289 Md.
violation of the other.
General
(1981);
683, 704-05,
Pitsenberger
A.2d 929
v.
(1980);
20, 27,
Md.
It is well
afforded to all
under
equal protection
persons
of
law is
enjoyment
civil and
like circumstances
of their
287,
County Comm., 214 Md.
personal rights. Leonardo v.
denied,
906;
304,
(1957), cert.
355 U.S.
641 See, e.g., Washabaugh v. Washabaugh, 393, 285 Md. 404 (1979); Johnson, 274, Attorney A.2d 1027 General v. 282 Md. (1978); State, supra;
S. Ct.
"Heightened scrutiny” legislative of a classification is a less exacting standard of review and is applied when a stat- *37 "sensitive,” ute impacts upon although not necessarily suspect (i.e., criteria of classification gender discrimination), or where a statute affects "important” personal rights or "significant” works a liberty interference with or a denial of a benefit vital to Waldron, the individual. supra, 289 Md. at
642 classification, heightened to withstand legislative
711. A reasonable, arbitrary, analysis, must be not scrutiny having difference a fair and ground some upon must rest all object legislation, of the so that relation to substantial be treated similarly and circumstanced will persons situated specula- random level review does not tolerate alike. This challenged for a enact- concerning possible justification tion rather, of a statute ment; purpose it the actual pursues chosen to effectuate that seriously examines the means purpose. Id. at 713-14. right class nor a fundamental or suspect
Where neither a which impaired, rights is involved or or or classes interest review are the least trigger heightened implicated, would applied. of review is Under this stan- demanding standard dard, only if the statutory classification will be invalidated wholly are irrelevant to the legislature means chosen Waldron, objective. supra, the State’s achievement of legislative review of classifi- Md. at 707. This "deferential” cations, variously referred to as the "reasonable” test, when state of upholds "rational” basis statute Id.; Wheeler, may to sustain it. reasonably facts be conceived at 602. supra, 281 Md. Corp., supra,
As we observed in Governor v. Exxon
Dukes,
City of New Orleans v.
quoting
Md. at
from
(1976),
2513, 2516-2517,
96 Ct.
(A) Protection) (Federal Equal Maryland’s the lower court that agree We with protection equal school finance does not violate the amendment to the federal constitu- clause of fourteenth Rodriguez, supra, tion. San Antonio School Dist. v. claim. In dispositive plaintiffs’ federal constitutional *38 attending case, parents of children Mexican-American in Antonio in an urban school district San schools public school children action on behalf of instituted a class minorities, or the state who were members throughout having in a low and resided school districts poor who were base; statutory system of they attacked Texas’ property tax education, discriminatory claiming financing public pro- equal treatment and a denial of federal educational in district were schools each school tection because by property in revenues realized from taxes part funded Like respective school districts. collected within historically relied on a Maryland, the Texas had tax revenues and state funds property combination of local Maryland, in its schools. As substantial to finance in disparities property existed the value assessable in different school districts. Texas main- located the state’s program required tained a minimum foundation which to contribute to a fund sim- state and local subdivisions Maryland’s expenses. ilar school fund for basic current to minimum foundation was intended to program While the among the school dis- "equalize” the educational tax burden tricts, disparities it not significantly did ameliorate Moreover, wealth per pupil expenditures. interdistrict Maryland, supple- as in each subdivision permitted was ment the level ad valorem program through foundation an tax on property. local scrutiny
The Supreme
apply
Court declined to
a strict
analysis
system, finding
suspect
to the Texas
an absence of a
classification
an
a fundamental
impingement upon
or
right.
constitutional
The Court noted that
the Texas
financing system
deprivation
did not result
the absolute
category
poor;
of an education to
definable
of the
that "a
diverse,
class,
large,
only by
unified
amorphous
happen
common factor of
in districts that
to have
residence
less taxable wealth than other districts” lacked the
"suspectness” necessary
trigger
traditional
indicia of
strict
In
scrutiny equal protection analysis.
an purposes education could be deemed "fundamental” for by clause was not measured applying equal protection importance activity, right but whether the was "explicitly implicitly” guaranteed the federal constitu- Id. at Finding guarantee tion. 33-34. no such the federal *39 constitution, upheld Court Texas system. system, finance It concluded that with its wealth, rationally purpose reliance on local was related to its assuring every a basic education for child in the state while permitting encouraging large par- measure ticipation in and control of each district’s at the local schools 49, level. Id. at 55.
Every state
court which has considered the
appellate
ques
tion since
was decided has held that the state’s
Rodriguez
school finance
does not offend the federal equal pro
(W. Va.,
Pauley Kelly,
v.
finance children that, throughout regardless the state so of the standard of equal protection applied, review which is a violation of the protection fourteenth amendment clause has been equal However, nothing demonstrated. we see in the record in this Rodriguez case sufficient to cause us to treat as other than wholly dispositive equal protection of the federal claim.
Moreover, the plaintiffs’
distinguish Rodriguez
efforts to
must also fail in light
Supreme
of the recent line of
Court
decisions establishing purposeful discrimination as a
requirement for a successful
equal protection
federal
chal-
See,
lenge.
e.g.,
Building
Association,
General
Contractors
Pennsylvania, U.S.,
Inc. v.
3141,
102 S. Ct.
73 L. Ed. 2d
(1982);
Bolden,
Mobile
1519,
v.
446 U.S.
100 S. Ct.
(1980);
Feeney,
256, 272,
442 U.S.
99 S. Ct.
2d 597 principle of these as stated in Feeney, 279, 442 "discriminatory U.S. at is that a purpose” implies more than intent as volition or intent as awareness (a consequences; of implies rather it that the decision maker legislature) state particular selected or reaffirmed a course of part of,” action at least in merely "because and not "in of,” spite its adverse upon group. effects an identifiable In case, present the only not was there no finding purposeful of discrimination, but allegation there was not even an of such an invidious motive.
(B) (State Protection) Equal The plaintiffs maintain that the correctly lower court held Maryland that the system public of school finance violates equal the protection guarantee of Art. 24 Maryland
646
held,
contend,
trial
Rights. They
judge
of
as the
Declaration
education,
that
even if it
not fundamental
right
the
is
constitution,
of
is nevertheless
under
the
federal
provision
caliber
the state constitutional
fundamental
under
because,
is
Rodriguez,
right
within
formulation of
the
the
by the state constitution. Plaintiffs
explicitly guaranteed
by referring to the
position
provisions
seek to buttress their
§
direct
Maryland
Art. Ill of the
Constitution which
52 of
(4) (f)
an "esti
budget
in
that the state
include
paragraph
...
for the establishment and
appropriations
mate of all
thorough
the State of a
and effi
throughout
maintenance
conformity
system public
with Article 8
cient
schools
para
the
the
the
As
and with
laws of
State.”
Constitution
(11) § 52
the
to include such esti
graph
directs
Governor
budget
public
for the
schools in the
"without
mates
(6)
revision,”
General
paragraph
prohibits
and because
the
the
to affect the
Assembly
amending
budget
provisions
from
system,
public
the laws of the State
the
made
plaintiffs
high
the
that
education is of such
contend
Maryland.
right
as to constitute a fundamental
status
plaintiffs
the
court
Accordingly,
maintain that
lower
system
was
that
right
concluding
State’s
financing must be reviewed under
the "strict
standard,
scrutiny”
thereby requiring State demon
governmental
promotes
compelling
strate that
—
a test
cannot
interest
with which
comply.
Rodriguez,
plaintiffs rely
In addition to
on cases
guaranteed
which
to education
under
right
hold
purposes
state constitutional
fundamental for
provisions
Priest,
v.
135
equal protection
of state
review. See Serrano
denied,
(1976),
Cal.
557
929
cert.
432 U.S.
Rptr.
P.2d
Meskill,
(1977);
A.2d
Horton v.
172 Conn.
*41
(W.
1979);
(1977); Pauley v.
255
Kelly,
S.E.2d 859
Va.
Herschler,
Co. Sch.
No. One
P.2d 310
Washakie
Dist.
v.
606
(Wyo. 1980),
denied,
cert.
We have of heretofore Rodriguez rights in with fundamental test connection Waldron, 289 equal protection challenges. supra, federal See
647
706;
Johnson,
Attorney
supra,
Md. at
v.
General
282 Md. at
applicability
309. While we have not considered the
of the
Rodriguez test
in determining
right
whether
fundamental for purposes
equal protection
review under
Art. 24 of the Declaration of Rights, a number of states have
considered,
rejected,
that test in considering whether
education
right
is a fundamental
under state constitutional
provisions similar
to Art. VIII of the
Constitut
Educ., Colo.,
State Bd. of
Lujan
ion.14 See
v. Colorado
Levittown,
(1982);
Educ.,
Etc. v.
P.2d 1005
Board of
649
27,
Nyquist,
359,
57 N.Y.2d
439 N.E.2d
"The inclusion in our
of a
State Constitution
declaration
Legislature’s obligation
of the
to main-
tain
support
an educational
is not to be
reference,
dicta, Waldron,
supra,
Our
648 purposes equal the for significance
accorded same counterpart refer- protection analysis as would be a in the Federal Constitution. The ence to education discretely are drafted from different two documents The Federal Constitu- perspectives. constitutional powers specified and author- delegated tion is one United or delegated not to the States ity; powers all to the prohibited to the are reserved States States Amdt.). (U.S. Const., sig- people. the 10th Great to properly rights is attached to accordingly nificance by protected express pro- and interests guaranteed contrast, By vision of Federal Constitution. State required it is not that our Constitu- because powers of all complete tion contain declaration State, authority the references which do and less subjects and concerns with appear touch on hierarchy values, and docu- any to attention references to matters concededly ment contains statutory to have been left which could as well superintendence (e.g., provision articulation for canals, XV, 3,§ be scarcely art. repair and right any a fundamental constitutional on classified view).” vein, Jersey, Supreme
In a
Court of New
similar
Cahill,
rejected
v.
303 A.2d at
supra,
Robinson
test,
vulnerability
rights
noting
Rodriguez fundamental
and hold
right
acquire
of that
when it said that "the
test
State
property
guaranteed
is
the Federal
Constitutions,
surely
likely
not a
candidate
right
con-
See similar
preferred
expressions
such
treatment.”
drink);
Olsen,
(liquor by
P.2d
154
supra,
tained in
at
Lujan,
(mining
irrigation);
We agree with the in expressed Rodriguez view that whether a right claimed is fundamental does not turn alone on desirability the relative importance right. or of that We recognize, cases, as do all the school finance the vital role plays society. education in our And we share the view expressed in Lujan, supra, that major education "can be a factor in an individual’s chances for economic and social success as well unique as a influence on a child’s participation citizen and on his future good as a
development P.2d at 1017. community life.” 649 political not a Nevertheless, education is we conclude analysis equal protection right purposes fundamental Rights. Art. 24 of the Declaration under articulation of overly simplistic adopt We decline i.e., Rodriguez, set forth rights the fundamental test determined right fundamental the existence of a con- implicitly guaranteed explicitly whether it is mention not to Maryland’s explicitly, Constitution stitution. can in no and interests which rights implicitly, guarantees "fundamental.” way be considered in Article VIII of the The directive contained maintenance of a for the establishment and Constitution statewide of free thorough and efficient education to is not alone sufficient to elevate schools § of 52 budgetary provisions fundamental status. Nor do *44 III that we declare that require of Article of the Constitution an right education is fundamental. The to right to Maryland fundamental education in is no more adequate security, to right personal protection, than the to fire subsidies, governmental to health care or like vital welfare services; scrutiny stan- accordingly, proper strict is not financing public dard review of the of its of schools. Waldron, 708, 289 Md. at
We note our observation scrutiny "foreordains the invalidation of the strict test analysis.” We note nearly every involving classification such involved, is as legislation also that where social or economic here, labeling right have avoided a as generally courts exacting strict activating fundamental so as to avoid scrutiny Rodriguez strongly of review. itself standard XI-G, Financing XI-C, E.g., Parking and Article 16. Article Off-Street Rights, following provisions which in the Declaration of Loans. See also the Legislature,” provide: Annapolis place meeting Article of the "that be the 23; 11; fact, jury judge that an oath the law and Article that the is of both administering as the oath will be such taker is entitled that the manner of those of his "generally religious persuasion the most effectual con- esteem 39; Being,” Article and that firmation the attestation of the Divine odious, monopolies are Article 41.
651 myriad view, presents noting that education reflects this 411 at 42. problems. U.S. and social of intractable economic and Court, 41-42, acknowledged expertise its lack of at raising in the implicated familiarity problems local with public educa- associated with revenues disposition rigorous "too standard tion; against imposing it cautioned subjects of become local fiscal schemes scrutiny lest all The Court Protection Clause.” Equal criticism under very problems complexity "]t]he also counselled that a statewide financing managing constitutionally than one 'there will be more suggests that that, them,’ within the solving method of permissible to tackle rationality, legislature’s 'the efforts limits of v. respect,” citing Jefferson be entitled problems’ should 1724, 2d 535, 546-47, 32 L. Ed. 92 S. Ct. Hackney, 406 U.S. (1972). equal protection applicable principles,
285 These are well legislation, of social and economic review Maryland, 437 Corp. v. Governor of recognized. See Exxon (1978); 2207, 2d 91 Idaho 117, 57 L. Ed. U.S. 98 S. Ct. Smith, 100, Ct. 434 U.S. 98 S. Employment v.
Department of
Williams,
(1977);
327,
Dandridge v.
v. Exxon (1978); Lujan, Road, 575, A.2d 344 282 Md. Co. v. Fields Walter, 819. 1022; 390 N.E.2d at supra, 649 P.2d at supra, reject Rodriguez if argue that even we Plaintiffs test, still education’s rights proclaim fundamental we should impor it an theory under the fundamental character history and to the right "recognized as vital personal tant See Waldron at people traditions of the of this State.” Md. Dir., Bay Aff., 261 citing, Chesapeake Bruce v. *45 (1971). which, Bruce, In we held that a statute
A.2d 200
plying
alia,
oystermen and crabbers from
prohibited
inter
residence,
county county
their trade in a
other than their
Maryland Declaration
now Article 24 of the
violated what is
Kuhn, 270
Bd. of Barber Ex. v.
Rights.
See also Md. St.
(1973) (absolute
496,
preventing
Md.
they
provide
were allowed to
Mines,
unconstitutional);
193
Md. Coal Etc. Co. v. Bureau of
(1949) (statute
627,
Garrett
exempting
Md.
scrutiny upon establishing standard of review rests Although it that the "suspect” appears as a classification. contention, plaintiffs have now abandoned such we Court has never held Supreme nevertheless note alone, depri especially that financial status absent absolute class. See Harris v. right, suspect vation of a creates a McRae, 297, 323, L. Ed. 2d 784 448 U.S. 100 S. Ct. 464, 471, (1980); Roe, Ct. Maher v. 432 U.S. 97 S. (1977); 20-22;
L. Ed. 411 U.S. at Rodriguez, supra, 2d 484
653
Waldron,
706;
supra,
Lugan, supra,
We proceed then to test
the constitutionality
Maryland’s public school financing system under
rational basis standard of review to determine whether it
reasonably
legitimate
furthers a
state purpose. In Milliken
v. Bradley,
741-42,
U.S.
94 S. Ct.
41 L. Ed. 2d
(1974),
Supreme
Court recognized that
recognized
17. The
determining
suspect
criteria for
the existence of a
class can
school district.
in no
political body, including
event be established
a local
Lujan, supra,
"[n]o the operation control over deeply rooted than local *47 thought been schools; autonomy long has local community maintenance of both to the essential qual- and to public for schools support concern and process.” ity of the educational Brinkman, 433i of Education v. Similarly, Dayton in Board (1977), the L. Ed. 2d 851 on 406, 410, Ct. U.S. 97 S. . ” autonomy of school districts is a that "local Court observed national tradit vital in this history public education
It
from the
is evident
Indeed, Maryland’s
Maryland shares this view.
State
financed
a combination
system has been
public school
virtually
contributions
tax revenues and State
local
the General Assem-
history. Although
entire
throughout its
school
object
public
of its
bly
explicitly
has never
stated
objec-
that a
readily apparent
primary
it
financing system,
is
measure of
a substantial
and maintain
tive is to establish
—
systems
control
public
the local
local control over
deter-
through influencing the
local level
exercised at the
the local
money
be raised for
much
should
mination of how
Lujan,
money
spent.
should be
See
how that
schools and
objective
legislative
We think the
supra,
"Any to make uniform and legislative attempt undeviating opportunities the educational offered — by the several hundred local school districts by providing whether that revenue for local educa- exclusively tion shall come from State sources to be basis, pupil by a uniform per distributed on prohibiting expenditure by local districts of legislatively per pupil sums in excess of a fixed expenditure, by every to match requiring district per expenditure highest spending of the pupil by district means of local taxation or means of economically (surely State aid an unrealistic — hypothesis) inevitably work the demise of would the local control of education available to students in individual districts.” Id. indicated, Rodriguez in held Supreme
As earlier Court system that the rested on a rational financing Texas school in every basis that it assured child a basic education while participa- at the measure of encouraging large same time tion in and control over each district’s schools at the local system,
level. U.S. at 49-50. The Texas with its reliance revenues, disparities on local and with its substantial in districts, expenditures between school attributable to differences in through property the amounts collected local taxation, Supreme compara- was described Court as systems virtually every employed ble to the other state. Id. at 47-48. concluded that the existence of Rodriguez some inequality in the manner in which the state achieves its objective is not alone sufficient to declare the entire Rodriguez financing system unconstitutional. Id. at 51. may justified reasoned that the citizens of Texas have been in believing bring that increased local taxation would policies though increased local control over educational even others, some localities had more taxable assets than id. at 54; it financing said that while the "Texas of school unequal expenditures results in between children who districts, happen say to reside in different we cannot product are the of a that is so irra- disparities such invidiously discriminatory.” Id. at tional as to be 54-55. desirability plaintiffs sharing concede of a be- financing tween local and the State of the subdivisions They say only funding schools. that it is the severe inequalities poor they challenge subdivisions which relegation funding which result from the State’s of the chief burden to the localities and its failure to equalize resulting disparities. inequalities The extant local wealth, expenditures and educational resources are unrelated, contend, plaintiffs to local control over school spending. They far suggest promoting from local heavy spending options, impact of local wealth differ- *49 ences on funding capacity school inhibits local choice for all fact, but the plaintiffs most affluent subdivisions. It is a urge, system funding that a based on wealth does unequal more to diminish than to enhance local choice. plaintiffs’ arguments unpersuasive light
We find Maryland’s reason and the cited cases. We hold that of school finance satisfies the rational test. In so con- basis statutory that a cluding, principle we are mindful of the classification tested the rational basis standard enjoys strong presumption constitutionality and the party affirmatively it has the attacking clearly burden of establishing invalidity; its a reasonable doubt as to its constitutionality Supermarkets is sufficient to sustain it. State, Corp. 611, 616-17,
Gen.
v.
286 Md.
427,
It is also clear from the record in this case that there is no
discriminatory purpose Maryland’s
school financing sys-
tem,
point
emphasized in Rodriguez with respect to the
system.
Texas
V
is,
course,
society
The central role of education in our
of
universally accepted.
Appeals
As the Court of
of New York
Levittown,
supra,
observed in
Decree case remanded to for Baltimore the Circuit Court entry declaratory of a City for opin- with this decree consistent ion; paid by plain- to be costs tiffs.
Cole, J., dissenting: Court, in
Today, upon this based its review of the evidence analysis its of what the framers of the Consti- this case and an years ago, places imprimatur intended 116 its on tution growth the full and system educational which thwarts large segment population. of a of the school It development system must seems to me that an educational be measured today’s are in and light ofwhat the needs of children world using not be a hundred the foreseeable future. We should year-old yardstick computer technology. in a time of admonishing
I this Court should be committed to believe legislature that it has not fulfilled its constitutional obli- gation throughout thorough to "establish the State a and Schools; system provide [to] efficient of Free Public taxation, otherwise, pursuant for their maintenance” VIII, less, to do is Article Section I. For this Court to render by approving a disservice to the children of this State thereby system unequally, violating which treats them also I, Rights. Article 24 of the Declaration of therefore, respectfully dissent. quality present
The of education under is determined the wealth of the subdivision which the subdivision, enjoys child lives. If he in a rich he a fuller lives subdivision, opportunity; poorer educational if he lives in a perforce deprived advantages. he of various educational evidence support The record this case abounds with proposition funding system that the school unequal fosters throughout educational treatment of children the State. divides the to fund responsibility education twenty-four
between the State and subdivisions. The State, under a "foundation formula” expenses, for basic poorer contributes more funds to the subdivisions to offset ability of the affluent counties to raise more revenue for However, purpose. present foundation level of the begin formula is so low that it does not to overcome the vast Montgomery County local wealth differences.1 in F.Y. 1979 spent collected and from State local revenues over $1,000 per pupil Counties, more than Somerset and Caroline Mary’s more than St. more than $941 Baltimore $866 City. Moreover, policy the State’s of providing categorical aid (e.g., security) teacher retirement and social without regard to the differences in local wealth exacerbates the disparities. pay The wealthier subdivisions their teachers higher salaries and greater categorical thus receive aid. I agree with the trial court’s conclusion that the result of such *52 disparity in funding wealthy between the and poor subdi- substantially visions is inferior educational resources and a in opportunities reduction educational for the children the systems. schools of the poorer
The replete examples record is with poor juris- how the dictions’ lack of sufficient funding from the State translates every into less of almost kind of school resource and an inability compete effectively with the more affluent subdi- instance, visions. City’s ability For to attract and retain teachers, better guidance counselors, nurses, more psychol- ogists, librarians and maintenance crews is gravely impaired, not even inability to mention its to maintain an size, "acceptable” class acquire necessary quantity and quality of instructional and equipment materials or to sup- ply books and provide required number of librarians. Evidence at the trial City, elementary revealed that in the school libraries are frequently up days locked two or three week because the cannot afford the proper personnel. A few facts widespread disparities. City illustrate The school County property 1. Calvert has five times the tax base of Caroline County. Montgomery County per capita has three times the income tax base County. City highest as Somerset ($5.97) Baltimore has the tax in the State rate ($2.82) large Montgomery County more than twice as as but raises only per pupil. 38% as much revenue five librarians and aides for 187 only system has County employs 190 librarians libraries while Baltimore City Baltimore has 160 school libraries. 80 aides to staff and foreign languages, science advanced courses eliminated high of its schools while and mathematics most County processing to offer data to a Montgomery is able bricklaying and to three students. single student poor that most of the chil- clearly The record demonstrates Somerset, City, in Baltimore St. dren in this State reside Mary’s special Counties and are beset with and Caroline sys- present funding needs. The greater educational satisfy these provide fails to the educational resources tem recognized have Despite many the fact that studies needs. by the upon poorer subdivisions inequities imposed system, Assembly has not funding
State’s school the General suggestion equalization. heeded the
Thus, it, ruling existing I the trial court’s that the as see VIII, finance violates both Article Section I of Rights Article 24 of the Declaration of Constitution explain. I is correct. shall now
I history majority misinterprets significance They Article of our Constitution. underlying the Education of a one hundred proper interpretation seek to discern the by of the Constitution year-old provision and sixteen examining delegates comments some of the convention as (such reported newspapers) in unofficial sources as *53 historically have been noting specific some actions legisla- articles and provision. Newspaper under this taken hardly reliable sources for tive debates are the most intent; extrapolating legislative they certainly are not adequate cogent analysis purpose substitutes for of the of a as from context and basic provision discerned its historical goals. Lansdale, 317, generally See Schneider v. 191 Md. (1948). evolves, society specific
A.2d 671 As measures necessarily purpose were not able to further of a statutory provision constitutional or when drafted later become practicable and well able to fulfill that purpose. The drafters anticipate changes seldom that occur hundreds years society. later in our The Constitution should be a document, living, fit developing able to the needs of the time interpretation. of its Therefore it upon becomes incumbent the Court to view provisions context, of our Constitution in general purpose, determine their and then apply them in our society current my so as to best effectuate that In purpose. view, the overriding purpose of both the Constitutions of 1864 and 1867 was improve education State, thereby an assuring sys- effective and universal tem public of free schools. message This is clear history surrounding adoption of the Education Article.
Society
provided
and the education
vastly
therein were
different in the period preceding
they
1867 than
today.
are
McCarthy
Co.,
As noted in
v. Bd. of Education of A. A.
634,
(1977),
Md.
From 1830 to realized varying schools success throughout City enjoyed by State. Baltimore far the greatest growth instance, and achievement. For in 1839 the City schools, 1,126 had 9 16 teachers and pupils. In 1849 schools, 6,763 there were 30 107 teachers and And students.
663 16,086 schools, and City 87 358 teachers in the had Furthermore, of the quality 2 & 6. the id. at pupils. See of educators unqualified praise system "received 7. city.” Id. at who visited the schools develop not as contrast, in the counties did By education instance, of the emer- sign For the first or as well. rapidly was in 1848 County system gence of the Baltimore "An entitled: Act Maryland Assembly passed a law when the In County.” in Public Schools Baltimore to Establish 1,858 As of county pupils. had 60 schools and this average 103 schools and an grown had to include However, Crewe, 27. 4,205 supra, A. at & pupils. See county hampered by in of education was quality locating during years: these variety problems schoolhouses, teachers, with the finding qualified coping and many areas. See inevitably pupils number of sparse Ligón T. noted that generally id. at 21-26. Governor Watkins period adequate was far from during education to all children in the counties: available (if instruction in we Baltimore, City whose schools
except State, highest are an honor to the and reflect upon credit all those entrusted with their most utter and management) is a state of the Message to the General hopeless prostration. [1856 Assembly 15.]
This difference in between the quality obvious educational City county upon examining schools can be understood opposed social and economic character of the counties as City. density, mobility Population Baltimore wealth probably distinguishing were the most factors important surrounding following Baltimore from the counties. The chart indicates the relative of selected population densities areas in 1860: square County Population** Average Density Area *55 per square mile miles*
Anne Arundel 16,568 400 41.42 2 Baltimore 50,953 622 81.92 City Baltimore 210,200 78.3 2684.55 Dorchester 16,338 610 26.78 Kent 10,758 315 34.15 Montgomery 12,901 508 25.40 Mary’s St. 8,664 24.07 (1901). Passano, *See History Maryland Reports, 1860, **See Census at 210-15.
This chart indicates the vast difference in the number of children a centralized accessible to the counties as opposed City. average to the Given that a state of the of 23% population ages twenty, was between the of five and St. Mary’s children County only would have had about per 5V2 square potentially attending mile who could be school. When county that considering average (including heavily this is a Leonardtown), populated towns such as in rural average school-age areas would be even lower. Because of this low population density many counties, rural areas of the there certainly relatively were few within potential pupils Therefore, walking, riding, or even distance of a school. (if exist) only school that could exist in fact did would placed varying age have all children of and achievement together schoolhouse, in a taught by one-room one teacher managed as best he could. contrast, City
In ample potential Baltimore had an body easy student In within reach of its schools. — 16,086 Baltimore had 87 schools and pupils average an contrast, per almost 185 students school. In Baltimore (the County densely county) most populated average had an 2. Because the City County statistics for the area of Baltimore reflect jurisdictions the areas of City these after an annexation Baltimore of a County belt of they entirely land in are not accurate for 1860. How- ever, to the small City extent that this overstates the area of Baltimore County, density understates that figures larger would be even City County. and smaller in Baltimore only per Obviously, City 40 students school. had a only schools, greater opportunity much not to establish but specialize classes within these schools. also to divide only City This fact not allowed the schools to evolve simple quickly, placed more but also severe limitations on what the county possible schools could do under even the best condi- tions. legislature attempted realized this and course
alleviate problems some of the the rural areas. For instance, it enacted 247 of the Chapter 1837 Laws of Maryland, entitled: "An act for the distribution School Moneys.. County.” .. Act Harford This stated funds provided to in propor- different districts should "increase ...
tion sparseness population to the of school in the *56 neighborhood of a . . ..” Measures such as these undoubtedly however, helped; they only begin could by overcome the disadvantages sparse population caused general and the lack mobility of societal rural areas.
Although it precisely is difficult to assess the status of education in quality certainly this State schools were not in many suggested available areas. It was even that one-fifth of population Maryland could not read. See Debates Proceedings of the Constitutional Convention, 1864, Thus, at 1245. the educational situation facing the Constitutional Convention of 1864 extremely was poor in most areas.
The by Convention dealt with this adopting troubled area a mandate for public throughout free education the State.
Article provided VIII for the appointment of a State Superintendent of Public Instruction and for a Board State Assembly Education. Section 4 required General provide system a "uniform kept of free schools” to be open at year. least 6 months a further provided Section 5 system that the be funded a State tax of at per least $.10 of taxable property throughout $100 the State. The revenue derived from this tax was to be distributed to its subdivisions in proportion to their respective population ages between the of 5 and years. funding clearly designed This scheme was free poor assure the education rural areas. It effective, to establish an
proposed universal of free education, the educational thereby improving oppor- the State. tunity of the children of ultimately arose under this only problem The way imple- in which it was scheme was constitutional Bokkelen. Superintendent Van by appointed mented State caused excerpts suggest problems following for the demise of man and the actual reasons supervision: under his Bokkelen, Van while Superintendent
State to the inquiry from his letters of awaiting returns counties, states to visited several northern various the information study systems. With their sources, long he drafted a bill to from both secured System of Public Instruction establish a Uniform Maryland, complete and a commen- for the State courageous features.* It was a tary explaining its but, to estab- ideal, involving attempt as it did an system more elaborate than leap lish at one at that supporting in the Union was other State immediately. time, almost it ran into difficulties Assembly in 1865 enacted school While the General which, main, the State in the followed laws recommendation, objections were Superintendent’s autocratic domination of seeming soon voiced to the to be convinced appeared this man who education, *57 State, so far behind the fíeld of lagging gradual development. had no time for the entire adopted Uniform textbooks were for State,. .. that all schoolhouses provided State Law according plans** should be built and furnished of the State drawings issued from office County Superintendent, or from the Boards plans by the approved which had been submitted to and Superintendent. System lasted from 1864 to State School
This first public sentiment antagonistic time which crystalized so aroused and had been organization Bokkelen’s was Superintendent Van A under the Constitution of swept away. plan, new Maryland people had place. took its respect been accustomed to self-determination schools, system the new which their and resented authority no real to the local districts. One gave * * * commentary: clearly writer makes this "It is sys- the control of the apparent that highly tem was centralized. The State had its hands on the schools in no uncertain manner and its easily policies could be enforced. While the scheme system, to insure a uniform it was intended obviously was extreme for a State in which the citi- highly zens were accustomed to localized control of That it an efficient schools. was means of organizing hardly education is to be doubted.” study Reports
[A] of the Annual from the various years the two counties the State for resentment, only fails to reveal but existed not general appreciation indicates school authorities improvements that had been made. Political forces, considerations, rather than educational evidently largely responsible were repudiation regime. of Dr. Van Bokkelen’s [A.
Crewe, supra, (emphasis supplied) at 35-36 (footnotes omitted).] suggested by commentary,
As in the changes ultimately largely political were made as a repudiation Furthermore, Van Bokkelen and his autocratic control.
delegates in agree 1867 also seemed to that "the constitution Perlman, should not be encumbered with the details.” of1867, Debates of the Constitutional Convention *58 However, at 202. as is clear from a thorough examination of changes constitutional made in purpose main of this first Education Article was carried in the forward revised Constitution. provided
The 1867 Constitution guarantee: as its basic Assembly, The General at its First Session after Law, the adoption of this Constitution shall establish throughout thorough State a and effi- Schools; System cient of Free Public pro- and shall taxation, otherwise, vide or their maintenance. provision
That the new meant perpetuate was to the essen- tial purpose ofthe 1864 Education Article (although without rules) an Superintendent specific autocratic is clear from the language provision and from examining several proposed changes soundly rejected. that were
First, face, on its provision mandates that it is the responsibility provide State’s for the maintenance of the system. It requires "thorough also that it be a system Therefore, efficient of free public schools.” the lan- guage suggests that the Convention was still interested improving system reverting the education and not to an system ineffective of localized education. This demonstrates that the provision’s purpose still was for the State to ensure an effective and universal of free schools. rejection The Convention’s of three proposed changes support interpretation. Education Article his A proposal county would have authorized the boards of education to provide the of education and their own funding for (90 6). soundly rejected counties was The Convention also varying they defeated a motion to authorize public schools as may Finally, have been suited to different localities. City motion to allow Baltimore separate to have a system also was defeated. The defeat of these motions dem- singular onstrates a purpose: responsibil- continue State ity for system, the effectiveness of the educational not to sanctify autonomy. local
In ensuing Assembly the session of the General in which body implemented mandate, the constitutional counties, State did not abandon the pursued but rather purpose of the Education Article ensuring through the action of government, the State the continuation of an effec- tive and system universal of free public education. See 1868 Md. ch. Laws 407. This Act imposed a prop- $.10 statewide (the erty tax same required as that under the 1864 Constitu- tion) to support throughout schools the State. This money was to jurisdictions be distributed to the throughout school-age State on a population suggested basis. As the 1867 Annual Report of the State Superintendent of Pub- lic Instruction arguing tax, for continuation of this the new system ultimately system by was to remain a which the guaranteed State an effective system and universal of free schools:
Population and wealth often are an inverse numerous, ratio. Where children are capital does not always abound. Where the number of schools needed in proportion is greatest, the means to sustain schools is often least. If county each be left himself; in one-third of the State there cannot be a "thorough system efficient of Free Public Schools,” placing without upon burden the people they bear, which cannot ought not to be required to bear when the circumstances are remembered which their property taxable has been diminished. The Constitution decrees efficient Free throughout Schools the State. This will be practicable only by upon a tax property State, whole distributed among the counties accord- ing to their wants, educational which for practical purposes, according means to population. The chil- dren belong to the State in a higher and nobler claimed, sense Sparta and are equal entitled to educational privileges without reference to the sec- tion in they which chance to be born. Education is State, not a county interest. The commonwealth crime, at by ignorance,
‘suffers idleness and whether at [Report extremities or at its heart. 36-37 its (emphasis supplied).]
n address is whether the current The iásue the Court should effectuates the basic education system financing public -of Maryland Article of the Constitu- purpose of the Education -reiterate, purpose improve tion. ‘To this was to State, ensuring in this an discouraging status of education In my and universal of free schools. effective currently in effect funding of education opinion, fundamental pursue purpose. does not *60 system, current the State does not ensure an Under the system effective and universal of education. The State fails a state-wide tax to collect and then distribute to the counties rather, the quality to universal education: adequate support to present system provide relies on the various localities they vastly The result is dissimilar education can afford. juris- for children in the various opportunities educational this State. This situation does not effectuate dictions within an purpose ensuring the Education Article’s effective In order to reach this universal of free schools. as an education as its goal, provide the State must effective A to all children in this State. resources allow the Constitution designed purposes to effectuate the abdicate system, should not improve goal should be to responsibility to the various localities. all. pursue equal opportunity an basic educational for con- might argue that such a standard is attempt One history. instance, history indicates that tradicted For systems after the institution equal quality were not of Furthermore, majority of the Education Article. as out, juris- under the 1867 Constitution local quick point have addi- dictions could cause themselves to be taxed to However, neither of systems. tional funds for their school my analysis purpose provi- of the of this points these rebuts sion. question, history
Without quality indicates that education county county differed from in 1864 and 1867. due,
These part, differences were to the wealth of the county, the sparseness population of its poor and the condi- tions of travel. The one-room school house was classic. The poorly trained day teacher was the order of the in most rural areas, poor being preacher the local or one of the more literate The purpose Article, adults. of the Education Ias see it, was to correct these in many conditions but instances easily obstacles could not be widespread overcome because of population and the lack of adequate transportation.
However, today, factors, the threshold which stifled educa- tional opportunity Maryland’s 1864, children in have areas, vanished. Even rural the improvement of roads and modes of transportation allow subdivision to assemble enough students to by age divide classes and achievement teachers, books, when supplied properly with trained and equipment, to expose these children to educa- equal tional learning experiences. my In purpose view the Education Article in goal; certainly 1867 was to reach it can today. be reached
It is true that under the as well as the Consti- jurisdictions tution local supplement could State funds. See Crewe, A. supra, However, at 31. this local option to raise additional time, funds must be viewed in context. At that apparently State providing money was sufficient to fund a basic equal educational opportunity throughout the State.3 *61 If the provide enough money State does to equal establish an basic opportunity every educational per county, child in then there is not the ground same for objecting county to the supplementing However, these funds. the State can not abdicate to the counties its responsibility provide for funds that basic opportunity educational in the first instance. 1864, apparently only 3. In augmented by two counties their school funds (1949). Crewe, Step additional taxes. See A. No Backward Was Taken 31 Furthermore, the 1867 uniform the same amount of revenue was raised and distributed under provide Constitution. Id. at If 38. these funds were sufficient to a 1864, they provide education in also should have been sufficient to equal opportunity
basic educational in 1867. system, manifestly the State does not present
Under the jurisdictions throughout this provide sufficient funds to The equal opportunity. educational State ensure basic only expenses foundation level for basic current State $690, than of this average and the State funds an of less 55% certainly provide for a amount. This is not sufficient considering average a 1978 (especially child’s education effect, $1,843). In has basic cost of the State per pupil jurisdictions responsibility abdicated its to local by extolling the virtues of local rationalized its remissness efficaciously However, may be more control. local control authority by allowing decision-making furthered localities by the State. Because adequate funding provided with levels provision the constitutional was for the State purpose of system, children should to ensure an effective and universal wealth for their basic varying not have to look to localities Therefore, educational the current opportunity. Article of the
violates the mandate of the Education Maryland Constitution. majority recognize
I does not also dissent because the therefore, Maryland; right education is a fundamental protection guarantee majority’s analysis equal of the State is mistaken. is dealt with majority recognizes that education Maryland Constitution. The educational
explicitly III, § provides in 52 of Article which guarantee is mentioned appropriations include an estimate of budget that the State maintaining thorough and efficient establishing However, § 1 system public throughout schools the State. Article a clear mandate to the "General VIII establishes "The Assembly [a] to establish of free schools”: Assembly, adoption after the General at its First Session Constitution, by throughout Law establish shall Schools; Public thorough System State a and efficient of Free taxation, otherwise, for their mainte- provide shall nance.” the trial court found edu- provisions Based on these State, fundamental right protected cation to in this be 24 the equal protection guarantee of Article
673 conclusion, reaching In the trial Rights. Declaration of enunciated in San Antonio School court relied on the test 1, 1278, 411 93 Ct. 36 Rodriguez, U.S. S. L.Ed.2d v. District (1973), are fundamental for determining rights for what 16 review, our cases because purpose equal protection the test, formulation. Under this Rodriguez the implicitly accept implicitly guaranteed if right "explicitly is fundamental 411 at 33-34. An examination by the Constitution.” Id. U.S. protection cases demon- equal of two of this Court’s seminal for proper court the test applied strates that the trial by Maryland determining rights protected fundamental Rights. Declaration of Waldron, Md. analysis Attorney in General v. 289
Our
683,
(1981),
merely
not
federal
encompassed
ever, having adopted the framework of the Supreme Court’s analysis, it logical seems to me that this Court examine the Maryland Constitution, in light, this to determine the fundamental rights guaranteed by Article 24 of the Maryland Declaration Rights. position suggested by
This
was also
Attorney
the Court in
(1978).
Johnson,
274,
General v.
282 Md.
The majority holds that education is not a fundamental
right Maryland
and because there is a rational basis for
the constitutional provision there is no
equal pro-
denial of
tection. The majority while recognizing that education is
dealt
explicitly
with
in the Constitution further contends
that the test for
if a
determining
right is fundamental enun-
ciated in San Antonio School District v. Rodiguez, 411 U.S.
1, 33-34,
(1973) (that
1278,
93 S.Ct.
which are not simply courts that by other suggested possibilities in Board of court As the New York Maryland. applicable N.E.2d Levittown, 57 N.Y.2d Educ., Nyquist, Etc. v. (1982), "the document stated 5, 453N.Y.S. 2d 643 366 n. references concededly contains Constitution] York
[New statutory left to well have been could as matters which on its reasonable argument appears .” This articulation... cited of the cases fact, it viable for most In
face. of the state however, examination a close majority; making argument jurisdictions constitutions from respects in relevant they are different indicates *64 constitutions of these Each Maryland Constitution. the clearly not be that should of some sort services guarantees the difference. rights; this is as fundamental accorded status mention some might Maryland Constitution The any right that areas; guarantee it does not non-fundamental is not fundamental. instance, includes York, the constitution for
In New certainly that rights arguably guarantee would Articles that conservation, XIV, governing fundamental. Article are not state, or now owned lands of the provides "[t]he that as now constituting preserve the forest acquired, hereafter forest lands.” law, kept forever as wild by fixed shall be selling from XV, legislature § 1 the precludes Article in sections Article XVII states disposing of certain canals. of health provide protection for the
and 3 that the state shall needy. provisions Each of these support and the of the Therefore, if to act in these areas. legislature commands the test, Rodriguez residents would adopt the New York were they would rights just in these areas as have fundamental dilemma, the logical it was for education. Faced with this reject this test. New York court are arguments made jurisdictions
The other similar constitutions, in their provisions encumbered with like in non-fundamental by legislature the mandating action XV, §4 instance, Constitution, Article Idaho areas. For guarantees continuing rights water waters that have been "appropriated or used agricultural purposes.” X, § "Educational, Article 1 states: reformatory, penal institutions, and those insane, blind, for the benefit of the dumb, deaf and and such other institutions as the good may require, shall be established and supported state such may manner as be prescribed by In law.” Colorado, XVI, § Article 2 of the requires constitution "[t]he general assembly provide by shall law proper for the mines, ventilation of escapement shafts, construction of and such other appliances may as be necessary to protect the health safety and secure the of the workmen therein.. ..” XXIV, § Article provides that certain residents of Colorado are pensions. entitled to Oregon Constitution provides I, § Article legislature 39 that the carry shall out the intent provision, of this allowing the sale of liquor by the Finally, VII, § drink. Article 1 of the Ohio Constitution states: "Institutions for the benefit insane, blind, deaf dumb, always shall be fostered and supported by state; and be subject regulations to such may as be pre- scribed general assembly.” jurisdictions
Two by majority cited do not have similar provisions covering clearly non-fundamental areas in their constitutions. Although these cases find that education is not a right, they fundamental reach this conclusion as a matter of state instance, law for varied reasons. For *65 Georgia Thomas, Court in McDaniel 632, v. 248 Ga. 285 (1981), S.E.2d 156 seemed willing to follow the Supreme Court’s lead in determining "public that school finance [is] 'an inappropriate candidate for strict judicial scrutiny... .’” Id. at 647. The court also found "of signifi- constitutional cance” the extensive treatment of in education the Georgia Constitution, suggesting that the absence provision of a imposing an obligation to equalize educational opportunity provided a reason not to afford protection education under equal protection clause. See id. at Supreme 645-46. The Court of Michigan, Green, Milliken v. 389, 390 Mich. 212 (1973), N.W.2d 711 also found education not to be a
677 In right Michigan on the Constitution. based fundamental whole, case, analyzed the Constitution as court "a districts” and that it of school finding referred by such districts.” The court valorem taxation "ad suggestion do that this appealing "We not find stated: by fact ad valorem taxation Court honor obvious contemplated by our State Constitution school districts was reorganized directing the entire be into now that State very few districts.” Id. at 717. large one school district or a jurisdictions cases in other ana For each these which education is not a lyze their constitutions find that right, jurisdic can cite from other fundamental one cases For holding right. tions that education a fundamental instance, Priest, 345, Rptr. in v. Cal. 557 P.2d Serrano 135 2951, (1976), denied, 907, 53 cert. 432 97 S.Ct. 929 U.S. (1977), was
L.Ed.2d 1079
the court concluded
education
provision of
right
protection
a fundamental
under the equal
Meskill,
v.
the State Constitution. See also Horton
615,
(1977);
Kelly,
Pauley
v.
255 S.E.2d
Conn.
A.2d 359
(W.Va. 1979);
v.
Washakie
Dist. No. One
Co. Sch.
Herschler,
1980),
denied,
(Wyo.
The instead jurisdictions, in cases from should used education other Maryland Constitution to discern whether the examine in this The prompting arguments apply reasons these State. sim-
majority suggests that the Constitution has Constitution, York provisions ilar to those found the New admittedly might good which there be reason for under majority rejecting Rodriguez test. The concludes: "Maryland’s explicitly, not to mention Constitution guarantees rights and interests which can no implicitly, ” way [Emphasis supplied.] be considered 'fundamental.’ majority examples of these attempts enumerate However, 16. guarantees nonfundamental footnote closer these indicates that these examination of illustrations that is provisions give any personal right could not rise already not considered fundamental this Court.
678 VIII, §
Article 1 clearly Assembly commands the General to act in a given area that affects personal rights. In con- trast, provisions merely that mention certain areas which Assembly may the General become clearly involved do not command the General Assembly any to take action. Therefore, provision such a hardly could be said guarantee any right. "examples” The first two majority cited fall category. XI-C, § into this provides Article 1 "[t]he General Assembly Maryland, by law, may local Mayor authorize City Council of Baltimore ....” [Emphasis supplied.] acquire and dispose property parking. off-street Article similarly provides XI-G that the Assembly General may City authorize the to contract to make rehabilitation and improvement loans. provi- These sions do guarantee anything not except the General Assem- bly’s authority to act these areas.
The majority’s next "example” provide does an affirmative duty, yet it guarantee any does not personal right. Article of the Rights provides: Declaration of "That Annapolis be the place of meeting Legislature. ...” This states a clear obligation Legislature for the to meet in Annapolis, which would body be violated if that convened elsewhere. only This is the possible application of the provision; therefore, it interpreted cannot be guarantee any fundamental right. Article 41 provision is another establishes a self-executing directive which could log- not ically guarantee a fundamental right. This Article provides: odious, "That monopolies contrary are spirit to the a free government commerce, and the principles of and ought not to be suffered.” As already this Court has established in Grempler Multiple Bureau, v. Listing 258 Md. 266 A.2d (1970), this article prohibits the State granting any from monopolies, being inadequate as a state anti-trust law. The provision ais statement of policy about it monopoly, sug- gests nothing rights. such, about individual provision As provides a State, directive to yet it does not create personal rights. *67 "That the manner adminis- provides:
Finally, Article 39 ought to be such any person, to oath or affirmation tering an or denomina- persuasion, profession, religious of the as those tion, most member, generally esteem the he is of which Divine by the attestation confirmation effectual right, it a fundamental provision guarantees Being.” If this — an oath adminis- liberty not to have religious to right is a religion. of or ineffectual under one’s is violative tered that liberty already is deemed religious right This Maryland. fundamental men-
Therefore, may areas be although non-fundamental Constitution, not that document does tioned in the should not be considered guarantee rights that I fact, only In is that right "education” the fundamental. those now consider would be added to we
perceive if is concerned that majority apparently fundamental. The fundamental, services, as is other "such education deemed services,” fire, welfare, social police, health care and other scrutiny standard of will be evaluated under the strict happen majority suggests might The this because review. all, could, Rodriguez the
"many, if not of these within rights rights implicitly be deemed formulation fundamental However, the state ...” guaranteed most constitutions. are
majority explain implicitly fails to these services how fact, In is guaranteed by Maryland the Constitution. there they by the convincing guaranteed no that are argument majority attempts equate Constitution. The education they "impor- are with other because all these social services However, evaluation, educa- despite subjective tant.” other guaranteed by tion is our Constitution while these simple not I that this services are even mentioned. believe education, government every fact indicates that not area endeavor, the Rodriguez that applying is fundamental and unmanageable apprehended test result will not lead to majority. majority opinion ofthe Perhaps disturbing aspect the most determining analyze is it fails standard for it rights fundamental under the State Constitution perceives to be applicable. majority simply "conclude[s] that education is not a fundamental right,” and "decline[s] to adopt overly simplistic articulation rights fundamental Rodriguez. test set forth in ...” The majority notes several reasons for not declaring education a right, yet fundamental never states the standard it uses in ultimately evaluating fundamentality. fact, In only other test majority cites plaintiffs’ argu- alternative ment that "[the court] should proclaim still education’s fundamental theory character under the that it is an impor- tant personal right 'recognized as vital to the history and ” traditions of the people of this State.’
The majority treats education as "social or economic leg- islation,” yet their analysis by is undercut Supreme Court’s most recent examination of subject Plyler v. (1982) Doe, 50 U.S.L.W. Court, 4650 where that adhering to prior its rejection of education as a fundamental right under constitution, the federal said:
Public education is not a "right” granted to indi- viduals the Constitution. San Antonio School District, supra, at 35. But neither merely is it some governmental "benefit” indistinguishable from other forms of social legislation. welfare Both the importance of education in maintaining our basic institutions, and the lasting impact of depriva- its tion child, on the life of the mark the distinction. The "American people always have regarded educa- tion and the acquisition of knowledge as matters of supreme importance.” Meyer Nebraska, v. 262 U.S. (1923). 390, 400 recognized We have "the aas most vital civic institution pres- for the ervation of a democratic government,” Abington School District v. Schempp, 374 U.S. (1963)
230 (Brennan, J., concurring), and as the primary vehicle for transmitting "the values on which society our rests.” Norwick, Ambach v. (1979).
U.S. As noted early in our history, "some degree of education is necessary to prepare intelligently effectively and participate citizens preserve if we are political open in our Yoder, v. Wisconsin independence.” freedom (1972). historic And these 205, 221 406 U.S. inculcating as schools
"perceptions the maintenance necessary to values fundamental been system have political a democratic scientists.” of social by the observations confirmed addition, edu- In Norwick, at 77. supra, v. Ambach individuals tools which the basic provides cation lives to economically productive lead might sum, has a education all. In of us benefit of our maintaining the fabric role in fundamental society. Id. at 4655. to the many point factors suggests, passage
As this fundamentality of education. its of education is aspect
Probably significant the most education is rights: a level of fundamental nexus to other political in our participation necessary to ensure effective process political interest education instills system; and to become necessary to evaluate the skills provides debate; the dominant "education is political involved participation.” affecting political consciousness factor 411 U.S. at Rodriguez, supra, Antonio School District v. San *69 Guthrie, J. G. (Marshall, dissenting), citing 113 J. Stout, Inequality and
Kleindorfer, Levin, & R. Schools H. (1971); Torney, Development & J. 103-105 R. Hess (1967); Campbell, 217-218 Attitudes in Children Political 1-2, 9, at Citizen, p. Nos. Sociológica, in 6 Acta the Passive (1962). Furthermore, directly affects the "[e]ducation 20-21 rights, his First Amendment ability of a child to exercise ideas, of information and as a receiver both as source in life.” San Antonio may pursue he whatever interests (Mar- 411 U.S. at Rodriguez, supra, v. School District this statement shall, J., underlying reasons dissenting). The the skills person requires A hardly require explanation. education developed through are
communication that ideas. express and to of information order to evaluate sources Therefore, education is essential because of its nexus to rights. these fundamental
Generally, education
important
is the most
any
function of
Yoder,
state.
205, 213,
As stated in Wisconsin v.
406 U.S.
1526,
(1972),
S.Ct.
Today, perhaps education is important the most function of state governments. and local Compul- sory school attendance great laws and the expendi- tures for education both demonstrate our recognition of the importance of education to our society. democratic It required is in the per- formance of our most basic public responsibilities, even service in the armed forces. It very is the good foundation of citizenship. Today it is a prin- cipal instrument in awakening the child to cultural values, him preparing for later professional training, in helping him adjust normally his environment. In days, these it is doubtful that may reasonably child be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where state has provide it, undertaken to right is a which must be made available to all equal on terms. Id. at 493.
The majority contends that even if a fundamental right to education exists "the State’s school finance is not depriving, with, interfering or impinging upon, much less absolutely eliminating, any right child’s to an adequate edu- Therefore, cation.” scrutiny strict should not be invoked. The Court again seizes on the familiar litany of reaching cases this conclusion without analyzing cases, how these equal protection analysis, should relate precise to the issue presented in this case. An examination of several classic equal protection cases will demonstrate that the heart theof equal protection guarantee equal treatment, which has *70 been denied in this case.
683 scrutiny against protect to Many cases have invoked strict instance, right. For the fundamental deprivation 618, 1322, 22 89 U.S. S.Ct. Shapiro Thompson, v. 394 (1969), inter protected right the the to L.Ed.2d 600 Court case, held In this the Court unconstitutional state travel. individuals statutory denying welfare benefits to provisions year. jurisdiction in a less than a This classification residing In to travel interstate. penalized right the fundamental Oklahoma, 535, 1110, L. Ed. 62 S.Ct. 86 Skinner v. 316 U.S. (1942), for the providing
1655 Oklahoma statute an to violate the sterilization of "habitual criminals” was found law guarantee. The Court evaluated the equal protection scrutiny because sterilization under the strict standard deprivation of the criminal’s fundamental constituted a Elections, right Virginia In v. Board of procreate. Harper to (1966), 1079, 16 the Court 86 S.Ct. L.Ed.2d U.S. may to vote deny right held that a State not someone the impinged a fee The classification upon pay failure to or tax. and, therefore, closely right vote was
on the fundamental to scrutinized. clearly State cases satisfied the criterion that the
These The right. infringe on an individual’s fundamental — travel, to rights liberty to act to fundamental involved procreate, infringement prevented vote. The inhibited or to right. type depriva of that This is the of clear exercise protection that equal tion inherent in the traditional case However, present. be an majority always insists must 1362, 12 analysis Sims, Reynolds v. 377 U.S. 84 S.Ct. (1964), is infringement that this clear
L.Ed.2d 506 indicates scrutiny. In always required invoking not before strict Reynolds, exercise equal affecting a denial of treatment necessary infringement of a right supplied fundamental scrutiny. were denied plaintiffs invoke strict not vote; right they merely claimed their malapportionment Legislature of the Alabama diluted votes, pro thereby depriving rights equal them of under the as agreed tection clause. The Court discrimination concept votes weight suspect, because "the *71 equal protection traditionally has been requiring viewed as the uniform treatment persons standing in the same governmental relation to the action questioned or chal- lenged.” Id. 377 at (emphasis supplied) quoted U.S. in City Park, College DuBois v. 286 Md. 410 A.2d (1980). This lack of uniform treatment in relation to the right to vote offended the equal protection guarantee. Reynolds focuses our attention on the essence of equal the — protection guarantee equal or uniform treatment. This unequal usually treatment is manifested in a denial of liberty However, someone’s a right. to exercise fundamental (as in cases), this case in the reapportionment unequal treatment in key relation to the fundamental the right is to the equal protection analysis. The fundamental in right merely case is right liberty not to be at to act in a certain — right pursue fashion to the education an individual might desire. The right fundamental here involves the obligation provide and, therefore, State’s to an education receive, one’s right to a benefit from the State. The majority fails to see the applicability equal of our protection guar- because, antee glance, at first this case appear does not to fit test, under the traditional which has not applied been to involving cases right fundamental to receive something However, from the State. it clear that children entitled to receive an education have been treated unequally.
Children who happen poorer reside counties have provided been an inferior educational opportunity. Judge graphically Ross point illustrated this in his factual findings. noted, he year 1978, "[i]n As fiscal Montgomery County $2,328 spent per pupil using State Department of per Education’s definition of pupil expendi- tures County $1,498.” while Caroline spent Several defi- nitions of per pupil expenditures suggested varying However, disparities. Judge "regardless Ross concluded: chosen, the definition reality is that a child in the wealthiest subdivision approximately has twice amount spent on his education poorest as child in the subdi- vision. ... As a result of this lower spending capacity, the plaintiffs’ subdivisions resources which educational substantially are inferior those their students afford Testimony provide.” the State’s affluent subdivisions which means, in that this abstract allusion resources indicated have subdivisions fewer reality, poorer that children out-dated) (and and other educational resource more books classes, materials, teachers, larger inadequate qualified less staff, specialized educational inadequate supporting obviously spending, which disparity This vast programs. children, to the consti- into resources available translates *72 to those entitled denial of treatment equal tutes an extreme the State. opportunity receive an educational from to —right unequal a fundamental This treatment affects right from the This right to an education State. receive protected just any be clearly an as receive education should requisite "infringement” on guaranteed. to act The right is treatment. The right unequal is the State’s supplied this (not merely to protect required provide is a benefit State infringes unequally the benefit providing therefore right), a (as surely as direct right to receive that benefit upon Therefore, normally impairs rights). the State action in evaluating be scrutiny strict must invoked system. finance scrutiny system
The
cannot withstand strict
because the
compelling
jus-
show
defendants cannot
a
state interest
Court
tifying
infringement. As this
observed Waldron
scrutiny
the strict
test "foreordains the invalidation
nearly every
involving
analysis.” Attor-
classification
such
Waldron,
ney General
The state interest as is local advanced control; however, certainly compelling. not In interest is fact, substantially the interest of local control does not even in this The justify inequalities presented severe case. poorer has children in the to have jurisdictions
State allowed an inferior The evidence estab- experience. educational lishing this was substantial. Superintendent plaintiff that the
State Hornbeck testified every jurisdictions had less of of educational type almost Furthermore, resource. he and other witnesses stressed that many, jurisdictions children in (particularly these Baltimore children) City approximately poor with 40% of the State’s learning problems. Therefore, suffer from severe even more resources individual attention are needed to with cope problems. these inequalities results these are obvious. Test results indicate such grade statistics as 83% of fifth reporting higher schools than normal test results Montgomery County, only while 5% of the schools in City Baltimore were above the norm.
Local jurisdictions control is an elusive term to those don’t have enough many funds to make decisions about what will benefit their children. resources Whatever benefits local entail, may they certainly control justify do not vastly giving inferior educational opportunity to students in poor jurisdictions Therefore, throughout the State. clearly finance does pass not the test of strict scrutiny. view, my
In equal required treatment comply order to with the By treatment, constitutional mandate. I equal mean every supplied district should be it resources give pupil needs to each therein a full program educational much opportunity as for the progress individual satisfactorily system. as other school *73 apparent
It is only Assembly the General could implement system. Certainly systems local school cannot responsible be for evaluating their own needs. Nei- systems ther could all expected be agree on the levels of funding necessary to meet the needs their children fact, equally. In if jurisdictions, left to the individual some might unable, unwilling, be to raise sufficient revenue to commonly meet even a agreed upon spending. level of Therefore, apparent it is Assembly that the General must provide necessary resources equal establish educa- tional opportunity throughout the State.
I do propose not or suggest how or from what source the necessary my funds will come. It is view that the responsibil- ity ofthe Court is to Assembly advise the General that it has informed, I have obligation. Once met its constitutional not body will make that honorable every amends confidence forthwith.