'Serrano’ shock waves expected coast to coast
formula also failed to take into account
the “municipal overburden" faced by
urban areas, which have large welfare
expenses and other unusually high costs.
The decision, expected this year, will
be especially difficult because the issue in
New York state’s severe budget crisis is
not how to redistribute adequate school
funding, but how to equalize in the midst
of sharp cutbacks.
Equal protection is not the only legal
strategy pursued by school tax reform
ers. Richard Kohn of SFRP is currently
working on a West Virginia suit filed
under what is called a “thorough-and-
efficient" clause in the state constitution.
This legal theory comes from a 1976
New Jersey decision, Robinson v. Cahill,
in which the state Supreme Court shun
ned the equal protection approach, but
relied on other language in the state
constitution requiring “a thorough and
efficient" system of schools.
Most state constitutions have similar
language instructing legislators to pro
vide schooling for children, and legislat
ors have simply delegated this respons
ibility to local school districts. The New
Jersey Court decided that if impoverish
ed local districts couldn't do a good job
because of a meager tax base, the
responsibility fell back on the state.
This line of reasoning has potentially
far reaching implications. The Robinson
court emphasized that “thorough and
efficient" education should prepare a
student “for his role as a citizen and a
competitor in the labor market."
In other words, the student is entitled
to a relevant education as well as an equal
one. Suits based on this interpretation,
where successful, could enforce account
ability to the courts on quality of educa
tion as well as equality.
SAN FRANCISCO. CA. (PNS) - If
you pay property taxes or have children
in school, some big changes may in store
far you.
The California Supreme Court has just
declared that state's school financing
system, which relies primarily on local
property taxes, unconstitutional because
it discriminates against those in poor
districts. And that, according to many
lawyers involved, may trigger a chain
reaction mandating new forms of educa
tion funding in state after states.
The Serrano decision in California “will
give support to a lot of litigation activities
in a lot of states," says Allen Odden, who
monitors school tax court cases for the
Education Commission of the States in
Denver.
“We’re elated by Serrano," says Rich
ard Kohn, an attorney with the Washing
ton based Lawyers' Committee for Civil
Rights Under Law, whose School Finance
Reform Project (SFRP) helps attorneys
throughout the nation with suits to force
school financing reform.
In the wake of the California Supreme
Court's first decision on Serrano in 1971 -
which ruled on principle but threw the
factual issues back to the trial court -
similar suits were filed in more than 20
states, and 18 states passed laws at least
partially equalizing education funds for
rich and poor districts.
Now reformers hope the late 1976
decision of the California court - whose
legal opinions are taken very seriously by
other states - will spur another band
wagon and convince the 12 state courts
Serrano to reach similar conclusions.
If you live in a poor district, that would
mean an influx of money for your
children's schools. And if you live in a rich
Tax Revolt Stirs Seattle Suit
district - even if the schools are wracked
In Seattle a third type of school case
with problems, as are many in highly
has been developed in direct response to
industrial inner city areas judged “weal
a revolt against local property taxes.
thy" by property tax standards - educa
In 1974 the Washington Supreme
tion funds would probably level off or
Court rejected an equal protection chal
drop.
lenge to a state-wide school funding
The redistribution could come in any
number of ways: direct transfers from
rich to poor districts; at least partial
substitution of state income, sales or
other taxes for local property taxes; or
simply higher state taxes used to bring
poor district up to an acceptable level.
The battles are now in state courts
because the U.S. Supreme Court has
already ruled, in 1978, that property tax
school financing does not violate the
federal Constitution since education is
not one of the fundamental rights guar
anteed all citizens.
The recent Serrano decision, however,
held that education is guaranteed under
the California constitution's equal pro
tection provisions
The original suit was brought by the
father of John Serrano, a student in a
poor Los Angeles school district. He
objected to a system in which the
California legislature distributes equal
amounts of state aid to each district on
the basis of average daily attendance, but
then permits prosperous districts to raise
additional education funds through local
property taxes.
This, the California court ruled, short
changes the child who lives in a poor
district.
Other Cases Pending
Now that the Burger Supreme Court
has clearly indicated it does not consider
education a fundamental right - a deci
sion in keeping with its trend of contract
ing the scope of equal protection under
the U.S. Constitution - tax reform
advocates are hoping the states will
follow California's lead in filling the
breach.
Cases based on state equal protection
clauses are already pending in New York,
Connecticut and Georgia.
The New York suit has a unique twist.
After several low tax base suburban
towns challenged the state education aid
as unfair to poor communities, three big
cities - New York, Rochester and Buffalo
- intervened. They charged that the
system, but suggested in the opinion that
it would intervene if it could be shown
that taxpayers in a particular school
district refused to vote the tax money
necessary to provide an adequate educa
tion for the youngsters living there.
Washington state provices a fair a
mount of money to Seattle under an
equalization plan, but inflation recently
forced the city to ask for a tax override.
Local taxpayers balked at the measure in
three successive elections.
So the city filed a suit contending that
because local voters had refused to fund a
decent educational system, the state was
obliged to come up with extra funds.
Seattle proposed the state average in
per-pupil expenditures as a standard; if a
school district could not meet the aver
age, it argued, the state was not meeting
its constitutional mandate.
Though this approach does not fit in
with the Serrano or Robinson line of
argument, SFRB's Kohn hopes it will
become an important new basis for suits.
A similar case is already underway in
Cincinnati.
Despite the fact that some suits are
bound to lose, reformers like Kohn agree
that the threat of a decision is sometimes
enough to force legislative reform of
education financing. And they are heart
ened by a federal program to encourage
such state action.
According to the U.S. Office of Educa
tion, 23 states have accepted federal
grants of up to $1 million each to study
the feasibility of changing their school
finance systems. Another six were a-
warded funds to cover previous research
costs after passing equalization laws, and
Office of Education spokesmen hope all
remaining states will be studying the
question by the end of the year.
“Like any reform movement, it will
take a long time," says David Long of the
Lawyer's Committee for Civil Rights Un
der Law. “But the legitimacy of inequities
in education financing has been under
mined.”
Copyright PNS 1977
March of Dimes
WALKATHON
I > BV ' M Ft iB<
BOB NELSON
Home 267-4050
Interested in a present market value update on your home?
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or Bob.
Still serving the community
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f. G. Stassens, Inc. Realtors
Hollywood Office 288-8871
DR JEFFREY BRADY Says:
"D o Not Put O ff Needed Dental C art
Enjoy Dental Health Now and
Im prove Your Appearance
are carving out precise legal definitions of
the sovereign rights granted Indian
tribes by the U.S. government-rights
that until now have been defined only by
a small body of Supreme Court interpre
tations, largely in the early 1800's.
Major victories in this legal offensive-
including one that may turn more than
half the state of Maine over to two small
tribes - are beginning to reverberate.
Among the most important have been:
•the Maine case, in which the U.S.. as
“trustee" of the Passamoquoddy tribe, is
suing Maine to enforce a 1975 federal
appeals court decision voiding non-Indian
ownership of more than half of Maine on
grounds that its 1796 sale to the state was
never approved by Congress;
•a 1974 federal district court decision
in Washington state, upheld in 1975 and
baaed on a series of 1854 and 1856
treaties, awarding half of that state's
massive fishing catch to 600 Indian
fishermen;
•and a landmark 1972 precedent that
Indians have a right to affirmative
relief-not just cash awards-for illegal
damages inflicted upon them.
The
decision in a
district court in Washing
ton. D.C., specifically ordered the restor
Exclusive Oregon Appearance!
NATALIE COLE In concert
“The Best Rising Star of the Year"
Thursday, February 3 • 8 p.m.
______ Portland Civic Auditorium______
Reserve Seal Tickets $6.50, $7 50 and $8 50
at The Ticket R ace at Lipman's, Portland Civic Auditonum,
Stevens and Son and the usual ticket outlets
A Benefit Concert for the National Psoriasis Foundation
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Presented by AMA Arts Management Associates
Listen to
ation of a lake on Paiute land that had
access to lawyers until recently.
been virtually emptied by a dam and
A law requiring the U.S. Justice
irrigation project.
Department to represent tribes has long
Lawyers at the first “national Indian
been on the books, but court interpreta
law firm,” the Colorado-based Native
tions have given Justice discretion over
American Rights Fund (N A R F), believe
which tribal complaints should be pros
the Indian legal offensive is now at a
ecuted.*
crucial turning point. W ith major land
And power to decide which tribal
restoration precedents already under
complaints would be prosecuted by the
their belts, they think further victories in
Justice Department-and to okay or deny
the next decade could firmly establish th e -r all contracts between tribes and lawyers-.
tribes as economically secure and politic
rested with the Secretary of the Interior,
ally independent peoples.
who oversees the B IA .
“Since the
But equally likely, they fear, is a
(Interior) Secretary was usually the
backlash: an assult in Congress unleashed
object of the suit," says A rth u r Lazarus,
by the shock of decisions like that in
an attorney with the largest private firm
Maine, altering at one blow the laws on
in Indian law, “it wasn’t very easy to get
which the Indian victories are based.
a contract approved.”
Already the Washington fishing rights'
Finally, most Indian tribes were-and
decision has led to considerable violence
still are-poor.
in the region and a campaign to impeach
The situation began to change in 1966,
the federal judge who ruled on the case.
when the federal Legal Services Program
The major question now, says Reid
(LSP) was set up as part of the W ar on
Chambers, a N A R F founder, “is how
Poverty. Though only 52 lawyers were
much of the gains we’re going to win
funded, reaching just 15 percent of the
judicially can be held politically in the
Indian population, tribes began to get
long term.”
independent, low-cost, quality counsel
Congress has dramatically changed
and win major decisions for the first time.
Indian legal status in the past, as when it
Less obvious but equally important,
passed a series of laws "terminating" a
the neglect of Indian rights was revealed
dozen tribes between 1952 and 1970. And
to a generation of non Indian lawyers,
federal courts have ruled that such
many of whom are bringing important
legislative action is beyond their jurisdic
suits today.
tion.
By 1970, attorneys at the nation's
One likely but unwelcome compromise,
largest Indian LSP, California Indian
srys Sam Deloria, director of the Ameri
Legal Services (CILS), realized that
can Indian Law Center at the University
Indian law could not be left to develop on
of New Mexico, is legal action mandating
its own. Someone had to spot and win
a trade-off of rights for money.
the key cases that would extend or
" If you have a right to something and
collapse the foundation of legal precedent
they're strong enough to take it." he says,
supporting tribal independence and pow
“the legal system may say, ’he can have
er over reservation land, water, minerals
it, but he's got to pay you for it,’ and feel
and other resources.
that justice has been done.
With $1.2 million from the Ford Found
“This misses the point that you have at
ation-Ford's second largest legal grant
stake an endangered species. We want
ever-C ILS lawyers founded the Native
the specific relief which helps us to
American Rights Fund in Boulder, Colo.
preserve our reservation. Our greatest
Since then, with Ford support continuing,
fear right now is the legal system is just
N A R F has represented almost 1,500
not sophisticated enough to accomodate
clients and grown from three to 19
this special problem."
law yers-12 of them Indians and five of
those women.
W H Y T H E COURTS A N D W H Y NOW?
Meanwhile legal education for Indians
“The courts,” according to Tom
has blossomed to provide a steadily
Tureen, the N A R F lawyer behind the
growing supply of Indian attorneys.
Passamoquoddy case in Maine, “have
A fter the University of New Mexico's
treated Indians more fairly than any
(U NM ) Dean Thomas Christopher and
other non-Indian institution or govern
Prof. Frederick Hart took their 1966
ment.”
findings on Indian lawyers to the federal
Bost most Indian lawyers believe the
Office of Economic Opportunity, the
government’s administrative instrument
government agreed to fund a legal
for handling Indian affairs, the Bureau of
.scholarship program at U N M for Indians.
Indian Affairs (B IA ), rather than protect
Robert Bennett, an Indian lawyer just
ing tribal rights and resources has consis
retiring as Lyndon Johnson’s Indian
tently violated them.
Commissioner, became director.
“On the reservation you’ve got a
Bennett set up an American Indian
bureaucrat telling you you can't do this
Law Center to meet the mushrooming
and you can’t do that, always standing
demand for legal research and assistance.
behind a regulation," says N A R F Direct
The Center in turn began an Indian Law
or Tom Fredericks. “I t was that the
Training Program for tribal judges, pros
whole regulation system that Indians are
ecutors and court clerks.
in-which had more to do with my decision
But the scholarship program, which
to go into law than anything else."
includes six-to-eight week summer ses
So the courts have quickly become a
sions to give college students preparation
central arena for the Indian movement.
for law school, is the center's major
But why now, rather than years ago
effort. "We have students in about 40
when the problems first developed? Why
schools," says Sam Deloria, brought in by
in Maine hus a 1796 violation of a 1790 law
Bennett in 1971 to head the center.
“We've produced about 150 Indian
taken 180 years to come to trial?
lawyers since the program started and
The answer, according to Indian attor
almost all of them are working in Indian
neys, is that few Indians had significant
affairs."
“A tense of humor it e tente of proportion."
CALTORAN
Home 289 0939
LISTING INFORMATION
Indian attorneys seek justice
BANGOR. M A IN E (PNS) When two
faculty members at the University of
New Mexico Law School took an informal
survey of Indian lawyers in the U.S. 10
years ago. they found there were fewer
than three dozen-though proportional
representation for the Indian population
called for 1.000.
I Today the three dozen have grown to
at least 150. a figure almost matched by
an equally swelling number of non-In
dians practicing "Indian law." Though
still well below 1,000, this new and
aggressive Indian bar has mounted a
legal offensive whose outcome, many
believe, will determine whether the
nation’s 350 tribes survive as separate
peoples.
Generations of federal neglect and lack
of legal advocates have left the Indian
America's poorest minority. As of the
last census, four of every 10 Indians lived
below the federal poverty level; infant
mortality was 40 percent higher than the
American average; and life expentancy
was seven years less for Indians than for
whites.
Now, for the first time, Indian lawyers.
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Minority Contractors
To Earn More During 1977
Dr. Thomas Boothe will show how
minority contractors will get bigger and more
profitable contracts in 1977.
All minority contractors are
invited to be present
Thursday , January 27, 1977
7:30 P.M.
Coast Janitorial Bldg.
7th A Alberta
Procurement assistance provided by
Metropolitan Economic Development Corporation
Kehil Gabrwt
i