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Court of Appeal, Second District, Division 4, California.

John SERRANO, Jr., etc., et al., Plaintiffs and Appellants, v. Ivy Baker PRIEST, etc., et al., Defendants and Respondents.

Civ. 35017.

Decided: September 01, 1970

David A. Binder, Los Angeles, Michael H. Shapiro, William T. Rintala, Los Angeles, Harold W. Horowitz and Sidney M. Wolinsky, San Francisco, for plaintiffs and appellants. Thomas C. Lynch, Atty. Gen., Sanford N. Gruskin, Deputy Atty. Gen., John D. Maharg, County Counsel, James W. Briggs, Asst. County Counsel, and Elaine M. Grillo, Deputy County Counsel, Donovan M. Main, Deputy County Counsel for defendants and respondents.

A number of elementary and high school pupils attending public schools in Los Angeles County commenced a class action ‘to secure equality of educational opportunity.’ The class purportedly represented consists of all children attending public schools in California except chilcren in that unnamed, inknown school district which ‘affords the greatest educational opportunity.’ In a second cause of action, several parents pursue a class action, as taxpayers, seeking the same relief. The defendants are state and county officers responsible for collection and disbursement of state funds and county taxes for the support of public schools.1

Plaintiffs alleged that the system of financing public schools in California violates the equal protection clause of the Fourteenth Amendment to the federal Constitution and similar provisions of the California Constitution,2 contending there are wide variations among school districts in the amount of money spent per pupil, resulting in inferior educational opportunities for the children in certain districts. Plaintiffs sought the following relief: (1) a declaration that the system of financing public schools violates the equal protection clause of the Fourteenth Amendment and the ‘fundamental law and Constitution of California’; (2) an order directing defendants to reallocate school funds and otherwise to restructure the financing system in such a manner as not to violate the feneral and state Constitutions; and (3) an adjudication that the court retain jurisdiction in the action in order to restructure the system should defendants and the Legislature fail to do so within a feasonable time.

Both the state and the county defendants filed general demurrers, which were sustained (by Judge Richard L. Wells). Following plaintiffs' failrue to amend within the time allowed, defendants moved for dismissal. The motion was granted (by Judge Robert W. Kenny) and the action dismissed as to all named defendants, pursuant to Code Civ.Civ.Proc. § 581, subd. 3.3 Plaintiffs appeal from the judgment of dismissal,4 contending that the complaint states a cause of action under the equal protection clause of the Fourteenth Amendment and under state Constitution Art. IX, § 5, the latter requiring the Legislature to provide for a system of free common schools.

Since the complaint challenges the validity of the entire statutory system of financing public schools, we must consider the operation of that system before we turn to a discussion of plaintiffs' contentions.

Article IX, sections 5 and 6, of the state Constitution provides for the creation and financing of a system of free public schools. Pursuant thereto, the Legislature has established ‘the foundation program,’ which may be defined as the minimum amount of money necessary for the support of public schools. (Ed.Code § 17300.) The State Superintendent of Public Instruction computes a foundation program for each school district, whether elementary, high school or junior college. (Ed.Code § 17651.) The amount computed depends upon such variable factors as the type of district, the number of pupils in average daily attendance, and the number of teachers employed full time. (Ed.Code § 17654.5 et seq.) The state (from the State School Fund) and the school districts (from the local school tax revenues) contribute toward the foundation program. (Ed.Code § 17300.)

The contribution of the school districts is known as ‘district aid’. This is the amount which a tax, levied on each $100 of 100 percent of the assessed valuation in a district, would produce if the tax were $1 for an elementary school district, 80¢ for a high school district, and 25¢ for a junior college district. (Ed.Code § 17702.)5

The state's contribution toward the foundation program takes two forms: (1) ‘Basic state aid.’ This is required by Cal. Const. Art. IX, § 6, and consists of a grant to each district in the amount of $125 per unit of average daily attendance for each fiscal year, with a minimum of $2,400 per district (Ed.Code §§ 17751, 17801 and 17851). (2) ‘State equalization aid.’ To each district in which the combined amount of district aid and basic state aid is less than the foundation program for that district, equalization aid is granted in an amount necessary to make up the difference. (Ed.Code § 17901 et seq.)6 Thus, each school district receives the full amount of its foundation program if it levies taxes at a rate sufficient to enable it to contribute district aid toward that program.7

Pursuant to the mandate of Cal.Const. Art. IX, § 6, the Legislarure has authorized the governing body of each county to levy and collect such school district taxes (not in excess of prescribed maximum rates) as are necessary to produce in each fiscal year the amounts of money requested by the school districts and approvbed by the county superintendent of schools. (Ed.Code §§ 20601–20603; § 20701 et seq.) The budget submitted by a school district may exceed the amount of the foundation program computed for that district. There are wide variations among the school districts in tax rates per $100 of assessed valuation, and in assessed property valuatins. School tax revenues are retained by the taxing authority and expended at the local level. (Ed.Code §§ 20856, 20857, 20921 and 20951 et seq.)

Because of all of these factors, there is a considerable variation in the amount of money spent per pupil from one school district to another despite state contributions of basic aid, equalization aid and suuplemental aid.

I. Does The Complaint State A Cause Of Action Under The Equal Protection Clause Of The Fourteenth Amendment?

Plaintiffs alleged that the system of financing public schools in California violates the equal protection clause because the amount of money spent per pupil varies from one district to another according to the wealth of a pupil's parents and the district in which he resides, not according to his educational needs. In short, they alleged that under the equal protection clause the amount of money per pupil may vary only on the basis of the respective educational needs of pupils.

In McInnis v. Shapiro, 293 F.Supp. 327 (3-judge court, N.D.Ill., 1968),8 summarily affirmed sub nom. McInnis v. Ogilvie, 394 U.S. 322, 89 S.Ct. 1197, 22 L.Ed.2d 308 (1969). ‘The motion to affirm is granted and the judgment is affirmed.’, it was held that similar allegations did not state a cause of action under the Fourteenth Amendment. Under attack in that case was the Illinois system of financing public schools, which is essentially identical to the California system. Plaintiffs, public school pupils, sought a declaration that the system violated the equal protection clause because it permitted wide variations in expenditures per pupil from destrict to district, thereby providing some students with a good education and depriving others having equal or greater educational needs. A three-judge district court dismissed the suit for failure to state a cause of action on the ground, inter alia, that the Fourteenth Amendment does not require that public school expenditures be made only on the basis of pupils' educational needs.

The court determined in McInnes that the school financing legislation did not violate the equal protection clause, because variations in the amount of money spent per pupil are reasonably reated to the legislative policy of delegating authority to school districts, including the right to determine their own tax burden according to the importance which they place upon public schools.9 In this regard, the court observed (293 F.Supp. page 333): ‘The state legislature's decision to allow local choice and experimentation is reasonable, especially since the common school fund assures a minimum of $400 per student. Plaintiffs stress the inequality inherent in having school funds partially determined by a pupil's place of residence, but this is an inevitable consequence of decentralization. The students also object to having revenues related to property values, apparently without realizing that the equalization grant effectively tempers variations in assessed value by using a hypothetical calculation. Furthermore, the flat grants and state and federal categorical aid reduce the school's dependence on local taxes. While alternative methods of distributing school monies might be superior to existing legislation, ‘To be able to find fault with a law is not to demenstrate its invalidity. It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require rough accommodations—illogical, it may be, and unscientific. * * * Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void under the Fourteenth Amendment.’'

The court concluded by stating (page 336): ‘Unequal educational expenditures per student, based upon the variable property values and tax rates of local school districts, do not amount to an invidious discrimination. Moreover, the statutes which permit these unequal expenditures on a district to district basis asre neither arbitrary nor unreasonable. [13] There is no Constitutional repuirement that public school expenditures be made only on the basis of pupils' educational needs without regard to the financial strength of local school districts. Nor does the Constitution establish the rigid guideline of equal dollar expenditures for each student.’

Plaintiffs argue that McInnis is not persuasive because the court erroneously used the ‘reasonable relationship’ test in determining that the system of school financing did not violate the equal protection clause. They contend that we must employ the more stringent ‘close scrutiny’ test, because of fundamental right is in issue, viz., the right to an education. In support of this contention plaintiffs cite decisions of the United States Supreme Court which hold that regardless of the objectives sought to be accomplished, a state may not asbrige such constitutionally guaranteed rights as interstate traval10 and voting.11 The retionale of such decisions is inapplicable here.

Plaintiffs next contend that McInnis is not controlling because it did not consider the question whether the school financing system is constitutionally invalid in that it effects distribution of school funds in proportion to the wealth of school district residents. This contention is without merit. McInnis holds that ‘[u]nequal educational expenditures per student, based upon the variable property values and tax rates of local school districts, do not amount to an invidious discrimination.’ Clearly, the comparative wealth of school district residents enters into the financing system only insofar as it is reflected in property values and tax rates. Neither is a reliable index.12

Plaintiffs further contend that McInnis is not binding upon us because the summary affirmance by the United States Supreme Court is not a decision on the merits. We are bound by decisions of the Supreme Court on questions depending upon the construction of the United States Constitution (Moon v. Martin, 185 Cal. 361, 366, 197 P. 77 [1921]), and a summary affirmance by the Supreme Court is a decision on the merits which has precedential value (Stern and Gressman Supreme Court Practice [4th ed., 1969], §§ 4.28 and 5.16, pp. 197, 230–231). Even if we are not bound by the McInnis holding, it is certainly of persuasive character and entitled to great weight. People v. Bradley, 1 Cal.3d 80, 86, 81 Cal.Rptr. 457, 460 P.2d 129 (1969); People v. Willard, 238 Cal.App.2d 292, 305, 47 Cal.Rptr. 734 (1965). And irrespective of its effect, as legally binding or not, its reasoning and logic are unquestioned. The case was followed in Burrus v. Wilkerson, 310 F.Supp. 572 (3-judge court, W.D.Va., 1969), affirmed 397 U.S. 44, 90 S.Ct. 812, 25 L.Ed.2d 37 (1970), wherein a similar attack was made on the school system of Virginia.

II. Does The Complaint State A Cause Of Action Under Article IX, Section 5, Of The California Constitution?

California Constitution Article IX, § 5, provides: ‘The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.'13

Plaintiffs contend that, whereas this provision requires one school system throughout the state, the public school financing method produces ‘separate and distinct school systems, each providing an educational program whose quality depends upon the relative wealth of the residents of the district.’

The word ‘system’ implies a unity of purpose and an entirety of operation, and ‘the direction to the legislature to provide ‘a’ system of common schools means one system which shall be applicable to all the common schools within the state.' Kennedy v. Miller, 97 Cal. 429, 432, 32 P. 558, 559 (1893).

However, the constitution does not require that the school system be uniform as to quality of education or money spent per pupil. Rather, the system must be uniform in terms of courses of study offered and educational progression: ‘Both the Constitution and statutes of the state provide for a uniform system and course of study as adopted and provided by the authority of the state. Under this uniform system pupils advance progressively from one grade to another and, upon the record made, are admitted from one school into another pursuant to a auiform system of educational progression. * * * Each grade forms a working unit in a uniform, comprehensive plan of education. Each grade is preparatory to a higher grade, and, indeed, affords an entrance into schools of technology, agriculture, normal schools, and the University of California.’ Piper v. Big Pine School Dist., 193 Cal. 664, 669, 673, 226 P. 926, 928, 930 (1924).

The allegations of a complaint must be regarded as true as against a demurrer, and the judgment of dismissal must be reversed if the complaint, on any theory, states grounds for relief, either legal or equitable. Loope v. Greyhound Lines, Inc., 114 Cal.App.2d 611, 615, 250 P.2d 651 (1952); Roberts v. Wachter, 104 Cal.App.2d 281, 287–288, 231 P.2d 540 (1951); Kauffman v. Bobo & Wood, 99 Cal.App.2d 322, 324, 221 P.2d 750 (1950). However, even when the allegations here are given their fullest force they do not state a cause of action under either the equal protection clause of the Fourteenth Amendment or Cal.Const. Art. IX, § 5.

The judgment (order of dismissal) is affirmed.


1.  Defendants are: The State Treasurer; the State Superintendent of Public Instruction; the State Controller; the tax collector and treasurer of Los Angeles County; the superintendent of schools of Los Angeles County; and some ‘Does'.

2.  Cal.Const. Art. I, § 11 and § 21.

3.  Code Civ.Proc. § 581: ‘An action may be dismissed in the following cases: * * * 3. By the court * * * when, after a demurrer to the complaint has been sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court, and either party moves for such dismissal.’

4.  There is no document designated ‘judgment of dismissal.’ However, the order of dismissal, signed by the court and filed in the action, constitutes an appealable judgment. Code Civ.Proc. §§ 581d and 904.1; Adohr Milk Farms, Inc. v. Love, 255 Cal.App.2d 366, 369, 63 Cal.Rptr. 123 (1967).

5.  The rates used to determine district aid are less than the maximum school tax rates set forth in Ed.Code § 20751.

6.  In addition to basic state aid and equalization aid, the state grants ‘supplemental aid’ as follows: A maximum of $125 per pupil in average daily attendance to each elementary district with $12,500 or less in assessed valuation per unit of average daily attendance; and a maximum of $72 per pupil in average daily attendance to each high school district with $24,000 or less in assessed valuation per unit of average daily attendance. (Ed.Code § 17920 et seq.)

7.  Plaintiffs do not allege that there is any school district which levies taxes at rates below those necessary to qualify for equalization aid.

8.  In its minute order sustaining the general demurrers in our case, the court cited the McInnis case.

9.  A like policy is expressed by the California Legislature in Ed.Code § 17300: ‘* * * The system of public school support should be designed to strengthen and encourage local responsibility for control of public education. * * * Effective local control requires that all local administrative units contribute to the support of school budgets in proportion to their respective abilities, and that all have such flexibility in their taxing programs as will readily permit of progress in the improvement of the educational program. Effective local control requires a local taxing power, and a local tax base which is not unduly restricted or overburdened.’Thus, if one district raises a lesser amount per pupil than another district, this may reflect an individual wish for lower taxes rather than an expanded educational program, or indicate a greater interest in other services supported by local property taxes, such as hospital care or police or fire protection.

10.  Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

11.  Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965).

12.  Thus, using 1967–1968 statistics (Annual Report of Financial Transactions Concerning School Districts of California, pp. 10–11, State Controller) for some districts mentioned by plaintiffs, the tax bases per pupil in average daily attendance were: (1) Gorman Sch. Dist.—$158,619, (2) Willowbrook Sch. Dist.—$3,051, (3) Compton City Sch. Dist.—$7,777 and (4) Hudson Sch. Dist.—$5,820. However, the total assessed valuation of these districts was: (1) Gorman—$5,710,280, (2) Willowbrook—$10,810,890, (3) Compton—$138,651,500 and (4) Hudson—$119,414,610 and the total number of pupils in average daily attendance was: (1) Gorman—36, (2) Willowbrook—3,543, (3) Compton—17,825 and (4) Hudson—20,519.

13.  Plaintiffs did not allege specifically that the system of financing public schools violates Cal.Const. Art. IX, § 5. However, they did allege that such system ‘fails to meet minimum requirements of * * * the fundamental law and Constitution of the State of California.’

DUNN, Associate Justice.

FILES, P. J., and JEFFERSON, J., concur.

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