Category: Uncategorized

via email from Asst. Prof. of English at Texas A&M, Elias Dominguez-

Barajas.

The recent Harvard study describing the resegration of U.S. schools has been

mentioned in several different contexts, and I’m sure that many … have not only heard of it but have

actually perused the full report. Despite the latter, I considered it pertinent to pass the information

along in case somebody who hasn’t heard of it wants the actual source for research purposes or

personal information.

[More summary below. Get the link at “Web Links” Module (the

menu at the upper left) under “National Resources.]

Gary Orfield and Chungmei Lee began to

circulate their preliminary findings several years ago (starting circa 1997). Those findings have been

confirmed
in their final report, which includes the following points among

others:

There has been a substantial slippage toward segregation in most of the states

that were highly desegregated in 1991. The most integrated state
for African Americans in 2001 is

Kentucky. The most desegregated states for Latinos are in the Northwest.

However, in

some states with very low black
populations, school segregation is soaring as desegregation efforts

are abandoned.

American public schools are now only 60 percent white nationwide and

nearly one fourth of U.S. students are in states with a majority of nonwhite
students. However,

except in the South and Southwest, most white students have little contact with minority

students.

Asians, in contrast, are the most integrated and by far the most likely to

attend multiracial schools with a significant presence of three or more racial groups. Asian students

are in schools with the smallest
concentration of their own racial group.

The vast

majority of intensely segregated minority schools face conditions of concentrated poverty, which are

powerfully related to unequal educational
opportunity. Students in segregated minority schools face

conditions that students in segregated white schools seldom experience.

Latinos confront

very serious levels of segregation by race and poverty, and non-English speaking Latinos tend to be

segregated in schools with each other. The data show no substantial gains in segregated education for

Latinos even during the civil rights era. The increase in Latino segregation is particularly notable in

the West.

VERSION 17,
Texas A&M Hispanic Network’s Response
by

Colonel (retired) Robert F. Gonzales
Class 1968
April 22,

2004

____________

Note: This important document (see “read

more” below) is posted despite the objections of the author, who requested that it not be displayed

beyond “the Aggie family.” I have taken some time to consider the author’s request. In the end,

with great respect for the author and the Texas A&M Hispanic Network, I have decided to post the

document for public viewing. Texas A&M University does not belong to the Aggie family. It is a

publicly funded university and its policies are a matter of public concern. While I respect the

general rule to “not talk out of school” regarding matters that are more properly discretionary, the

subject of the following address concerns a widely publicized matter of public policy, and the remarks

were delivered before a large crowd that included reporters (see links below). While I regret the

author’s decision to not grant his permission, I have concluded that, as a matter of information

ethics, that the document should be part of the public record. Furthermore, I hope that over time, the

author and others will come to respect the principles and criteria upon which I have based my decision.

While reluctance to share this document is understandable from an “Aggie family” point of view, in

the end I think larger considerations prevail. It is quite a remarkable

speech.

Respectfully,
Greg Moses
Editor
Class of ’81

____________
VERSION 17
Texas A&M Hispanic Network’s Response
by

Colonel (retired) Robert F. Gonzales
Class 1968
April 22, 2004

Howdy!

En la vida, es importante estar presente. In life, it is important to show up. Thank you for

taking the time from your very busy schedules to show up today.
I have been asked to give the Texas

A&M Hispanic Network response to the addresses given this morning by President Gates and Doctor

Anderson. I am privileged to be your spokesperson.

Whoever stood here representing

the Network probably would feel like the ham in a ham sandwich, feeling divided loyalties between the

school we love so much and whose policies we want to support, and the direction our school has chosen

not to take concerning the future of our heritage at this school. With this dichotomy in mind, and

understanding that at times I will use the words “race” and “ethnicity” interchangeably, let me

continue with what needs to be said.

Before I deliver my prepared remarks, I think I

first must respond to something that I did not anticipate I would hear this morning. President Gates

read e-mails for three young Hispanic A&M graduates who support his position not to consider race in

Texas A&M’s admissions policy. Their primary concern is the unfavorable perception other students

would have of Hispanics whose ethnicity was taken into consideration for admissions into A&M. Although

their views are valid and should be heard, there’s another side to this coin and I need to state it in

order to give balance to this matter. I will do so using my own personal

experience.

While I was a student at A&M, I became active in student activities at the

Memorial Student Center. Mr. J. Wayne Stark was the Director of the MSC and he was the first person

who put the idea of becoming a lawyer into my head. I pursued this course and decided I wanted to

attend the University of Texas Law School. I took the LSAT, but I did not do very well. Consequently,

in addition to the University of Texas, I applied to three other law schools in the State. Before

graduation day, I received letters of acceptance to the other three law schools, but I had not heard

from the University of Texas. I drove to Austin to find out the status of my application. The lady in

the Admissions Office confirmed my LSAT score had prevented me from being automatically accepted, but

my name was on the waiting list. She explained there was still a chance I could be accepted, but I

would have to wait a few more weeks until they heard back from all of the automatic-admits on whether

they planned to enroll or not, to see how many seats would remain unfilled and thus available to those

of us on the waiting list. Then she told me the law school was starting a new affirmative action

program and, because I was a Mexican-American, I may have a better chance than others on the waiting

list for any available seats.

I explained what I had been told to my parents and two of

my uncles from the Classes of ’41 and ’50. Should I accept an offer from one of the three law schools

based on “merit” or should I wait on T.U. and possibly get admitted under its affirmative action

program. One of my uncles asked me, “Do you have any idea how many Mexicans are students at T.U.’s law

school?” I had no idea. He speculated there were less than ten. Then he said, “T.U. is the best law

school in the State. I don’t care if you get in the front door, the side door, or the backdoor. If

T.U. accepts you, you go there!” I received my acceptance letter to T.U. a couple of weeks later and I

enrolled in September 1968 along with twelve other Hispanics in a class of 450.

I

wondered whether I had been admitted as an alternate on “merit” or under affirmative action, so I

stopped by the Admissions Office one day to ask. I saw a different lady than the one I had seen before

and she responding by giving me this advice, “Don’t worry about how you got in. You need to

concentrate on staying in and graduating.”

Only one student ever asked me how I got into

law school. His name was John and John was Anglo. Therefore, we can assume that John got into law

school solely on “merit.” When I returned for my second year of law school, John was not around. When

I asked what happened to John, I was told, “John flunked out!”

If I got into law

school under affirmative action, I soon learned that none of the professors had an affirmative action

policy when he came to passing out grades and Dean Page Keeton surely did not have an affirmative

action policy when he passed out diplomas.

I have practiced law for thirty-three years

and during that time I have been asked frequently, “What law school did you graduate from?” Nobody has

ever asked, “How did you get into law school?”
I have made my income based on my law degree from

T.U. When I mail in checks to the University of Texas Law School Foundation, and the Texas A&M

University Foundation, and the Association of Former Students, and the 12th man Foundation, none of

them ask, “How did you get into law school?” What’s important to them is that I graduated and that I’m

sending them a check every year. . . . and they ask if I can send more.

This is my

adlib response to those three e-mails. Now, let me move on to my prepared response.

President Gates, distinguished members of the Texas legislature, Vice-President

Anderson, members of the faculty and administration, members of the Texas A&M Hispanic Network,

students, former students, and friends.

Texas A&M is a State public university, yet it

does not reflect the face of the State of Texas. There is a racial and ethnic imbalance on the campus

at Texas A&M!

Earlier this morning, we heard President Gates say that although he

is determined to correct this imbalance, he has decided not to use the race or ethnicity of an

applicant as a factor in the admissions process in order to achieve greater diversity at A&M. Instead,

he believes it is in the best interest of A&M to continue a policy based solely on each applicant’s

p
ersonal merit, meaning personal achievement, merit, and leadership potential.

Before

I give the Texas A&M Hispanic Network’s official positio
n to this decision, I need to take us back to

March 18, 1996. This was the day the United States Court of Appeals for the Fifth Circuit decided the

case of Cheryl Hopwood v. the University of Texas Law School. This panel said that any consideration

of race in order to achieve a diversified student body at a public university was not a “compelling

governmental interest” under the Fourteenth Amendment and, therefore, any attempt by a public

university to do so was unconstitutional. This meant that the University of Texas Law School had to

stop considering race, and in the future neither it nor any other public university in Louisiana,

Mississippi, and Texas could consider the race of an applicant as a factor in its admissions

policy.

As a result, the number of Hispanic students enrolling as freshman at A&M went

down from 714 before Hopwood to 607 in 1997 and further down to 570 in 1999. A&M has never recovered,

even with the help of the 10% law. A&M has been unable to enroll 700 or more Hispanic freshman in any

given year since Hopwood.

Eighteen months after Hopwood in October 1997, A&M President

Ray Bowen proposed that A&M strive to be recognized as one of the top ten public universities in the

United States by the year 2020. A task force of 260 prominent Aggies and friends of A&M from both on

and off campus, including our own Hector Gutierrez and Pedro Aguirre, surveyed where A&M stood and what

it needed to do to achieve this lofty goal. This was the foundation for Vision 2020, our road map into

the future. Hundreds of ideas were suggested, discussed, and debated, and when the dust finally

cleared, the group submitted twelve of them to President Bowen. They called these twelve ideas

“Imperatives.”

We cannot help but believe that the Vision 2020 task force of

outstanding individuals each in their own right was completely aware, fully-informed, and cognizant of

the Hopwood decision and the immediate impact it was having on minority enrollment at institutions of

higher learning in the 5th Circuit. Having seen the adverse effects that Hopwood had at A&M in the

fall terms of 1997 and 1998, Vision 2020 deliberately made “Diversity” one of its twelve imperatives,

specifically Imperative #6. In so doing, it stated that “Texas A&M University must attract and nurture

a more ethnically, culturally, and geographically diverse faculty, staff, and student body.” Further,

it went on to say, “affording educational opportunity to all racial and ethnic groups is critical to

the future of Texas.”

The task force then established a fair and reasonable target

that A&M should reach for, in order to achieve meaningful student diversity. That goal was to attain

in each freshman class the same percentage of minority Texas high school graduates who were college-

bound, which for Hispanic students was approximately 29%. So, we can plainly see that three years

after Hopwood said that achieving student diversity in a public university was not a “compelling

governmental interest,” our own internal group of Aggies and friends of A&M said that achieving an

equitable level of student diversity at A&M was an “Imperative.”

If you look up the

word “imperative” in Webster’s dictionary, it will tell you it means “urgent, absolutely necessary, and

compelling!” Imperative #6 of Vision 2020 was a resounding call for educational opportunity for all

minorities in the State of Texas, and it, in essence, rejected Hopwood as the way to do business at

A&M.

On May 28, 1999, the Board of Regents of Texas A&M, which included our own Dionel

E. Aviles, approved all twelve Imperatives of Vision 2020 and in its Approval Resolution charged all

future Regents, Chancellors, Presidents, administration, faculty, staff, students, and former students

to make a personal commitment to its success.

In so doing, our Board of Regents also

implicitly rejected the holding of Hopwood.
Then, on August 1, 2002, we welcomed Dr. Gates as the

22nd President of Texas A&M University. In his State of the University Convocation Address on October

3, 2002, President Gates stated, in part, “My highest priority is to make significant progress toward

achieving the imperatives of Vision 2020.” After consultations throughout the A&M campus community, at

the beginning of 2003, President Gates followed up his October address with an announcement that four

of the twelve imperatives would receive priority over the next several years and one of those four

imperatives was Imperative #6 on Diversity.

Four months later, I was sitting in the

dinner audience of the 50th Class Reunion of the Class of 1953, my father’s class. This was exactly

one year ago this week. Dr. Gates was the guest speaker, and it was my first time to hear him. That

evening he confronted the issue of diversity in the open as no other president at A&M had done before

by saying, “in a State where minorities will soon be the majority . . . . it is simply unacceptable for

Texas A&M’s student body to be 85% white and for our faculty to be 85% white and male.”

However, he did not specifically explain how he was going to improve diversity at A&M.

Keep in mind that for over three years prior to Dr. Gates assuming the position of President, Hispanics

and other minorities had been waiting for A&M to present a concrete plan on how it was going to

implement Imperative #6 and how minority former students like you and me could assist and support this

plan. I immediately wondered what Dr. Gates was going to do to bring about a real change on campus,

especially when Hopwood was still the law of the land.

Because Dr. Gates had also spoken

about the need for groups composed of former students of various ethnicities to form a partnership with

A&M on diversity efforts, a group of approximately fifty Hispanic Aggies met in San Antonio on May 31,

2003, to form the Texas A&M Hispanic Network. We discussed what we could do to ensure A&M was the best

model in the State and Nation to educate and develop Hispanic leaders of the future. We were told that

A&M’s student body was only 8% Hispanic and we all agreed to assist A&M to improve this percentage in

increments of two to three percent each year, until the percentage roughly reflected the proportion of

Hispanics in the population of Texas, which is currently 33%. We were very ambitious, optimistic, and

motivated, because Dr. Gates had energized us to face this daunting task with him.

Then, the Supreme Court spoke on this matter on June 23, 2003 in the two University of Michigan

cases of Barbara Grutter v. Lee Bollinger that involved the admissions policy at its law school and

Jennifer Gratz v. Lee Bollinger that involved the admissions policy at its College of Literature,

Science, and Arts. And what did the Court say? On the first issue of whether student diversity at a

public university is a “compelling governmental interest” or not, six of the nine justices said it was.

When the Supreme Court said this, not only did it overrule Hopwood, it also completely validated the

foresight, wisdom, and efforts of the Vision 2020 Task Force, our Board of Regents, and Dr. Gates.

I need to pause here for a moment to quickly give you an appreciation for the

significance and magnitude of a Supreme Court decision that identifies a governmental purpose as

“compelling” instead of important, legitimate, or substantial. The Supreme Court reserves this term

for only those governmental interests of the absolute very highest order. Essentially, before any

level of the government can discriminate on the basis of race or before it can place a restriction on a

fundamental Constitutional right, the government needs to show the Court that it ha
s a very strong and

good reason to do so. How many times, since 1942 when the Supreme Court started to develop the concept

of “compelling gov
ernmental interest,” has a governmental entity been able to convince the Supreme

Court that its purpose was “compelling?” Would you believe less than twenty times? Thus, student

diversity in a public university is on the same “compelling governmental interest” footing as

prohibiting child pornography, maintaining the Social Security system, preserving the integrity of the

electoral process, and protecting our national security. Do you understand better now what the Supreme

Court is saying to us?

On the critical issue of whether race can be considered as a

factor in a university’s admissions policy in order to improve student diversity, again, six justices

said yes, so long as race is used as a small factor among several admissions factors, in the context of

a highly individual and holistic review of each applicant’s file.

The Court did not

say a public university must consider race in order to achieve student diversity; instead, it said

public universities have the option to do so. Whether to exercise this option or not, the Texas A&M

Hispanic Network and the University each believe they are on solid ground, however, we are not on

common ground.

Although this is a very serious matter, I would like to

compare the Supreme Court’s decision and our situation at A&M to the sport of football. Initially in

the late 1800’s, the ball was advanced by running the ball and you won games by running the ball

effectively. Then, in 1906, the National Rules Committee made the forward pass legal. This change in

the rules did not make passing the ball mandatory; it simply gave colleges the option to use the pass

in order to win. Some schools incorporated the forward pass into its offense, while others continued

to reply on a running game.

A&M has been using a running game when it comes to diversity

and it has resulted in a very unimpressive “winning” percentage. In terms of diversity that percentage

is 85% white and 15% minorities. The University wants to improve on the 15%, but it has decided not to

use race as a factor in admissions; it has decided to stick with the running game and not incorporate

the forward pass.

Dr. Gates is the coach of the team, and he is OUR coach. We are his

assistant coaches. We think we can win more games if we incorporate the forward pass into our offense.

We think we can improve student diversity at A&M by using race in the “review” category of admissions.

Absent race, what admissions factors will be considered under the University’s plan in

the “review” category besides the applicant’s SAT score and class academic ranking? If you take the

admissions factors published in the latest undergraduate catalog, they would include the following

diverse characteristics: parental education level, extracurricular activities, leadership potential,

community service, special talents and awards, work experience, academic association with A&M, and

extenuating circumstances, meaning personal hardships the student had to overcome.

Additionally, the University will require all applicants to submit two essays, one that asks

applicants to “describe a significant setback, challenge, or opportunity in your life and the impact it

has had on you,” and the second one that asks “how will your individual characteristics lead you to

make a contribution to the A&M campus?”

The interesting thing about the University’s

plan is that, arguably, four of the eight admissions factors and both essay topics can have a certain

degree of correlation to race or ethnicity, depending on the contents of the application and who is

evaluating the file. The University apparently believes that the consideration of these eight factors

and two essays will produce the desired increase in the number of Hispanic applicants who enroll at A&M

each year.

The Texas A&M Hispanic Network believes that whether we consider race or

not is a direct reflection on a university’s level of commitment to welcome minorities to its campus

and to realize the educational benefits that can be derived from an ethically diverse student body. We

both want to achieve the same thing; we simply have a difference of opinion on how to do it. Coach

Gates says we can win with a new and improved running game. We say we need to incorporate the forward

pass, and if we do, we will win more games and we will improve our season record more immediately.

Therefore, please understand that our official Network position is that we

respectfully and deeply do not agree with or endorse that part of the decision that excludes the

consideration of race as a modest factor in A&M’s admissions policy. We simply cannot rely on an

improved running game and expect better and immediate results.

Bueno, ¿Que vamos

hacer ahora? Okay, what do we do now?

We discussed several options and all of them were

grounded on two principles. First, and foremost, we are all family. We all wear the ring with thirty

-three stars and our class year on it. Secondly, we are not going to walk away from our school on this

issue. Despite our disagreement, we will always have a partnership with A&M and we will always have

work to do. Of course, our strong preference is to incorporate the forward pass; to use race as a

modest factor in the admissions process, and we will continue to advocate and articulate this position.

We want what’s best for A&M too, and that is to achieve Vision 2020’s Imperative #6 as

soon as possible, by all means possible. If the educational benefits derived from a diverse student

body are truly a national “compelling governmental interest” and a Texas A&M University Imperative,

then we have an obligation and responsibility to use every legal means and any persuasive argument at

our disposal to make it happen! By stating our position, that’s what we have attempted to do

today.

If we are not going to use the forward pass, then we would like to express one

Hope and one Strategy. This is our Hope. If we do not see our record improve after one season, it is

our deep and sincere Hope that the University will seriously consider using the forward pass, using

race as a modest admissions factor. Specifically, this would be at the end of fall semester, 2006.

Any coach should be held accountable for the direction he has chosen to take or not to

take his team. And on this point we are proud of Dr. Gates, because he has publicly stated that he

wants to be held accountable. We believe the test that should be applied, and we think this is a fair

one, is whether the percentage of diversity within A&M’s student body has improved to the same extent

as that at the University of Texas, because we know that the other flagship university in this State is

going to incorporate the forward pass into its offense; they are going to use race as a factor in their

admissions policy.

As Dr. Gates explained this morning, the University’s new plan

includes some significant changes in its admissions policy. We are encouraged that factors which can

reflect the ethnicity and racial makeup of the applicant pool will be considered in the “review”

category. We are pleased that aggressive outreach programs will be implemented in an attempt to get

more minorities to apply and then, once accepted, to enroll. Finally, and perhaps most importantly, we

are very satisfied that new and substantial scholarships and financial assistance will be offered to

those in need.

It all sounds great, but we are also aware that this approach is very

similar to the one taken by the University of Michigan, and their efforts never, never yielded the

desired “critical mass” of minority students until it started to consider race
as a factor. But there

was one thing the University of Michigan did not have that Dr. Gates does. Dr. Gates, take a
look

around you. You have us and our Network! And that’s the other reason why we are here

today.

You have given us time to voice our concerns, and we have done so. Now, it is

time to follow one Strategy and that is to work together as partners and as a family to build for the

future. This afternoon, the breakout sessions will be an opportunity for us to continue our dialogue

with our University. How can we improve communications between the administration, staff, and faculty

with the Network? What training do we need from A&M in order to be effective individual recruiters for

A&M? What campus life and leadership opportunities do we need to make A&M a more welcome place for

Hispanics? Your active participation in these discussions is very important to us.

Finally, what’s the bottom line? Dr. Gates stated the bottom line a year ago. “In a

State where minorities will soon be the majority . . . . it is simply unacceptable for Texas A&M’s

student body to be 85% white.” We should not, cannot, and must not be satisfied with a single digit

percentage of Hispanics in the student body at A&M. We all need to work together to achieve the goals

outlined in Imperative #6 of Vision 2020.

Some day there is going to be a Hispanic

governor of Texas. Some day there is going to be a Hispanic United States Senator from Texas. And

someday there may even be a Hispanic President of these United States. I want them to be wearing the

same ring we’re wearing.

Dr. Gates cannot make this happen by himself, Hector

Gutierrez cannot make it happen by himself, and we as a Network cannot make this happen by ourselves,

either. Building for the Future “together” needs to be our watchword. Coming together as we did in

San Antonio last May was a beginning; staying together as we will do all day today is progress; y

trabajando juntos por todo en el futuro nos asegura buen exito, and working together in the future will

bring us success!

Thank you and Gig’em.
More

resources on the Hispanic Network Summit

PDF Agenda posted at TAMU

website

The Batt: Hispanic Summit Praises

The Eagle: Group Asks

Gates

Aggie Daily: Gates

Highlights

“Whatever the severity of the impact of insufficient food or inadequate housing on a

person’s life, they have never been considered to bear the same direct and immediate relationship to

constitutional concerns for free speech and for our political processes as education has long been

recognized to bear. Perhaps, the best evidence of this fact is the unique status which has been

accorded public education as the single public service nearly unanimously guaranteed in the

constitutions of our States.”

–Justice Thurgood Marshall, dissenting in the federal

“Edgewood” case (Rodriguez, 1973).

Failure to win this crucial civil rights battle in

federal court sent strategists back to the state constitution of Texas.

As Marshall

hinted in the final footnote of his dissent: “Of course, nothing in the Court’s decision today should

inhibit further review of state educational funding schemes under state constitutional provisions.”

Read part one of the full dissent [through II.A.] below under “Read More.”

U.S. Supreme

Court
SAN ANTONIO SCHOOL DISTRICT v. RODRIGUEZ, 411 U.S. 1 (1973)
411 U.S. 1

[Source: Findlaw]

SAN ANTONIO INDEPENDENT SCHOOL DISTRICT ET AL. v. RODRIGUEZ ET

AL.,
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF

TEXAS
No. 71-1332.

Argued October 12, 1972
Decided March 21,

1973

MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS concurs,

dissenting.

The Court today decides, in effect, that a State may constitutionally vary

the quality of education which it offers its children in accordance with the amount of taxable wealth

located in the school districts within which they reside. The majority’s decision represents an abrupt

departure from the mainstream of recent state and federal court decisions concerning the

unconstitutionality of state educational financing schemes dependent upon taxable local wealth. 1 More

unfortunately, though, the [411 U.S. 1, 71] majority’s holding can only be seen as a retreat from

our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a

system which deprives children in their earliest years of the chance to reach their full potential as

citizens. The Court does this despite the absence of any substantial justification for a scheme which

arbitrarily channels educational resources in accordance with the fortuity of the amount of taxable

wealth within each district.

In my judgment, the right of every American to an equal

start in life, so far as the provision of a state service as important as education is concerned, is

far too vital to permit state discrimination on grounds as tenuous as those presented by this record.

Nor can I accept the notion that it is sufficient to remit these appellees to the vagaries of the

political process which, contrary to the majority’s suggestion, has proved singularly unsuited to the

task of providing a remedy for this discrimination. 2 I, for one, am unsatisfied with the hope of an

ultimate “political” solution sometime in the indefinite future while, in the meantime, countless

children unjustifiably receive inferior educations that “may affect their hearts [411 U.S. 1, 72]

and minds in a way unlikely ever to be undone.” Brown v. Board of Education, 347 U.S. 483, 494 (1954).

I must therefore respectfully dissent.

I

The Court acknowledges that

“substantial interdistrict disparities in school expenditures” exist in Texas, ante, at 15, and that

these disparities are “largely attributable to differences in the amounts of money collected through

local property taxation,” ante, at 16. But instead of closely examining the seriousness of these

disparities and the invidiousness of the Texas financing scheme, the Court undertakes an elaborate

exploration of the efforts Texas has purportedly made to close the gaps between its districts in terms

of levels of district wealth and resulting educational funding. Yet, however praiseworthy Texas’

equalizing efforts, the issue in this case is not whether Texas is doing its best to ameliorate the

worst features of a discriminatory scheme but, rather, whether the scheme itself is in fact

unconstitutionally discriminatory in the face of the Fourteenth Amendment’s guarantee of equal

protection of the laws. When the Texas financing scheme is taken as a whole, I do not think it can be

doubted that it produces a discriminatory impact on substantial numbers of the school-age children of

the State of Texas.

A

Funds to support public education in Texas are

derived from three sources: local ad valorem property taxes; the Federal Government; and the state

government. 3 It is enlightening to consider these in order. [411 U.S. 1, 73]

Under

Texas law, the only mechanism provided the local school district for raising new, unencumbered revenues

is the power to tax property located within its boundaries. 4 At the same time, the Texas financing

scheme effectively restricts the use of monies raised by local property taxation to the support of

public education within the boundaries of the district in which they are raised, since any such taxes

must be approved by a majority of the property-taxpaying voters of the district. 5

The

significance of the local property tax element of the Texas financing scheme is apparent from the fact

that it provides the funds to meet some 40% of the cost of public education for Texas as a whole. 6 Yet

the amount of revenue that any particular Texas district can raise is dependent on two factors – its

tax rate and its amount of taxable property. The first factor is determined by the property-taxpaying

voters of the district. 7 But, regardless of the enthusiasm of the local voters for public [411 U.S. 1,

74] education, the second factor – the taxable property wealth of the district – necessarily

restricts the district’s ability to raise funds to support public education. 8 Thus, even though the

voters of two Texas districts may be willing to make the same tax effort, the results for the districts

will be substantially different if one is property rich while the other is property poor. The necessary

effect of the Texas local property tax is, in short, to favor property-rich districts and to disfavor

property-poor ones.

The seriously disparate consequences of the Texas local property tax,

when that tax is considered alone, are amply illustrated by data presented to the District Court by

appellees. These data included a detailed study of a sample of 110 Texas school districts 9 for the

1967-1968 school year conducted by Professor Joel S. Berke of Syracuse University’s Educational

Finance Policy Institute. Among other things, this study revealed that the 10 richest districts

examined, each of which had more than $100,000 in taxable property per pupil, raised through local

effort an average of $610 per pupil, whereas the four poorest districts studied, each of which had less

than $10,000 in taxable property per pupil, were able [411 U.S. 1, 75] to raise only an average of

$63 per pupil. 10 And, as the Court effectively recognizes, ante, at 27, this correlation between the

amount of taxable property per pupil and the amount of local revenues per pupil holds true for the 96

districts in between the richest and poorest districts. 11

It is clear, moreover, that

the disparity of per-pupil revenues cannot be dismissed as the result of lack of local effort – that

is, lower tax rates – by property-poor districts. To the contrary, the data presented below indicate

that the poorest districts tend to have the highest tax rates and the richest districts tend to have

the lowest tax rates. 12 Yet, despite the apparent extra effort being made by the poorest districts,

they are unable even to begin to match the richest districts in te
rms of the product
ion of local

revenues. For example, the 10 richest districts studied by Professor Berke were able to produce $585

per pupil with an equalized tax rate of 31› [411 U.S. 1, 76] on $100 of equalized valuation, but the

four poorest districts studied, with an equalized rate of 70› on $100 of equalized valuation, were able

to produce only $60 per pupil. 13 Without more, this state-imposed system of educational funding

presents a serious picture of widely varying treatment of Texas school districts, and thereby of Texas

schoolchildren, in terms of the amount of funds available for public education.

Nor are

these funding variations corrected by the other aspects of the Texas financing scheme. The Federal

Government provides funds sufficient to cover only some 10% of the total cost of public education in

Texas. 14 Furthermore, while these federal funds are not distributed in Texas solely on a per-pupil

basis, appellants do not here contend that they are used in such a way as to ameliorate significantly

the widely varying consequences for Texas school districts and schoolchildren of the local property tax

element of the state financing scheme. 15

State funds provide the remaining some 50% of

the monies spent on public education in Texas. 16 Technically, they are distributed under two programs.

The first is the Available School Fund, for which provision is made in the Texas Constitution. 17 The

Available [411 U.S. 1, 77] School Fund is composed of revenues obtained from a number of sources,

including receipts from the state ad valorem property tax, one-fourth of all monies collected by the

occupation tax, annual contributions by the legislature from general revenues, and the revenues derived

from the Permanent School Fund. 18 For the 1970-1971 school year the Available School Fund contained

$296,000,000. The Texas Constitution requires that this money be distributed annually on a per capita

basis 19 to the local school districts. Obviously, such a flat grant could not alone eradicate the

funding differentials attributable to the local property tax. Moreover, today the Available School Fund

is in reality simply one facet of the second state financing program, the Minimum Foundation School

Program, 20 since each district’s annual share of the Fund is deducted from the sum to which the

district is entitled under the Foundation Program. 21

The Minimum Foundation School

Program provides funds for three specific purposes: professional salaries, current operating expenses,

and transportation expenses. 22 The State pays, on an overall basis, for approximately 80% of the cost

of the Program; the remaining 20% is distributed among the local school districts under the [411 U.S.

1, 78] Local Fund Assignment. 23 Each district’s share of the Local Fund Assignment is determined by

a complex “economic index” which is designed to allocate a larger share of the costs to property-rich

districts than to property-poor districts. 24 Each district pays its share with revenues derived from

local property taxation.

The stated purpose of the Minimum Foundation School Program is

to provide certain basic funding for each local Texas school district. 25 At the same time, the Program

was apparently intended to improve, to some degree, the financial position of property-poor districts

relative to property-rich districts, since – through the use of the economic index – an effort is made

to charge a disproportionate share of the costs of the Program to rich districts. 26 It bears noting,

however, that substantial criticism has been leveled at the practical effectiveness of the economic

index system of local cost allocation. 27 In theory, the index is designed to ascertain the relative

ability of each district to contribute to the Local Fund Assignment from local property taxes. Yet the

index is not developed simply on the basis of each district’s taxable wealth. It also takes into

account the district’s relative income from manufacturing, mining, and agriculture, its payrolls, and

its scholastic population. 28 [411 U.S. 1, 79] It is difficult to discern precisely how these

latter factors are predictive of a district’s relative ability to raise revenues through local

property taxes. Thus, in 1966, one of the consultants who originally participated in the development of

the Texas economic index adopted in 1949 told the Governor’s Committee on Public School Education:

“The Economic Index approach to evaluating local ability offers a little better measure than sheer

chance, but not much.” 29

Moreover, even putting aside these criticisms of the

economic index as a device for achieving meaningful district wealth equalization through cost

allocation, poor districts still do not necessarily receive more state aid than property-rich

districts. For the standards which currently determine the amount received from the Foundation School

Program by any particular district 30 favor property-rich districts. 31 Thus, focusing on the same [411

U.S. 1, 80] Edgewood Independent and Alamo Heights School Districts which the majority uses for

purposes of illustration, we find that in 1967-1968 property-rich Alamo Heights, 32 which raised $333

per pupil on an equalized tax rate of 85› per $100 valuation, received $225 per pupil from the

Foundation School Program, while property-poor Edgewood, 33 which raised only $26 per pupil with an

equalized tax rate of $1.05 per $100 valuation, received only $222 per pupil from the Foundation School

Program. 34 And, more recent data, which indicate that for the 1970-1971 school year Alamo Heights

received $491 per pupil from [411 U.S. 1, 81] the Program while Edgewood received only $356 per

pupil, hardly suggest that the wealth gap between the districts is being narrowed by the State Program.

To the contrary, whereas in 1967-1968 Alamo Heights received only $3 per pupil, or about 1%, more than

Edgewood in state aid, by 1970-1971 the gap had widened to a difference of $135 per pupil, or about

38%. 35 It was data of this character that prompted the District Court to observe that “the current

[state aid] system tends to subsidize the rich at the expense of the poor, rather than the other way

around.” 36 337 F. Supp. 280, 282. And even the appellants go no further here than to venture that the

Minimum Foundation School Program has “a mildly equalizing effect.” 37

Despite these

facts, the majority continually emphasizes how much state aid has, in recent years, been given [411

U.S. 1, 82] to property-poor Texas school districts. What the Court fails to emphasize is the cruel

irony of how much more state aid is being given to property-rich Texas school districts on top of their

already substantial local property tax revenues. 38 Under any view, then, it is apparent that the state

aid provided by the Foundation School Program fails to compensate for the large funding variations

attributable to the local property tax element of the Texas financing scheme. And it is these stark

differences in the treatment of Texas school districts and school children inherent in the Texas

financing scheme, not the absolute amount of state aid provided to any particular school district, that

are the crux of this case. There can, moreover, be no escaping the conclusion that the local property

tax which is dependent upon taxable district property wealth is an essential feature of the Texas

scheme for financing public education. 39

B

The appellants do not deny

the disparities in educational funding caused by variations in taxable district property wealth. They

do contend, however, that whatever the differences in per-pupil spending among Texas districts, there

are no discriminatory consequences for the children of the disadvantaged districts. They recognize that

what is at stake in this case is the quality of the [411 U.S. 1, 83] public education provided Texas

children in the districts in which they live. But appellants reject the suggestio

n that the quality of

education in any particular district is determined by money – beyond some minimal level of funding

which they believe to be assured every Texas district by the Minimum Foundation School Program. In

their view, there is simply no denial of equal educational opportunity to any Texas schoolchildren as a

result of the widely varying per-pupil spending power provided districts under the current financing

scheme.

In my view, though, even an unadorned restatement of this contention is

sufficient to reveal its absurdity. Authorities concerned with educational quality no doubt disagree as

to the significance of variations in per-pupil spending. 40 Indeed, conflicting expert testimony was

presented to the District Court in this case concerning the effect of spending variations on

educational achievement. 41 We sit, however, not to resolve disputes over educational theory but to

enforce our Constitution. It is an inescapable fact that if one district has more funds available per

pupil than another district, the [411 U.S. 1, 84] former will have greater choice in educational

planning than will the latter. In this regard, I believe the question of discrimination in educational

quality must be deemed to be an objective one that looks to what the State provides its children, not

to what the children are able to do with what they receive. That a child forced to attend an

underfunded school with poorer physical facilities, less experienced teachers, larger classes, and a

narrower range of courses than a school with substantially more funds – and thus with greater choice in

educational planning – may nevertheless excel is to the credit of the child, not the State, cf.

Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 349 (1938). Indeed, who can ever measure for such a

child the opportunities lost and the talents wasted for want of a broader, more enriched education?

Discrimination in the opportunity to learn that is afforded a child must be our

standard.

Hence, even before this Court recognized its duty to tear down the barriers of

state-enforced racial segregation in public education, it acknowledged that inequality in the

educational facilities provided to students may be discriminatory state action as contemplated by the

Equal Protection Clause. As a basis for striking down state-enforced segregation of a law school, the

Court in Sweatt v. Painter, 339 U.S. 629, 633 -634 (1950), stated:

“[W]e cannot find

substantial equality in the educational opportunities offered white and Negro law students by the

State. In terms of number of the faculty, variety of courses and opportunity for specialization, size

of the student body, scope of the library, availability of law review and similar activities, the

[whites-only] Law School is superior. . . . It is difficult to believe that one who had a free choice

between these law schools would consider the question close.” [411 U.S. 1, 85]

See

also McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637 (1950). Likewise, it is

difficult to believe that if the children of Texas had a free choice, they would choose to be educated

in districts with fewer resources, and hence with more antiquated plants, less experienced teachers,

and a less diversified curriculum. In fact, if financing variations are so insignificant to educational

quality, it is difficult to understand why a number of our country’s wealthiest school districts,

which have no legal obligation to argue in support of the constitutionality of the Texas legislation,

have nevertheless zealously pursued its cause before this Court. 42

The consequences,

in terms of objective educational input, of the variations in district funding caused by the Texas

financing scheme are apparent from the data introduced before the District Court. For example, in 1968

-1969, 100% of the teachers in the property-rich Alamo Heights School District had college degrees. 43

By contrast, during the same school year only 80.02% of the teachers had college degrees in the

property poor Edgewood Independent School District. 44 Also, in 1968-1969, approximately 47% of the

teachers in the Edgewood District were on emergency teaching permits, whereas only 11% of the teachers

in Alamo Heights were on such permits. 45 This is undoubtedly a reflection of the fact that the top of

Edgewood’s teacher salary scale was [411 U.S. 1, 86] approximately 80% of Alamo Heights’. 46 And,

not surprisingly, the teacher-student ratio varies significantly between the two districts. 47 In other

words, as might be expected, a difference in the funds available to districts results in a difference

in educational inputs available for a child’s public education in Texas. For constitutional purposes,

I believe this situation, which is directly attributable to the Texas financing scheme, raises a grave

question of state-created discrimination in the provision of public education. Cf. Gaston County v.

United States, 395 U.S. 285, 293 -294 (1969).

At the very least, in view of the

substantial interdistrict disparities in funding and in resulting educational inputs shown by appellees

to exist under the Texas financing scheme, the burden of proving that these disparities do not in fact

affect the quality of children’s education must fall upon the appellants. Cf. Hobson v. Hansen, 327 F.

Supp. 844, 860-861 (DC 1971). Yet appellants made no effort in the District Court to demonstrate that

educational quality is not affected by variations in funding and in resulting inputs. And, in this

Court, they have argued no more than that the relationship is ambiguous. This is hardly sufficient to

overcome appellees’ prima facie showing of state-created discrimination between the schoolchildren of

Texas with respect to objective educational opportunity.

Nor can I accept the

appellants’ apparent suggestion that the Texas Minimum Foundation School Program effectively

eradicates any discriminatory effects otherwise resulting from the local property tax element of the

[411 U.S. 1, 87] Texas financing scheme. Appellants assert that, despite its imperfections, the

Program “does guarantee an adequate education to every child.” 48 The majority, in considering the

constitutionality of the Texas financing scheme, seems to find substantial merit in this contention,

for it tells us that the Foundation Program “was designed to provide an adequate minimum educational

offering in every school in the State,” ante, at 45, and that the Program “assur[es] a basic

education for every child,” ante, at 49. But I fail to understand how the constitutional problems

inherent in the financing scheme are eased by the Foundation Program. Indeed, the precise thrust of the

appellants’ and the Court’s remarks are not altogether clear to me.

The suggestion may

be that the state aid received via the Foundation Program sufficiently improves the position of

property-poor districts vis-a-vis property-rich districts – in terms of educational funds – to

eliminate any claim of interdistrict discrimination in available educational resources which might

otherwise exist if educational funding were dependent solely upon local property taxation. Certainly

the Court has recognized that to demand precise equality of treatment is normally unrealistic, and thus

minor differences inherent in any practical context usually will not make out a substantial equal

protection claim. See, e. g., Mayer v. City of Chicago, 404 U.S. 189, 194 -195 (1971); Draper v.

Washington, 372 U.S. 487, 495 -496 (1963); Bain Peanut Co. v. Pinson, 282 U.S. 499, 501 (1931). But, as

has already been seen, we are hardly presented here with some de minimis claim of discrimination

resulting from the play necessary in any functioning system; to the contrary, it is clear that the

Foundation Program utterly fails to [411 U.S. 1, 88] ameliorate the seriously discriminatory effects

of the local property tax. 49

Alternatively, the appellants a

nd the majority may

believe that the Equal Protection Clause cannot be offended by substantially unequal state treatment of

persons who are similarly situated so long as the State provides everyone with some unspecified amount

of education which evidently is “enough.” 50 The basis for such a novel view is far from clear. It

is, of course, true that the Constitution does not require precise equality in the treatment of all

persons. As Mr. Justice Frankfurter explained:

“The equality at which the `equal

protection’ clause aims is not a disembodied equality. The Fourteenth Amendment enjoins `the equal

protection of the laws,’ and laws are not abstract propositions. . . . The Constitution does not

require things which are different in fact or opinion to be treated in law as though they were the

same.” Tigner v. Texas, 310 U.S. 141, 147 (1940).

See also Douglas v. California, 372

U.S. 353, 357 (1963); Goesaert v. Cleary, 335 U.S. 464, 466 (1948). [411 U.S. 1, 89] But this 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 (1920).

Even if the Equal Protection

Clause encompassed some theory of constitutional adequacy, discrimination in the provision of

educational opportunity would certainly seem to be a poor candidate for its application. Neither the

majority nor appellants inform us how judicially manageable standards are to be derived for determining

how much education is “enough” to excuse constitutional discrimination. One would think that the

majority would heed its own fervent affirmation of judicial self-restraint before undertaking the

complex task of determining at large what level of education is constitutionally sufficient. Indeed,

the majority’s apparent reliance upon the adequacy of the educational opportunity assured by the Texas

Minimum Foundation School Program seems fundamentally inconsistent with its own recognition that

educational authorities are unable to agree upon what makes for educational quality, see ante, at 42-43

and n. 86 and at 47 n. 101. If, as the majority stresses, such authorities are uncertain as to the

impact of various levels of funding on educational quality, I fail to see where it finds the expertise

to divine that the particular levels of funding provided by the Program assure an adequate educational

opportunity – much less an education substantially equivalent in quality to that which a higher level

of funding might provide. Certainly appellants’ mere assertion before this Court of the adequacy of

the education guaranteed by the Minimum [411 U.S. 1, 90] Foundation School Program cannot obscure the

constitutional implications of the discrimination in educational funding and objective educational

inputs resulting from the local property tax – particularly since the appellees offered substantial

uncontroverted evidence before the District Court impugning the now much-touted “adequacy” of the

education guaranteed by the Foundation Program. 51

In my view, then, it is inequality –

not some notion of gross inadequacy – of educational opportunity that raises a question of denial of

equal protection of the laws. I find any other approach to the issue unintelligible and without

directing principle. Here, appellees have made a substantial showing of wide variations in educational

funding and the resulting educational opportunity afforded to the schoolchildren of Texas. This

discrimination is, in large measure, attributable to significant disparities in the taxable wealth of

local Texas school districts. This is a sufficient showing to raise a substantial question of

discriminatory state action in violation of the Equal Protection Clause. 52 [411 U.S. 1, 91]

C

Despite the evident discriminatory effect of the Texas financing scheme,

both the appellants and the majority raise substantial questions concerning the precise character of

the disadvantaged class in this case. The District Court concluded that the Texas financing scheme

draws “distinction between groups of citizens depending upon the wealth of the district in which they

live” and thus creates a disadvantaged class composed of persons living in property-poor districts.

See 337 F. Supp., at 282. See also id., at 281. In light of the data introduced before the District

Court, the conclusion that the schoolchildren of property-poor districts constitute a sufficient class

for our purposes seems indisputable to me.

Appellants contend, however, that in

constitutional terms this case involves nothing more than discrimination against local school

districts, not against individuals, since on its face the state scheme is concerned only with the

provision of funds to local districts. The result of the Texas financing scheme, appellants suggest, is

merely that some local districts have more available revenues for education; others have less. In that

respect, [411 U.S. 1, 92] they point out, the States have broad discretion in drawing reasonable

distinctions between their political subdivisions. See Griffin v. County School Board of Prince Edward

County, 377 U.S. 218, 231 (1964); McGowan v. Maryland, 366 U.S. 420, 427 (1961); Salsburg v. Maryland,

346 U.S. 545, 550 -554 (1954).

But this Court has consistently recognized that where

there is in fact discrimination against individual interests, the constitutional guarantee of equal

protection of the laws is not inapplicable simply because the discrimination is based upon some group

characteristic such as geographic location. See Gordon v. Lance, 403 U.S. 1, 4 (1971); Reynolds v.

Sims, 377 U.S. 533, 565 -566 (1964); Gray v. Sanders 372 U.S. 368, 379 (1963). Texas has chosen to

provide free public education for all its citizens, and it has embodied that decision in its

constitution. 53 Yet, having established public education for its citizens, the State, as a direct

consequence of the variations in local property wealth endemic to Texas’ financing scheme, has

provided some Texas schoolchildren with substantially less resources for their education than others.

Thus, while on its face the Texas scheme may merely discriminate between local districts, the impact of

that discrimination falls directly upon the children whose educational opportunity is dependent upon

where they happen to live. Consequently, the District Court correctly concluded that the Texas

financing scheme discriminates, from a constitutional perspective, between schoolchildren on the basis

of the amount of taxable property located within their local districts.

In my Brother

STEWART’S view, however, such a description of the discrimination inherent in this case is apparently

not sufficient, for it fails to define the “kind of objectively identifiable classes” that he

evidently perceives [411 U.S. 1, 93] to be necessary for a claim to be “cognizable under the Equal

Protection Clause,” ante, at 62. He asserts that this is also the view of the majority, but he is

unable to cite, nor have I been able to find, any portion of the Court’s opinion which remotely

suggests that there is no objectively identifiable or definable class in this case. In any event, if he

means to suggest that an essential predicate to equal protection analysis is the precise identification

of the particular individuals who compose the disadvantaged class, I fail to find the source from which

he derives such a requirement. Certainly such precision is not analytically necessary. So long as the

basis of the discrimination is clearly identified, it is possible to test it against the State’s

purpose for such discrimination – whatever the standard of

equal protection analysis empl