For affirmance and modification -- Chief Justice Weintraub, Justices Jacobs, Hall, Mountain and Sullivan, and Judges Conford and Lewis. For reversal -- None. The opinion of the Court was delivered by Weintraub, C.J.
This case involves the constitutionality of statutes providing for the financing of elementary and secondary schools. The trial court found the existing system discriminates against students in districts with low real property ratables and also discriminates among taxpayers by imposing unequal burdens. These discriminations were held to violate the equal protection mandates of the Federal and State Constitutions. They were held also to violate other provisions of the State Constitution relating to public education and to the assessment of real property for taxation, to which we will refer later. The conclusion was that the State must finance the system out of State revenues raised by levies imposed uniformly on taxpayers of the same class. The holding was prospective only, and judicial relief was withheld until January 1, 1974 to permit the Legislature to adopt another plan, with the proviso that if a proper plan is not enacted by January 1, 1973, certain State moneys appropriated for distribution to school districts shall be distributed in harmony with the opinion rather than according to the statute's terms. 118 N.J. Super. 223 (Law Div. 1972).
We certified the appeals before argument in the Appellate Division and stayed the operation of the judgment until our further order.
The system of meeting the current costs of our public schools is described in the trial court's opinion, 118 N.J. Super. at 228-231, and need not be repeated other than in its broad outlines. The funds are derived from three sources: local ad valorem taxation of real property, State aid, and federal aid. The trial court found that local taxes currently yielded 67% of the statewide total of operating expenses, State aid yielded 28% and federal aid the balance of 5%. 118 N.J. Super. at 231.
It is agreed there is a disparity in the number of dollars spent per pupil, depending upon the district of residence. As to the local property tax, the base is the taxable real property within the several districts, and of course the amount of taxable real property within a district is not related to the number of students within it. Although there is no statutory maximum upon the local tax for current educational expenses, there are practical limitations arising from the demands for other local services upon the same tax base. And it is clear also that State aid does not operate substantially to equalize the sums available per pupil.
There was testimony with respect to the correlation between dollar input per pupil and the end product of the educational process. Obviously equality of dollar input will not assure equality in educational results. There are individual and group disadvantages which play a part. Local conditions, too, are telling, for example, insofar as they attract or repel teachers who are free to choose one community rather than another. But it is nonetheless clear that there is a significant connection between the sums expended and the quality of the educational opportunity. And of course the Legislature has acted upon that premise in providing State aid on formulas designed to ameliorate in part the dollar disparities generated by a system of local taxation. Hence we accept the proposition that the quality of educational opportunity does depend in substantial measure upon the number of dollars invested, notwithstanding that the impact upon students may be unequal because of other factors, natural or environmental.
We accept also the trial court's findings of fact with respect to the existing disparities in expenditures per pupil, and we agree that the present situation cannot be reconciled with relevant constitutional requirements. But we do not accept the constitutional thesis expounded by the trial court. That thesis has implications beyond the subject of public education, and bears also upon the options available to the
Legislature in meeting the State's obligation with respect to that specific subject matter.
We will consider first whether the equal protection clause of the Fourteenth Amendment and the equal protection provision implicit in Art. I, para. 1, of our State Constitution of 1947, Bailey v. Engelman, 56 N.J. 54, 55 (1970), reach our statutory scheme. It is urged, and the trial court agreed, that equal protection was denied both the students and the local taxpayers.
It must be evident that the rudimentary scheme of local government is implicated by the proposition that the equal protection clause dictates statewide uniformity. West Morris Regional Board of Education v. Sills, 58 N.J. 464, 477 (1971), cert. denied 404 U.S. 986, 92 S. Ct. 450, 30 L. Ed. 2d 370 (1971); see James v. Valtierra, 402 U.S. 137, 142-143, 91 S. Ct. 1331, 1334, 28 L. Ed. 2d 678, 683 (1971). This is so unless it can be said that the equal protection clause holds education to be a thing apart from other essential services which also depend upon local legislative decision with respect to the dollar amount to be invested. As to any service to which equal protection is found to apply, it would follow that if the moneys are raised by local taxation in a way which permits a different dollar expenditure per affected resident, the program is invalid as to the beneficiaries unless a State aid program fills in the gap. It would then follow that a State aid program which did not neutralize local inequalities would itself deny equal protection as to beneficiaries; and although it is not urged upon us that every federal statute must abide by that precept, we see no reason why that constitutional mandate would not also prevail at the federal level if the basic premise
is sound.*fn1 Thus a federal program which provides funds on a matching or conditional basis with State or local option to participate or to choose a level of participation would be invidious as to those unequally benefited. That of course has not been the prevalent assumption. See statutes involved in Charles C. Steward Machine Co. v. Davis, 301 U.S. 548, 57 S. Ct. 883, 81 L. Ed. 1279 (1937); and James v. Valtierra, supra, 402 U.S. 137, 91 S. Ct. 1331, 28 L. Ed. 2d 678. With respect to the categorical welfare programs under the Social Security Act which deal with the most basic need of food and shelter, the federal legislation does not comport with the constitutional standards we are asked to find. Although local option permitted by the statute was an underlying fact in the decisions of the United States Supreme Court, the Court did not intimate that local option generates a constitutional problem. See King v. Smith, 392 U.S. 309, 318-319, 88 S. Ct. 2128, 2133-2134, 20 L. Ed. 2d 1118, 1126 (1968); Rosado v. Wyman, 397 U.S. 397, 407-408, 90 S. Ct. 1207, 1215-1216, 25 L. Ed. 2d 442, 453 (1970); Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970); see also Bailey v. Engelman, supra, 56 N.J. 54, 57, and Motyka v. McCorkle, 58 N.J. 165, 169 (1971).
The Court of Appeals for the Second Circuit recently rejected sundry constitutional challenges to the welfare programs under the Social Security Act. The plaintiffs there contended that the federal government, having entered the field, was obliged to assume the entire cost of welfare, and that in any event due process and equal protection were
denied because the federal contribution to the States was made under a formula based upon per capita income of the States rather than the number of persons in need. City of New York v. Richardson, 473 F.2d 923 (2 Cir. 1973). Those propositions were rejected but that litigation suggests the distance the judiciary would travel if it found the Constitution dictated such single answers to the myriad, complex problems of today.
In West Morris Regional Board of Education v. Sills, supra, 58 N.J. 464, we dismissed a claim that the equal protection clause of the Fourteenth Amendment was offended by a statute providing for transportation of only those students at private schools who resided in school districts which furnished such transportation to public schools. We said "at least as of now, * * * there is no constitutional fiat that educational expenditures be identical for all students throughout the State" (p. 478). We thus read the decisions of the United States Supreme Court. We recognized that "It, of course, would be another matter, if local option were designed for an invidious end, such as racial discrimination" (p. 478), and cited in that regard Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S. Ct. 1226, 12 L. Ed. 2d 256 (1964), and other cases.
The lead case finding that the federal equal protection clause requires statewide equality of expenditure per pupil is Serrano v. Priest, 5 Cal. 3d 584, 96 Cal. Rptr. 601, 487 P. 2d 1241 (Sup. Ct. 1971). In finding that the Fourteenth Amendment applied, Serrano distinguished McInnis v. Shapiro, 293 F. Supp. 327 (N.D. Ill. 1968), affirmed sub nom. McInnis v. Ogilvie, 394 U.S. 322, 89 S. Ct. 1197, 22 L. Ed. 2d 308 (1969), and Burruss v. Wilkerson, 310 F. Supp. 572 (W.D. Va. 1969), affirmed 397 U.S. 44, 90 S. Ct. 812, 25 L. Ed. 2d 37 (1970). In McInnis and in Burruss three-man courts rejected equal protection attacks upon State school systems in which, as in the case before us, the expenditures per pupil varied because of local decision.
The United States Supreme Court affirmed without discussion. Serrano found those cases to be different, saying the contention there rejected was that equal protection required equality measured by the needs of pupils. That standard, Serrano said, would be judicially unmanageable, whereas equality of dollar input, the standard Serrano accepted, would present no such problem of judicial management and therefore was beyond the holding of McInnis and Burruss.*fn2
Plaintiffs seek to bring this case within the doctrine, summed up in Goosby v. Osser, 409 U.S. 512, 93 S. Ct. 854, 859, 35 L. Ed. 2d 36 (1973), that there must be applied "the more stringent compelling state interest test when either a fundamental right, such as the right to vote,*fn3 was allegedly infringed, Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964); Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966); Carrington v. Rash, 380 U.S. 89, 85 S. Ct. 775, 13 L. Ed. 2d 675 (1965), or when the statutory classifications were drawn on the basis of suspect criteria, such
as wealth or race, Harper v. Virginia Board of Elections, supra; McLaughlin v. Florida, 379 U.S. 184, 192, 85 S. Ct. 283, 13 L. Ed. 2d 222 (1964); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963)." Plaintiffs say that there is a "fundamental right" to education. They contend also that the statutory scheme results in a classification on the basis of "wealth" because the total of the taxable ratables within a school district plays at least a practical role in determining the dollar expenditure per pupil. Upon the premise that education is a "fundamental right" and upon the alternate premise that the statutes operate to place pupils in classes upon the basis of "wealth," plaintiffs say there must be a "compelling state interest" to support that classification and that the state interest is not "compelling."
After this opinion was prepared the United States Supreme Court decided San Antonio Independent School District v. Rodriguez, U.S. , 93 S. Ct. 1278, 35 L. Ed. 2d (1973). By a vote of 5 to 4 the Court reversed the district court's judgment which, following the lead of Serrano, had held the Texas statute denied school children equal protection of the law in violation of the Fourteenth Amendment. 337 F. Supp. 280 (W.D. Tex. 1972). The majority of the Supreme Court found the compelling state interest test did not apply, and that, measured by the conventional rational basis test, the Texas scheme was valid.
In holding the compelling state interest test did not apply, the majority concluded the Texas statute did not discriminate among children on the basis of wealth, and that the statute did not involve a "fundamental" right. The Supreme Court thus rejected both of the predicates for invoking the compelling state interest standard of review and the close scrutiny approach which that concept purports to involve.
With respect to the alleged classification on the basis of wealth, the majority found no ground in fact for the claim, saying (93 S. Ct. at 1292):
"For these two reasons -- the absence of any evidence that the financing system discriminates against any definable category of "poor" people or that it results in the absolute deprivation of education -- the disadvantaged class is not susceptible to identification in traditional terms."
The majority rejected the claim that because there were disparities in the taxable wealth of the districts, it followed there was discrimination against the residents of the less affluent districts. The majority stated its view this way (93 S. Ct. at 1294):
"However described, it is clear that appellees' suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts. The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process."
With respect to the alternate contention that education is a "fundamental" right within the compelling interest test, the majority pointed out that the equal protection clause did not itself generate substantive rights and thereupon assure equality with respect to them. The majority noted that the Federal Constitution did not explicitly or implicitly guarantee a right to education, and rejected a dissenting view that education nonetheless be deemed a fundamental right on the thesis that it serves a satellite role essential for the exercise of the First Amendment freedoms and of the right to vote. The majority added that in any event there was no proof that the Texas system "fails to provide each child with an opportunity to acquire the basic minimal
skills necessary for the enjoyment of the rights of speech and of full participation in the political process" (93 S. Ct. at 1299).
Turning to the question whether the system "with its conceded imperfections, nevertheless bears some rational relationship to a legitimate state purpose" (93 S. Ct. at 1302), the majority found the Texas system could not be said to deny equal protection. In essence the majority found that the State's dollar contribution "was designed to provide an adequate minimum educational offering in every school in the State" (93 S. Ct. at 1303); that the design was such that "each district would have some ability to provide a more enriched educational program"; and that "the primary distinguishing attributes of schools in property-affluent districts are lower pupil-teacher ratios and higher salary schedules" (93 S. Ct. at 1303). The majority concluded it was rational for a State to call upon the local government to participate in this way in the rendition of this public service.
The majority of course did not say there could never be a successful equal protection attack in this area. Indeed, in footnote 107, the majority, speaking of Mr. Justice White's dissent, recognized that if a statute imposed a ceiling which barred desired tax increases in a district, there would be an arguable issue, the majority referring to Hargrave v. Kirk which we discussed in our footnote 2 above. And it must be recognized that the Texas system did not depend as heavily as ours upon the local tax effort. Texas contributed 50% of the total statewide current costs, the federal government contributed 10% and the local districts the remaining 40%. This contrasts with our scene, in which the local districts carry 67% of the total load with the State contributing but 28%. Further, the Texas statute stated minimum attributes for an educational opportunity and those attributes were met by the State's own contribution.*fn4 But despite
these differences, we do not believe the majority would find a federal constitutional flaw in the case before us.
The majority recognized, as we have in this opinion, that the equal protection argument goes beyond the educational scene and implicates the entire concept of local government with local fiscal responsibility, saying (93 S. Ct. at 1307):
"Appellees further urge that the Texas system is unconstitutionally arbitrary because it allows the availability of local taxable resources to turn on 'happenstance.' They see no justification for a system that allows, as they contend, the quality of education to fluctuate on the basis of the fortuitous positioning of the boundary lines of political subdivisions and the location of valuable commercial and industrial property. But any scheme of local taxation -- indeed the very existence of identifiable local governmental units -- requires the establishment of jurisdictional boundaries that are inevitably arbitrary. It is equally inevitable that some localities are going to be blessed with more taxable assets than others. Nor is local wealth a static quantity. Changes in the level of taxable wealth within any district may result from any number of events, some of which local residents can and do influence. For instance, commercial and industrial enterprises may be encouraged to locate within a district by various actions -- public and private.
Moreover, if local taxation for local expenditure is an unconstitutional method of providing for education then it may be an equally impermissible means of providing other necessary services customarily financed largely from local property taxes, including local police and fire protection, public health and hospitals, and public utility facilities of various kinds. We perceive no justification for such a severe denigration of local property taxation and control as would follow from appellees' contentions. It has simply never been within the constitutional prerogative of this Court to nullify statewide measures for financing public services merely because the burdens or benefits thereof fall unevenly depending upon the relative wealth of the political subdivisions in which citizens live."
In footnote 110, the majority added that 'This Court has never doubted the propriety of maintaining political subdivisions within the States and has never found in the Equal Protection Clause any per se rule of 'territorial uniformity.'" (Citing cases.)
There emerges from the majority opinion an evident reluctance to say the Federal Constitution supplies single solutions by which all the States are bound. Although obviously not applauding the existing scene, the majority would leave the problem to the processes of the several States. In their words (93 S. Ct. at 1309):
"The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States, and we do no violence to the values of federalism and separation of powers by staying our hand. We hardly need add that this Court's action today is not to be viewed as placing its judicial imprimatur on the status quo. The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative new thinking as to public education, its methods and its funding, is necessary to assure both a higher level of quality and greater uniformity of opportunity. These matters merit the continued attention of the scholars who already have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them."
The question whether the equal protection demand of our State Constitution is offended remains for us to decide. Conceivably a State Constitution could be more demanding. For one thing, there is absent the principle of federalism which cautions against too expansive a view of a federal constitutional limitation upon the power and opportunity of the several States to cope with their own problems in the light of their own circumstances. The majority in Rodriguez expressly noted that "every claim arising under the Equal Protection Clause has implications for the relationship between national and state power under our federal system," adding that "it would be difficult to imagine a case having a greater potential impact on our federal system than the
one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State" (93 S. Ct. at 1302).
We go then to the question whether our State guarantee of equal protection is offended. In preparing this opinion before the decision in Rodriguez, we considered both the federal and state equal protection issues in terms of the compelling state interest doctrine, because the doctrine could not be ignored on the federal issue and because the parties presented the State constitutional issue in the same terms. That portion of our opinion (Point IB below) remains adequate with respect to the State equal protection issue and hence we have not altered it. We should not be understood, because of our treatment of the State equal protection issue in those terms, to embrace that doctrine in the application of the State equal protection issue.
In passing we note briefly the reason why we are not prepared to accept that concept for State constitutional purposes. We have no difficulty with the thought that a discrimination which may have an invidious base is "suspect" and will be examined closely. And if a discrimination of that kind is found, the inquiry may well end, for it is not likely that a State interest could sustain such a discrimination. But we have not found helpful the concept of a "fundamental" right. No one has successfully defined the term for this purpose. Even the proposition discussed in Rodriguez, that a right is "fundamental" if it is explicitly or implicitly guaranteed in the Constitution, is immediately vulnerable, for the right to acquire and hold property is guaranteed in the Federal and State Constitutions, and surely that right is not a likely candidate for such preferred treatment. And if a right is somehow found to be "fundamental," there remains the question as to what ...