KRAMER v. UNION SCHOOL DISTRICT

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Argument of Osmond K. Fraenkel

Chief Justice Earl Warren: Number 258, Morris H. Kramer versus Union Free School District No. 15, et al.

Mr. Fraenkel.

Mr. Osmond K. Fraenkel: May it please the Court.

This is an appeal from the decision of a three-judge court in the Eastern District of New York rejecting an attack on the constitutionality of Section 2012 of the New York Education Law brought by this plaintiff representing himself and others in the same class.

It deals with the qualifications for elections in local school districts and this particular statute restricts the voting to roughly two groups of persons.

The owners or renters of taxable real estate and their spouses.

Although at the time the suit was brought, the spouse of a tenant wasn't qualified but has become so since and parents of children attending the local schools.

First, excluding persons like the particular plaintiff who is a bachelor living -- an adult of course living with his parents excluding also older people living with their children, excluding lodgers and boarders and excluding residents of property which happens to be non-taxable.

The majority of the Court below upheld the law on the ground that the interest of the taxpayers and parents was more direct than the interests of the other residents of the community and that the state therefore had the right to make that distinction.

Judge Weinstein wrote a long and, to our view of course, a most persuasive dissent.

Now, the election system in New York with respect to schools is most bizarre.

In a large city like New York, the school board is appointed, although the project for decentralization of which the members of the court may have read and the new proposal by the Board of Education which had been much publicized would give all the residents of local districts the right to elect their local school boards.

In some of the other cities in New York, school boards are elected at large cities.

In all cities in New York having population of 125,000 or less, school boards are elected by the entire electorate.

It's only in the so-called country and suburban areas such as the one here involved down on Long Island that there is this distinction and restriction to taxpayers and parents.

Other state doesn't really support that distinction by anything which in our view conforms to this Court's most recent discussion of the question of equal protection.

In Williams against Rhodes where the Court noted that we have to balance the interest of the state in the exclusion which it proposed against the interest of the person excluded.

Now, here the interest of the person excluded is quite obvious be as a resident of the community and particularly in modern times where the growing interest in education, the growing ferment, not only among the community people but among the students themselves is to how their education should be handled.

It would seem a priori that everyone in the community should have a right to participate in the election of the school officials provided there be an election at all.

This Court having previously of course has determined that a state would have such local officials appointed.

Now, what does the state --

Justice Potter Stewart: Mr. Fraenkel, the statute provides that only people with these qualifications shall be entitled to vote at any school meeting.

Are these actual -- actually meetings or are these --

Mr. Osmond K. Fraenkel: Yes.

Justice Potter Stewart: Are these ballots, secret ballots --

Mr. Osmond K. Fraenkel: No, there are meetings.

Justice Potter Stewart: And ballot box voting?

Mr. Osmond K. Fraenkel: There are meetings.

Justice Potter Stewart: We're just talking about meetings.

Mr. Osmond K. Fraenkel: There are meetings at which the members of the school board are elected at the denominations made by a certain number of qualified electors.

They make denominations.

And then there are also other matters which can be disposed of at these meetings, certain tax matters, certain matters relating --

Justice Potter Stewart: Having to do with schools?

Mr. Osmond K. Fraenkel: Out of state, out of the district and things of that sort.

Justice Potter Stewart: And so these are actually meetings and what we're -- are they public meetings?

Can anybody come to the meeting?

Mr. Osmond K. Fraenkel: So far as I know, yes.

Justice Potter Stewart: And only these people can vote.

Mr. Osmond K. Fraenkel: Only these people can vote.

Justice Potter Stewart: And how often do these meetings held?

Mr. Osmond K. Fraenkel: That I don't know.

I don't know.

I would suppose at least once a year perhaps often.

Justice Potter Stewart: So we're -- so this statute --

Mr. Osmond K. Fraenkel: Actually being a resident of the City of New York and I'm not too familiar with what goes on in the suburbs.

Justice Potter Stewart: And this does not involve ballot box voting?

Mr. Osmond K. Fraenkel: No.

Justice Potter Stewart: It involves voting in an open meeting.

Mr. Osmond K. Fraenkel: That's right.

Justice Hugo L. Black: Which people did you say up a minute ago?

Mr. Osmond K. Fraenkel: Roughly taxpayers and parents.

In other words, the owners or renter -- owners or renters of taxable real property and their respective spouses.

Justice Hugo L. Black: What about people under 21?

Mr. Osmond K. Fraenkel: And to parents of children attending school.

No, they have to be qualified otherwise to vote in the state and they have to be over 21.

They have to be --

Justice Hugo L. Black: Children under 21?

Mr. Osmond K. Fraenkel: Citizens and so on.

Justice Hugo L. Black: People under 21 vote?

Mr. Osmond K. Fraenkel: No, not in New York.

Justice Hugo L. Black: I mean in these elections.

Mr. Osmond K. Fraenkel: No, no.

In addition to these restrictions under electorate, the elector has to be a qualified voter in the state.

Now, as I was saying, I would suppose that the interest of every resident of the community is clear.

What interest is it that the state is supposed to reserve by this restriction?

It's rather difficult from the papers to determine what that is?

In one place, it is stated that this is essential -- an essential restriction in order to prevent political maneuvering but why or how this is so is difficult to understand.

Why in the districts in the country, political maneuvering is more a suspect than in cities having under a 125,000 persons.

Is it made clear anywhere and in those cities everybody who otherwise qualified can vote?

Justice Byron R. White: But we're not talking about a right to vote -- it's provided by a federal law, are we?

Mr. Osmond K. Fraenkel: No, we're dealing here only with the question of equal protection, whether this is an improper discrimination by the state.

We're not dealing of course with voting in federal for federal officials.

Justice Byron R. White: Or any constitutional --

Mr. Osmond K. Fraenkel: Or any constitutional issue.

We're dealing with a matter that is local in the sense that school elections are not -- don't deal with all the subjects which a community is interested in.

But nevertheless in my view, the matter of education is of such paramount importance that all members of the community have an interest in and should be allowed to vote borrowing some specific reason.

Justice Byron R. White: You assume the burden here I take it, of approving an invidious discrimination of the plaintiff.

Mr. Osmond K. Fraenkel: Yes and no.

Of course, always, the person who raises an equal protection point assumes that burden.

On the other hand, once he has shown that there is a discrimination and that he has a strong interest, then I submit, it is the burden of the state to come forward to show a justification for that discrimination.

Justice Byron R. White: Do you have any cases for that except in areas where a certain particular interests are involved?

Mr. Osmond K. Fraenkel: Well, of course, the most recent application of it was in the Williams-Rhodes case.

Well, I think it's true that that dealt with federal electors --

Justice Byron R. White: That's right.

Mr. Osmond K. Fraenkel: And for that reason, this Court may have -- I may be permitted to say so stretch a little.

Nevertheless, it seems to me that the basic principle enunciated that where a discrimination has been shown there is --

Justice Byron R. White: That is a normal equal protection law, is it?

Mr. Osmond K. Fraenkel: Well, the normal equal protection law deals mostly with taxation and routine things of that sort.

I submit that when it deals with so fundamentally thing as voting as the poll tax case of course is another illustration.

Now, it's --

Justice John M. Harlan: How long has this law been on the books Mr. Fraenekel?

Mr. Osmond K. Fraenkel: Oh, generations!

It's been changed from time to time by some amelioration and it may be of interest that when the Constitution was proposed in New York in 1967, that Constitution would have expressly forbidden any such restriction in local elections.

That Constitution for many reasons was not adopted by the people as Your Honor knows.

Now, one of the arguments made here is that the state was justified in making this discrimination because those two groups are likely to be most interested and best informed.

It seems to me, the short answer to that is that anybody who wants to vote lives in the community shows an interest and shouldn't be deprived of that right.

It is also suggested in one of the briefs that there is a political process available to amend the law and that the law from time to time has been amended.

That may be true.

Lord knows, how long it might take.

But that isn't I suggest no answer at all to any constitutional argument in every case where a statute is challenged as denying the Equal Protection Clause, it was of course possible to have the statute amended whether it was a tax case or a -- any other kind of a case.

It also suggested in some of the briefs or I put it this way, horrible examples are produced at least in one of the briefs about what would happen if this restriction were removed.

It is said a child of eight from California would come and show an interest.

Well that's of course is non-sense because the basic requirement for voting in New York is a certain amount of residence in the state and in the district.

And that provision is not being attacked in this lawsuit.

All that we are saying is that that provision is to the general voting qualification of New York should be applicable here.

It is also suggested that if this law is stricken down, there'll be no law for school elections and that would produce chaos.

Now, of course that is not true because all we are asking this Court to do is to strike down the discrimination of the law and it is very easily accomplished because after the pre am -- first portion of the law which says persons are qualified to vote in school elections who are qualified under the general law of the state and possess certain additional qualifications.

All we're asking is that the “and posses these additional qualifications be stricken.”

For that would leave the law in full force applicable to school elections in these districts but giving the right to vote in those districts to persons otherwise qualified to vote in New York.

So in sum, our position is that this plaintiff and other similarly situated have a vital interest in the subject matter of being members of the community who want to vote and participate in the election of the school officials and that the mere fact that taxpayers and parents might have what might be called a more direct interest is no justification.

Indeed, one of the briefs go so far as to suggest that if it were otherwise a theoretical delegate ballots between the normal desire of taxpayers to keep school budgets down and the hopeful desire of parents to have better education and better facilities and therefore increase the school budgets that that nice ballots which might be preserved by the existing system would be thrown out if outsiders came in who were in need of financially prejudiced group.

Whereas on the contrary, it would seem to be in the general public interest that this possible theoretical deadline would be resolved by persons having a general public interest in the education of the children and in all of the other aspects that arise in connection with local school elections because there are various collateral and what might be called fringe aspects to those situations.

The local school board has great power in connection with first, the recreation facilities, libraries and things of that sort, so we say here that the state has not shown anything to justify this discrimination and that the restrictive provisions of other law should be stricken by --

Justice Abe Fortas: Mr. Fraenkel.

Mr. Fraenkel, in the papers before us, is there any place where I can look to discover what the powers of the school meeting are?

In other words, on what subjects the vote would be cast?

Is any comprehensive listing anywhere here in these papers?

Mr. Osmond K. Fraenkel: The papers -- the record is of course a very meager record.

Justice Abe Fortas: Yes.

Mr. Osmond K. Fraenkel: It consists only of a bad complaint and a motion to dismiss for reasons best known to itself the state did not take of an advantage of an opportunity afforded by a motion for summary judgment to bring in background material.

On the other hand of course, the Education Law of the state is a matter of which this Court takes judicial notice and it has the provisions which deal with these matters and some of those provisions are referred to in some detail in various of the briefs.

In my own brief, I preferred to four or five sections of the New York Education Law which indicate the powers of the local boards.

Justice Abe Fortas: Do you have conveniently append in reference to the sections of the Education Law that set out the powers of the local school meetings.

When you say the local board, do you mean the school meeting?

Mr. Osmond K. Fraenkel: The local school board which is elected.

Justice Abe Fortas: I notice that Section 2012 which was involved here refers to voting at the school meeting and whatever.

Mr. Osmond K. Fraenkel: Yes but the school meeting --

Justice Abe Fortas: I really don't --

Mr. Osmond K. Fraenkel: The school meeting does various things.

It can as I indicate in my brief the meeting under Education Law 2021 and 2022 as it designates school sites, 2040 deals with the education of students outside the district, 2040 (a) with migrant laborer's children and so on and some extent this has been covered also in the opinion of the three-judge court at page 34 of the opinion -- page 34 of the appendix I should say.

In any event, the various provisions of the Education Law beginning with 2012 deal with these subjects.

I call those that I thought were the most significant but it may well be that some other significant ones escape by notice.

They are all there.

They are the only thing, there is no background material.

The -- some of the briefs go at great length into the situation and other parts of the state.

But again, drawing from state legislation although I must say regretfully.

I say regretfully, I have nothing to do with those briefs and they do not always cite the relevant statute which deals with the problems.

Justice Hugo L. Black: Does this case involve anything except the challenges to the right to vote for boards?

Mr. Osmond K. Fraenkel: Well, it involves the right to vote at a school meeting.

The school meeting does a number of things.

It can of course elect a local school board.

It also has the power as I pointed out in my brief and just now in answer to Mr. Justice Fortas' question, the school meeting also has the right to deal with certain financial matters, school houses, education of children outside the district and education of migrant laborer's children inside the district.

In other words, there are various things which a school board -- school meeting deals with at which these people would then have the right to vote, not merely the selection of the members of the board.

Now, it is pointed out in one of the briefs that if this Court should agree with us, perhaps some of the powers of these meetings might be curtailed and that legislature of course would have the right to do that but that is not anything with which I suggest this Court need concern itself, either --

Justice Hugo L. Black: But then that's on disciplinary rules and --

Mr. Osmond K. Fraenkel: No, no, no.

The Board of Education presumably would deal with all such matters but of course the qualified elector does not only vote for members of the board but participate in the nomination of the members of the board.

That's the way the nominations come up is by petition of qualified voters.

Justice Hugo L. Black: And the qualification for the members of the board.

Mr. Osmond K. Fraenkel: There are none set forth that I've been able to find as to qualifications of the members of the board.

In any case we're not concerned with that in this appeal.

Mr. Osmond K. Fraenkel: Do these meeting have something to do with adult education?

Well, the board, I don't think the meetings as such.

The board had something to do with determining the stand of adult education.

Chief Justice Earl Warren: That -- and libraries?

Mr. Osmond K. Fraenkel: And libraries.

Those are within -- after all, certain basic things can be voted on.

The rest is left through the discretion of the board which is elected by the voters.

Chief Justice Earl Warren: At these meetings?

Mr. Osmond K. Fraenkel: At these meetings.

Justice Abe Fortas: Mr. Fraenkel, I see on page on the opinion below, on page 34 of the appendix --

Mr. Osmond K. Fraenkel: Yes, sir.

Justice Abe Fortas: Statements that at this meeting, which is the meeting we're talking about, school meeting, the voters approved the school budget --

Mr. Osmond K. Fraenkel: That's right.

Justice Abe Fortas: And they vote to levy taxes on taxable real properties.

Mr. Osmond K. Fraenkel: Those are the sections that I referred to 2021.

Justice Abe Fortas: Yes, and that they also -- the voters in each school district and I suppose it's at this meeting, elect from their number three to nine trustees, elect as the Board of Education for that district?

Mr. Osmond K. Fraenkel: That's right.

Justice Abe Fortas: Well, is that Board of Education subject to a statewide Board of Education?

Mr. Osmond K. Fraenkel: No, but in New York, the supervisory authority over the whole educational system is the Board of Regents and the Commissioner of Education, and Your Honors may remember in the recent New York City school crisis, Mr. Allen commissioner -- the state Commissioner of Education intervened, appointed the trustee for the controversial Ocean Hill Brownsville School and so on.

They are the supervisory authority over the entire educational system of the state.

Justice Abe Fortas: Well now, the opinion below says that the Board of Education prescribes the course of study to be followed in the district schools.

Do they have authority to do that or is that determined by the statewide Board of Regents?

Mr. Osmond K. Fraenkel: Well, there are certain state policies which the Board of Regents lays down.

Certain guide rules as I understand it.

And within those guide rules, each local board has considerable amount of discretion.

Justice Abe Fortas: So that --

Mr. Osmond K. Fraenkel: In fact that's one of the problems which we're being confronted with in the City of New York now to what extent shall the newly proposed local boards have these powers such as to what extent shall they be promulgated from above.

Justice Abe Fortas: So that really I'm reading that part of the opinion of the Court below relating to the Board of Education of the particular district, we should read that the Board of Education of that district subject to the Board of Regents of the state?

Mr. Osmond K. Fraenkel: Subject to the general supervisory power of the Board of Regents and the Commissioner of Education.

Justice Abe Fortas: Describes the Courts in study and builds schools and so on.

Mr. Osmond K. Fraenkel: First, a specific question arises about the propriety of the action of the Board of Education by the -- in a matter of educational policy that can be taken on appeal to the Commissioner of Education or if a constitutional principle is involved, can be taken directly to the courts of the state.

Justice Hugo L. Black: Who appoints the Board of Education or the State Superintendent of Education?

Mr. Osmond K. Fraenkel: The commissioner is appointed by the governor.

Justice Hugo L. Black: What about the regents.

Mr. Osmond K. Fraenkel: Sorry.

The commissioner is appointed by the regents, and the regents are appointed by the legislature.

Justice Hugo L. Black: Regents --

Mr. Osmond K. Fraenkel: The regents are appointed by the legislature and they -- the regents appoint then the Commissioner of Education.

Justice Hugo L. Black: As I recall, from looking into it several years ago, that is the most powerful agency in New York.

Mr. Osmond K. Fraenkel: Well, it's certainly is the most powerful educational agency.

Justice Hugo L. Black: I'm not talking about education.

Mr. Osmond K. Fraenkel: Well, it has powers.

Justice Hugo L. Black: Control of the medical fraternity.

Mr. Osmond K. Fraenkel: Well, yes but that --

Justice Hugo L. Black: Legal fraternity.

Mr. Osmond K. Fraenkel: Yes well no.

It has -- I don't think that that has anything to do with the legal fraternity but it has to do with doctors and many other agencies that --

Justice Hugo L. Black: What about the librarians, the druggists?

Mr. Osmond K. Fraenkel: I think that -- I think they have great powers in all those areas.

Justice Hugo L. Black: And they have people employed to see whether or not they're guilty of any offense, send them around over the state, don't they?

Mr. Osmond K. Fraenkel: That I wouldn't know.

Mr. Jehu can answer that because he's right from the department.

Justice Hugo L. Black: Well, I had occasionally looked into it several years ago and wrote about it in the case and of course, it's pretty broad.

Mr. Osmond K. Fraenkel: Oh!

Yes, they have very broad powers.

Of course those powers are not involved in this litigation.

Justice Hugo L. Black: Well, it seems to me like it's all subject to board like that the people have nothing in the world to do with its election.

It might have something to do with the question you're raising.

Maybe I'm wrong.

Mr. Osmond K. Fraenkel: Well, the people who are qualified voters, including my plaintiff if this Court agrees with me, can elect the members of their local board.

Now, the fact that that local board may be subject to supervision no more affects the situation than the fact that in New York where the Supreme Court justices which is the Court of first instance are elected by the people.

An appeal can be taken to the appellate division or the Court of Appeals affects the importance of the election process of the judges so that he had a fact that the Board of Regents can in some situations review actions by the local boards does not at all in my judgment affect the importance of the electorate which can --

Justice Hugo L. Black: I think it comes to mind because it sounds to me like what I read about that regent -- Board of Regents, your words subject to supervision by the Board of Regents is a rather euphemistic term.

Mr. Osmond K. Fraenkel: No, I think the board can only -- anyway, I submit that that is really not an issue in this case.

Once the right -- once the legislature has said that a particular local body can be elected then it seems that where that local body deals with a fundamental subject such as education, there should be no restrictions on the body of electors other than the general qualification to vote in the state.

Thank you.

Chief Justice Earl Warren: Mr. Jehu.

Argument of John P. Jehu

Mr. John P. Jehu: Mr. Chief Justice and may it please the Court.

This is a very important case I believe and it also I believe were one of the first impressions.

It involves such matters as the relationship between the State and the Federal government and also between the Judiciary and Legislative branches.

Now, perhaps in answer to some of the questions, the questions I asked of Mr. Fraenkel, I should say this that Boards of Education and School Districts in the State of New York are autonomous units.

The statute sets for instance the requirements as to required subjects in the curriculum.

Beyond that, the local board of education can determine to have other subject in their choice and the Board of Regents under Commission of Education of course have supervisory powers.

The Commissioner of Education has particularly the judicial powers over the school system where regular pleadings and oral arguments and briefs are filed and so forth and then the local, the statutes in New York says, his decisions are final and not subject to review.

Now, the Courts of the state however have happily reviewed them all along.

But in any event, the districts are very autonomous.

There is over 800 school districts in the state and the statute here 2012 and I might add to that also requires three general qualifications together with one of three specials.

The three generals are residence, citizenship and majority.

In addition to that, one of three qualifications have to bring a qualified vote to be qualified into the community of interest in the school system which is a special purpose administrative not legislative units only it does administer to schools.

Under the jurisdiction, general jurisdiction of the education department because under the State Constitution and the law in New York, education is a state function as it is under the Tenth Amendment is a state function.

Now, to go into the problem of this particular case, this is a matter as I said under the Tenth Amendment of state concern only.

There is nothing in the United States Constitution or in any Act of Congress that guarantees to anybody in this country the right to vote in school district meetings or elections.

And an answer incidentally to Mr. Justice Stewart's question before, the voting takes place either at meetings, town meeting types or at election types which is up to the local board as which as they are the one going to handle it.

They can put up a ballot box --

Justice Potter Stewart: A statute seems to refer only to meetings.

Mr. John P. Jehu: Well, it says --

Justice Potter Stewart: Does it or am I mistaken?

Mr. John P. Jehu: It may well be so Your Honor.

I'm not sure about that.

We have always read about that in meetings or elections --

Justice Potter Stewart: Because it will be entitled of other school meeting.

Well, that's the appellant's brief and I suppose those are his words, not the statutory words.

I can't find the --

Mr. John P. Jehu: The statute itself I think is set forth in the opinion of the Court below.

It's in the appendix I do believe.

Yes.

Well, in any event Your Honor --

Justice Byron R. White: I'd be quite interested in seeing the statutes or having a reference to him.

Mr. John P. Jehu: Page 2 of the appellant's brief.

The statute is quoted.

The person shall be entitled to vote at any school meeting for the election of school district officer who might also in other matters which may be brought before such meetings then it goes on to a (Inaudible).

We have it in here.

It's on page 4 of the appendix Your Honor.

It says, a person shall be entitled to vote at any school meeting for the election of school district officers and that all other matters which may be brought before such meeting and so forth.

But other section of the Education Law parenthesis 2035 authorizes them to use voting machines if that's all see fit and if they can rent them from the counter village of county and they often times do especially in the larger districts to say it then.

Justice Potter Stewart: Well, at least, you say this statute which seems to refer only to school meetings would mean applicable to voting by voting machine?

Mr. John P. Jehu: It is modified for other sections of the Education Law, Your Honor, yes.

Justice Potter Stewart: I understand this law doesn't -- is not applicable at all to two-thirds of the people in the state.

Mr. John P. Jehu: That's correct Your Honor and in the so-called --

Justice Potter Stewart: It's not applicable in the big cities and it's not applicable to the smallest.

Mr. John P. Jehu: The smaller cities, that's correct and between the two groups of city school districts as more than two-thirds of the population of the states, some 11 million people by the 1960 census.

So that this is a fairly limited group on law, there are number of districts involved.

Some are very small.

Some of these geographical units are very tiny.

This is one of our problems to try to get them together but this is not the problem here.

Now, I'm trying to say is this --

Justice Abe Fortas: Could you, forgive me sir, but would you be so kind as to tell us as specifically and precisely as possible just what are the matters brought before the school meetings on which these qualified people vote.

Mr. John P. Jehu: Yes, Your Honor.

The first thing that -- they will have to have an annual meeting.

This is a requirement of law.

Every one of these districts involved here has to have an annual meeting.

This takes place either on May or in June or July by local action.

First thing they'll do is they elect a Board of Education or there's a member each year or two members or whatever the rotation happens to be.

Secondly, they must adopt a budget for the operating expenses of the district for the ensuing year.

In addition to that, they can have any number of other resolutions such as purchase of a school bus or the building of some extra classrooms as they may be required or the putting up of a brand new building.

They're all matters of the administration of the school system, of the local school system for the students that are residing in the district and to take care of their particular problems.

Now, the Board of Education which is elected there has certain powers and the powers of the Board of Education are set forth in 1709 of the Education Law the powers of the voters on 2021 basically but there's various provisions all over the Education Law some 2000 sections altogether and it's a very complicated statute which right now, we have joint legislative committee to try and revise and simplify but -- does that answer your question, Your Honor?

Justice Abe Fortas: No, not -- I'm sorry but it doesn't quite because it is a complicated Education Law and I'm interested in finding out just as precisely as I can and with as little possibility of error as can be managed just what this voting right is often concerning?

I know that it is a voting right that relates to the election of members, the Board of Education for the district.

I know it is a voting right that is -- that has to do with the approval or disapproval of budget presumably proposed by the Board of Education.

Mr. John P. Jehu: Correct, Your Honor.

Justice Abe Fortas: And what I would like to know is whether they're -- just what the specific subjects are as to which Mr. Fraenkel's client claims, he should be entitled to vote and I haven't found that in any of the papers before us.

There is a general description in the opinion of the lower Court and that's all.

Mr. John P. Jehu: Well, Section 2021 Your Honor consists of some 20 or 30 subdivisions which indicate the powers of the voters.

First, they have the power to regulate the affairs of the meeting itself.

They have a power to vote taxes for various things.

There's another Section 416 of the Education Law which says that the voters have a power to levy taxes, for teacher salaries, for the building of school buildings, for the buying of school buses, for the buying of school property, for playing fields and whatever the multi-various purposes of a school system are.

They have to hire janitors which is done by the Board of Education but the money therefore is a appropriated by the voters.

And to some extent, teachers' salaries and the group of items known as ordinary contention expenses which is light, heat, water, telephone, that sort of thing, the Board of Education has the power to do that without reference to the voters and if the voters vote it down, the board still does it because it has to -- the schools have to be kept running.

Now, this is a constitutional requirement under Section 1 of Article 11 of the State Constitution but in other words, all these voters do really, this is the gist of it.

There are many, many details is that they must prepare, authorize appropriate money so that the schools can be kept running.

There's any number of things now of course with machine being used for various data processing and all kinds of things whatever it takes to run the schools and that's all.

They have no power beyond that.

Justice Abe Fortas: There's a text to which the -- which may be levied by the school district, solely a tax upon real property.

Mr. John P. Jehu: That's correct, Your Honor.

It's the real property taxes --

Justice Abe Fortas: Where does that appear in the statute?

Mr. John P. Jehu: Excuse me sir?

Justice Abe Fortas: I've just gotten a copy of a statute brought to me and the statute does not indicate that it has to be a real property tax, does it?

Mr. John P. Jehu: Well, the tax provisions were taken out of the state Education Law many years ago and put into the Real Property Tax Law and they would be in Article 13 of the Real Property Tax Law has all the different provisions but all they have is a power to levy a tax on real property.

Certain city school districts have the right to levy a utility tax of up 3%.

Justice Abe Fortas: you can't tell me anything in this law that --

Mr. John P. Jehu: In the Education Law, Your Honor?

Justice Abe Fortas: Anything in the law that confirms the tax power of the school meetings that we're talking about to the levying of real estate taxes.

Mr. John P. Jehu: Well, as I indicate Your Honor, this is no longer in the education law.

It's in the Real Property Tax Law which is a different volume of the consolidated law.

Justice Abe Fortas: I'm looking Section 2021.

I'm still trying to find out what the powers of this meeting are.

Mr. John P. Jehu: Well, the powers of the meeting basically --

Justice Abe Fortas: That's what I'm trying to find out.

Mr. John P. Jehu: Are to --

Justice Abe Fortas: When it comes to the power to tax --

Mr. John P. Jehu: Yes.

Justice Abe Fortas: I want to know specifically in terms of the statute whether the taxing power is limited to the levying of tax on real property.

Obviously, the reason and I'm interested in that is that the section at issue here which is 2012 confines a power to vote to persons who own etcetera, real property.

Mr. John P. Jehu: Right.

Well, the power to tax is limited in answer to Your Honor's question absolutely and definitely to the real property taxes.

Now, but that is not in the Education Law but it's in another statute that the matter was transferred to starting in Section 13 under the Real Property Tax Law.

I don't know -- the moment they remember which one of the three or four sections following 1300 of these.

Chief Justice Earl Warren: Does the state have had any of its tax receipts to school districts for their operation?

Mr. John P. Jehu: The operations of the school districts of the state are financed basically from the school tax which is a real property tax.

In addition to that, they get a great amount of state aid, and that state aid and this will be part of my argument about some of the claims made here, that state aid is derived from a number of sources, the state income tax, various cooperation taxes and as a whole flock of sources that budget is made up.

Chief Justice Earl Warren: I suppose, do you have a sales tax?

Mr. John P. Jehu: There are --

Chief Justice Earl Warren: Do you have a sales tax?

Mr. John P. Jehu: We have a state sales tax now, that's correct which is also is part of that and they have local sales tax just like in New York City and some of the counties have sales taxes.

Chief Justice Earl Warren: Yes.

Mr. John P. Jehu: But all these things go into the state budget and before that budget is made up, a new formula is made up, state aid formula is made up almost every year, and that formula determines how much the taxes will have to be brought into the State Conference in order to cover the various expenses including education.

Chief Justice Earl Warren: Well, do these people who are deprived of voting under this law have to pay those state taxes?

Mr. John P. Jehu: Oh!

Indeed they do, Your Honor but that is the main part --

Chief Justice Earl Warren: Then they do -- then they do contribute with their tax moneys to the support of these schools, do they not?

Mr. John P. Jehu: And the main part if it please Chief Justice, my argument is this --

Chief Justice Earl Warren: No, I'm not interested in your argument.

Well I just --

Mr. John P. Jehu: No, on this point is what I mean.

Chief Justice Earl Warren: I just like to ask you if they are obliged to pay state taxes that are used to operate the schools.

Mr. John P. Jehu: That's absolutely correct and some of their federal taxes go into that picture but what I'm getting at is that he has never lost and does not now lose his franchise on state legislation which determines how much of his tax money goes into the education system and he has not lost his franchise to elect a senator of the United States or congressman who would in turn determine how much federal money goes back to the states for schools.

This he can vote and this I think is a vital distinction of this case from some other cases the Court has recently decided.

Chief Justice Earl Warren: Well, it might determine how much he would be willing to put in to the local budget and wouldn't it depending on how much he used to get from the state?

Mr. John P. Jehu: No.

No.

Chief Justice Earl Warren: Why?

Mr. John P. Jehu: As I say the --

Chief Justice Earl Warren: Why?

Mr. John P. Jehu: This -- the whole state aide formula is the most complicated kind of a machinery and what the voters do, they merely authorize that district to spend, shall we say, $5 million for their schools.

Chief Justice Earl Warren: Yes.

Mr. John P. Jehu: And that that authorization to spend then has to be covered by an estimate of how much state aid will they get, how much federal aid will they get, how much will they get from other various source of income such tuition and so forth.

And then they deduct that and the difference, the Board of Education levies some taxes on the real property in the district.

Chief Justice Earl Warren: Yes.

Well, might not a person whose voting at this meeting say, “Well, in view of the fact that the state gives this much money to the schools for this purpose.

We don't need much.

We only need a very little bit so we're only -- we'll only vote to have to spend so much in the district.”

Mr. John P. Jehu: Well, the vote Your Honor is not on the total amount.

The vote is on the authorization of specific items for certain purposes.

Chief Justice Earl Warren: I know but he might say in view of the subventions from a state, we don't need these things.

Mr. John P. Jehu: Oh!

There's no question Your Honor that this whole system has caused difficulties in the state.

Chief Justice Earl Warren: Alright, well then, doesn't the person who pays the state taxes also have an interest in how much he will provide for the district, for school purposes?

Mr. John P. Jehu: I don't think Your Honor.

I don't think that's all because he has to pay the state on federal taxes regardless of whether it will spend on this district or whether it will go to Oklahoma or California.

If that district doesn't spend it, somebody will and the total amount is the same either way.

Justice Thurgood Marshall: Well why do you give the right to vote to the taxpayers who are owners of property?

Mr. John P. Jehu: Well, may I explain --

Justice Thurgood Marshall: What is the reason for that?

Mr. John P. Jehu: May I explain this.

Justice Thurgood Marshall: Would I assume it's because they're interested in how their money is spent?

Could it be one of the reasons?

Mr. John P. Jehu: This may well be one of the reasons.

Justice Thurgood Marshall: Well why exclude the bachelor who might be the highest taxpayer in the country?

Mr. John P. Jehu: Because he is not a member of the community of interest.

Justice Thurgood Marshall: And because he's not interested what happens to his tax money?

Mr. John P. Jehu: No.

May I state that --

Justice Thurgood Marshall: Suppose the law said only republicans can vote.

Mr. John P. Jehu: No, that would be an invidious discrimination.

Justice Thurgood Marshall: Why?

Mr. John P. Jehu: Because there is no relation between the purpose of the statutory objective of the legislature and the way they're doing it.

In other words, the democrat is --

Justice Thurgood Marshall: Then what is the relationship for excluding a bachelor?

Mr. John P. Jehu: Well, he's not being excluded because he's a bachelor

He is excluded because he has absolutely no --

Justice Thurgood Marshall: He's excluded because he's not married.

Mr. John P. Jehu: No, he is excluded because he has absolutely no interest in the operations of the school system.

Justice Thurgood Marshall: Why not?

Mr. John P. Jehu: His children are not affected because he has no children, whatever --

Justice Thurgood Marshall: His money is.

Mr. John P. Jehu: Just a moment, if I may Your Honor.

The first part is the fact he has no children.

In other words, whether he votes for or against something, if he could it wouldn't affect him since he has none.

Now, the other thing is, it doesn't cost him a penny from the real property tax which is the only thing -- the direct taxation that he can vote on.

He can vote on how much the district gets or how much federal aid.

That is taken care of by his use of the ballot, by electing state and federal legislators who will determine that for him.

There, he has a full ballot.

Justice Thurgood Marshall: But if he was a bachelor and a pauper but a tenant he could vote?

Mr. John P. Jehu: He could vote, absolutely.

Justice Thurgood Marshall: Now, what interest does that in anyone?

Mr. John P. Jehu: Well, they --

Justice Thurgood Marshall: This bachelor who's broke and just happened to be a tenant --

Mr. John P. Jehu: Right.

Justice Thurgood Marshall: Now, what interest does he have?

Mr. John P. Jehu: Well, the question really Your Honor is this.

In the first place, do we have to meet a test such as we had in the Cardona case?

Now, in Cardona, we have this Mrs. Cardona who was disfranchised by the statute and she could not in any way do anything about it because being disfranchised you have no access to the franchise to change that statute.

Here on the other hand, we have a person who is not disfranchised on state legislation.

If he wants to change that 2012, he can go and vote for people who will go and change it.

And I might say in this connection, while this lawsuit was going on, as a matter of fact, some of the things that were criticized below have been amended.

The spouse of the tenant which Judge Weinstein said should not be excluded and I think Judge Hayes have long since been put in by the legislature and that the statement was made, there are so few of these people that the legislative processes will not be adequate.

And at the same time, it was done and we have, as I point out on our supplemental brief there is now a constitutional amendment again before the state legislature to eliminate all these special things but the purpose of it and this is to answer your question Mr. Justice Marshall.

In order for the legislature to make sure that this extremely important business of elementary and secondary education is properly determined under local basis where it has to be determined under state law.

He must make sure that those people who get the franchise on that are those people who can reasonably be expected to be interested enough in it, to spend the considerable amount of time necessary to really inform yourself on these very complicated questions.

Chief Justice Earl Warren: Let me ask you this question.

Let me ask you this question, suppose the appellant in this case was a school teacher instead of a stock broker and he was boarding in a home, would you presume to say that he had no interest in the public school's sufficient to enable him to be a voter?

Mr. John P. Jehu: May I make two answers to that Your Honor.

One is the mere fact that he's interested and knowledgeable for all know, he may have written all the books in education but the legislature cannot anticipate when they make this rule that those persons who are not in the category, that were the two categories we're talking about, will have naturally and foreseeably the kind of interest which will guarantee a reasonable decision on school matters.

Chief Justice Earl Warren: Well, let me ask you just one more question along that line.

A school teacher or any other person not being a real property taxpayer who is retired and living with one of his children, maybe he's had a large family and has reared them and put them through the public schools, paid all their expenses and they now have grandchildren and he is living with one of those children.

Do you say that that person would not have sufficient interest in the public school system of his district to vote?

Mr. John P. Jehu: I would say Your Honor that they're properly excluded here because the parents themselves is the -- if they have the children, the people you're talking about whose grandchildren do have the franchise but the interest of these other people is purely theoretical just like I have a tremendous interest in good education in Mississippi right now.

Chief Justice Earl Warren: No, I'm talking about this specific case.

You say that he had insufficient interest to vote.

Mr. John P. Jehu: Unless he is assessed for a school tax.

If he rents a garage for instance or if he owns a home then obviously he has the kind of interest that the legislature reasonably can be expected to base a decision on as to who should vote and who should not.

Chief Justice Earl Warren: Well, that perhaps, I would ask just one more question.

You say, because he pays no taxes could you now, if we sustain this, could you also say that unless he paid the $10,000.00 in taxes a year that they wouldn't be eligible to vote?

Mr. John P. Jehu: Your Honor, isn't it the question of payment of taxes.

All he has to be is assessed.

Now, if he for instance refused to pay taxes, being assessed, he may not lose his property for two years.

He still votes all this time.

Chief Justice Earl Warren: Well, let's say assessed unless he assessed for that much, you could put a limit on the amount of taxes he pays.

Mr. John P. Jehu: If that did that Your Honor we will run into harbor and properly so that would be impermissible because wealth as you had pointed out in harbor has no relation to the use of the franchise.

This is put in merely to make sure that we have those people, those groups, who can reasonably be expected to have a serious interest, serious enough to give it a great deal of thought.

And may I add one more item before the time is up.

Now, this is -- we are not dealing here with a question of state or federal or even municipal ballots, franchise and representation and consequently, when the Chief Justice in Reynolds said clearly irrational state policy insufficient because of the central importance of general elections, I emphasize general.

This is not applicable, so consequently, the only test we do not need that the far sterner test of Justices Douglas and Fortas are mentioned in their dissent in Cardona.

The only test we have is there are some reasonable relations between what the state is trying to do and what the statute does and --

Justice Potter Stewart: In connection, I would be very interested in having a citation of authority for your submission that the power to tax is only the power to impose taxes on real property.

Could you submit that in writing?

Mr. John P. Jehu: I would indeed sir.

Chief Justice Earl Warren: We'll recess now.

Mr. John P. Jehu: I will supply the Court with copies or texts of the relevant sections of the education and other laws dealing with various questions which have been raised during the argument.

Chief Justice Earl Warren: That would be very helpful.

Mr. John P. Jehu: I would like to do that sometime next week.

Chief Justice Earl Warren: That would be very helpful.