Nineteen Sixty-eight brought the opening skirmishes in a constitutional struggle potentially involving much of the financial structure of public elementary and secondary education. Thus far the battle has been more ardent than intelligible. The unprecedented attacks on the state systems have featured a simplistic, if healthy, revulsion for gross variations in per pupil expenditure from school district to school district within the states; often this objection to interdistrict disparities in spending is bolstered by the plausible and complicating assertion that the children needing the most dollars for education receive the least and vice versa. This combination of deprivations inspired the original complaint attacking the Michigan system;' that action was filed in the state court in February, 1968, by the school board of the city of Detroit and by individual public school children of the district. Following the Detroit complaint similar litigation was begun in other states.2 In mid April poverty lawyers representing individual clients in Chicago and suburban districts launched Mclnnis v. Shapiro' before a three-judge federal court in the Northern District of Illinois. While the other cases languished, Mclnnis rose and fell like a flare. Before the year was out the complaint had been dismissed on the merits at the district level;' propelled by the eccentricities of federal appellate practice, a direct appeal was before the Supreme Court by the following February;5 in March, 1969, the decision was affirmed per curiam without opinion.' In eleven months Mclnnis had blazed, sputtered, and died. With it perished the naive hope for an instant revolution in education by the invocation of the federal judiciary. The meaning of Mclnnis v. Shapiro is ambiguous; but the case hardly seems another Plessy v. Ferguson.7 Probably but a temporary setback, it was the predictable consequence of an effort to force the Court to precipitous and decisive action upon a novel and complex issue for which neither it nor the parties were ready. As we shall elaborate, the plaintiffs' virtual absence of intelligible theory left the district court bewildered.8 Given the pace and character of the litigation, confusion of court and parties may have been inevitable, foreordaining the summary disposition of the appeal. The Supreme Court could not have been eager to consider an issue of this magnitude on such a record. Concededly its per curiam affirmance is formally a decision on the merits,9 but it need not imply the Court's permanent withdrawal from the field. It is probably most significant as an admonition to the protagonists to clarify the options before again invoking the Court's aid. The Court does well to wait for clarification. Thus far the debate, even outside the courts, has featured utopian reforms on the one hand pitted against utter immobility on the other. The latter school represented by Professor Phillip Kurland, has seen clearly what are the considerable risks represented in the school finance issue; the former has seen the substantial opportunity. 0 Neither has yet perceived a moderate course for court and legislature. It shall be our primary purpose here to suggest such a resolution. Any hope for a reasonable approach to the school finance question requires an understanding, first, of the very complex existing structure of public education finance and, second, of the protean distributional structures that might replace it in the future. To that end we have analyzed elsewhere in detail the existing statutory paradigms, their history and their empirical consequences;" further, we have suggested a multitude of alternative systems. Here we will content outselves with the barest outline of this complex material. To succeed even at this, however, we first must ascribe meanings to a few concepts that will inform the discussion, commencing with three factors which are central to existing systems of school finance- offering, wealth, and effort. OJfering shall mean the average number of dollars spent in current operating expenses per public school pupil; 2 unless otherwise indicated this will refer to the average for a school district. Wealth shall mean the dollar value of a given tax source per public school pupil (e.g., the assessed valuation per pupil of real estate in a school district-hereafter AVPP).'3 EJjbrt shall mean the tax rate levied against a given resource (e.g., the mill rate on real property or on income). We shall assume throughout that, as offering varies, quality of education varies; that is, we accept as a fact the positive relation between the cost and quality of education. For our limited purposes this assumption is less risky than might at first appear. The state will be in no position to deny its validity;" that relation is itself the justification for the existing financing systems, nearly all of which permit districts to apply varying tax rates and to spend varying amounts per pupil in order to implement local aspirations and meet local needs.'5 It would be endlessly complicating and tactically fatuous for plaintiffs to attempt to compare from district to district the quality of the educational system actually purchased. However. unsatisfactory it may be as a measure for individual cases, given the present primitive state of social science on this question, money is the only feasible criterion." These definitions and assumptions lack economic and pedagogical sophistication in some respects, but they aid in pruning away side issues and permit a sharper focus upon what we consider the crucial policy and legal problem. Presently we shall analyze existing state structures with the object of exposing systematic statecreated discrimination by wealth. Such discrimination is the principal vice of present legislative systems and will be the target of the constitutional position here advanced. That position will be stated at this early point, since everything that follows is in some sense a comment upon it: The qualit' of public education na' not be a Junction oJ" wealth other than the wealth ofthe state as a whole. This principle generally will be styled "Proposition I" both for convenience and as a concession to the possibility that other forms of discrimination in public education will arise once the existing wealth determinants of quality are eliminated under this standard. Occasionally it will be referred to as the "no-wealth" principle, and finance systems that satisfy the principle sometimes will be called "wealth-free." No properly elegant labels seemed sufficiently precise. A convincing case for the adoption of this standard will involve several distinct analyses of fact and principle. At the outset must be shown the connection between wealth and offering (quality) under existing systems. Next, hypothetical "wealth-free" state systems must be examined, and the inquiry made whether any cherished value must be sacrificed to make such systems constitutionally prescribed. We shall demonstrate that local choice is not jeopardized under the above standard. Nor does the principle either require flat equality or have anything to say upon the issue of compensatory education.'7 We shall show Proposition I, by virtue of its modesty, flexibility, and relative simplicity, to be superior to the other constitutional standards that have been proposed. We then shall suggest the general approach to the Supreme Court most likely to produce that standard as a fourteenth amendment guarantee.
