kadrmas v. dickinson public schools: a further retreat from equality of educational opportunity

Kadrmas v. Dickinson Public Schools: A Further Retreat from Equality of EducationalOpportunityAuthor(s): R. Craig WoodSource: Journal of Education Finance, Vol. 15, No. 3 (Winter 1990), pp. 429-436Published by: University of Illinois PressStable URL: http://www.jstor.org/stable/40703729 .

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JOURNAL OF EDUCATION FINANCE 15(winter, 1990), 429-436

LEGISLATION

Kadrmas v. Dickinson Public Schools: A Further Retreat from Equality of

Educational Opportunity R. Craig Wood

American public education is based on the concept of the

public supporting education through a variety of taxes for the benefit of the whole of society. Just how fiscal support is operationalized in terms of what is the responsibility of parents, as opposed to the public, has long been an area of litigation. Book rental fees, extra curricular fees, lab fees, and the like have a long and litigious history.1

The most significant issue of the last several years regarding user fees and the financial obligations of parents in educating their children was addressed in 1988 by the United States Su- preme Court in Kadrmas v. Dickinson Public Schools.2 Within this setting, significant constitutional issues and public policy issues were raised, along with an examination of certain fundamental principles concerning equality of educational opportunity. Within the context of addressing who must pay for transporting children to school, the Court reaffirmed the concept that public education is not a fundamental right.

In Kadrmas, suit was brought challenging the constitutionality of a North Dakota statute allowing certain public school districts to charge user fees for transporting students. Similar to other states, North Dakota for many years encouraged the consolida- tion of school districts.3 The Dickinson school district, a relatively

R. Craig Wood is Professor and Chairman, Department of Educational Leadership, and Co-Di- rector UCEA Center of Education Finance, College of Education, University of Florida, Gainesville, Florida.

1. See, e.g., Thomas J. Pepe and Alice L. Tufts, "Pay for Play: Fees for Extra-Curricu- lar Activities," West's Education Law Reporter 16 (1984): 1013-1026; William D. Valente, "Legal Limitations on Public School Fees," West's Education Law Reporter 29 (1986): 483- 489; J. A. Lang, "Student Fees in Public Schools: New Statutory Authority," Washburn LJ. 16 (1987): 439-461.

2. 108 S. Ct. 2481 (1988). 3. See, Herman v. Medicine Lodge School Dist. No. 8, 71 N.W.2d 323 (N.D. 1955); JS.U.

Cent. Code, ch. 15-27.3 (Supp. 1987).

[429]



430 Journal of Education Finance [Vol. 15

populated school district, chose not to reorganize. Pursuant to state statutes, and after a required local referendum, the local school board instituted door- to-door bus service based upon a user fee. During the period in question, approximately 13 percent of the students utilized the service. "Parents were charged $97.00 per year for one child or $150.00 per year for two children." Testimony revealed that approximately 1 1 percent of the transportation costs were borne by parents under this arrangement. The remaining cost was supported by local and state funds.4

The specific issue of controversy was a result of a 1979 statute authorizing such fees for nonreorganized school districts. Non- reorganized school districts were permitted to charge user fees not to exceed the school district's estimated actual expenditures.5

The plaintiffs refused to pay the busing fee. The Kadrmas family, at the time of the original suit, "were at or near the offi- cially defined poverty level."6 The family, apparently, had strug- gled for several years as reflected in a history of partial transportation payments to the school district.

The original suit was an action in state court seeking to enjoin the Dickinson Public Schools from collecting the transportation fees. The action was dismissed on the merits and an appeal was taken to the North Dakota Supreme Court. The North Dakota Supreme Court upheld the dismissal. The court ruled that the 1979 law did not violate the state statutes or the Equal Protection Clause of the Fourteenth Amendment.7

Plaintiffs appealed to the United States Supreme Court. On a five to four vote, the majority upheld the charging of fees for offering public school transportation. Justice O'Connor delivered the majority opinion, joined by Justices Rehnquist, White, Scalia, and Kennedy. The majority opinion specifically ruled that the statute in question was not subject to a strict scrutiny examination.

4. Kadrmas, 108 S. Ct. at 2485. 5. N.D. Cent. Code, sec. 15-34.2-06.1 (1981 and Supp. 1987) states: Charge for bus

transportation optional. The school board of any school district which has not been reorganized may charge a fee for schoolbus service provided to anyone riding on buses provided by the school district. For schoolbus service which was started prior to July 1, 1981, the total fees collected may not exceed an amount equal to the difference between the state transportation payment and the state average cost for transportation or the local school district's cost, whichever is the lesser amount. For schoolbus service started on or after July 1, 1981, the total fees collected may not exceed an amount equal to the difference between the state transportation payment and the local school district's cost for transportation during the preceding school year. Any districts that have not previously provided transportation for pupils may establish charges based on costs estimated by the school board during the first year that transportation is provided.

6. Id. 7. 402 N.W.2d 897 (N.D. 1987).



1990] Legislation 431

The Court further ruled that the state did not deny equal protection and that there was a rational basis for the statute in question. Because education has been judged not to be a fundamental right, the test of strict scrutiny was inappropriate. Thus, the appropriate test was one of a rational relationship.

Specifically addressing the transportation issue, the Court noted that the Constitution does not require the offering of such service. Thus, if a state were to offer transportation services, it is under no obligation to do so for free.8 The statute was viewed to be rational in its relationship to the legitimate governmental ob-

jective of allocating scarce fiscal resources. Further, a legitimate objective of encouraging reorganization was met "by alleviating parental concerns regarding the cost of student transportation in" reorganized school districts.9 Thus, the question of unequal protection was severely diminished. The Supreme Court noted that the North Dakota Supreme Court considered the appellants' claim that the transportation fee violated the equal protection clause. The Supreme Court embraced the logic of the lower court

by viewing this as "purely economic legislation" that "must be

upheld unless it is patently arbitrary and fails to bear a rational

ity viewed the charging scheme to be rationally related to a legitimate governmental purpose, thus, the question of equal protection did not present itself. The Court had previously rejected the

concept that statutes having differing effects on the wealthy and the poor "should on that account alone be subjected to strict equal protection scrutiny."11

The fact that North Dakota treated reorganized and unreor-

ganized school districts differently in allowing some local school boards to impose transportation fees did not, within itself, establish an arbitrary or an irrational basis. The plaintiff has the burden to establish such a claim.12 The Court noted that the "treat- ment of different groups or persons" had to be "so unrelated to the achievement of any combination of legitimate purposes" so as

8. North Dakota legislation provides for a fee waiver, i.e., N.D. Cent. Code 15-43-1 1 .2

(1981) states: A board may waive any fee if any pupil or his parent or guardian shall be unable to pay such fees. No pupil's rights or privileges, including the receipt of grades or

diplomas, may be denied or abridged for nonpayment of fees. 9. Kadrmas, 108 5. Ct. at 248b. 10. Id. at 2485 citing 402 N.W.2d at 902. 11. 108 S. Ct. at 2487, citing Harris v. McRae, 448 U.S. zyv, 1UU à. ct. 20/ 1, iiwuj;

Ortwein v. Schwab, 410 U.S. 656, 93 S. Ct. 1172 (1973); Papasan v. Allain, 478 U.S. 265, 106 S. Ct. 2932, (1986); Plyler v. Doe, Abi U.S. at 223; 102 S. Ct. at 2397-98; San Antonio v. Rodriguez, 411 U.S. at 6, 93 S. Ct., at 1287-88, 1296-1297.

12. See, Hodel v. Indiana, 452 U.S. 313, 332, 101 S. Ct. Tòlto, *3ö/f oy L.ta.¿a <±u

(1981).




to conclude them to be irrational.13 In Kadrmas, it was argued that such an instance should be examined in relation to Plyler v. Doe14 and thus be subjected to the "heightened scrutiny" standards.15 The heightened scrutiny standard is less demanding than strict scrutiny, but more demanding than the rational relation test. However, strict scrutiny has only been applied in cases involving discriminatory classifications.16 Unless a statute provokes strict scrutiny, as it interferes with a fundamental right or discriminates against a suspect classification, it is ordinarily construed to meet the equal protection claim.17 Although state courts18 have held wealth to be a suspect classification, the United States Supreme Court has not.19 Specifically addressing the differences between this case and Plyler, the majority opinion stated:

In Plyler, . . . Texas had denied to the children of illegal aliens the free public education that it made available to other residents. Applying a heightened level of equal protection scrutiny, the Court concluded that the State had failed to show that its classification advance a substantial state interest. We have not extended this holding beyond the "unique circumstances," that provoked its "unique confluence of theories and rationales." Nor do we think that the case before us today is governed by the holding in Plyler. Unlike the children in that case, Sarita Kadrmas has not been penalized by the government for illegal con- duct by the parents. On the contrary, Sarita was denied access to the school bus only because her parents would not agree to pay the same user fee charge to all other families that took advantage of the service. Nor do we see any reason to suppose that this user fee will promote the

13. Kadrmas, 108 S. Ct. at 2489, citing Vance v. Bradley, 440 U.S. 93, 97, 99 S. Ct. 939, 943, 59 L.Ed.2d 171 (1979).

14. 457 U.S. 202, 102 S. Ct. 2382. 15. Kadrmas, 108 S. Ct. at 2487. 16. See, e.g., Clark v. Jeter, U.S. , , 108 S. Ct. 1910, L.Ed.2d (1988);

Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723-724, and n. 9, 102 S. Ct. 3331, 3336, and n. 9, 73 L.Ed.2d 1090 (1982); Mills v. Habluetzel, 456 U.S. 91, 101, and n. 8, 102 S. Ct. 1549, 1555-56, and n. 8, 71 L.Ed.2d 770 (1982); Craig v. Baren, 429 U.S. 190, 197, 97 S. Ct. 451, 456-57, 50 L.Ed.2d 397 (1976).

17. Kadrmas, 108 S. Ct. at 2487 citing San Antonio, 411 U.S. 1, 16-17, 93 S. Ct. 1278, 1287-1288, 36 L.Ed.2d 16 (1973); Plyler v. Doe, 457 U.S. 202, 216-217, 102 S. Ct. 2382, 2394-2395, 72 L.Ed.2d 786 (1982); Lyng v. Automobile Workers, 485 U.S. , , 108 S. Ct. 1184, , 99 L.Ed.2d 380 (1988).

18. Serrano v. Priest, 5 Cal. 3d 584, 487 P.2d 1241, 96 Cal. Rptr. 601 (1971). 19. See, San Antonio, 411 U.S. ',2''Jamesv. Valtierra, 402 U.S. 137 (1971) (low income

housing); Harris v. McRae, 448 U.S. 297, 322-323, 100 S. Ct. 2671, 2690-2691, 65 L.Ed.2d 784 (1980); and Ortwein v. Schwab, 410 U.S. 656, 660, 93 S. Ct. 1 172, 1 174-75, 35 L.Ed.2d. 572 (1973).




creation and perpetuation of a sub-class of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime, (citations omitted)20

Further, the Court noted:

The Constitution does not require that such service be provided at all, and it is difficult to imagne why choosing to offer the service should entail a constitutional obligation to offer it for free. No one denies that encouraging local school districts to provide school bus service is a legitimate state purpose or that such encouragement would be un- dermined by à rule requiring that general revenues be used to subsidize an optional service that will benefit a minority of the district's families. It is manifestly rational for the State to refrain from undermining its legitimate objective with such a rule.21

Moreover, the Court noted the Fourteenth Amendment does not

prohibit legislation "merely because it is special, or limited in its

applicability to a particular geographical or political subdivision of the state."22 In summary, the majority opinion observed "the statute challenged in this case discriminates against no suspect class and interferes with no fundamental right. Appellants have failed to carry the heavy burden of demonstrating that the statute is arbitrary and irrational."23

In the minority opinion, Justice Marshall, joined by Justice Brennan, dissented on a wide number of issues. The minority opinion pointed out that the effect of such a ruling would be to discriminate against the poor. Justices Marshall and Brennan indicated that the facts of the controversy were rather clear and

simple. In Kadrmas, the child was from an indigent family. She lived sixteen miles from the nearest school. As a result of state and local policy, the indigent family was, in reality, being denied not merely transportation to school, but public education.

The minority opinion further noted that the Court seemed to

ignore that the Constitution is designed to protect residents from

20. Kadrmas, 108 S. Ct. at 2487-88. 21. Id. at 2489. 22. Id. at 2489 citing Fort Smith Light Co. v. Paving Dist., 274, U.S. 387, 47 S. Ct. 595

(1927). See also, McGowan v. Maryland, 366 U.S. 420, 425, 81 S. Ct. 1101,1 105, 6 L.Ed.2d 393, (1961); Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556, 67 S. Ct. 910, 912, 91 L.Ed. 1093, (1947); HoU Civic Club v. Tuscaloosa, 439 U.S. 60, 71, 99 S. Ct. 383, 390, 58 L.Ed.2d 292 (1978); Hodel, 452 U.S. 314, 331-332, 101 S. Ct. 2376, 2387, 69 L.Ed.2d 40 (1981).

23. Kadrmas, 108 S. Ct. at 2491.




"sophisticated as well as simple- minded modes of discrimination."24

It must be considered a basic truth that children living far from school can only receive the benefits of an education if they were to have access to transportation. As the minority opinion specifically stated, for "children in Sarita's position, imposing a fee for transportation is no different in practical effect from imposing a fee directly for education."25 Such a situation may be nondiscriminatory on its face, but grossly discriminatory in its operation.26

The minority opinion was of the view that the North Dakota statute discriminated on the basis of economic status. Although such a classification is not automatically suspect, it retains special Constitutional significance. Justice Marshall pointed out that the Court had repeatedly invalidated statutes that discriminated against the poor.27

Historically, the Court has been receptive to examining actions by states that hindered the poor from the political and judicial process. Public policies that hinder or "burdened the access" of the disadvantaged to governmental institutions that potentially offer the disadvantaged the opportunity to improve their status and better their lives constitutes discrimination. When a state policy has the tendency to "entrap the poor and create a permanent underclass, the intent is frustrated." The statute in question bur- dens the poor in their interest in achieving a public education.28 From Brown v. Board of Education 29 to Plyler v. Doe30 the court consistently has ruled that public education is the most important function of state and local government. As Justice Marshall wrote:

A statute that erects special obstacles to education in the path of the poor naturally tends to consign such persons to their current disadvantaged status. By denying equal opportunity to exactly those who need it most, the law not

24. Id. at 2491 citing Lane v. Wilson, 307 U.S. 268, 275, 59 S. Ct. 872, 876, L.Ed. 1281 (1939).

25. Kadrmas, 108 S. Ct at 2492. 26. See Griffin v. Illinois, 351 U.S. 12, 17, n. 11, 76 S. Ct. 585, 590, n. 11, 100 L.Ed.

891 (1956). 27. See e.g., Maker v. Roe, 432 U.S. 464, 470-47 1 , 97 S. Ct. 2376, 2980-8 1 , 53 L.Ed.2d

484 (1977); McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 807, 89 S.C. 1404, 1407, 22 L.Ed.2d 739 (1969); Harper v. Virginia Board of Elections, 383 U.S. 663, 668, 86 S. Ct. 1079, 1082, 16 L.Ed.2d 169 (1966); Little v. Streater, 452 U.S. 1, 101 S. Ct. 2202, 68 L.Ed.2d 627 (1981).

28. Kadrmas, 108 S. Ct. at 2493. 29. 347 U.S. 483, 74 S. Ct. 686. 30. 457 U.S. 202, 102 S. Ct. 2382.




only militates against the ability of each poor child to advance herself, but also increases the likelihood of the creation of a discrete and permanent underclass. Such a statute is difficult to reconcile with the framework of equality embodied in the Equal Protection Clause.31

In summary, Justice Marshall wrote:

For the poor, education is often the only route by which to become full participants in our society. In allowing a State to burden the access of poor persons to an education the Court denies equal opportunity and discourages hope. I do not believe the Equal Protection Clause countenances such a result.32

Justices Stevens and Blackmun joined in a separate dussent, which noted that the state may make different rules that affect different segments of society provided that the state has an iden- tified rational basis. Rational is defined as an impartial law that serves a legitimate public purpose that transcends the harm to the members of the disadvantaged class.33

In this situation, the state argued that the rational basis was met by its need to encourage the reorganization of school districts. However, the dissenting opinion indicated that after the voters have had an opportunity to decide on whether to reorganize, "there is no longer any justification ... for allowing the nonreor-

ganized districts to place an obstacle in the paths of poor children

seeking an education in some parts of the State that has been removed in other parts of the State."34 Thus, in the view of Justice Stevens and Blackmunm, the state's explanation does not include the "elements of legitimacy and neutrality that must always characterize the performance of the sovereign's duty to govern impartially."35

Based solely upon local fiscal considerations, local boards of education may view Kadrmas as an avenue to raise additional local revenues. Local policy makers are charged with the responsibility of providing educational services within generally limited fiscal constraints. Thus, Kadrmas may bring renewed interest in local user fees. Based upon the logic of Kadrmas, with enabling

31. Kadrmas, 108 S. Ct. at 2493. 32. /¿.at 2494. 33. Id. at 2492 citing Cleburne v. Clebume Living Center, Inc., 4/á U.a. *ó¿, lUD a. ̂ i.

3249, 87 L.Ed.2d 313. 34. Kadrmas, 108 S. Ct. at 2495. 35. Cleburne, 473 U.S. at 452, 105 S. Ct. at 32bl.




state legislation, local policy makers could conceivably increase revenues through user fees for local educational services. Whereas such legislation must clearly have a legitimate state purpose and not infringe on any suspect class, attempts at similar legislation to that of North Dakota's conceivably will be imposed by financially strapped local school districts. However, it is important to note that where a state supreme court has ruled that when educational activities are extended to all students, then such fees would not be allowed.36

On the other hand, on both national and state levels, Kadrmas raises many troubling questions. Nowhere else is the conflict between sound local fiscal and educational policy more in conflict with wide-ranging fiscal and educational issues. Local boards of education are charged with the responsibility of providing for the best educational programs possible in a cost efficient manner. Nevertheless, this individual board of education agenda appears to be in conflict with larger policy issues of providing basic free public education for the nation as a whole.

While such actions may be facially neutral, they are in reality being distributed based upon economic circumstances independ- ent of individual merit or potential societal benefit. As Justice Marshall noted, public education is one of, if not the only, avenue available to the poor to assume their place within the abundance of our society. However, to place additional handicaps, facially neutral or minusclue, is in reality, simply adding an additional hurdle that over time will not serve our society well in terms of social or economic agenda. Thus, the educational opportunity of the very poor has been diminished by this United States Supreme Court ruling.

36. See, Salazar v. Honig, 246 Cal. Rptr. 837.



kadrmas v. dickinson public schools: a further retreat from equality of educational opportunity

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