California’s Early School Funding Litigation and Updates on ConVal/Rand, Flynn Historical Marker Cases

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Andru Volinsky and his wife, Amy, are pictured feeding their animals in East Concord.

From ‘A Book, an Idea and a Goat,’ Andru Volinsky’s weekly newsletter on Substack is primarily devoted to writing about the national movement for fair school funding and other means of effecting social change. Here’s the link:


Serrano v. Priest I, II and III (CA1971-1976)

Like the Texas case, San Antonio v. Rodriguez, the leading California school funding case, Serrano v. Priest, began before Lewis Powell killed the federal effort to recognize a constitutional right to education. The justices of the California Supreme Court reasonably interpreted existing precedents and concluded that education is a fundamental right protected by the US Constitution. This was the analysis that Powell rejected.

The California Supreme Court found that education is a fundamental right because “education is the lifeline of both the individual and society” and “a major determinant of an individual’s chances for economic and social success in our competitive society [and]…[as] a unique influence on a child’s development as a citizen and his participation in political and community life.”

Finally, the Court concluded that “education also supports each and every other value of a democratic society–participation, communication, and social mobility, to name but a few.” For this last proposition, the Court cited the work of three law professors who were also social scientists and leading progressive thinkers on the topic of equitable education funding.  Professors John Coons and Stephen Sugarman taught at the UC Berkeley School of Law and Professor William Clune taught at the University of Wisconsin Law School. Their work is contained in the book, Private Wealth and Public Education (Harvard University Press, 1970).  Coons and Sugarman also filed a friend of the court brief, as did two lawyers later to become mayors of San Francisco, George Moscone and Willie Brown.

The California Supreme Court also concluded that wealth—whether of the community or the individual—was a suspect class that entitled poor residents to strict scrutiny of state action that discriminated against them. The Serrano I (1971) case sent the litigants off to trial.

The parties in Serrano were preparing for trial when Lewis Powell led the Supreme Court to conclude education is not a carefully protected fundamental right.

Despite Powell’s 1973 opinion, the parties proceeded to a 60-day trial in 1974.  The case was saved, in the first instance, by a footnote in the Serrano I decision in which the California Supreme Court wrote it would have reached the same conclusions based on the California state constitution as it did under the U.S. Constitution’s 14th Amendment which became the subject of Powell’s analysis.

In response to Serrano I, without being ordered to do so, the California legislature passed two bills that changed California’s funding scheme. The trial focused on the new scheme. Though significant in the amount of increased funding, the California Supreme Court concluded that the new laws continued to rely on a flawed foundation aid approach to school funding that ensured equal funding but only up to an arbitrarily chosen maximum amount.  Above the maximum, voters in wealthy districts could raise as much money as they wanted for operations and building costs and the property poor districts would never catch up.

The law also included a cap on prospective tax increases that used 1971 as the base year making permanent the spending differences that existed before Serrano I was decided.  (A NH legislator recently proposed legislation with a similar target year approach.)

For the benefit of NH’s political leaders, here are the half a dozen concrete ways in which wealth-based disparities were certain to be avoided, according to the California Supreme Court:

       • The state could fully fund all schools with a statewide property tax;

       • California’s just over 1000 school districts could be consolidated into about 500;

       • School district boundaries could be maintained, but commercial and industrial properties could be removed from within school districts’ taxing authority and taxed by the state with revenues fairly distributed among all districts (NH already does this with utility properties);

       • “Power equalization” in which all state aid would be distributed in a fashion to favor poorer districts to allow those districts to raise equal revenues for equal tax effort without an arbitrary cap. The less property value per pupil, the more aid a district receives until aid is phased out when a district has average per pupil wealth;

       • Student vouchers could be issued by the state to allow students to transfer between public schools; or

       • More than one of the above could be used.

            Later in the opinion, the Court acknowledged that districts have different problems to address with differing costs.  A district may be geographically isolated.  It may have older buildings or more long-term teachers entitled to higher pay.  The Court concluded these were reasons to condemn the current system, not save it, because the school finance system deprived districts of an equal ability to address their needs.  In other words, the system undermined local control. Relying on local property wealth meant some districts could address their needs and others could not. 

On the issue of whether money made a difference, the California Supreme Court was clear: “The system before the court fails… [because] it gives high-wealth districts a substantial advantage in obtaining higher quality staff, program expansion and variety, beneficial teacher-pupil ratios and class sizes, modern equipment and materials, and high-quality buildings… differences in dollars do produce differences in pupil achievement.”

In what can only be considered a parting shot at Powell and the US Supreme Court, the California Court stated that its analysis of the California Constitution was not constrained by an “original intent” textual analysis and stated “we shall continue to apply strict and searching judicial scrutiny to legislative classifications which, because of their impact on those individual rights and liberties which lie at the core of our free and representative form of government … are properly considered ’fundamental.’”

The Serrano II decision gave the state six years to design and implement a constitutional system of public-school funding. In Serrano III, the California Supreme Court approved a fee award to the Serrano lawyers on the theory that they acted as private attorneys general when the state’s Attorney General failed to do so. 

Shortly after Serrano, California voters approved Proposition 13, which limited property taxation, capped the amount at which property assessments could increase year to year and established super-majority requirements to increase other state and local taxes.  Some commentators blame the Serrano decisions for the voter outrage that led to Prop 13.  William Fischel, an economist at Dartmouth College who was one of the experts in the NH Claremont litigation, supports this view but opinions like Fischel’s have been challenged by substantial research that found that voters generally supported the equalization of school funding. Commentators also contend that Prop 13 was a response to the ever-increasing overall property tax burden placed on homeowners with fixed incomes and this was unrelated to promoting equitable learning opportunities.

According to a Concord Monitor/Valley News poll taken in July 1998, NH voters supported the Claremont II decision by a 2-1 margin much like California voters supported Serrano. Between April and July 1998, support for an income tax in NH grew from 30% to 41% and support for a statewide property tax increased almost as much, from 24% to 39%. Voters clearly opposed a constitutional amendment that would have been necessary to adopt the ABC plan supported by Governor Shaheen and Speaker Donna Sytek by 54% to 34%.

Former NH Dem Party chair Ned Helms said in response to the poll results, “at the end of the day, people want a solution…At the same time, there’s extraordinary reluctance to embrace any one option at this point.”

Just think of how our state’s history would have been different if Governor Shaheen and Speaker Sytek showed leadership in promoting a constitutional solution rather than working so hard to undermine the Hager-Below 4% income tax in favor of ABC. The loyalty of Shaheen, Sytek and others to Loeb’s tax pledge over the Claremont decisions and the burgeoning will of voters has left NH with a legacy of 30 years of discontent.

ConVal and Rand

The ConVal and Rand appeals are pending and the Court stayed Judge Ruoff’s orders in both cases. As a result, the state is not immediately required to boost base adequacy from a paltry $4100/pupil to a minimal $7356.01/pupil and the 26 wealthy Coalition Communities may continue to spend our state adequacy tax dollars on their road and bridge repair projects. These rulings were expected.

Three justices ruled on the stay motion in the Rand case because we moved to recuse Chief Justice MacDonald and Associate Justice Donovan. Those motions remain pending. We moved to recuse both justices because they have significant, well-known and public experience representing the state against our positions in these cases and because Justice MacDonald and I were on opposite sides of the “circus atmosphere” Governor Sununu created when Justice MacDonald’s initial nomination to the Supreme Court was rejected in 2019.

The standard for recusal is whether an objective person may reasonably question the impartiality of a justice or judge. The individual justice who is the subject of the motion decides what a “reasonable person” might think. Yes, the person least likely to be impartial decides what a reasonable person might think about his impartiality.

The state filed lengthy objections to our recusal motions. They are fighting hard to keep Justices MacDonald and Donovan on the case.

I wonder why?

As my colleague, Natalie Laflamme, put it, “If you take eight pages to argue there’s nothing there…there’s something there.”

There is no specific timeline for recusal rulings. When we moved to recuse Justice Stephen Thayer from Claremont II because his wife was the state board chair and one of the named defendants, Thayer sat on the motion for nine months before stepping down. We’ll see if Justices MacDonald and Donavan do any better. Hopefully, all the justices are talking and offering their considered opinions of how to best preserve the integrity of the Court.

Flynn Historical Marker Case

We asked Judge Kissinger to reconsider his dismissal of the Elizabeth Gurley Flynn historical marker case that he dismissed for lack of standing. We honed in on the fact that the existing statutes only give the Department of Natural and Cultural Resources (DNCR) the authority to approve and install markers. The standards for removal are not in law, they exist only in the internal DNCR regulations that we challenged as illegal. No one other than Mary Lee Sargent and Arnie Alpert were declared “sponsors” by DNCR of a historical marker that was installed and removed. If they don’t have standing to challenge the conduct of officials who acted based on authority granted by unquestionably invalid regulations, then the conduct and the basis for removal of historical markers can never be challenged. Also, RSA 541-A: 24, the statute that provides for challenges to illegal regulations is severely undermined.

The Flynn marker was removed because Flynn was a Communist, but the ruling means future markers can be removed because the subject of a marker is a Republican or a Democrat, Black or Brown, a labor activist, pacifist, suffragette, or any other reason a Governor and Council might find objectionable.

We’ll wait and see what Judge Kissinger rules and either the case will head to trial or to an appeal before the NH Supreme Court.

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