By THOMAS D. WILSON and JOHN K. WILSON
Equalizing school funding
The ongoing lawsuit against the inequality of the Illinois school funding system will present the Illinois courts with a difficult decision over interpretation of the state Constitution. Recent decisions in Kentucky, Texas and Montana have declared similar funding systems unconstitutional because of the inequitable impact of vast differences in local property wealth and too little state "equalizing" aid. But Illinois may prove to be a different case because of the 1970 Constitutional Convention's decision to reject a proposal for more equitable funding. The current lawsuit, Committee for Educational Rights et al. v Edgar et al., is pending in Cook County Circuit Court.
The state of Illinois, in its motion to dismiss the case, argues: "Plaintiffs illogically assert that the 1970 Illinois Constitution mandates what was twice specifically rejected by the Constitutional Convention — 'substantial parity of educational opportunity.' " However, the plaintiffs suing the state assert, "the record of the Convention demonstrates overwhelming support for the principle of fiscal neutrality," which means "that the resources provided by the State for educational spending of a school district be a function of the wealth of the state as a whole as opposed to the resources of the individual district's local property wealth."
The transcripts of the 1970 Illinois Constitutional Convention, however, reveal neither an intent to require fiscal neutrality nor a desire to dismiss equality of educational funding altogether. Instead, the convention's debates on education were full of confusing turns and contradictory aims: The delegates generally desired more equality of educational opportunities, but they generally rejected any specific measure which could achieve it.
Many commentators have noted differing state supreme court interpretations of provisions for "equal protection" and an "efficient" system of "high-quality" education, and the impact of these vague phrases in state constitutions on the state's obligation to equalize funding for public schools. The 1970 Illinois Constitutional Convention's specific consideration and rejection of more equitable funding is unique to Illinois, however, and deserves further review. Does it represent an "original intent" against equalizing school funding? Or does it instead suggest the importance of equitable funding to the convention, which practical difficulties prevented from being enacted?
At the 1970 Constitutional Convention the Education Committee by a 6-5 vote approved the following equalization proposal for section four of the Education Article: "To meet the goals of Section 1, substantially all funds for the operational costs of the free public schools shall be appropriated by the General Assembly for the benefit of the local school districts. No local governmental unit or school district may levy taxes or appropriate funds for the purposes of such educational operation except to the extent of ten percent (10%) of the amount received by that district from the General Assembly in that year."
After extensive debate in the convention as a whole, the proposal was killed by a vote of 69-38. Because the convention specifically considered and then rejected it, James Ward, education professor at the University of Illinois, has said, "It would require a great deal of creative rewriting of history to argue that the framers of the 1970 Constitution were discussing equitable distribution of resources when they used the word 'efficient'" (see "Litigation for equal education: a question of interpreting state constitution," Illinois Issues, May 1990, pages 14-16).
However, the convention did not oppose equity in school finance, but only a particular proposal to produce it. Delegates said they voted against it "reluctantly," "less than wholeheartedly," on a "technicality" and though "it distresses me very much to do so." Most delegates indicated that they were "sympathetic with the purpose," and Delegate George J. Lewis called it "one of the most difficult votes that I have cast."
Nor did the convention adopt a clear position in opposition to the idea of equalizing school funding. Delegate Louis F. Bottino's alternative proposal, as quoted by the state in its motion to dismiss, was the following: "The General Assembly shall be responsible for the funding of public educational institutions and services. Distribution of state funds shall provide for substantial parity of educational opportunity throughout the state, except that the General Assembly may provide additional funds for special services."
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Since Bottino explicitly stated that this proposal would be judicially enforceable, the state argues that the rejection of it by a 51-37 vote shows that the intent of the convention was to exclude all judicial enforcement of equalized funding based on the Education Article. But the state's brief strangely omitted the key second sentence of the Bottino proposal, which read: "The funds obtained through local taxation by or for a school district or municipality for a free school purpose shall not exceed 50 percent of the total funds for such purpose. Full implementation date is July 1, 1976. This section is recommended for separate submission." The defendants also omitted the fact that the strongest education equality supporters, such as Delegate Malcolm S. Kamin, declared that "the committee would urge you to vote against the Bottino amendment" because it did not go far enough to ensure equality. Thus, the Bottino proposal was a compromise between the two sides, but it satisfied neither of them.
After the Education Committee's more radical plan was rejected by the convention, the delegates considered a proposal by Delegate Dawn Clark Netsch: "The state has the primary responsibility for financing the system of public educational institutions and services." Netsch's proposal would be the strongest case for the state's argument since Netsch explicitly stated, "I do not intend that it states a legally enforceable duty." However, the Netsch proposal also was voted down, 47-38.
The frustration of the delegates was evident. Delegate Clyde Parker said he was "in a state of ambivalency" since "both of these amendments don't do what we were trying to do...." Delegate Kamin declared: "I don't think the Bottino amendment goes far enough; the Netsch amendment doesn't go anywhere; I want to go home. Let's vote." According to the convention transcript, this was applauded.
The delegates returned to the issue at the end of the convention on August 31, when they suspended the rules in order to reconsider Netsch's amendment. Although Netsch declared it was "not a legally obligatory command to the state legislature," one skeptical opponent, Delegate Dwight P. Friedrich, said, "this may be hortatory and it may not." Delegate Kamin offered his own amendment to replace Netsch's proposal: "The state shall undertake to provide substantially all funds for the financing of the free public schools from revenues other than real property taxes." Kamin called his amendment "a hortatory statement" designed to go "one step further" than Netsch by preventing a statewide property tax. It was rejected by a vote of 58-30 because of concerns over the words "substantially all" and problems with the details of taxation. Finally, Netsch's amendment — despite being opposed by those who felt it did not go far enough and those who thought it went too far — was approved, 65-28, and the Education Article as a whole was passed with only 10 dissenters.
Despite the assertions that the Netsch amendment was not meant to be enforceable, there was a great deal of confusion among the delegates. One supported the Netsch amendment because she believed the words "primary responsibility" meant "total responsibility." Another said, "The state does have responsibility. Our present constitution says that.... We don't really even need, I don't think, the Netsch amendment." After the vote, Vice President John Alexander made an unusual speech to the delegates and declared that "we are acting very much as hypocrites" because many of the delegates who wanted more state financing of public education had also voted to impose income tax ceilings. Caught between the two extremes of altering the school finance system and doing nothing, the split convention instead adopted a simple statement which left the matter open to the future, hoping that the legislature would be moved by it to take action.
The delegates had various reasons for voting against the proposed section four of the Education Article, but those who opposed it also stated the need for more equal funding of schools in Illinois. Their reasons for voting against it are instructive, both to determine their historical intent and because the issues they raised still confound us as we try to resolve what is fair and just for school funding.
The opposition to section four can be summarized in five categories. First, the proposal represented a drastic increase in the state's share of funding schools since it would provide at least 90 percent of the total money for education. Delegate Paul E. Mathias, referring to a Chicago Daily News editorial, declared that "it would bankrupt the state." Even today, only Hawaii has full state funding of schools, and no other state provides more than 90 percent of the funds for schools. A proposal that would be extreme today was even more so 20 years ago, before the dozen state court cases requiring equitable funding had been decided.
Second, the proposal was considered by many delegates to be inappropriate for a constitution. Delegate David Davis declared, "This section ... is pure legislation." Others feared that such a specific proposal in the constitution would be too inflexible. Delegate Mathias argued, "Before a mandate is written into the constitution, we'd want to be certain of something that cannot be changed." Delegate Lewis D. Wilson noted, "I cannot support the majority proposal as it's now drafted because I think this limitation of 10 percent on the local school district is entirely too restrictive." The controversial 10 percent limitation raised many concerns, including problems over gradual implementation, the fact that "education costs vary over the state" and the general fear that "our superior schools would be disrupted."
Third, several delegates feared the loss of local control if the state provided most of the funding. Delegate J.L. Buford said, "The day this program advanced by the majority becomes fully effective will be the day local control of and local interest in schools and education will have sunk into oblivion." Delegate
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Mathias declared, "There is very little reason to think that if the state is providing the money they will not impose substantial controls upon the local school board." Many delegates believed then, as many people believe today despite the increase of state control during a period of shrinking funding, that there is a strong link between local financing and local control of schools.
Fourth, the timing of section four consideration was very bad. The last proposal to be given a first reading, it was presented in August 1970 when the convention was running out of money to pay delegates and a few days before it had originally hoped to adjourn. One delegate noted that "everyone is growing weary," and Delegate Kamin had to deny that section four was "an off-the-cuff, spur-of-the-moment, last-minute idea that some longhaired idealist dreamed up." Dealing with a complicated and controversial plan which had never been tried before was beyond the energy and ambitions of the delegates.
Fifth, many delegates were optimistic that the state would soon provide substantially more funding for schools without any constitutional requirement. Most delegates declared that they favored a "substantial increase in support for education by the state" and recognized the "need to encourage our General Assembly and our legislature to do something more." Delegate Netsch said, "I have been impressed in this convention with a very widespread sentiment among the delegates that the state should assume a much greater proportion of the burden of financing of public schools." Even Delegate Mathias, the proposal's most vocal opponent, declared that "we do favor equal educational opportunities."
A post-convention survey by Jane Buresh of 25 delegates who opposed the proposal found that seven thought it was overly idealistic, four felt it had not been fully investigated, five considered it a legislative matter, and nine feared the effect on their constituents' schools. But during the convention, most of the delegates indicated that they felt the Illinois legislature now recognized the problem and would significantly increase and equalize school funding, as it had partly done in the 10 years prior to the convention. In that 10-year period, state spending on education doubled with its share of total school funding increasing to 34.5 percent from 22 percent. Delegate Davis said that "you had better leave it to the legislature to gradually evolve, as it has been doing over the years... ." Delegate Maurice Scott added, "The legislature ... is moving in the right direction." Vice President Elbert S. Smith noted that "we do have a legislature, a School Problems Commission that has worked with this problem — that is continuing to work with it." Delegate Mathias declared, "We feel it should be worked out by the legislature over a period of years, and that they will do this. We think it is unnecessary to do it at this time." Delegate Bottino even reported that Wayne Reid, the associate commissioner of federal-state relations in the U.S. Office of Education, had predicted that "by 1980 25 to 30 percent of the support of local schools will come from federal sources," and that "the trend nationally is for greater state financing."
The hope for equalizing funding through the legislature has never been fulfilled. Though the state share of public school funding rose to 48 percent in 1975-76, it has since fallen to 38 percent this year. Federal aid for schools peaked at about 7.5 percent in 1980 and since then has fallen to 6 percent. In Illinois from 1980 to 1990, while the burden for school funding on local sources has been increasing, the gap in local property tax revenues has widened between the richest 10 percent and poorest 10 percent of districts. As a result, spending disparities have enlarged greatly since the 1970 convention.
In 1968-69, the top school district spent $2,158.95 per student, while the lowest spent $394.73 — a ratio of 5.47-to-l. In 1989-90, the top school district, Seneca High School, spent $14,316 per pupil and the lowest at Dalzell Grade School (only 35 miles west of Seneca) spent $2,253 — a ratio of 6.35-to-l. One delegate against the equalization proposal noted that in 1968-69, only 20 schools spent more than 30 percent above the average of $1,135 per student. In contrast, 53 of the 59 high schools in suburban Cook County in 1989-90 spent 30 percent above the state average of $4,808, and no less than 15 suburban high schools spent more than twice the state average — a level which no school attained 20 years ago. Inequalities in funding, bad as they were at the time of the convention, have grown much worse in the past two decades.
The Illinois Constitutional Convention could not overturn the current system of school funding without creating a politically acceptable plan for replacing it. Thus, it was the failure to create a viable alternative, and not an acceptance of the current system, which led the delegates to vote against the equity proposals. The plaintiffs in the lawsuit are wrong when they declare that "the record of the Convention demonstrates overwhelming support for the principle of fiscal neutrality," but the state is equally wrong when it argues that educational equality was expressly rejected by the convention.
The 1970 convention voted neither to include nor to exclude the issue of equality from the constitution; instead, the complexity of the issue caused delegates to leave it open for the future. But the lack of progress since that time suggests that if the convention faced the same question today, it might vote differently. Given the Constitutional Convention's clear desire to reduce inequalities and its decision to leave the specific meaning of the education clauses open, a decision declaring the current funding system unconstitutional would be closer to their intentions than the choice of continuing to do nothing.•
Thomas D. Wilson teaches political science at Illinois State University. John K. Wilson is a graduate student in social thought at the University of Chicago. John is Thomas's son.
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