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Lawsuit on education funding:
intricacies of constitutional arguments

By MARK MATHEWSON

Launched nearly two years ago with a flourish of publicity, Illinois' school funding lawsuit has been overshadowed by the proposed constitutional amendment it inspired. But Committee for Educational Rights v Edgar has been churning through the justice system all the while, and last June reached its first milestone — a setback for the plantiffs — when Cook County Circuit Court Judge Thomas O'Brien rejected the committee's arguments that the school funding scheme violated the Illinois Constitution.

In dismissing the case for failure to state a cause of action, Judge O'Brien ruled that the committee is seeking a remedy the law doesn't provide, even assuming the facts of school funding disparity as the plaintiffs present them (that is, the richest districts spend at least four times as much per pupil as the poorest). O'Brien is saying in essence that, like it or not, the Illinois Constitution just doesn't guarantee Illinois school kids a more equitable distribution of resources.

The committee is a group of over 50 school districts. The lawsuit was filed in November 1990. (See "Lawsuit challenges state financing of public schools," Illinois Issues, February 1991, pages 19-21.)

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. . . the plaintiffs are suing
not only under the
education article. . ., but
under the equal protection
provision as well

The plaintiffs, of course, did not expect an easy victory and designed their case — beginning with their unusually lengthy, fact-rich complaint — to give reviewing courts plenty to work with in the event the lawsuit was dismissed before trial (they've already filed notice of appeal with the 1st District Appellate Court). Nonetheless, the battle over the defendants' motion to dismiss was the first test of two of the committee's most critical arguments: 1) that education is a fundamental right under the Illinois Constitution and 2) that delegates to the 1970 Illinois Constitutional Convention were actually supporting the principle of fiscal neutrality when they rejected a proposal that would have nearly eliminated differences in school funding based on local property wealth.

To understand why the first argument is so important, keep in mind that the plaintiffs are suing not only under the education article of the Illinois Constitution (Article X), but under the equal protection provision as well (Article I, section 2). That provision guarantees "equal protection of the laws," which is one of those resounding constitutional phrases that means little until you leam how courts have defined it.

In fact, the state generally has broad power to enact laws that treat people unequally — that is, that effectively favor one person or group over another — unless the person bringing the equal protection challenge is the member of a "suspect class" — a racial minority group, for example — or unless the law affects a "fundamental right," such as the right to free speech.

October 1992/Illinois Issues/19


Generally speaking, if you don't fit into a suspect class or if a fundamental right isn't at stake, you lose: In that case, the government need only have a "rational basis" for treating you differently, a minimal standard that has proved fatal to nearly all equal protection challenges to which it applies. On the other hand, if the law burdens members of a suspect class or implicates a fundamental right, a court will subject it to "strict scrutiny," in which case the government, not the plaintiff, is the likely loser.


Instead, plaintiffs
hoped to persuade
the court that
education is a
fundamental right

This is true of challenges brought under either the federal or the Illinois constitutions. Indeed, the U.S. Supreme Court found in a landmark 1973 school funding case from Texas, San Antonio School District v Rodriguez, that the plaintiffs were not in a suspect class and that education was not a fundamental right under the federal Constitution. After that ruling, school funding reform advocates turned their attention to state constitutional challenges, hoping for better luck. Plaintiffs in these cases have a mixed record of success but scored high-profile victories in Kentucky and Texas.

The plaintiffs in Committee v Edgar did not even try to argue that they were members of a suspect class, representing as they do students from varying ethnic and economic backgrounds (in any event, the Illinois Supreme Court has already said that poor people as such do not constitute a suspect class under the Illinois Constitution). Instead, plaintiffs hoped to persuade the court that education is a fundamental right.

Superficially, at least, the plaintiffs appear to be on solid ground here. Unlike the federal Constitution, the state Constitution contains an education clause. This in itself might seem to qualify education as a constitutionally guaranteed fundamental right. But as is so often the case in matters of law — particularly constitutional law — things are often not as they seem, and Judge O'Brien found that education, despite its obvious importance, was not a fundamental right in the technical, constitutional sense.

Judge O'Brien found that Illinois case law imposes a two-part fundamental rights test for equal protection analysis under the Illinois Constitution. First, courts must determine whether the right exists "implicit[ly] or explicit[ly]" in the state Constitution. Second, they must ask whether the right lies "at the heart of the relationship between the individual and a republican form of government." If the would-be right fails on either count, it is not "fundamental," regardless of its otherwise apparent "importance to society."

O'Brien never got around to taking education through part two of the test because he found that it failed the first part. He found that while the Illinois Constitution mentions education, it does not elevate it to the level of a right. He noted that the education article itself refers to education as a goal, not a right. The article's first sentence reads as follows:

"A fundamental goal of the People of the State is the educational development of all persons to the limits of their capacities." He cited other provisions of the Constitution that do use the word "right": Article XI, section 2, for example, which speaks of "the right to a healthful environment." And he observed that the Illinois Bill of Rights (Article I, sections 1-24) makes no mention of education.

He also cited proposed versions of the article that contained the word "right" or that included stronger language than the current version (for example, "paramount goal" instead of "fundamental goal") and noted that the delegates rejected these proposals. "The purpose behind the adoption of the final mollified version," O'Brien wrote, "was to avoid placing education 'above all other considerations of the state government.' " In other words, he reasoned, the delegates knew about the inequities inherent at that time among districts, yet still refused to make education a fundamental right.

O'Brien also cited as controlling precedent a 1976 Illinois Appellate Court case, People ex rel Jones v Adams, which determined that "the strict scrutiny analysis reserved for fundamental rights does not apply to equal protection claims involving educational finance," as O'Brien put it.

Thus the rational basis test applies, effectively dooming the plaintiffs to failure on their equal protection claim. Imposing the test means that "the legislation will not be set aside if any state of facts reasonably may be conceived to justify it," as O'Brien wrote. The defendants supplied the justification, arguing that local funding serves the "legitimate state interest" of allowing local school boards to "assess and respond to local needs" by "allowing local control of funds." Note that under the rational basis test, it doesn't matter that other funding methods might allow local boards to respond to local needs without creating wide disparities in spending. The government doesn't have to choose the best approach; it can choose any approach as long as it bears a "rational relationship to a legitimate state interest."

The plaintiffs' other central argument — that the education article requires the state to eliminate differences in school funding based on local property wealth — gets to the heart of what makes arguing for school funding reform in Illinois so difficult: There's no ignoring that the delegates to the 1970 Constitutional Convention passed up a chance to all but eliminate school funding disparities. They rejected a proposal (from the education committee majority report, no less) that would have required that "substantially all" school funding come from the General Assembly and at the same time would have forbidden local districts from kicking in more than 10 percent beyond the amount provided by the state. The defendants insist in their brief that the plaintiffs are trying to "overturn the results of the 1970 Constitutional Convention" by resorting to the Constitution itself.

20/ October 1992/Illinois Issues


The plaintiffs' argument — a subtle one — goes something like this: Though the delegates rejected the education committee majority proposal, they didn't reject the principle of "fiscal neutrality" — the principle, that is, that disparities in school funding should not be based on differences in local property wealth. On the contrary, the plaintiffs argue, the delegates believed that fiscal neutrality was already guaranteed by the Constitution and would remain a guarantee without the explicit language of the majority proposal. They rejected the majority proposal, the plaintiffs say, not as a rejection of fiscal neutrality but for other reasons.

What were those other reasons? The plaintiffs say there were many. Some delegates worried that requiring the General Assembly to bear over 90 percent of the funding burden would bankrupt the state; some worried that it would threaten local control. Some feared that the 10 percent limit on spending was "legislative in nature" and that the "delegates were clearly worried about constitutionalizing — and freezing forever — a finance scheme that allocated so precisely the financial responsibilities between the state and local communities." Some feared that a 10 percent local spending cap could unfairly limit districts from taxing themselves at a higher rate on behalf of their local schools. (For more on this and for discussion of delegates' rejection of an alternative proposal by delegate Louis Bottino, see "Equalizing school funding and the 1970 Constitutional Convention," Illinois Issues, March 1992, pages 21-23.)


Persuading the court
that the delegates
didn't reject the idea
of fiscal neutrality
only goes halfway

This last example brings up an important aspect of the plaintiffs' lawsuit — contrary to what some may think, plaintiffs are not arguing that each district must spend the same amount per pupil. They are arguing not for fiscal equality, but for what they call "fiscal neutrality." They do not object to differences in per pupil spending as such, but to differences based on an "educationally irrelevant" factor: local property wealth. As the plaintiffs put it in their brief, "[W]e believe that the State must provide children with substantially equal resources for financing educational opportunity until it knows that their needs or the costs of educating them are different; the defendants disagree."

It's not entirely clear, however, what the plaintiffs are asking for since on this point some inconsistency creeps into their argument. On the one hand, they say the differences in spending should be based on differences in students' "needs or the costs of educating them." On the other, they flatly say that they "do not object to differences in spending that result from differences in tax effort or tax rate," differences that may have more to do with parents' willingness — or ability — to pay than with students' needs. Still, the plaintiffs' central point is that the delegates weren't rejecting fiscal neutrality when they rejected proposals that seemed on their face to promote funding equity.

Persuading the court that the delegates didn't reject the idea of fiscal neutrality only goes halfway. It's one thing to argue that the delegates didn't oppose the concept; it's another to insist that they viewed it as a constitutional guarantee. If plaintiffs are to prevail on their education clause argument, they have to go the next step and persuade the court that the Constitution actually requires fiscal neutrality in school funding.

The plaintiffs attempt to do just that. They argue that in reviewing the convention debate, "the delegates who addressed the issue of inequality [including many who voted against the majority proposal] were nearly unanimous in their support for eliminating the inequities caused by the distribution of property wealth." They argue further that "fiscal neutrality was . . . firmly fixed in the draft constitution" without the education committee proposal. They base this assertion largely on a convention report's description of the education clause's second sentence, which would not have been affected by the rejected proposal. The second sentence reads: "The State shall provide for an efficient system of high quality institutions and services." In describing that sentence, the report "to which there were no dissenters," according to the plaintiffs, said: "The opportunity for an education, where the state has undertaken to provide it, is a right which must be made available to all on equal terms."

Judge O'Brien didn't respond to the subtleties of this or any of the plaintiffs' other education clause arguments, devoting some four out of 37 pages in his opinion to what the delegates did or didn't mean when they rejected the majority report and the Bottino amendment. What he does say is that both were defeated even though the delegates knew, by way of the education committee's majority report, that "[i]n poorer districts, the citizens must impose a greater tax burden upon themselves in order to achieve the same level of spending as wealthier districts."

He also noted that a 1969 case from the 7th Circuit (the federal appellate district that encompasses Illinois) found that the U.S. Constitution didn't require "equal [per pupil] dollar expenditure." Thus, the delegates were "obviously aware" that inequitable school funding as such "did not violate the Federal Constitution and, if they so chose to make it a right of Illinois children, they could have expressed such intent in the Education Article" but "did not do so."

Finally, and perhaps most decisively, Judge O'Brien cited a string of cases dating as far back as the 1920s and as recently as 1980 that establish, in his view, "the principle of judicial non-review of legislative actions taken under the Education Article." Deciding how best to accomplish a "thorough and efficient" system is a matter for the General Assembly, not the courts, O'Brien concluded.

October 1992/Illinois Issues/21


The plaintiffs also argued that the school funding system amounts to unconstitutional special legislation in violation of Article IV, section 13 of the Illinois Constitution and that the school funding system violates the equal protection provision and the education article by not adequately meeting the needs of at-risk children. On the special legislation count, Judge O'Brien, quoting the Illinois Supreme Court, held that "the prohibition against special legislation does not mean that a statute must affect everyone in the same way. It means simply that the law shall operate uniformly throughout the state and on all persons in like conditions," a standard that the school funding system met.

On the at-risk counts, O'Brien found that at-risk children are not members of a suspect class (remember poor people as such do not constitute a suspect class), so the legislation dealing with them must merely pass the rational basis test for purposes of equal protection analysis. He found that it did, even if it "serve[s] only a small percentage of those who need such programs," as the plaintiffs assert. As for the claim that the legislation violated the education article, he only reiterated that courts lack "judicial authority to encroach upon the legislature's domain" in determining the efficiency of that portion of the Illinois School Code.