ble. Perhaps it might have been better if the court had overturned Texas' school finance law and remanded it back to the state for a "forced reexamination." Yet, such a ruling would have been problematic, because it would have subjected the states to continuing supervision by the federal judiciary. Such a forced reexamination has occurred without federal court mandates. Referring to the decision of the California Supreme Court in Serrano, Judith Areen and Leonard Ross claim that it "was a bold and, so far as can be told, singularly successful undertaking, if success is defined in the precise sense of forcing a reexamination and encouraging a transition to a less random system... both in California and elsewhere."87

In a complex area like school finance, there may be important differences between decisions by the U.S. Supreme Court on the basis of the United States Constitution and decisions made by state supreme courts on the basis of state constitutions. If the U.S. Supreme Court had decided Rodriguez differently, it would have needed to articulate a single, uniform, national standard-probably either fiscal neutrality or equal per pupil expenditure. Neither standard seems flexible enough to accommodate the various purposes that a well-designed school finance system must serve, including both tax reform and school improvement. However, state supreme courts, whether overruling or upholding state school finance statutes, have encouraged a reexamination of the state role in school finance and in education generally-a reexamination that has led to significant changes. NOTES

1 The constitutions of 40 states clearly mandate that the legislature "establish," "maintain," "support," or "provide for❞ some sort of system of public schools. There is some ambiguity about the constitutions of Iowa, Louisiana, Maine, Massachusetts, Mississippi, New Hampshire, New Mexico, Rhode Island, Tennessee, and Vermont. For example, Article IX, Section 6 of the Iowa Constitution provides that "The Legislature shall encourage, by all suitable means, the promotion of intellectual, scientific, moral and agricultural improvement" (emphasis added). However, Section 12 of the same Article goes on to require that "The Board of Education shall provide for the education of all the youths of the State, through a system of Common Schools."

2San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

3 See Lorraine McDonnell and Susan Fuhrman, "The Political Context of Reform," in Van D. Mueller and Mary P. McKeown, eds., The Fiscal, Legal and Political Aspects of State Reform of Elementary and Secondary Education (Cambridge, Massachusetts: Ballinger Publishing Company, 1986), pp. 43-64.

4 The seven were Delaware, Georgia, Massachusetts, New Hampshire, North Carolina, Pennsylvania, and Vermont.

5 It is interesting to note that this mandatory provision was not included when Pennsylvania wrote a new constitution in 1970; rather, it was replaced with permissive lan

guage. See Robert L. Brunhouse, The Counter- Revolution in Pennsylvania 1776-1790 (Harrisburg: The Pennsylvania Historical and Museum Commission, 1971).

Constitution of Massachusetts, Chapter V, Section II. 7 Ibid.

8 See R. Freeman Butts, Public Education in the United States: From Revolution to Reform (New York: Holt, Rinehart and Winston, 1978).

9 For example, Connecticut established a small school fund in 1796, funded largely from the sale of public land. New York also established a small fund in 1795, but repealed it in 1800. Delaware, Maryland, New Jersey, and South Carolina established similar small funds between 1811 and 1817. For more details, see Butts, Public Education in the United States.

10 For an excellent discussion of the role of the private academies, see Michael B. Katz, Class, Bureaucracy and Schools (New York: Praeger Publishers, 1971).

11 On the struggle over who should control the schools, see Diane Ravitch, The Great School Wars: New York City, 1805-1973 (New York: Basic Books, 1974), esp. pp. 3-79. 12 See Butts, Public Education in the United States. 13 Today, the most popular language is "general and uniform," used by seven states, and "thorough and efficient," also used by seven states. Other phrases in use include "general, suitable and efficient," "thorough and uniform," "general and efficient," "uniform," "general, uniform, and thorough," "complete and uniform," and simply "efficient."

14 In addition to Michael Katz's Class, Bureaucracy and Schools, see also his detailed study of developments in Massachusetts, The Irony of Early School Reform (Boston: Beacon Press, 1968).

15 The character of a state's involvement in education appears to be a function of its political culture, its pattern and time of settlement, and its geography. For a study of the continuing impact of these factors on state education policy, see Frederick Wirt, "School Policy, Culture and State Decentralization," in Jay D. Scribener, ed., The Politics of Education (Chicago: University of Chicago Press, 1977), pp. 164-187.

16 E. P. Cubberley, School Funds and Their Apportionment (New York: Columbia University Teachers College, 1905). See also the later work of Cubberley's students, G. D. Strayer and R. M. Haig, The Financing of Education in the State of New York (New York: The Macmillan Company, 1923).

17 John Augenblick, "Taking Stock on School Finance Reform: A State-Level Update," School Finance in the 1980s (Washington, DC: League of Women Voters Education Fund, 1982). p. 9.

18 See Paul R. Mort, State Support for Public Education (Washington, DC: The American Council on Education, 1933). Mort was also Cubberley's student at Columbia.

19 For a good, brief explanation of foundation plans, see Elchanan Cohen, Economics of State Aid to Education (Lexington, Massachusetts: D.C. Heath and Company, 1974), pp. 50-52.

20 The relationship between school district wealth and per pupil expenditure continues to evoke controversy. While there is a positive correlation between the two, local wealth is not the only determinant of spending. For a fuller discussion, See Patricia R. Brown and Richard F. Elmore, "Analyzing the Impact of School Finance Re

form," in Nelda H. Cambron-McCabe and Allan Odden, editors, The Changing Politics of School Finance (Cambridge, Massachusetts: Ballinger Publishing company, 1982), pp. 107-138.

21 According to a study by the U.S. Advisory Commission on Intergovernmental Relations, citizens rate the property tax as the "least fair.” See Changing Public Attitudes on Governments and Taxes 1987 (Washington, DC: U.S. Advisory Commission on Intergovernmental Relations, 1987), p. 5. In March 1972, the first date for which the data are available, 45 percent of Americans rated the property tax as the least fair.

22 For a good discussion see, Frederick W. Wirt and Michael W. Kirst, Schools in Conflict (Berkeley, California: McCutchan Publishing Company, 1982), pp. 253-276.

23 LeBeauf v. State Board of Education, 244 F.Supp 256 (1965).

24 Ibid., 260.

25 McInnis v. Shapiro, 293 F.Supp 327 (1968).

28 Ibid., quoting Mr. Justice Holmes in Dominion Hotel v. Arizona, 249 U.S. 265 (1919), 268.

27 Burrus v. Wilkerson, 310 F.Supp 572 (1969).

28 Ibid., 572.

29 Hargrave v. McKinney, 413 F2d 320 (1969).

30 Askew v. Hargrave, 401 U.S. 475 (1971).

31 Van Dusartz v. Hatfield, 334 F.Supp 870 (1971).

32 Rodriguez v. San Antonio Independent School District, 377 F2d 280 (1971).

33 San Antonio Independent School District v. Rodriguez 411 U.S. 1 (1973).

34 Judith Areen and Leonard Ross, "The Rodriguez Case: Judicial Oversight of School Finance," in Philip B. Kurland, ed., The Supreme Court Review 1973 (Chicago: University of Chicago Press, 1974), p. 38.

35 See, for example, Sawyer v. Gilmore, 109 Me. 169, 83 Atl. 673 (1912); Miller v. Korns 107 Ohio St 287, 104 N.E. 773 (1923), and; Ehret v. School District, 333 Pa. 518, 5 A.2d 188 (1939).

36 Serrano v. Priest, 5 Cal.3rd 584, 584 P.2d 1241 (1971). 37 Ibid., 1252.

38 In Serrano v. Priest, 135 Cal.Rptr. 435 (1976), the trial court also found the by then revised state school finance law unconstitutional.

39 Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273 (1972). 40 New Jersey Constitution, Article VIII, Section 4, para. 1. 41 Ibid., 295.

42 Shofstall v. Hollins, 110 Ariz. 88, 515 P.2d 590 (1973); Dupree v. Alma School District No. 30, 279 Ark. 340,651 S.W.2d 90 (1983); Serrano v. Priest, 5 Cal.3rd 584, 584 P.2d 1241 (1971); Lujan v. State Board of Education, 649 P.2d 1005 (1982); Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 (1977); Thomas v. McDaniels, 248 Ga. 632, 285 S.E.2d 156 (1981); Thomspon v. Engleking, 96 Ida. 793, 537 P.2d 635 (1975); Kansas v. State Board of Education, 219 Kan. 271, 547 P.2d 699 (1976); Board of Education of Louisville v. Board of Education of Jefferson County, 458 S.W.2d 6 (1970); Hornbeck v. Somerset County Board of Education, 295 Md. 597, 458 A.2d 758 (1983); Milliken v. Green, 389 Mich. 1, 203 N.W.2d 457 (1972); Woodahl v. Straub, 164 Mont. 141, 520 P.2d 776 (1974); Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273 (1972); Board of Education v. Nyquist, 57 N.Y.2d, 439 N.E.2d

359 (1982); Board of Education v. Walter, 58 Ohio St. 368, 390 N.E.2d 813 (1979); Olsen v. Oregon, 276 Ore. 9, 554 P.2d 139 (1976); Danson v. Casey, 484 Pa. 415, 399 A.2d 476, 585 P.2d 71 (1978); Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979); Buse v. Smith, 74 Wis.2d 550, 247 N.W.2d 141 (1976), and; Washakie County School District No. 1 v. Herschler, 606 P.2d 310 (1980). 43 Arizona, Colorado, Georgia, Idaho, Kentucky, Maryland, Michigan,* Montana, New York, Ohio, Oregon, and Pennsylvania. (*reversing an earlier decision) 44 Arkansas, California, Connecticut, Kansas, New Jersey, Washington, West Virginia, Wisconsin, and Wyoming. (*reversing an earlier decision)

45 Hornbeck v. Somerset County Board of Education. 46 Ibid., 777.

47 Lujan v. State Board of Education. 48 Ibid., 1025.

49 Board of Education v. Nyquist.

50 Ibid., 369.

51 Thompson v. Engleking.

52 Ibid., 640-41.

53 Olsen v. Oregon.

54 Ibid., 155.

55 Board of Education v. Walter.

56 Ibid., 821.

57 Shofstall v. Hollins.

58 People ex rel James v. Adams, 40 Ill. App. 3d 189 (1976). 59 Woodahl v. Straub.

60 Milliken v. Green.

61 Constitution of Washington, Article IX, Sections 1 and 2.

62 Seattle School District No. 1 v. State. 63 Ibid., 91.

64 Horton v. Meskill.

65 Ibid., 816.

66 Duprcc v. Alma School District No. 30.

67 Constitution of Arkansas, Article XIV, Section 1.

68 Allan Odden and John Augenblick, School Finance Reform in the States: 1980 (Denver: Education Commission of the States, 1980), p. 1.

69 For an analysis of the forces behind the school finance reform movement, see Susan Fuhrman, State Education Politics: The Case of School Fiance Reform (Denver: Education Commission of the States, 1979), esp. pp. 15-20. 70 There continues to be considerable debate about the "equalizing" impact of school finance reform. For an interesting analysis of the various meanings of equality, see the yearly reports published by the Education Commission of the States under the title, School Finance Reform in the States. See also, John E. Coons, “Recent Trends in Science Fiction: Serrano among the People of Number," in Roy C. Rist and Ronald J. Anson, eds., Education, Social Science and the Judicial Process (New York: Teachers College Press, 1977), pp. 50-71, and Brown and Elmore, "Analyzing the Impact of School Finance Reform." 71 Computed from data in Allan Odden and John Augenblick, School Finance Reform in the States: 1980, p. 25.

72 In Buse v. Smith, the Wisconsin Supreme Court struck such a "recapture" provision of the school finance law because it violated the state constitutional requirement for "uniform taxation." On the other hand, the Montana

Supreme Court upheld such a provision in Woodahl v. Strabu.

73 For a description of the politics of school finance reform in California, see Fuhrman, State Education Politics: The Case of School Fiance Reform, pp. 50-60 and 72-78. 74 Serrano v. Priest, 135 Cal.Rptr. 435, 557 P2d 929 (1976). 75 Serrano v. Priest, 226 Cal. Rptr. 584 (1986).

76 See Diane Masell and Michael W. Kirst, "State Policymaking for Educational Excellence: School Reform in California," in Mueller and McKeown, The Fiscal, Legal and Political Aspects of State Reform of Elementary and Secondary Education, pp. 121-144.

77 Ibid., p. 135.

78 On school politics in Arkansas, see Diane D. Blair, Arkansas Government and Politics: Do the People Rule? (Lincoln: University of Nebraska Press, 1988), pp. 252-263.

79 On the politics of school finance reform in Connecticut, see Ellis Katz, American Education 1980: A View from the States (Washington, DC: Institute for Educational Leadership, 1981), pp. 14-17.

80 On New Jersey, see Richard Lehne, The Quest for Justice: The Politics of School Finance Reform (New York: Longman, 1978).

81 See James G. Ward and Charles J. Santelli, "The Political Economy of Education Reform in New York,” in Mueller and McKeown, The Fiscal, Legal and Political Aspects of State Reform of Elementary and Secondary Education, pp. 203-222.

82 See Deborah A. Verstegen, Richard Hooker, and Nolan Estes, "A Comprehensive Shift in Educational Policymaking: Texas Educational Reform Legislation," in Mueller and McKeown, The Fiscal, Legal and Political Aspects of State Reform of Elementary and Secondary Education, pp. 277-308.

Chapter 10

The invention of American federalism in 1787 represented an attempt to provide for both unity and diversity: unity to meet the foreign and domestic challenges that confronted the new nation, and diversity to accommodate the expanse of the nation and to maintain state and local political arenas in which citizens could make meaningful decisions. In the words of Daniel J. Elazar:

Federalism involved the linking of individuals, groups, and polities in lasting but limited union in such a way as to provide for the energetic pursuit of common ends while maintaining the respective integrities of all parties.1

The pursuit of both unity and diversity is quite compatible. Unity and diversity are not opposites: the opposite of unity is disunity, while the opposite of diversity is uniformity.

This does not deny the need for some uniformity, although it is clearly secondary to the need for unity. There are ways in which it is desirable to treat individuals uniformly, and certainly there are occasions when the requirements of a national economy mandate uniform rules. For at least three reasons, however, federalism also places high value on diversity. First, diversity in public policies reflects the pluralism of the nation itself, in terms of its complex history, culture, geography, and people. Second, diversity fosters experimentation, allowing states and localities to try out a variety of solutions to increasingly complicated problems. Third, by allowing communities to make important policy choices, we encourage participation and foster democratic citizenship.

However, recognizing the need for both uniformity and diversity does not tell us when to opt for one rather than the other. While common sense and logic are sometimes helpful in sorting out the competing needs for uniformity and diversity, there is no

clear, rational formula to make the choice for us. Instead, the choice is left to the political process-to courts, legislatures, and executive agencies.

The Supreme Court

and the Search for Balance

The Supreme Court of the United States has played, and continues to play, an important role in balancing the needs for uniformity and diversity. Chapter 2 of this study explored contemporary federalism doctrines of the U.S. Supreme Court and suggests that the Court's solicitude toward "Our Federalism" may create new opportunities for state economic policies. Although the situation is complex and still evolving, carefully drawn state statutes can pass constitutional muster under the Court's current doctrines of preemption, the dormant power of the commerce clause, and the takings, due process, and equal protection clauses of the Fourteenth Amendment.

Similarly, as suggested in chapters 4 and 6, the U.S. Supreme Court seems willing to show greater deference to diversity in crucial areas of state civil rights and liberties policy. The most promising development for federalism in this area is the doctrine of adequate and independent state grounds, under which the U.S. Supreme Court will not review state court decisions if they are based clearly and unambiguously on state, rather than federal constitutional grounds. The obvious implication of this doctrine is that if state policies are to be insulated from federal review, state court judges must base their decisions on their state constitutions.

It needs to be stressed that these Supreme Court doctrines, both in the economic and civil liberties fields, are evolving. One cannot predict how these doctrines will be used in the future. Chapter 2 of this study concluded with Napoleon's observation that, "The tools belong to the man who can use them." The U.S. Supreme Court appears to have provided the