“Serrano” vs. the People
Last year the California Supreme Court handed down a decision in the case of Serrano v. Priest that condemned the entire structure of public education in the nation’s most populous state. Represented by attorneys from poverty-law agencies and universities, the plaintiffs got a judgment that found the California school-finance system unconstitutional on the grounds that it deprived their children of “equal educational opportunity” and, consequently, of their fundamental right to success and happiness. Concluding that the existing system tied the resources reserved for education to each community’s wealth, the court proclaimed a new rule of “fiscal neutrality” according to which the state must not allow the level of spending for public schools to be “a function of wealth other than the wealth of the state as a whole.” California accordingly faces the prospect of devising a new system of school finance that would distribute the burden of paying for public schools equally throughout the state.
Courts in Minnesota, Texas, and New Jersey have already used Serrano as precedent for analogous decisions, and similar cases are in the works elsewhere. Other states are readying legislation to conform to kindred judgments when they come. New York’s Fleischmann Commission has urged a statewide property tax for education, and President Nixon’s Commission on School Finance declared itself in favor of full state assumption of all school costs. But the most significant event in this burgeoning reform movement will come in October when the United States Supreme Court reviews the Texas case, Rodriguez v. San Antonio.
If the lower court’s ruling in Rodriguez is upheld, the judgment will mandate a complete restructuring of the system by which most states pay for their public schools. Yet if the purpose of this vast reconstruction is to make the schools a “bright hope for entry of the poor and oppressed into the mainstream of American society,” as the California Supreme Court declared, it will fail. For such a restructuring will do little to improve the education of the poor. What it will do, however, is put more money into the pockets of the largest group of college-educated, state-certified, middle-class professionals in the land—money that will likely come in large part from the pockets of those less well-off. And it will also put more money into suburban and rural schools while putting no more into the schools of the central cities, and perhaps even less.
The assumptions underlying the new line of cases on school finance are not themselves new. They have their roots in a concern first expressed around the turn of the century by Ellwood Cubberley, known to generations of educators as “the father of school finance.” As a corollary of the “local school committee” tradition of educational governance dating back to pre-Revolutionary New England, American public schools were financed mostly through local property taxes. Such revenues had two outstanding characteristics: they depended heavily on the wealth of the city or town, and they were highly susceptible to community wishes. For a property tax was the product of two numbers: the value of a piece of property, times the rate at which the local authority chose to tax it. It followed that several kinds of inequalities could arise. A district might lack the motivation to levy a tax rate on its property that would raise revenues sufficient to match those of neighboring districts; or it might raise ample funds with its property tax, but use them for services other than schooling—welfare, police, sewers, etc. Yet another district might lack the intrinsic wealth of the adjoining town; hence an equal tax rate would yield unequal revenues, and even a higher rate might still leave the schools seemingly shortchanged by the public treasury. Thus, said Cubberley, some districts could provide a “minimum of good instruction” with relative ease, while for others it was a hardship. The state government should equalize these burdens since they were borne for the common good, and should do so through a state school tax.
In response to such suggestions, the state share of school costs grew steadily and was eventually supplemented by federal aid as well. (About three-fifths of the total elementary- and secondary-school budget now comes from sources other than local property taxes.) Concomitantly, Cubberley’s notion of a “minimum of good instruction” in every district was expanded into the idea of “equal educational opportunity” for all—by which was meant the provision of so many classrooms, so many teachers, and so many textbooks per so many pupils, whatever the variations in the taxable wealth of their parents or of the districts in which they lived.
What Serrano, Rodriguez, and the other cases in the same line imply is that this objective remains to be achieved. The plaintiffs in Serrano, for example, alleged—and the California court agreed—that “substantial disparities in the quality and extent of availability of educational opportunities exist and are perpetuated among the several school districts of the State. . . . The educational opportunities made available to children attending public schools in the districts, including plaintiff children, are substantially inferior to the educational opportunities made available to children attending public schools in many other districts of the State.” A New Jersey court, in Robinson v. Cahill, went further, enumerating in some detail the educational facilities not available to students in poorer districts as a result of the inequitable state-finance system. Teacher qualifications, age of school buildings, and physical condition of textbooks were all cited. The court concluded: “The present equalizing factors in the law are not sufficient to overcome inequities in the distribution of school funds and tax burdens.”
In pursuing this approach, the new reformers have adopted a venerable and, in its time, honorable idea, but it is one whose time has passed. Fifty years ago, it was justifiable to assume that “equality of educational opportunity” could be translated into a relatively simple calculation based on money. There was no evidence to the contrary. The early reformers had no reason not to take for granted that schooling would benefit from more of the things that money could buy—more highly trained teachers, larger school plants, bigger libraries, etc. Today, however, no such clarity prevails. For one thing, we now have enough evidence to show that the kinds of expenditures to which Serrano and the other cases point have very little bearing on what and how much the children actually learn; and for another thing, we have in the past ten years developed a new understanding of equal educational opportunity. In his message to Congress on educational reform in March 1970, President Nixon enunciated this new standard:
What makes a “good” school? The old answer was a school that maintained high standards of plant and equipment; that had a reasonable number of children per classroom; whose teachers had good college and often graduate training; a school that kept up to date with new curriculum developments, and was alert to new techniques in instruction. . . . [Now] apart from the general public interest in providing teachers an honorable and well-paid professional career, there is only one important question to be asked about education: What do the children learn?
This notion that the results of education will henceforth preoccupy those seeking equal educational opportunity was, in part, the inevitable consequence of earlier success in equalizing services. As Frederick Mosteller and Daniel P. Moynihan have recently written: “[By] 1966 the nation had come much closer to achieving [the] classical notion of equality of educational opportunity than most of us realized then or realize now.” But the new focus on results also emerged out of a growing perception that the ambitious “compensatory” programs of the 60’s had, by and large, failed. A galaxy of special educational activities with names like Headstart, Title I, and Upward Bound began with federal funds in a brave effort to equalize the educational opportunities of disadvantaged youngsters by “compensating” through extra services for the shortages in their homes and cognitive experiences. However, participation in such programs seemed to close little of the “achievement gap” between lower-class and middle-class children. The reason was suggested by the most surprising of the many surprising findings of the Coleman report: that the variation among schools in academic achievement could be attributed in no significant degree to differences among them in “inputs” like facilities, teachers, and curriculum.
Though sharply criticized after its appearance in 1966, the conclusions of this nationwide federal survey have been supported by subsequent research. Christopher Jencks, a major contributor to the most thorough reevaluation of the Coleman study,1 found, for example, that “When schools with economically and racially similar students were compared, differences in school policies and resources were rarely associated with pedagogically significant or statistically reliable differences in verbal achievement.” Others knowledgeable in the complexities of this type of input-output analysis would go further. A survey done by the RAND Corporation for the President’s Commission on School Finance concluded: “There seem to be opportunities for significant redirections and in some cases reductions in educational expenditures without deterioration in educational outcomes.”
The point is not that schools make no difference. Mosteller and Moynihan comment sharply: “Children don’t think up algebra on their own. . . . But given that schools have reached their present levels of equality, the observed variation [in resources] was reported . . . to have little effect on school achievement.” Thus none of the major studies, nor any of the handful of social scientists who fully comprehend their statistical intricacies, offers reason to expect that changing the way our schools are financed will have more than a trivial effect on what children learn in them.
Actually the Supreme Court under Earl Warren faced up to this issue in March 1969 when it affirmed the judgment of Mclnnis v. Shapiro in which an Illinois court had rejected the claim of a group of Chicago students that the state’s school finance laws “violate their Fourteenth Amendment rights to equal protection and due process because they permit wide variations in the expenditures per student from district to district, thereby providing some students with a good education and depriving others, who have equal or greater educational needs.” The problem for the lower court was the absence of “discoverable and manageable standards” by which to determine whether the Constitution had been violated:
The only possible standard is the rigid assumption that each pupil must receive the same dollar expenditures. Expenses are not, however, the exclusive yardstick of a child’s educational needs. . . . As new teaching methods are devised and as urban growth demands changed patterns of instruction, the only realistic way the State can adjust is through legislative study, discussion, and continuing revision of the controlling statutes. Even if there were some guidelines available to the judiciary, the courts simply cannot provide the empirical research and consultation necessary for intelligent educational planning.
The court cited Justice Holmes: “The 14th Amendment is not a pedogogical requirement of the impracticable.”
The judges in the recent cases contend that Mclnnis is not a controlling precedent, and in this they are technically correct. For the strategy of the lawyers in these later suits has been to sidestep the legal complications that would arise if “educational need” or some other output-based criterion were used. Instead they have sought equal educational opportunity through the back door of fiscal equity. Such a standard, though only the narrowest of legalisms separates it from Mclnnis, is apparently persuasive to judges, however far removed it may be from the realities of educational reform.
A side from the effects on fifty million students, also at stake in the Serrano litigation is the question of who will benefit from a large and growing sector of the economy. Next year, the nation’s elementary- and secondary-school budget will approach 50 billion dollars, some 5 per cent of a trillion-dollar Gross National Product. (With the costs of private and higher education included, expenditures on schools turn out to be slightly larger than the defense budget and are rivaled only by health care among services involving large outlays of public funds.) Nor is there much reason to expect that this is an upper limit. With no growth in enrollments expected until at least 1980, per-pupil expenditures are bound to keep climbing, and the average will surely pass $1,000 by the end of the decade.
While some of the new reformers believe that the recent cases bear only on the equalization of revenues and not on their level, the more likely result will be a large net increase in educational spending. The mere shift of financing away from the local district, with its regular bond and budget referenda, may be expected to loosen the purse-strings, and removing the disadvantage of penury from the poorer districts would also free these districts to purchase more resources for their schools. Moreover, as Moynihan noted in a recent issue of the University of Illinois Law Forum: “To the degree that you insist on equal levels of expenditure, there is nothing in the political process as practiced in this country that suggests government will be able to push some people down; instead what you do is push other people up, which will make the level of expenditure higher.” In New York, for example, adoption of a Serrano-like plan would, according to a consultant to the Fleischmann Commission, cost the state at least another $600 million annually.
Of these new funds, 60 per cent or more will be absorbed either by the hiring of additional teachers or by increases in teacher salaries. Teachers already claim about two-thirds of all school expenditures, and given their growing strength as a unionized group, they are unlikely to settle for a significantly lesser share in the years to come. What this means is that the consequence of divorcing affluence from spending in the case of the schools will almost certainly be to favor the affluent. For today, most teachers are to be found among that half of the population with family incomes above $10,000 per year; with a median family income of nearly $13,000, many teachers earn more than at least two-thirds of their countrymen, and with the added probability that the teacher is a married woman, family income may easily exceed $15,000, putting them in the top fifth.
Teachers work hard, their struggle has been long, and they have earned everything they have achieved. Nevertheless, in the aftermath of Serrano, it is likely that the milkman will end up paying more so that his children’s teacher can earn more—without much chance of seeing his children learn more. While this sequence would follow almost any general increase in educational spending, it is always ironic to find it as an outcome of a reform designed to aid low-income families. Yet, for the overall income-transfer effect of this reform to be anything but regressive, the taxes invoked would have to be very progressive indeed, and state taxes are not noted for possessing that quality.
If Serrano‘s effect on the distribution of income is bound to be regressive, its effect on the distribution of funds among cities on the one hand and suburbs and rural areas on the other is likely to favor the latter. It may once have been true that the poor lived in discrete “pockets of poverty,” but many low-income people now live in relatively affluent jurisdictions—central cities with enduring concentrations of factories, banks, and department stores, which make for overall wealth. For this reason Serrano, with its solicitude focused on poor school districts, could well result in the spending of less money on schooling for the children of the poor. Indeed, if California adopted one popular post-Serrano formula that is advocated by many of the new reformers it would bring a slight decline in per-pupil spending in Los Angeles, virtually no change in Oakland, and a hefty loss in San Francisco.
By contrast, the suburbs and the small rural school districts of the United States lack the cities’ tax base and, although they are spared the fiscal drain of a large police force, rusty public transit, and soaring relief rolls, they have a higher proportion of public-school students in their populations—the product of young families and of a paucity of parochial schools. Thus while they may already spend a sizable portion of net revenues on education, their wealth-per-student is low enough to warrant aid under the Serrano rule. Using one possible post-Serrano formula, Joel Berke and John Callahan of Syracuse University have calculated that the central cities of the Northeast and Midwest would lose revenues to small towns and exurbs. They add that, in the South, “The tax impact . . . would permit the suburban counties . . . to reduce tax effort for education, while the cities would get either a lesser degree of tax relief or none at all.”
A critic of the recent decisions need not defend the existing arrangements, for it is surely not fair that some districts must perennially struggle to make ends meet. But the overall economic impact of Serrano appears unlikely to be any simpler or more salutary than its effect on educational achievement. Professor Charles Benson, a longtime student of school finance who directed the studies of the Fleischmann Commission, cautions that “We must make distinctions among cities. Some are disadvantaged. Others are resting on their oars.” Still others might have different priorities for public expenditures—preferring, for example, light taxes and modest school spending or wanting new public funds for purposes other than education. None of the courts, and only a few of the new reformers, have sought to make these distinctions. Perhaps they should not have been expected to, since that kind of choice is usually reserved for the political process and the legislature and is not generally thought to be the province of the courts.
In short, the new reformers have been acting on the basis of an extraordinary confidence both in the conventional wisdom of American education and in the political wisdom of American courts. The advocates of Serrano maintain that even though we are not yet able to specify the linkage between the resources that go into a school and the “learning” that comes out, there must be some relationship. Thus the Minnesota court in Van Dusartz v. Hatfield:
While the correlation between expenditure per pupil and the quality of education may be open to argument, the Court must assume it is high. To do otherwise would be to hold that in those wealthy districts where the per-pupil expenditure is higher than some real or imaginary norm, the school boards are merely wasting the taxpayers’ money.
There is an element of wistfulness in this posture. The findings of educational research have grown incomprehensible and alien. Judges and lawyers have known that better schools produce better students since their own days in the classrooms of Newton and New Trier. They do not doubt that more schooling improves an individual’s status. Moreover, they believe schools are the great equalizers; what Justice Sullivan in Serrano called the cherished idea of American education—“free public schools [that] shall make available to all children equally the abundant gifts of learning”—is seen as the very essence of social mobility, the grand eraser of the distinguishing marks of birth.
These beliefs are so central to American thought that people who normally take some pride in staying abreast of recent scholarship cannot quite accept the validity of studies throwing them into question. And so the conventional wisdom persists. Yet the conventional wisdom is wrong. Schools do not compensate very well for differences among groups of children, and probably never can. It is small consolation to know that schooling also turns out to be less important for one’s chances in life than has generally been thought. A “good” education does not guarantee wealth any more than a “bad” one precludes it, and in neither case does formal schooling seem to have all that much to do with it.2
If, then, the pattern of expenditure now embraced by the courts is inappropriate to the task at hand, to persist with ever larger sums is a costly and misleading pursuit for society. Even if, as is unlikely, the Serrano rule were to put more funds into the inner city, and even though the wise investment of additional resources in slum schools might well improve the conditions for students and teachers alike, the limits of our present knowledge are such that those extra dollars would add to actual learning only by coincidence or good fortune. A more promising route to improved educational results may not lie through the classroom at all. The Coleman analysis, for example, found a relatively strong relationship between social class and academic performance; perhaps it would be wiser to invest additional money in income-maintenance programs rather than in schools.
Insofar as we do spend on education, heroic experimentation is in order, both in schools and outside, rigorously monitored and carefully analyzed in the hope that one day our attempts at equal educational opportunity may be more than merely wishful. At a minimum, serious reform will call for reaching well beyond the school as we know it, for a willingness to reckon with unthinkables such as family structure and a child’s choice of playmates, for public acceptance of social and racial integration, for more rigorous and skillful testing and measuring than have yet been seen, for new understanding of the social role of the school, and for a realistic approach to individual and group differences including, finally, acquiescence in the unloved statistical law that half must score below the median. That serious reform of this kind is more likely to be pursued through the executive and legislative branches than through the courts is suggested by the recent establishment of the National Institute of Education, proposed by the President and enacted by Congress to undertake the careful research and experimentation that should one day make sure a child learns to read even if his family is poor.
The reformers behind Serrano have charted a far less ambitious course, as unheroic as it is familiar. They have picked a simple financial solution to a difficult non-financial problem, seemingly in the hope that throwing more money at it will make it go away, and they have asked judges to resolve economic, social, and educational questions of uncommon complexity. In thus seeking court rulings that, of necessity, deal only with crude measures of educational “inputs,” like pupil-teacher ratios, and with equally rough fiscal indices, like school tax and expenditure levels, the new reformers distract us from the task at hand and, ironically, only reinforce the educational status quo.
1 Papers by Jencks and others are contained in Frederick Mosteller and Daniel P. Moynihan, eds., On Equality of Educational Opportunity, Papers Deriving from the Harvard University Faculty Seminar on the Coleman Report, Random House, 546 pp., $15.00.
2 See David K. Cohen, “Does IQ Matter?,” COMMENTARY, April 1972.