Thompson v. Engelking , 96 Idaho 793 ( 1975 )

DONALDSON, Justice

(dissenting).

The majority of the Court holds that the present public elementary and secondary school financing system meets the requirements of the Idaho Constitution. I must dissent from that holding.

The analysis of the majority is prefaced with the disclaimer that the Court would be performing as a “super-legislature” should it enter the “controversial area of public school financing.” I agree that the Court must limit itself to those activities within its proper scope of inquiry. However, the legislature is not omnipotent. By its nature, the Idaho Constitution limits, rather than grants, the powers of the legislature. Leonardson v. Moon, 92 Idaho 796, 451 P.2d 542 (1969). This Court has the burden of determining when those limitations are violated. The presence of controversy must not prevent the Court from meeting its obligations to the people of the State of Idaho.

For the reasons set forth below, I find that the public school financing system of the State of Idaho as enacted by the legislature results in an unconstitutional denial of equal protection of the laws as guaranteed by Article I, Section 2, of the Idaho Constitution. The majority agrees with the district court’s conclusion as to the equal protection issue, yet rejects that court’s finding as to the correlation between funding and educational opportunity. However, I disagree with the lower court’s conclusion on the equal protection issue and find merit in the finding as to funding. Therefore, I will discuss my position first in regard to the decision of the trial court, then in regard to that of the majority.

I.

The trial court concluded that the present system of financing the public elementary and secondary schools of this state violated the constitutional requirements of equal educational opportunity for all of Idaho’s school children. This requirement is found in Article IX, Section 1, of the Idaho Constitution which reads as follows:

“The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.”

The trial court ruled that a system which results in a wide variance in the sums available to the various school districts for the education of their children cannot stand.¹

I agree that the present system does not meet the standards of the Idaho Constitution. However, the full intent of Article IX, Section 1, is realized only when coupled with Article I, Section 2, commonly called the equal protection clause. That section reads as follows:

“All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the legislature.”

The combination of these two sections of the Idaho Constitution requires restructuring of the public school financing system. It is from this point that I disagree with the analysis of the district court.

The district court held that the present system does not deny the plaintiffs equal protection of the laws of Idaho. With this the majority agrees. As authority the lower court cited Rodriguez and Robinson. The Rodriguez case involved the school financing system of Texas, which is much like Idaho’s, and its constitutionality as tested against the equal protection clause of the Fourteenth Amendment to the United States Constitution. The three-judge panel of the Federal District Court, W. D. Texas, San Antonio Division, found that the Texas system created classifications on the “suspect” basis of wealth, thereby violating the federal equal protection clause since the state could demonstrate no “compelling interest” in the classification. Rodriguez v. San Antonio Independent School Distict, 337 F.Supp. 280 (1971).

On appeal the United States Supreme Court, through Justice Powell, held by a 5 to 4 vote that the Texas financing system did not violate the equal protection clause of the Fourteenth Amendment. The majority dismissed the “suspect classification” problem by finding no discrimination against a definable class of poor people. The court then addressed the issue of whether education was a fundamental constitutional right, thus demanding strict scrutiny of any infringement thereof. To summarize briefly, the court first found that the United States Constitution does not explicitly or implicitly guarantee a citizen’s right to an education, thus rejecting the fundamental right argument. The court then found that the Texas system was supported by a legitimate and reasonable basis, that being primarily the local input on matters of taxation, fiscal planning, and educational policy. Moreover, the court determined that the Texas system established an adequate minimal educational opportunity through state funds, with local funds enriching the program when possible. With that the court, while admitting that it is far from ideal, let the Texas financing system stand.

The Robinson case involved an attack upon the constitutionality of the New Jersey school financing system. The Supreme Court of that state rejected any claims under the equal protection clause of the New Jersey Constitution. That court found a violation of a particular clause of the New Jersey Constitution requiring that the state establish and maintain a “thorough and efficient” system of public schools. New Jersey Const.1947, Art. VII, § I, par. 1. In coming to that conclusion, the court rejected the plaintiff’s equal protection claim of a denial of a fundamental right with the position that finding education to be a fundamental right would possibly result in other governmental services being found to be in the position of protection. The court outlined its fear of upsetting the present system of New Jersey which funds many programs, such as the county courts, through locally determined and collected property taxes, and thus interfering with the local control over such programs. Finally that court interjects that it is quite possible that the state’s interest in local government would be a “compelling interest.”

I find the authority offered by the trial court and relied upon by the majority less than persuasive. The Rodriguez decision is, of course, the final determination of the federal equal protection clause. The United States Supreme Court provides the ultimate definitions of the United States Constitution. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). However, the question before us is involved with the Idaho Constitution, not that of the United States. In such a case it is this Court that has the duty of interpretation. As a result, the influence of Rodriguez on the case before us is only that of the persuasion its logic can muster. We have held that the equal protection clause of the Idaho Constitution is substantially equivalent in construction to the federal clause. State v. Cantrell, 94 Idaho 653, 496 P.2d 276 (1972); Weller v. Hopper, 85 Idaho 386, 379 P.2d 792 (1963). But this is not to say it is equivalent in ultimate result.

As noted above, the Robinson case turned on a particular clause in the New Jersey Constitution. Of course such constitutional construction involves consideration of not only the language of the document itself but also the general circumstances at the time of the drafting of the document. Toncray v. Budge, 14 Idaho 621, 95 P. 26 (1908). Thus the New Jersey court had one set of facts to consider while we have another. While I find merit in certain aspects of the Robinson opinion, I must nevertheless conclude that the Idaho Constitution and the circumstances surrounding its adoption lead to a different result.

II.

The majority acknowledges that the Idaho Constitution guarantees our citizens equal protection and benefit of the govenment of the State of Idaho. The question before the Court is whether that guarantee requires revision of the system now used to finance our public schools. The threshold issue is what is the proper test to apply to equal protection problems.

A.

The respondents contend that education is a “fundamental right” guaranteed to the citizens of Idaho. Because of this right an infringement by the state will be allowed only upon a showing by the state of a “compelling interest” in continuing the infringement.

The majority rejects any application of the two tier test as discussed in Rodriguez, supra. They take the two fold approach that (1) the strict scrutiny test is a hopelessly mechanical test ill-suited to complex analysis ² and (2) Idaho has never adopted the test. Several interesting cases involving topics as diverse as liquor licenses and the guest statute are offered as authority for the position that Idaho has not utilized the two tiered test. These cases only establish that our state has utilized the rational basis test. Nowhere in the authority is a holding rejecting the utilization of the strict scrutiny test. It is my position that this Court has adopted the so-called two tiered test as to alleged denials of equal protection of the laws as guaranteed by the Idaho Constitution.

The test was described by this Court in Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974), as follows:

“To determine whether a statutory classification scheme violates the equal protection guarantee, the United States Supreme Court has followed a two tier test. If the classification involves a fundamental right such as the right to vote, or if the classification involves a suspect classification such as race, it has been held that the state bears a heavy burden to justify the classification distinctions. The analysis for fundamental rights and suspect classifications is called the strict scrutiny test. In all other areas of the law such as social welfare legislation, a restrained standard of review is applied, [footnotes omitted]” 523 P.2d 1365, 1367.

See also State v. Cantrell, supra, footnote 9 at 655, 496 P.2d at 278.

Arguably, this was dicta. However, the test was expressly utilized in State v. O’Bryan, 96 Idaho 548, 531 P.2d 1193 (1975). Therein, in answer to appellant’s claim of a denial of equal protection under both the Idaho Constitution and the United States Constitution, we held that there is no fundamental right to smoke marijuana. This was necessary to the ultimate holding of the opinion and was not dicta. Therefore, while the majority proclaims that they must refuse to analyze the issues under the strict scrutiny test, it is my position that the parties are entitled to such analysis.

In Rodriguez Justice Powell in speaking for the majority defines fundamental right as follows:

“[T]he key to discovering whether education is ‘fundamental’ is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. [Citations omitted]” 411 U.S. 1, 33, 93 S.Ct. 1278, 1297, 36 L.Ed.2d 16.

By applying this rather narrow test, the majority held that education is not a fundamental right guaranteed by the United States Constitution.

An eloquent dissent filed by Justice Marshall argues that fundamental rights need not be so narrowly tested, but rather must be determined by importance. The degree of that importance in large part is determined by the interrelationship between the infringed activity and those rights expressly guaranteed by the Constitutional provision. Since, as Justice Marshall continues, an education is necessary to exercise fully many of those rights already held to be fundamental, any infringement on a citizen’s education itself should be held under strict scrutiny.

Because the case before us meets either of the two tests of a fundamental right, it is not necessary to select between them. As both Justice Powell and Justice Marshall indicate, the equal protection clauses do not themselves generate substantive rights, but rather serve as enforcers either of rights delineated elsewhere in the respective organic documents (Powell’s position) or of rights necessary to enjoy fundamental rights (Marshall’s position). A synthesis of the two positions indicates that an express guarantee of a right would establish a fundamental right. The Idaho Constitution contains an entire Article dealing solely with education in this state. My reading of Article IX of the Idaho Constitution leads me to the conclusion that education is expressly guaranteed by that provision and is therefore a fundamental right in the State of Idaho.

Primary analysis must be directed to the first section of the Article.³ Interpretation of this section will determine the extent of the constitutional guarantee. To determine the intent of the framers of the Idaho Constitution it is necessary to look at both the language of the document and the circumstances surrounding its framing.

B.

Since Article IX expressly establishes education as a fundamental individual right, the next step is to ascertain the nature of that guarantee and its effect on the financing system.

The existence of the Article indicates that the delegates to the Constitution Convention of 1889 held both a strong belief in the importance of education and a belief that the state must establish and maintain a system to provide that education.

A major inducement to applying' for statehood was the offer of the federal government to grant to the new states lands to be used only for the support of the public schools. The state would be granted sections 16 and 36 of every township in the state, and could do with the lands what it wanted so long as the funds were used to support the public schools. During the Constitution Convention many hours of debate were directed to the issue of whether lands so granted should be sold, leased, or offered to the public through some combination of the two. Although the issue was approached from many different avenues, one uniting factor stood out. Notwithstanding the position taken by the respective delegates on whether to sell or lease the school lands, all the delegates sought to avoid financing the school system through local direct taxation. The problem of maintaining the school fund was prominent in the delegates’ deliberations partially because of the experience of the neighboring State of Oregon wherein, according to the delegates, the school lands had been “frittered away” which resulted in “calling upon the people for direct taxation for money for educational purposes.”⁴

Delegate McConnell, who was a proponent of selling the school lands, stated his position as follows:

“Mr. Chairman, I think no fund is more sacred than the school fund, and perhaps there is no other fund so sacred; it should be guarded in every manner possible, and by having this provision in here, the children will always be made sure there will be that much money to their credit, and we will have that much at stake in our schools. But if there is no provision for making this fund good in every way, it may be squandered, and the first thing we know our school fund will be so small that we can only maintain the schools by local taxation. I think the legislature can provide for making good any losses which may occur. They will probably be more careful in making investments if it is known that the state has to make it good.” 1 Constitution Proceedings 647. (emphasis added)

Delegate Parker favored leasing the lands but underscored the common aversion to local direct taxes when he stated the following :

“A stable republican form of government depends upon our education interests. We recognize it here by incorporating that in our Section 1 of this article. Congress has recognized it by making this grant of land embracing two sections in every township and additional grants for university purposes. Now I hold that congress gave us these lands not for ourselves, but for our children and our children’s children and for generations of posterity yet unborn. Let us hold on to them, and as our territory develops these lands will increase in value and we shall be able to get money for school purposes without calling upon the people for direct taxation for money for educational purposes, as they have to do in our neighboring commonwealth of Oregon today.” 1 Constitution Proceedings 649. (emphasis added)

The specific resolution of the question of whether to sell or lease the lands is not vital to our considerations. The important factor to derive from the debate is that the solution was intended to prevent local direct taxation for the financing of schools, thereby avoiding a reliance on local wealth.

Thus, my examination of the Idaho Constitution and the proceedings prior to its adoption leads to the conclusion that education is a fundamental right in Idaho and the framers of the Constitution intended that right to be fulfilled by the state without undue reliance on local taxable wealth.

III.

The respondents contend that the present public school financing system infringes on their fundamental right to an education. This is due, respondents continue, to the varying sums of money available to the districts throughout the state. The variance is caused by the difference in the assessed valuation of the districts and the ad valorem property taxes applied thereto.

It is clear that regional variances were not within the intentions of the framers of the Constitution. The constitutional proceedings reveal the egalitarianism that was an essential motivation in the formation of our state. Article after Article in the Constitution itself indicates the feeling of equality that permeated the populace.⁵ This notion is also evident in the debates leading up to the framing of the Constitution. Delegate Poe expressed the hope that the state would have a school fund “which will not only educate the present generation, but as it goes on it will educate those who come after us.” 1 Constitution Proceedings 658. Delegate Parker stated that, “our school system is a foremost necessity in this whole undeveloped territory of Idaho.” 1 Constitution Proceedings 649. Delegate Parker, we note, spoke of the “whole territory,” not just the Southeastern section or the Northern section.

Although not within the intentions of those statesmen, regional variations have indeed come about. The district court’s Findings of Fact illustrate the variations as follows:

School District Assessed valuation per Ada Total Mill levy

1970-71 (1972-73) 1970-71 (1972-73)

Pocatello $3,593 ($4,138)⁶ 63.00 (69.2)⁷

Meridian 4,646 ( 4,825) 45.00 (62.5)

Blackfoot 4,119 ( 4,350) 43.6 (44.6)

Caldwell 3,640 ( 4,450) 49.5 (56.2)

Moscow 5,759 ( 6,974) 64.1 (75.7)

Bonner 6,588 ( 7,038) 49.2 (53 )

Kellogg 10,433 ( 7,566) 52.7 (67.1)

Boise 5,194 ( 6,362) 74.6 (78 )

It is necessary to note also that the trial court’s example omits certain readily available extremes. An inclusion of the wealthiest district (Three Creek Elementary: $120,118 with 19.1 mills) and the poorest (Post Falls: $2,880 with 57.8 mills) would amplify the example. The trial court selection does illustrate very well the situation in the larger districts.

The crucial question is whether these variations and the resulting differences in expenditure levels per student result in unequal educational opportunities. In other words, does the quality of education a district offers vary with the monies expended by the district.

The district court concluded that dollar input does indeed affect the quality of the educational opportunity offered by a district. The conclusion is stated as follows:

“In providing state aid on the basis of formulas designed to ameliorate in part the dollar disparities generated by a system of local' taxation, the Legislature has acted on the premise that there is a significant connection between the sums expended for education and the quality of the educational opportunity. Hence, the Court must and does accept the proposition that such a connection does exist and that the quality of educational opportunity does depend in substantial measure upon the number of dollars invested, nothwithstanding that the impact upon students may be unequal because of other factors, natural or environmental, which play a part. Thus, dollar input per pupil is plainly relevant and the Court has been shown no other viable criterion for measuring compliance with the mandate of Article IX, Sec. 1.” (emphasis added)

The conclusion illustrates the Court’s reliance on the actions of the Legislature acknowledging the nexus between dollar input and qualitative output.

The statements made during oral arguments indicate that the trial court desired to avoid a lengthy and costly trial, the sole purpose of which would be to present expert testimony relating to the relationship of expenditures and quality of opportunity. This is in marked contrast to the trial court in Serrano v. Priest⁸ which, upon remand, held 62 court days devoted primarily to testimony as to the relationship now in question. However, both trial courts arrived at the same conclusion. A significant initial problem before the Serrano trial court, and indeed any trial court facing this general issue, was the selection of a proper standard for measuring the quality of education. That trial court rejected the pupil-achievement standard and adopted a school-district offerings standard. Upon that standard the California trial court found as follows:

“The evidence is overwhelming that the wide disparities in expenditure levels between low-wealth school districts and high-wealth school districts, which will be continued for years under SB 90 and AB 1267, have significant adverse effects on the quality of the educational programs and opportunities afforded the children in the low-wealth school districts compared with the quality of educational programs and opportunities afforded the children in the high-wealth school districts.” Memorandum Opinion, at p. 100.

That court then listed certain advantages enjoyed by the wealthier districts.⁹

In Robinson v. Cahill, supra, the New Jersey Court was also faced with this issue and, while arriving at a different ultimate result, agreed with the position adopted by both the Serrano courts and our trial court of the Fourth Judicial District. The New Jersey Court stated their conclusion as follows:

“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.” 303 A.2d 273, 277 (1973).

The majority believes that a sizable controversy exists among the nation’s educators on this point. The catalyst of the present discussion is the Coleman Report.¹⁰ Dr. Coleman’s general position is summarized by his statement that, “ * * * schools brings little influence to bear on a child’s achievement that is independent of his background and general social context.” Coleman Report, at 325. This report was greeted with both applause and disapproval. Several educational institutions initiated studies-designed to recheck the Coleman conclusions, and, of course, the academic infighting continues. Yet even the strongest advocates of Coleman’s position have not declared that expenditures have no effect on a child’s education. Moreover, it is yet to be expresseed by anyone that increased expenditures are deleterious to a child’s education. While the social scientists debate the priorities of corrective action, the courts¹¹ have concluded that expenditures have at least some effect on the quality of a child’s educational opportunity.¹²

The majority offers certain authority rejecting the notion that expenditures have an impact upon educational quality. Yet, as I set forth above, several other courts have acknowledged the relationship, and reasonably so. The logic is overwhelming. As noted by the majority in citing the case of Andrus v. Hill, supra, the legislature originally adopted the Foundation Program because “it appeared desirable to make changes in order to secure more nearly equal educational opportunities to the children in the different districts.” This Court in Andrus found that to be a laudable goal. At the center of that legislative action is the recognition that sound educational programs are centered on adequate funding. What other basis could there have been for the adoption by our legislature, and, as the record indicates, the legislatures of 48 other states, of the initial equalization plan?

For the reasons set forth by the courts cited above, I believe that a school district’s expenditures play a significant role in determining the quality of that district’s educational opportunity. Clearly a school district would have a great deal of difficulty offering a competent chemistry program if it were unable to purchase the proper equipment and materials. Yet a wealthy district would have little trouble offering such a program. Thus, certain children would be denied and others offered the program with no basis for such differentiation other than fortuitous geographic location.¹³ Because the variations in available funds of necessity place limitations on the educational options available to the less wealthy districts,¹⁴ the students in those districts are not afforded an educational opportunity equal to that enjoyed by the students residing in the wealthier districts.

Therefore, I would find that the present public school financing system infringes on the fundamental right of Idaho citizens to an equal and uniform educational opportunity.

IV.

A recurrent position throughout both the appellants’ argument and the majority opinion is that the present system, with its heavy reliance on locally established mill levies, is valid because it promotes local control of the schools. This is the primary notion contained in the quote from Andrus v. Hill, supra, which the majority offers as proof of a “rational basis” for the system.

The systems of public elementary and secondary education in Idaho and her sister states do indeed evidence a common desire to put the decision making processes as closely as possible to the people. That is why the system composed of local school boards with elected trustees is so widely utilized. This local control concept has been advanced at times as being a “compelling governmental interest.” We readily acknowledge that the best government is that that is closest to the people. However, the local control argument is not relevant to the issue of financing.

The argument generally posits that the local electorate is able to determine through the periodic mill levies the amount they wish to spend on the education of their children. As we discussed in the previous section, the expenditure levels determine in part the quality of the educational opportunity available to the students. The argument then concludes that the will of the citizens within the district must be left undisturbed, hence the financing system must not be amended.

I reject this argument simply because it assumes the availability of legitimate options to all the school districts. This assumption is false. As the data set forth in this opinion illustrate, the poorer districts in the state cannot reach the funding levels of the wealthier districts without applying totally unreasonable mill levies beyond the means of the average citizen. Without funds to support them, optional programs simply are not within the reach of the poorer districts. These districts are locked into a struggle to provide as best they can the basics of an education. This contrasts sharply with the wide and varied curricula available to students of the wealthier districts at little expense to the local citizens. This occurs not because the parents of the children in the district with the low tax base are unwilling to provide additional funds for the schools, but rather because the present funding system precludes any viable options. Thus, I find “local control” not to be an applicable goal in regard to the financing of the public school system in Idaho.¹⁵

This is not to say that local control over other matters is not an important aspect of our system of government. Local control over such matters as course offerings beyond those prescribed by the appellant State Board of Education provides the flexibility and opportunity for experimentation that are essential to the vitality of our form of government. In Idaho the public elementary and secondary schools are organized under 115 school districts, each one under the direction of locally elected school board trustees. These boards have long been recognized as an integral segment of our state government,¹⁶ and perform the vital job of getting government as closely as possible to the people. The discretion exercised by these boards on certain matters adds immeasurably to the quality of education received by their children.

However, this appeal is not directed toward such concerns, but instead is focused only upon the system of funding that has been established by the legislature. Local control is hindered rather than protected by the present system. Local control is valueless without funds to explore viable options. I find no positive connection between the present system of public school financing and the desirable notion of local control.

V.

It is necessary to discuss certain other issues involved in the majority opinion. The appellants contend that the word “uniform” in Article IX, Section 1, requires only “ * * * that every school shall provide a basic educational curriculum which, when successfully completed, will add to or provide that student with sufficient tools of intelligence and training to permit that student to play a part in providing for the stability of a republican form of government.” Appellants’ brief, p. 13. The majority has, in essence, bought that argument.

After rejecting any application of the equal protection clause, the majority focuses on an interpretation of Article IX. On one hand, they declare that the legislature must establish and maintain a uniform and thorough statewide system of education. On the other hand, they state that the legislature has the duty of funding at least a portion of the school system.¹⁷ They then proceed to hold that this mandatory intermediate funding level is somehow adequate.

The problem with this position is twofold. By announcing a requirement of partial funding by the state, the majority posits that the legislature’s duty to establish and maintain a uniform system of education goes beyond merely setting up an apparatus upon which the local districts may finance their schools. The state must provide both an organizational outline and some funding to flesh out that outline. While declaring that some funding by the state is mandated by the Constitution, the majority fails to set out a standard or test by which compliance can be measured. What is the level of funding required of the state? Is one dollar enough? Or does forty million dollars meet the requirement ? We are left to wonder by the majority. The second part of the problem, assuming arguendo that the majority had some sort of test in mind, is that the record contains no evidence as to the results obtained from the present level of state funding. There is nothing to show whether the state is meeting the mandate one must infer from the majority’s requirement of partial state funding. I would think the majority is at least obligated to remand the case to the district court for findings of fact as to the educational results obtained by the present level of state funding.

Moreover, I disagree with the majority’s position for a second reason. An underlying justification for the majority’s position is that of some minimal level of benefits. This parallels the discussion in Rodrigues of the “floor” established by the funds provided by the Texas legislature. I cite with approval Justice Marshall’s dissent in Rodrigues, wherein he criticized that notion as follows:

“[T]his Court has never suggested that because some ‘adequate’ level of benefits is provided to all discrimination in the provision of services is therefore constitutionally excusable. The Equal Protection Clause is not addressed to the minimal sufficiency but rather to the unjustifiable inequalities of state action. It mandates nothing less than that ‘all persons similarly circumstanced shall be treated alike.’ F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 562, 64 L.Ed. 989 (1920).” 411 U.S. 1, 89, 93 S.Ct. 1278, 1325.

It is my position that under the present funding structure all students similarly situated are not treated alike.

VI.

The education of the children of this state is among the highest of our responsibilities as citizens, parents, and public officials. This is evidenced by our Constitution, our statutes, and the active participation by many of our citizens in the educational process.

The framers of our Constitution devoted an entire Article of that document to the education of our children. This, I believe, is an express guarantee of a fundamental right as discussed by Justice Powell in Rodriguez. This is the crucial difference between the challenge to the Texas system and the challenge before this Court. In conjunction with the guarantee of a uniform and thorough education, the citizens of our state are also guaranteed equal protection of our laws. It is this framework of analysis that demands revision of the funding system.

This position is premised on my belief that there is a positive correlation between expenditures and educational opportunity. As set forth above, several courts have concurred in this. Moreover, the manner in which the present system is utilized indicates that it is beyond doubt that funding levels have an effect upon the results achieved by the educational system. As noted above in the discussion of Andrus, the legislature initially adopted the Foundation Program as a means of increasing the funds available to the districts in order to reduce the inequities in opportunity. In addition to the state funds available to them, every district taxes the property of its patrons to provide additional funds. In most cases the levies require, and receive, approval by ballot of the electors of the district. By voicing approval for increased expenditure levels, the voters are acknowledging the relationship of funds to opportunity.¹⁸ They do not tax themselves because they enjoy decreasing their disposable income. They do so because it is apparent to them that dollars are a necessary component of the education formula. Yet the majority states that it has not been proven to their satisfaction that discrepencies in funds per ADA will lead to discrepencies in educational opportunity.

The tragedy of the present system is illustrated by the district court’s hypothetical example set out in Footnote 14. Those voters in the districts that are “poor” in taxable land value, while acknowledging the need for funds for the schools, must apply unrealistically high mill levies to approach the revenue available to “richer” school districts at much lower levies. Thus, the children of the state are forced to play a geographic lottery.

The respondents’ goal is fiscal neutrality, educational opportunity not being a function of local district wealth.¹⁹ I believe this is mandated by our Constitution. The trial court stated that the state may recognize differences in educational costs that are based on relevant economic and educational factors. I agree. In a state as geographically and demographically diverse as ours, clearly certain differences are found. Courses that are of great value to students in metropolitan areas may be of little interest to students in rural areas. The opposite may also be true. Thus, differing course offerings would in certain instances be proper. Elements of the Foundation Program such as the sparsity factor, and the additional allocation for the education of handicapped children are also legitimate acknowledgements of these differences.

The problem lies not with these variations, but with the variations in the most basic of concerns, fund raising ability. The poorer districts have long labored ? under the burden of the present system. That burden has in turn worked an unconstitutional infringement upon the fundamental right to an equal educational opportunity as guaranteed by the Idaho Constitution.

In refusing to declare these variations to be unconstitutional infringements of that right, the majority cites several cases to the point of the legislature’s plenary power in establishing and maintaining the school system. I agree that such is the decree of the Idaho Constitution. Yet, as I noted above it is the duty of this Court to enforce the limitations imposed by that document upon the legislature. Constitutionality of a particular statutory scheme is not established merely by the longevity of the program. Caesar v. Williams, supra.

Both the appellants and the majority note the social upheaval that may result from Serrano, its progeny, and the case now before us. The appellants compare this with the effects of Brown v. The Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). I recognize that my position in this case would necessitate great revision in the present system of financing the public secondary and elementary schools. However, language in Brown explains why this step is necessary. In speaking for the court, Justice Warren stated as follows :²⁰

“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” 347 U.S. 483, 493, 74 S.Ct. 686, 691.

It is this importance that mandates revision. The Idaho Constitution requires that the Legislature establish and maintain a uniform system of free public elementary and secondary schools. I believe that the history and legal precedents of our state require that such a system be one free of a substantial dependence upon the variable taxable wealth of 115 distinct school districts. A system of financing in which the educational opportunity per student varies as significantly as in this state does not meet the constitutional requirement.²¹

The nature of this right to an education was well described in the writings of Horace Mann. These writings were adopted by the California Supreme Court in Serrano as follows:

“By our holding today we further the cherished idea of American education that in a democratic society free public schools shall make available to all children equally the abundant gifts of learning. This was the credo of Horace Mann, which has been the heritage and the inspiration of this country. ‘I beHeve,’ he wrote, ‘in the existence of a great, immortal immutable principle of natural law, or natural ethics, — a principle antecedent to all human institutions, and incapable of being abrogated by any ordinance of man * * * which proves the absolute right to an education of every human being that comes into the world, and which, of course, proves the correlative duty of every government to see that the means of that education are provided for all. * * *’ (Original italics.) (Old South Leaflets V, No. 109 (1846) pp. 177-180 (Tenth Annual Report to Mass. State Bd. of Ed.), quoted in Readings in American Education (1963 Lucio ed.) p. 336)” 96 Cal.Rptr. 601, 626, 487 P.2d 1241, 1266.

I believe that the present system does not fulfill the constitutional obilgation the State of Idaho owes its people.

Therefore, I dissent from the majority opinion.

BAKES, J., concurs with dissent.

1 . The district court based its conclusion on the findings of fact set forth in majority opinion. The majority does not feel itself bound by those findings because they are based on documentary rather than testamentary evidence. The record indicates that the method of presentation was chosen to save time. Rather than run a series of experts through the court to testify as to the statistics and theories, the lower court elected to have the evidence submitted in exhibit form. I believe the findings of fact are supported by the evidence even without the presumptions normally afforded findings by the lower courts. However, one must wonder what effect the majority’s off-handed rejection of the findings will have on future attempts at court efficiency.

2 . In passing I note that the majority neglects to explain how the well-established “rational basis” test is any less mechanical, thus acceptable.

3 . That constitutional provision is set forth in section I of this dissent.

4 . Proceedings of the Idaho Constitutional Convention of 1889, at 650 (I. W. Hart ed. 1912). The two volume publication will hereinafter be referred to as “Constitution Proceedings.”

5 . This is best illustrated by the opening declaration. of the Constitution, Article I, § 1, which reads as follows: “All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.”

6 . Financial Summaries, Idaho School Districts, School Year 1972-73. State Dept, of Education, Exhibit L.

7 . Tabulation of Tax Levies, School year 1972-73, State Dept, of Education, Exhibit O.

8 . The California Supreme Court in Serrano v. Priest, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (1971) held that a summary judgment directed against plaintiffs in a position similar to that of the Thompsons was improperly granted, and remanded the case for trial. The trial court subsequently released a lengthy opinion which is cited Serrano v. Priest, Superior Court, Los Angeles County, California, No. 938254, Memorandum Opinion Re Intended Decision.

9 . This is as follows (also at p. 100) : “It is an inescapable fact that * * * the high-wealth school districts, with far greater funds available per pupil than are available to the low-wealth school districts, have the distinct advantages of being able to pay for, and select the better-trained, better educated and more experienced teachers the ability to maintain smaller class sizes by employing more teachers, the ability to offer a wider selection of courses per day, the ability to provide better and a greater variety of supportive services such as more counselors and teachers aides, the ability to obtain the latest and best educational materials and equipment, and the ability to keep the educational plants in tip-top shape. These are the kinds of items that go into the making of a high-quality educational program that benefits the children of a school district that has a relatively high level of expenditures flowing from high assessed valuations of property.”

10 . This is the popular name for “Equality of Education Opportunity” which is a 1966 report for the Office of Education U. S. Department of Health Education and Welfare.

11 . I. e., Serrano, supra; Robinson, supra; and the trial court in Thompson, supra.

12 . For the further discussion of the Coleman Report, see 71 Colum.L.Rev. 1378-88 (1971).

13 . Of course this is an extreme example chosen to illustrate the issue and should not he taken as a criticism of those school districts which are unable to provide certain programs.

14 . The trial court constructed the comparison below to illustrate the variations in fund raising ability. The hypothetical districts closely approximate the situation within the state.

“Illustration 4 shows the disparity of money available per child in three hypothetical districts — one ‘poor’, one average for Idaho, and one ‘rich’, in terms of assessed valuation per pupil — using a State Average Cost per Student of $330, which approximates the actual factor for 1970-71.

District A. B 0

Assessed valuation per pupil $3,000 $5,750 $12,000

22 mills times assessed valuation 66 126 264

State and County Foundation Allowance 264 204 66

‘State Average Cost per Student’ 330 330 330

Unequalized M & O taxes

8 mills (30 Mill ‘Limit’ minus 22)^* 24 46 96

5 mill ‘override’ 15 29 60

Total M & O funds per weighted pupil in ADA if districts levied 35 mills 369 405 486

10 mills for bonding and plant facilities 30 58 120

$ 399 $ 463 $ 606”

* Subsequent to the trial court’s finding the mill unit was changed from 30 to 27.

15 . This point is explained very weE by Justice White in his dissent in Rodriguez, supra, 411 U.S. at 66, 93 S.Ct. 1278.

16 . Common School Dist. No. 61 v. Twin Falls Bank and Trust Co., 50 Idaho 711, 4 P.2d 342 (1931).

17 . One wonders at this requirement if it were valid to state that there is no correlation between expenditures and educational quality.

18 . They are also expressing the notion that the funds provided by the state are far from sufficient for the “maintenance” of the school system.

19 . See Coons, Clune, Sugarman, Educational Opportunity: A Workable Constitutional Test for State Financial Structures, 57 Calif. L.Rev. 305 (1969).

20 . This of course is offered not as specific authority, but rather to emphasize the importance of education in todays society.

21 . The trial court found that operating expenditures per student in 1970-71 varied in the 115 school districts from $428 to over $4,000 with a state average of $553. Exhibit Xi indicates that the 1972-73 figures ranged from $483 to $2,332, with an average of $637.