American Constitutionalism in Historical Perspective (packet)

All indicators of suspectness pointed away from inequality in this case, no correlation b/w the amount of property w/n a district and the amount of wealth. There was no disproportionate impact on a suspect group, numbers of Hispanics was not tied to the districts.

Fear slippery slope into Lochner: if step in to equalize ed funding, what about employment, housing, d/n want the judiciary setting standards--should be left to the democratic process. Concerned w/ ct-imposed remedies in this area and overruling Dandridge and Lindsey.

D/n want to make equal resources/expenditures on students the measure of equal ed Cullman and Jenks study that indicated that these factors d/n correlate, throwing $ at poor ppl d/n affect education, only desegregation did.

Proposed remedies (p.877) are in the sphere of legislature and is a political Q.

Marshall dissent: fund rt to a min ed, children s/n be allowed to fall below this level. Ed c/n be separated from other rts, need it to take full advantage of voting and other incidents of citizenship. Education is closely linked to free speech and is key to social mobility. Distinguished from housing and employment that Powell worries about. Calls for intermediate scrutiny and compares to illegitimacy cases b/c imposing disadvantage on children.

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   Appropriate case to elaborate implied fund rts b/c political process has been ineffective for indigent children so ct needs to step in to protect their rts.
   
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   But should this be carried over to min welfare rts?
   
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      Michelman: minimal subsistence is not about equality, focuses on those who are deeply disadvantaged, this should trigger concern in a wealthy country. Wants the S. Ct. to establish a floor, if conditions fall beneath this should raise issues of constitutional concern.
      
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      The court declines to accept this argument. (See Dandridge, Lindsey v. Normet). Too difficult to enforce an eccentric theory of economic justice through the constitution (min floor may differ for different ppl—include love? Food and shelter? etc). Only way to do this is through the electoral process b/c is McCulloch-like question.
      

Plyler v. Doe, 1982: strikes down TX law excluding children of illegal aliens from ed entirely. Law is creating an underclass in society and giving NO min education. Though ed is not a fund rt (Rodriguez), and classification on the basis of illegal alienage d/n create a suspect class, court analogizes to the illegitimacy cases to hold that c/n disadvantage children for the acts of their parents. Total deprivation raises constitutional hackles. (may be an example of beneficent Lochnerizing)

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