tax to support the free public school system throughout the State, to be distributed to the City and to the counties on a school-age population basis. The statute specified that the State School Fund was to pay the salaries of teachers in the counties, and the expense of school books and stationery; and that if in apportioning the School Fund among the counties and Baltimore City, the share of any county was inadequate, the county could impose a local property tax sufficient to satisfy the deficiency; and that county voters could also impose other and additional taxes for public school purposes. (B) It is manifest from the history underlying the adoption of Article VIII of the 1867 Constitution, and from the consistent interpretation and application of its provisions by the legislative and executive branches of the State government for more than one hundred years, that the "thorough and efficient" language of sec. 1 does not mandate uniformity in per pupil funding and expenditures among the State's school districts. The words of sec. 1 require no more than that the General Assembly, by law, establish a "thorough and efficient" system of free public schools throughout the State, funded by taxation or otherwise. That the general language of this constitutional directive constituted a clear departure from the specific and detailed education article provisions contained in the 1864 Constitution is clear. It is equally clear that nothing in the provisions of the newly adopted sec. 1 compelled the legislature to enact a law requiring that the funds raised to support the public schools system be apportioned in any particular way. Nor did the provisions of sec. 1, either explicitly or implicitly, inhibit local subdivisions from spending locally generated tax revenues for public school purposes in supplementation of amounts to be received from the state school fund. Obviously, in light of the historical evidence, the words "thorough and efficient," in the context of their usage in sec. 1, are not the equivalent of "uniform." Nor do these words impose upon the legislature any directive, in its establishment of the public school system, to so fund and operate it that the same amounts of money must be allocated and spent, per pupil, in every school district in Maryland. To conclude that a "thorough and efficient" system under sec. 1 means a full, complete and effective educational system throughout the State, as the trial judge held, is not to require a statewide system which provides more than a basic or adequate education to the State's children. The development of the statewide system under sec. 1 is a matter for legislative determination; at most, the legislature is commanded by sec. 1 to establish such a system, effective in all school districts, as will provide the State's youth with a basic public school education. To the extent that sec. 1 encompasses any equality component, it is so limited. Compliance by the legislature with this duty is compliance with sec. 1 of Article VIII of the 1867 Constitution. In so concluding, we have considered cases from other jurisdictions with state constitutions having a "thorough and efficient" education clause or like provision. Danson v. Casey, 484 Pa. 415, 399 A.2d 360 (1979), involved a challenge to the statutory system by which the Philadelphia school district was funded under a state constitutional provision requiring that the legislature provide for the maintenance and support of a "thorough and efficient system of public education." Pennsylvania's statutory scheme, like Maryland's, contained two primary sources of funding-state and local taxation. State funds were distributed pursuant to a formula akin to Maryland's foundation level program for basic current expenses. Local tax revenues constituted the major source of school funding. It was contended that the "thorough and efficient" clause mandated exact equality of funding among the school districts. The Supreme Court of Pennsylvania rejected that claim. It said that the framers of the Pennsylvania Constitution had "considered and rejected the possibility of specifically requiring the Commonwealth's system of education be uniform." 399 A.2d at 367. Instead, the court noted that in enacting the "thorough and efficient" clause, the framers had "endorsed the concept of local control to meet diverse local needs" and had recognized "the right of local communities to utilize local tax revenues to expand educational programs subsidized by the state." Id. The Georgia Constitution makes it a "primary obligation" of the state to provide “an adequate education to the citizens of Georgia.” Under that state's school financing system, the primary fund sources are state and local revenues. The bulk of the state money is distributed for "basic educational needs," allotted pursuant to the average daily attendance per local district. To receive this aid, each district must contribute a set amount obtained from ad valorem taxation, referred to as "required local effort." Local jurisdictions, however, may supplement this program with funds generated by local property tax assessments. In McDaniel v. Thomas, 248 Ga. 632, 285 S.E.2d 156 (1981), it was claimed that these local contributions, combined with the low level of state support, violated the state education clause. The court concluded from the evidence that a direct relationship existed between a district's level of funding and the educational opportunities which a school district is able to provide its children. Id. 285 S.E.2d at 160. Nevertheless, it held that the "adequate education" provisions of the state constitution "do not restrict local school districts from doing what they can to improve educational opportunities within the district, nor do they require the state to equalize educational opportunities between districts." Id. 285 S.E.2d at 164. Furthermore, the court found that the legislature had not disregarded its obligation to provide an "adequate" education, as evidenced by the massive state financial commitment to public education. The court stated that "while an 'adequate' education must be designed to produce individuals who can function in society, it is primarily the legislative branch of government which must give content to the term 'adequate." " Id. 285 S.E.2d at 165. Both the New Jersey and West Virginia Constitutions contain provisions requiring the establishment of a "thorough and efficient" system of free public schools. In Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273, cert. denied, 414 U.S. 976, 94 S.Ct. 292, 38 L.Ed.2d 219 (1973), the Court recognized the existence of wealth-based spending disparities among local school districts. It held that the "thorough and efficient" clause required equality of expenditures for a minimum mandated educational opportunity, i.e., one "which is needed in the contemporary setting to equip a child for his role as a citizen and as a competitor in the labor market." Id. 303 A.2d at 295. The Court noted that the State had never established even minimal statewide standards for education; that absent such standards the tax burden could not be "left to local initiative with any hope that statewide equality of educational opportunity will emerge." Id. The Court said that the State must compel the local districts to raise the money to provide for the constitutionally mandated education and that it could also authorize local governments to spend beyond the constitutionally mandated minimum education. 13 13New Jersey's legislature appears unwilling or unable to obey the "constitutional mandate" set forth in the Robinson case. The state is now in its seventh round of school financing litigation. See Robinson v. Cahill, 70 N.J. 155, 358 A.2d 457 (1976). Discussion Notes 1. Footnote 13 of the Maryland opinion refers to the continuing litigation in New Jersey in Robinson v. Cahill. The latest chapter is Abbott v. Burke, 100 N.J. 269, 495 A.2d 376 (1985). As in Robinson v. Cahill, supra, the court in Pauley v. Kelly, 255 S.E.2d 859 (W.Va., 1979), found an absence of educational standards to "set the core values" for the state's public school system. Id. at 878. Without actually deciding that the state's educational system was so deficient as to violate the "thorough and efficient" clause of the state constitution, the court remanded the case for the development of educational qualitative standards consistent with the constitutional directive and for testing to determine whether each school district would be in compliance with the newly developed standards. In so ruling, the court emphasized that "great weight will be given to legislatively established standards, because the people have reposed in that department of government 'plenary, if not absolute' authority and responsibility for the school system." Id. Moreover, the court stated that "[m]ere rote comparison with other more affluent counties does not necessarily serve to define the values of such a system." Id. See also Washakie Co. Sch. Dist. No. One v. Herschler, 606 P.2d 310 (Wyo.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980). In contrast to New Jersey and West Virginia, Maryland has, by legislation, and by regulations and bylaws adopted by the State Board of Education, established comprehensive statewide qualitative standards governing all facets of the educational process in the State's public elementary and secondary schools.... The record in this case demonstrates that Maryland has continuously undertaken to provide a thorough and efficient public school education to its children in compliance with Article VIII of the Maryland Constitution. That education need not be “equal" in the sense of mathematical uniformity, so long as efforts are made, as here, to minimize the impact of undeniable and inevitable demographic and environmental disadvantages on any given child. The current system, albeit imperfect, satisfies this test. 2. Is the history of Maryland's rejection of a "uniform" system of public schools necessarily dispositive of the question of inequality of funding? B. Right to Education In the Interest of G. H. 218 N.W. 2d 441 (N.D. 1974) VOGEL, Judge. G. H., in whose interest this action was brought, was born on July 27, 1957, with severe physical handicaps which need not be detailed. She is educable, and is expected to finish her grade school education soon. At the time of her birth her family lived at Williston, Williams County, North Dakota, in Williston School District No. 1. She spent some time at the Grafton State School (for retarded children), but did not really belong there, so she was sent to the Crippled Children's School at Jamestown, North Dakota, at the request of the superintendent of the Grafton State School. The Crippled Children's School is a private, nonsectarian, nonprofit institution. G. H. has now spent most of her 17 years of life there. Her parents were unable to pay the charges at that school, even though approximately half of the expenses of the school are paid by charitable contributions. So the Williams County Welfare Board began paying the cost of keeping her in a foster home in Jamestown, while Williston School District No. 1 contracted with the Crippled Children's School to pay her tuition. ... All went well until the parents of G. H. moved to Minneapolis, Minnesota, in 1969, leaving her at the Crippled Children's School in Jamestown. Williston School District No. 1 stopped paying the tuition at the school as of September 1, 1969, while the County Welfare Board continued to pay for the foster home care. The Crippled Children's School continued to provide her with educational services, without reimbursement by anyone. On March 20, 1970, Reuben E. Carlson, an officer of the State Public Welfare Board, petitioned the district court of Stutsman County (where the Crippled Children's School is located) to make a determination concerning the care, custody, and control of G. H., and asserted that she was a deprived child without proper parental care or control; that her parents were not living together and were unable to provide a suitable home for her; that she had physical disabilities which make it necessary for her to attend the Crippled Children's School; and that her parents were unable to cope with her many needs because of her physical condition. The action was brought by Reuben E. Carlson, and the respondents were G. H. and her parents. After a hearing, the district court made findings on May 14, 1970, that G. H. is a deprived child, that her parents were unable to provide for her, that the causes of her deprivation were not likely to be remedied, that her mother was confined to a hospital for psychiatric treatment, that it was impossible for the parents to care for her, that the most suitable place for her was the Crippled Children's School, and that the parents had not established permanent residence outside the Williston area. The court further found that the Crippled Children's School had proper facilities for her education and that there were no public schools in the State of North Dakota with the necessary facilities which would accept her. The court further found that the Williams County Welfare Board was providing for her care and that up to September 1, 1969, when the parents left Williston, the Williston School District paid the tuition at the Crippled Children's School. The court thereupon ordered that G. H. be taken under the juvenile jurisdiction of the court, that her care, custody, and control be transferred to the director of the Williams County Welfare Board, and that her father pay $55 per month to the Williams County Welfare Board if his income warranted. Williston School District No. 1 was ordered to pay the education costs at the Crippled Children's School retroac tively to September 1, 1969, and continuously thereafter so long as she remains a student at the School. When the appeal was perfected, all parties named in the title were represented by attorneys, except G. H. herself. On our own initiative, we requested the North Dakota Association for Retarded Children to file a brief amicus curiae. We are grateful to the Association for having done so and for enlisting the support of the National Center for Law and the Handicapped, which joined in the brief and participated in the oral argument. CONSTITUTIONAL RIGHT TO EDUCATION Two kinds of expenditures are involved in this appeal. The first is, perhaps inadequately, described as subsistence. This description includes the foster home care, including board and room of G. H., as well as payments for physical therapy and some incidental expenses for her. These sums have been paid for years by the Williams County Welfare Board. Although that board appealed from the order of the district court, it continued to make payments for subsistence, and concedes that it will continue to make the payments if no one else makes them. The greatest disagreement arises over the second category of expenses, also described inadequately, the so-called tuition at the Crippled Children's School. This designation necessarily covers more than the ordinary kind of education, since education of handicapped children requires a different kind of physical plant to accommodate their physical handicaps, a different kind of teaching adapted to the mental handicaps which so often accompany the physical ones, and special kinds of teachers to assist in surmounting the problems arising from all the varieties of handicaps encountered. The first question to arise, incredibly enough, is whether G. H. is entitled to have her tuition paid by anyone. A great many handicapped children in this State have had no education at all, which might indicate that they are entitled to none. A further shadow on their claim to an education has been cast, according to some of the briefs before us, by the decision of the United States Supreme Court in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), which held that education is not a right mandated by the United States Constitution. We will return to the Rodriguez case later, but at this point we will consider whether the right to an education is a constitutional right un der the Constitution of this State. We held long ago that it is, and we now reiterate that holding. The historic policy of this state, in common with the general policy of every other state in the Union, is to maintain a free public school system for the benefit of all children within specified age limits. This policy existed prior to statehood A high degree of intelligence, The legislative assembly shall course. [Sec. 148, Constitution of N.D.] Anderson v. We are satisfied that all children in North Dakota have the right, under the State Constitution, to a public school education. Nothing in Rodriguez, supra, holds to the contrary. The State of New Jersey has held, since Rodriguez, the education is a right under the Constitution of that State. Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273 (1973). Handicapped children are certainly entitled to no less than unhandicapped children under the explicit provisions of the Constitution. Whether those who have been unconstitutionally deprived of education in the past have a constitutionally based claim for compensatory educational effort, we leave for future determination. See In re H., 72 Misc.2d 59, 337 N.Y.S.2d 969 (Family Court, Queens County, 1972). For the present, we say only that failure to provide educational opportunity for handicapped children (except those, if any there are, who cannot benefit at all from it) is an unconstitutional violation of the foregoing constitutional provisions, as well as Section 11 of the North Dakota Constitution and Section 20 of the North Dakota Constitution, which provide that all laws of a general nature shall have a uniform operation and that no class of citizens shall be granted privileges or immunities which upon the same terms shall not be granted to all citizens. We find nothing in Rodriguez, supra, to persuade us to a different view. On the contrary, education has long been the primary responsibility of the States, and it is only natural that their constitutions should provide for a right to an education; while the Federal Constitution, as Rodriguez points out, is silent on the subject of education. WHO SHALL PAY? Resolution of this question depends upon a decision as to the residence of G. H. for school purposes. That problem was exhaustively discussed in Anderson v. Breithbarth, supra. Although the statutes have been amended in many respects since then, the amendments would not change the result. Section 15-59-07, relating to education of students with physical handicaps and learning disabilities, says nothing about residence, It tells only what is to be done if any school district "has" such a handicapped child. Discussion Notes 1. In the Interest of G. H. concerned a child who was "educable." What are the education rights of those deemed "subtrainable"? See Levine v. Institutions and Agencies Dept., 84 N.J. 234, 418 A.2d 229 (1980). 2. Concerning the state constitutional right to education as applied to mentally handicapped individuals, see also, Dept. of Pub. Welfare v. Haas, 154 N.E.2d 265, 270-71 (Ill. 1958). Article X, section 1 of the Illinois Constitution of 1970 now provides: "A fundamental goal of the People of the State is the educational development of all persons to the limits of their capacities." This provision apparently "overrules" Haas. 3. See also, State v. Stecher, 390 A.2d 408, 410 (Conn. 1977) ("the right to free public education is not measured by the physical or intellectual ability of the child.") 4. Review the New Mexico Attorney General's opinion in Chapter 5, Section H, concerning bilingual education. The facts here are very similar to Anderson. In Anderson, a child had been more or less abandoned by her parents and left with relatives, who enrolled her in a local school. The school district challenged her right to attend the school without the payment of tuition by the district of her former residence or the district of her parents' then residence. We held that it was the residence of the child which was controlling, and that she was entitled to attend the school where she resided with relatives. In the present case, if the Williston School District had facilities within its district to educate handicapped children such as G H., she would no doubt still be living there, and Anderson would be exactly in point and controlling. Does the fact that Williston has no such facilities, and therefore contracted with the Crippled Children's School to provide them, change the situation in any material way? We think not. A contract between a school district and the Crippled Children's School does not change the residence of the child, which remains within the contracting district. We so hold, even though the child's parents have moved from the State of North Dakota and established residence elsewhere. G. H. has been determined to be a ward of the State. Her residence is separate from that of her parents. Anderson v. Breithbarth, supra. If Williston were not her residence, we would have to decide whether the responsibility for her care lay with the Social Service Board of the State. 5. For an excellent study of the rights of school children who cross school district lines to reside in spouse abuse shelters, see Nancy Ruth Johnson, "The Education Rights of School Age Children Who Reside in New Jersey Spouse Abuse Centers: An Analysis from the Child Advocate's Perspective," Journal of Law and Education 13 (April 1984): 239. 6. Could a right to education conflict with other state constitutional provisions concerning public education, such as those requiring a public referendum on bonds for school construction and renovation? See In re Application of Freehold Bd. of Educ., 86 N.J. 265, 430 A.2d 905 (1981); Michael J. Guard and Jean A. La Maita, "Financing Public Education Facilities in New Jersey, After the Freehold Decision," Seton Hall Law Review 12 (No. 2 1982): 195. 7. Review the materials in Chapter 1 relating to the admission of new states, and Wheeler v. Barrera in Chapter 2, Section C, p.56. |