text:
On even the most basic questions in this area, the scholars and educational experts are divided. Indeed, one of the major [p43] sources of controversy concerns the extent to which there is a demonstrable correlation between educational expenditures and the quality of education [n86] -- an assumed correlation underlying virtually every legal conclusion drawn by the District Court in this case.
Related to the questioned relationship between cost and quality is the equally unsettled controversy as to the proper goals of a system of public education. The ultimate wisdom as to these and related problems of education is not likely to be divined for all time even by the scholars who now so earnestly debate the issues. In such circumstances, the judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.
It must be remembered, also, that every claim arising under the Equal Protection Clause has implications for the relationship between national and state power under our federal system. Questions of federalism are always inherent in the process of determining whether a State's laws are to be accorded the traditional presumption of constitutionality, or are to be subjected instead to rigorous judicial scrutiny.
The foregoing considerations buttress our conclusion that Texas' system of public school finance is an inappropriate candidate for strict judicial scrutiny. These same considerations are relevant to the determination whether that system, with its conceded imperfections, nevertheless bears some rational relationship to a legitimate state purpose.
It is to this question that we next turn our attention. The basic contours of the Texas school finance system have been traced at the outset of this opinion. We will now describe in more detail that system and how it operates, as these facts bear directly upon the demands of the Equal Protection Clause. Apart from federal assistance, each Texas school receives its funds from the State and from its local school [p45] district. On a state-wide average, a roughly comparable amount of funds is derived from each source.
Funds are distributed to assure that there will be one teacher -- compensated at the state supported minimum salary -- for every 25 students. The program is administered by the State Board of Education and by the Central Education Agency, which also have responsibility for school accreditation [n96] and for monitoring the statutory teacher-qualification standards. None of Texas' school districts, however, [p46] has been content to rely alone on funds from the Foundation Program.
By virtue of the obligation to fulfill its Local Fund Assignment, every district must impose an ad valorem tax on property located within its borders. The Fund Assignment was designed to remain sufficiently low to assure that each district would have some ability to provide a more enriched educational program. In other districts, the local share may far exceed even the total Foundation grant. In part, local differences are attributable to differences in the rates of taxation or in the degree to which the market value for any category of property varies from its assessed value.
Those districts that have more property, or more valuable property, have a greater capability for supplementing state funds. In large measure, these additional local revenues are devoted to paying higher salaries to more teachers. Therefore, the primary distinguishing attributes of schools in property-affluent districts are lower pupil-teacher ratios and higher salary schedules.
This, then, is the basic outline of the Texas school financing structure. Because of differences in expenditure levels occasioned by disparities in property tax income, appellees claim that children in less affluent districts have been made the subject of invidious discrimination. The District Court found that the State had failed even "to establish a reasonable basis" for a system that results in different levels of per-pupil expenditure. In its reliance on state, as well as local, resources, the Texas system is comparable to the systems employed [p48] in virtually every other State.
The "foundation grant" theory upon which Texas legislators and educators based the Gilmer-Aikin bills was a product of the pioneering work of two New York educational reformers in the 's, George D. Strayer and Robert M. The Strayer-Haig thesis [p49] represented an accommodation between these two competing forces. As articulated by Professor Coleman:. The history of education since the industrial revolution shows a continual struggle between two forces: The Texas system of school finance is responsive to these two forces.
While assuring a basic education for every child in the State, it permits and encourages a large measure of participation in and control of each district's schools at the local level. In an era that has witnessed a consistent trend toward centralization of the functions of government, local sharing of responsibility for public education has survived.
The merit of local control was recognized last Term in both the majority and dissenting opinions in Wright v. Council of the City of Emporia, U. The persistence of attachment to government at the lowest level where education is concerned reflects the depth of commitment of its supporters. In part, local control means, as Professor Coleman suggests, the freedom to devote more money to the education of one's children.
Equally important, however, is the opportunity [p50] it offers for participation in the decisionmaking process that determines how those local tax dollars will be spent. Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimentation, innovation, and a healthy competition for educational excellence. An analogy to the Nation-State relationship in our federal system seems uniquely appropriate.
Justice Brandeis identified as one of the peculiar strengths of our form of government each State's freedom to "serve as a laboratory; and try novel social and economic experiments. Appellees do not question the propriety of Texas' dedication to local control of education. To the contrary, they attack the school financing system precisely because, in their view, it does not provide the same level of local control and fiscal flexibility in all districts. Appellees suggest that local control could be preserved and promoted under other financing systems that resulted in more equality in educational expenditures.
While it is no doubt true that reliance on local property taxation for school revenues provides less freedom of choice with respect to expenditures for some districts than for others, [n] [p51] the existence of "some inequality" in the manner in which the State's rationale is achieved is not alone a sufficient basis for striking down the entire system. It may not be condemned simply because it imperfectly effectuates the State's goals.
Nor must the financing system fail because, as appellees suggest, other methods of satisfying the State's interest, which occasion "less drastic" disparities in expenditures, might be conceived. Only where state action impinges on the exercise of fundamental constitutional rights or liberties must it be found to have chosen the least restrictive alternative.
It is also well to remember that even those districts that have reduced ability to make free decisions with respect to how much they spend on education still retain, under the present system, a large measure of authority as to how available funds will be allocated. They further enjoy the power to make numerous other decisions with respect to the operation of the schools.
That is, they may believe [p53] that along with increased control of the purse strings at the state level will go increased control over local policies. Appellees further urge that the Texas system is unconstitutionally arbitrary because it allows the availability of local taxable resources to turn on "happenstance. But any scheme of [p54] local taxation -- indeed the very existence of identifiable local governmental units -- requires the establishment of jurisdictional boundaries that are inevitably arbitrary.
It is equally inevitable that some localities are going to be blessed with more taxable assets than others. Changes in the level of taxable wealth within any district may result from any number of events, some of which local residents can and do influence. For instance, commercial and industrial enterprises may be encouraged to locate within a district by various actions -- public and private.
Moreover, if local taxation for local expenditures were an unconstitutional method of providing for education, then it might be an equally impermissible means of providing other necessary services customarily financed largely from local property taxes, including local police and fire protection, public health and hospitals, and public utility facilities of various kinds. We perceive no justification for such a severe denigration of local property taxation and control as would follow from appellees' contentions.
It has simply never been within the constitutional prerogative of this Court to nullify state-wide measures for financing public services merely because the burdens or benefits thereof fall unevenly depending upon the relative wealth of the political subdivisions in which citizens live. In sum, to the extent that the Texas system of school financing results in unequal expenditures between children [p55] who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory.
Texas has acknowledged its shortcomings, and has persistently endeavored -- not without some success -- to ameliorate the differences in levels of expenditures without sacrificing the benefits of local participation. The Texas plan is not the result of hurried, ill-conceived legislation. It certainly is not the product of purposeful discrimination against any group or class. On the contrary, it is rooted in decades of experience in Texas and elsewhere, and, in major part, is the product of responsible studies by qualified people.
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In giving substance to the presumption of validity to which the Texas system is entitled, Lindsley v. Natural Carbonic Gas Co. City of Chicago, U. One also must remember that the system here challenged is not peculiar to Texas or to any other State. In its essential characteristics, the Texas plan for financing public education reflects what many educators for a half century have thought was an enlightened approach to a problem for which there is no perfect solution. We are unwilling to assume for ourselves a level of wisdom superior to that of legislators, scholars, and educational authorities in 50 States, especially where the alternatives proposed are only recently conceived and nowhere yet tested.
The constitutional standard under the Equal Protection Clause is whether the challenged state action rationally furthers a legitimate state purpose or interest. We hold that the Texas plan abundantly satisfies this standard. In light of the considerable attention that has focused on the District Court opinion in this case and on its California predecessor, Serrano v. It cannot be questioned that the constitutional judgment reached by the District Court and approved by our dissenting Brothers today would occasion in Texas and elsewhere an unprecedented upheaval in public education.
Some commentators have concluded that, whatever the contours of the alternative financing programs that might be devised and approved, the result could not avoid being a beneficial one. But, just as there is nothing simple about the constitutional issues involved in these cases, there is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education.
Those who have devoted the most thoughtful attention to the practical ramifications of these cases have found no clear or dependable answers, and their scholarship reflects no such unqualified confidence in the desirability of completely uprooting the existing system. The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education.
Unless there is to be a substantial increase in state expenditures on education across the board -- an event the likelihood of which is open to considerable question [n] -- these groups stand to [p57] realize gains in terms of increased per-pupil expenditures only if they reside in districts that presently spend at relatively low levels, i.
Yet recent studies have indicated that the poorest families are not invariably clustered in the most impecunious school districts. These practical considerations, of course, play no role in the adjudication of the constitutional issues presented here. But they serve to highlight the wisdom of the traditional limitations on this Court's function.
The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States, and we do no violence to the values of federalism and separation of powers by staying our hand. We hardly need add that this Court's action today is not to be viewed as placing its judicial imprimatur on the status quo. The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative thinking as to public education, its methods, and its funding is necessary to assure both a higher level of quality and greater uniformity of opportunity.
These matters merit the continued attention of the scholars who already [p59] have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them. Not all of the children of these complainants attend public school. One family's children are enrolled in private school "because of the condition of the schools in the Edgewood Independent School District.
The San Antonio Independent School District, whose name this case still bears, was one of seven school districts in the San Antonio metropolitan area that were originally named as defendants. After a pretrial conference, the District Court issued an order dismissing the school districts from the case.
Subsequently, the San Antonio Independent School District joined in the plaintiffs' challenge to the State's school finance system and filed an amicus curiae brief in support of that position in this Court. A three-judge court was properly convened, and there are no questions as to the District Court's jurisdiction or the direct appealability of its judgment.
The trial was delayed for two years to permit extensive pretrial discovery and to allow completion of a pending Texas legislative investigation concerning the need for reform of its public school finance system. The District Court stayed its mandate for two years to provide Texas an opportunity to remedy the inequities found in its financing program. The court, however, retained jurisdiction to fashion its own remedial order if the State failed to offer an acceptable plan. A general diffusion of knowledge being essential to the preservation of the rights and liberties of the people, it shall be the duty of the Legislature of this State to make suitable provision for the support and maintenance of public schools.
The Legislature shall as early as practicable establish free schools throughout the State, and shall furnish means for their support, by taxation on property. Cubberley, School Funds and Their Apportionment By , one-half of the State's population was clustered in its metropolitan centers. During this same period, a survey conducted by the State Board of Education concluded that,. General Laws of Texas, 46th Legis. Laws of Texas, 48th Legis.
Laws of Texas, 49th Legis. For a complete history of the adoption in Texas of a foundation program, see Still, supra, n. Local taxation contributed Texas Research League, supra, n. At present, there are 1, school districts in Texas. In , the Gilmer-Aikin Committee found that some school districts were not levying any local tax to support education.
Gilmer-Aikin Committee, supra, n. The Texas State Board of Education Survey found that over common and independent school districts were levying no local property tax in Acts , 51st Legis. A Wrong in Search of a Remedy, 1 J. The Available School Fund, technically, provides a second source of state money.
That Fund has continued as in years past see text accompanying nn. However, because the Available School Fund contribution is always subtracted from a district's entitlement under the Foundation Program, it plays no significant role in educational finance today. While federal assistance has an ameliorating effect on the difference in school budgets between wealthy and poor districts, the District Court rejected an argument made by the State in that court that it should consider the effect of the federal grant in assessing the discrimination claim.
The State has not renewed that contention here. A map of Bexar County included in the record shows that Edgewood and Alamo Heights are among the smallest districts in the county, and are of approximately equal size. Yet, as the figures above indicate, Edgewood's student population is more than four times that of Alamo Heights.
This factor obviously accounts for a significant percentage of the differences between the two districts in per-pupil property values and expenditures. The figures quoted above vary slightly from those utilized in the District Court opinion. These trivial differences are apparently a product of that court's reliance on slightly different statistical data than we have relied upon. Although the Foundation Program has made significantly greater contributions to both school districts over the last several years, it is apparent that Alamo Heights has enjoyed a larger gain.
The sizable difference between the Alamo Heights and Edgewood grants is due to the emphasis in the State's allocation formula on the guaranteed minimum salaries for teachers. Higher salaries are guaranteed to teachers having more years of experience and possessing more advanced degrees. Therefore, Alamo Heights, which has a greater percentage of experienced personnel with advanced degrees, receives more state support. In this regard, the Texas Program is not unlike that presently in existence in a number of other States.
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Because more dollars have been given to districts that already spend more per pupil, such Foundation formulas have been described as "anti-equalizing. The formula, however, is anti-equalizing only if viewed in absolute terms. The percentage disparity between the two Texas districts is diminished substantially by state aid. Alamo Heights derived in almost 13 times as much money from local taxes as Edgewood did. The state aid grants to each district in lowered the ratio to approximately two to one, i. The Economic Index, which determines each county's share of the total Local Fund Assignment, is based on a complex formula conceived in when the Foundation Program was instituted.
See text, supra at It has frequently been suggested by Texas researchers that the formula be altered in several respects to provide a more accurate reflection of local taxpaying ability, especially of urban school districts. The District Court relied on the findings presented in an affidavit submitted by Professor Berke of Syracuse University. His sampling of Texas school districts demonstrated a direct correlation between the amount of a district's taxable property and it level of per-pupil expenditures. But his study found only a partial correlation between a district's median family income and per-pupil expenditures.
The study also shows, in the relatively few districts at the extremes, an inverse correlation between percentage of minorities and expenditures. Although the correlations with respect to family income and race appear only to exist at the extremes, and although the affiant's methodology has been questioned see Goldstein, Inter-district Inequalities in School Financing: A Critical Analysis of Serrano v. Priest and its Progeny, U. But see infra at Blumstein, supra, at , and the cases collected therein. Board of Election Comm'rs, U. In their complaint, appellees purported to represent a class composed of persons who are "poor" and who reside in school districts having a "low value of.
Yet appellees have not defined the term "poor" with reference to any absolute or functional level of impecunity.
See text, infra at See also Brief for Appellees 1, 3; Tr. Appellees' proof at trial focused on comparative differences in family incomes between residents of wealthy and poor districts. They endeavored, apparently, to show that there exists a direct correlation between personal family income and educational expenditures.
The District Court may have been relying on this notion of relative discrimination based on family wealth. Citing appellees' statistical proof, the court emphasized that "those districts most rich in property also have the highest median family income. At oral argument, and in their brief, appellees suggest that description of the personal status of the residents in districts that spend less on education is not critical to their case. In their view, the Texas system is impermissibly discriminatory even if relatively poor districts do not contain poor people.
Brief for Appellees ; Tr. There are indications in the District Court opinion that it adopted this theory of district discrimination. The opinion repeatedly emphasizes the comparative financial status of districts, and, early in the opinion, it describes appellees' class as being composed of "all. Oklahoma City, U. District Court of Iowa, U. Each of appellees' possible theories of wealth discrimination is founded on the assumption that the quality of education varies directly with the amount of funds expended on it, and that, therefore, the difference in quality between two schools can be determined simplistically by looking at the difference in per-pupil expenditures.
This is a matter of considerable dispute among educators and commentators. Indeed, even though local funding has long been a significant aspect of educational funding, the State has always viewed providing an acceptable education as one of its primary functions. See Texas State Bd. An educational financing system might be hypothesized, however, in which the analogy to the wealth discrimination cases would be considerably closer. If elementary and secondary education were made available by the State only to those able to pay a tuition assessed against each pupil, there would be a clearly defined class of "poor" people -- definable in terms of their inability to pay the prescribed sum -- who would be absolutely precluded from receiving an education.
That case would present a far more compelling set of circumstances for judicial assistance than the case before us today. After all, Texas has undertaken to do a good deal more than provide an education to those who can afford it. It has provided what it considers to be an adequate base education for all children, and has attempted, though imperfectly, to ameliorate by state funding and by the local assessment program the disparities in local tax resources.
Also it should be recognized that median income statistics may not define with any precision the status of individual families within any given district. A more dependable showing of comparative wealth discrimination would also examine factors such as the average income, the mode, and the concentration of poor families in any district. Studies in other States have also questioned the existence of any dependable correlation between a district's wealth measured in terms of assessable property and the collective wealth of families residing in the district measured in terms of median family income.
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Note, 81 Yale L. See also Goldstein, supra, n. Indeed, this is precisely how the plaintiffs in Serrano v. Priest defined the class they purported to represent:. Plaintiff children claim to represent a class consisting of all public school pupils in California, "except children in that school district. See also Van Dusartz v. Appellees, however, have avoided describing the Texas system as one resulting merely in discrimination between districts per se, since this Court has never questioned the State's power to draw reasonable distinctions between political subdivisions within its borders.
Priest, supra; Van Dusartz v. Hatfield, supra; Robinson v. Some Minority Views on Serrano v. Inter-district Inequalities and Wealth Discrimination, 14 Ariz. A federal district court held the provision unconstitutional, applying a stricter standard of review. In the course of reversing the lower court, the Court distinguished Shapiro properly on the ground that, in that case, "the Court found state interference with the constitutionally protected freedom of interstate travel.
The Court refused to apply the strict scrutiny test despite its contemporaneous recognition in Goldberg v. In Eisenstadt, the Court struck down a Massachusetts statute that prohibited the distribution of contraceptive devices, finding that the law failed "to satisfy even the more lenient equal protection standard.
Nevertheless, in dictum, the Court recited the correct form of equal protection analysis:. Allied Stores of Ohio v.
Texas Research League, supra, n 20, at 2. See supra at U. There is no uniform state-wide assessment practice in Texas. Texas, in this regard, is not unlike most other States. One commentator has observed that "disparities in expenditures appear to be largely explained by variations in teacher salaries. As previously noted, see text accompanying n 86, supra, the extent to which the quality of education varies with expenditure per pupil is debated inconclusively by the most thoughtful students of public education.
While all would agree that there is a correlation up to the point of providing the recognized essentials in facilities and academic opportunities, the issues of greatest disagreement include the effect on the quality of education of pupil-teacher ratios and of higher teacher salary schedules. The state funding in Texas is designed to assure, on the average, one teacher for every 25 students, which is considered to be a favorable ratio by most standards.
But there appear to be few empirical data that support the advantage of any particular pupil-teacher ratio or that document the existence of a dependable correlation between the level of public school teachers' salaries and the quality of their classroom instruction. An intractable problem in dealing with teachers' salaries is the absence, up to this time, of satisfactory techniques for judging their ability or performance.
Relatively few school systems have merit plans of any kind, with the result that teachers' salaries are usually increased across the board in a way which tends to reward the least deserving on the same basis as the most deserving. Salaries are usually raised automatically on the basis of length of service and according to predetermined "steps," extending over to year periods.
President's Commission on School Finance, supra, n 85, at 9. Until recently, Hawaii was the only State that maintained a purely state-funded educational program. In , however, that State amended its educational finance statute to permit counties to collect additional funds locally and spend those amounts on its schools. The rationale for that recent legislative choice is instructive on the question before the Court today:. This corrective legislation is urgently needed in order to allow counties to go above and beyond the State's standards and provide educational facilities as good as the people of the counties want and are willing to pay for.
Allowing local communities to go above and beyond established minimums to provide for their people encourages the best features of democratic government. New State Ice Co. Appellees do not claim that the ceiling presently bars desired tax increases in Edgewood or in any other Texas district. Therefore, the constitutionality of that statutory provision is not before us, and must await litigation in a case in which it is properly presented.
In addition to asserting that local control would be preserved and possibly better served under other systems -- a consideration that we find irrelevant for the purpose of deciding whether the system may be said to be supported by a legitimate and reasonable basis -- the dissent suggests that Texas' lack of good faith may be demonstrated by examining the extent to which the State already maintains considerable control.
The State, we are told, regulates "the most minute details of local public education," ibid. This assertion, that genuine local control does not exist in Texas, simply cannot be supported. It is abundantly refuted by the elaborate statutory division of responsibilities set out in the Texas Education Code. Although policy decisionmaking and supervision in certain areas are reserved to the State, the day-to-day authority over the "management and control" of all public elementary and secondary schools is squarely placed on the local school boards.
Among the innumerable specific powers of the local school authorities are the following: See also Pervis v. Local school boards also determine attendance zones, location of new schools, closing of old ones, school attendance hours within limits , grading and promotion policies subject to general guidelines, recreational and athletic policies, and a myriad of other matters in the routine of school administration.
It cannot be seriously doubted that, in Texas, education remains largely a local function, and that the preponderating bulk of all decisions affecting the schools is made and executed at the local level, guaranteeing the greatest participation by those most directly concerned. This theme -- that greater state control over funding will lead to greater state power with respect to local educational programs and policies -- is a recurrent one in the literature on financing public education.
Professor Simon, in his thoughtful analysis of the political ramifications of this case, states that one of the most likely consequences of the District Court's decision would be an increase in the centralization of school finance and an increase in the extent of collective bargaining by teacher unions at the state level.
He suggests that the subjects for bargaining may include many "non-salary" items, such as teaching loads, class size, curricular and program choices, questions of student discipline, and selection of administrative personnel -- matters traditionally decided heretofore at the local level. Simon, supra, n 62, at Local Control of Education 64, C. Conant, The Child, The Parent, and The State 27 "Unless a local community, through its school board, has some control over the purse, there can be little real feeling in the community that the schools are in fact, local schools.
Hutchinson, State-Administered Locally Shared Taxes 21 "[S]tate administration of taxation is the first step toward state control of the functions supported by these taxes.
Irrespective of whether one regards such prospects as detrimental or whether he agrees that the consequence is inevitable, it certainly cannot be doubted that there is a rational basis for this concern on the part of parents, educators, and legislators. This Court has never doubted the propriety of maintaining political subdivisions within the States and has never found in the Equal Protection Clause any per se rule of "territorial uniformity. See also Griffin v.
Board of Education of Muskogee v. Any alternative that calls for significant increases in expenditures for education, whether financed through increases in property taxation or through other sources of tax dollars, such as income and sales taxes, is certain to encounter political barriers. At a time when nearly every State and locality is suffering from fiscal undernourishment, and with demands for services of all kinds burgeoning and with weary taxpayers already resisting tax increases, there is considerable reason to question whether a decision of this Court nullifying present state taxing systems would result in a marked increase in the financial commitment to education.
Milestone or Millstone for School Finance, 21 J. An amicus curiae brief filed on behalf of almost 30 States, focusing on these practical consequences, claims with some justification that "each of the undersigned states. See Note, supra, n See also authorities cited n , infra. See Goldstein, supra, n 38, at ; Jencks, supra, n 86, at 27; U. The Role of the Law 37 Comm'n on Civil Rights, supra, n at ; Simon, supra, n 62, at , The method of financing public schools in Texas, as in almost every other State, has resulted in a system of public education that can fairly be described as chaotic and unjust.
I join the opinion and judgment of the Court because I am convinced that any other course would mark an extraordinary departure from principled adjudication under the Equal Protection Clause of the Fourteenth Amendment. Unlike other provisions of the Constitution, the Equal Protection Clause confers no substantive rights and creates no substantive liberties.
There is hardly a law on the books that does not affect some people differently from others. But the basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and objectively identifiable classes. This settled principle of constitutional law was compendiously stated in Mr.
The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.
This doctrine is no more than a specific application of one of the first principles of constitutional adjudication -- the basic presumption of the constitutional validity of a duly enacted state or federal law. Under the Equal Protection Clause, this presumption of constitutional validity disappears when a State has enacted legislation whose purpose or effect is to create classes based upon criteria that, in a constitutional sense, are inherently "suspect. Moreover, quite apart from the Equal Protection Clause, a state law that impinges upon a substantive right or liberty created or conferred by the Constitution is, of course, presumptively invalid, whether or not the law's purpose or effect is to create any classifications.
For example, a law that provided that newspapers could be published only by people who had resided in the State for five years could be superficially viewed as invidiously discriminating against an identifiable class in violation of the Equal Protection Clause. But, more basically, such a law would be invalid simply because it abridged the freedom of the press. Numerous cases in this Court illustrate this principle.
In refusing to invalidate the Texas system of financing its public schools, the Court today applies with thoughtfulness and understanding the basic principles I have so sketchily summarized. First, as the Court points out, the Texas system has hardly created the kind of objectively identifiable classes that are cognizable under the Equal Protection Clause. Third, the Texas system does not rest "on grounds wholly irrelevant to the achievement of the State's objective. It follows, therefore, under the established principle reaffirmed in Mr.
Maryland, supra, that the judgment of the District Court must be reversed. There is one notable exception to the above statement: But there is no constitutional right to vote, as such. If there were such a right, both the Fifteenth Amendment and the Nineteenth Amendment would have been wholly unnecessary. But see Bullock v. Although I agree with my Brother WHITE that the Texas statutory scheme is devoid of any rational basis, and, for that reason, is violative of the Equal Protection Clause, I also record my disagreement with the Court's rather distressing assertion that a right may be deemed "fundamental" for the purposes of equal protection analysis only if it is "explicitly or implicitly guaranteed by the Constitution.
As my Brother MARSHALL convincingly demonstrates, our prior cases stand for the proposition that "fundamentality" is, in large measure, a function of the right's importance in terms of the effectuation of those rights which are in fact, constitutionally guaranteed. Post at U. Here, there can be no doubt that education is inextricably linked to the right to participate in the electoral process and to the rights of free speech and association guaranteed by the First Amendment.
See post at U. This being so, any classification affecting education must be subjected to strict judicial scrutiny, and since even the State concedes that the statutory scheme now before us cannot pass constitutional muster under this stricter standard of review, I can only conclude that the Texas school-financing scheme is constitutionally invalid.
The Texas public schools are financed through a combination of state funding, local property tax revenue, and some federal funds. But the State contends that the disparities do not invidiously discriminate against children and families in districts such as Edgewood, because the Texas scheme is designed. It leaves to the people of each district the choice whether to go beyond the minimum and, if so, by how much.
I cannot disagree with the proposition that local control and local decisionmaking play an important part in our democratic system of government. Much may be left to local option, and this case would be quite different if it were true that the Texas system, while insuring minimum educational expenditures in every district through state funding, extended a meaningful option to all local districts to increase their per-pupil expenditures, and so to improve their children's education to the extent that increased funding would achieve that goal.
The system would then arguably provide a rational and sensible method of achieving the stated aim of preserving an area for local initiative and decision. The difficulty with the Texas system, however, is that it provides a meaningful option to Alamo Heights and like school districts, but almost none to Edgewood and those other districts with a low per-pupil real estate tax base.
In these latter districts, no matter how desirous parents are of supporting their schools with greater revenues, it is impossible to do so through the use of the. In these districts, the Texas system utterly fails to extend a realistic choice to parents because the property tax, which is the only revenue-raising mechanism extended to school districts, is practically and legally unavailable.
That this is the situation may be readily demonstrated. Local school districts in Texas raise their portion of the Foundation School Program -- the Local Fund Assignment -- by levying ad valorem taxes on the property located within their boundaries. In addition, the districts are authorized, by the state constitution and by statute, to levy ad valorem property taxes in order to raise revenues to support educational spending over and above the expenditure of Foundation School Program funds.
Student enrollment in Alamo Heights is 5,, in Edgewood 22, As is readily apparent, because of the variance in tax bases between the districts, results, in terms of revenues, do not correlate with effort, in terms of tax rate. Thus, Alamo Heights, with a tax base approximately twice the size of Edgewood's base, realized approximately six times as many maintenance dollars as Edgewood by using a tax rate only approximately two and one-half times larger.
Similarly, Alamo Heights realized slightly fewer bond. Nor is Edgewood's revenue-raising potential only deficient when compared with Alamo Heights. Thus, because of its superior tax base, North East was able to apply a tax rate slightly less than twice that applied by Edgewood and yield more than 10 times the maintenance dollars. Plainly, were Alamo Heights or North East to apply the Edgewood tax rate to its tax base, it would yield far greater revenues than Edgewood is able to yield applying those same rates to its base. The disparity is, therefore, currently operative, and its impact on Edgewood is undeniably serious.
Edgewood is thus precluded in law, as well a in fact, from achieving a yield even close to that of some other district. The Equal Protection Clause permits discriminations between classes, but requires that the classification bear some rational relationship to a permissible object sought to be attained by the statute. It is not enough that the Texas system before us seeks to achieve the valid, rational purpose of maximizing local initiative; the means chosen by the State must also be rationally related to the end sought to be achieved. As the Court stated just last Term in Weber v.
Neither Texas nor the majority heeds this rule. If the State aims at maximizing local initiative and local choice, by permitting school districts to resort to the real property tax if they choose to do so, it utterly fails in achieving its purpose in districts with property tax bases so low that there is little if any opportunity for interested parents, rich or poor, to augment school district revenues.
Requiring the State to establish only that unequal treatment is in furtherance of a permissible goal, without also requiring the State to show that the means chosen to effectuate that goal are rationally related to its achievement, makes equal protection analysis no more than an empty gesture. This does not, of course, mean that local control may not be a legitimate goal of a school financing system.
Nor does it mean that the State must guarantee each district an equal per-pupil revenue from the state school financing system. Nor does it mean, as the majority appears to believe, that, by affirming the decision below,. On the contrary, it would merely mean that the State must fashion a financing scheme which provides a rational basis for the maximization of local control, if local control is to remain a goal of the system, and not a scheme with.
There is no difficulty in identifying the class that is subject to the alleged discrimination and that is entitled to the benefits of the Equal Protection Clause. I need go no farther than the parents and children in the Edgewood district, who are plaintiffs here and who assert that they are entitled to the same choice as Alamo Heights to augment local expenditures for schools but are denied that choice by state law.
This group constitutes a class sufficiently definite to invoke the protection of the Constitution. They are as entitled to the protection of the Equal Protection Clause as were the voters in allegedly underrepresented counties in the reapportionment case. And in Bullock v. Texas candidate filing fee on equal protection grounds was upheld, we noted that the victims of alleged discrimination wrought by the filing fee. Similarly, in the present case, we would blink reality to ignore the fact that school districts, and students in the end, are differentially affected by the Texas school financing scheme with respect to their capability to supplement the Minimum Foundation School Program.
At the very least, the law discriminates against those children and their parents who live in districts where the per-pupil tax base is sufficiently low to make impossible the provision of comparable school revenues by resort to the real property tax which is the only device the State extends for this purpose. The heart of the Texas system is embodied in an intricate series of statutory provisions which make up Chapter 16 of the Texas Education Code, Tex.
The figures discussed are from Plaintiffs' Exhibits 7, 8, and The figures are from the school year. Because the various exhibits relied upon different attendance totals, the per-pupil results do not precisely correspond to the gross figures quoted. The disparity between districts, rather than the actual figures, is the important factor. Variable assessment practices are also revealed in this record.
Appellants do not, however, contend that this factor accounts, even to a small extent, for the inter-district disparities. The per-pupil funds received from state, federal, and other sources, while not precisely equal, do not account for the large differential and are not directly attacked in the present case. The State of Texas appears to concede that the choice of whether or not to go beyond the state-provided minimum. Those districts with large amounts of taxable property can produce more revenue at a lower tax rate and will provide their children with a more expensive education.
Brief for Appellants The State nevertheless insists that districts have a choice and that the people in each district have exercised that choice by providing some real property tax money over and above the minimum funds guaranteed by the State. Like the majority, however, the State fails to explain why the Equal Protection Clause is not violated, or how its goal of providing local government with realistic choices as to how much money should be expended on education is implemented, where the system makes it much more difficult for some than for others to provide additional educational funds and where, as a practical and legal matter, it is impossible for some districts to provide the educational budgets that other districts can make available from real property tax revenues.
The Court today decides, in effect, that a State may constitutionally vary the quality of education which it offers its children in accordance with the amount of taxable wealth located in the school districts within which they reside. The majority's decision represents an abrupt departure from the mainstream of recent state and federal court decisions concerning the unconstitutionality of state educational financing schemes dependent upon taxable local wealth. The Court does this despite the absence of any substantial justification for a scheme which arbitrarily channels educational resources in accordance with the fortuity of the amount of taxable wealth within each district.
In my judgment, the right of every American to an equal start in life, so far as the provision of a state service as important as education is concerned, is far too vital to permit state discrimination on grounds as tenuous as those presented by this record. Nor can I accept the notion that it is sufficient to remit these appellees to the vagaries of the political process which, contrary to the majority's suggestion, has proved singularly unsuited to the task of providing a remedy for this discrimination.
I must therefore respectfully dissent. The Court acknowledges that "substantial inter-district disparities in school expenditures" exist in Texas, ante at U. But instead of closely examining the seriousness of these disparities and the invidiousness of the Texas financing scheme, the Court undertakes an elaborate exploration of the efforts Texas has purportedly made to close the gaps between its districts in terms of levels of district wealth and resulting educational funding.
Yet however praiseworthy Texas' equalizing efforts, the issue in this case is not whether Texas is doing its best to ameliorate the worst features of a discriminatory scheme, but rather whether the scheme itself is, in fact, unconstitutionally discriminatory in the face of the Fourteenth Amendment's guarantee of equal protection of the laws. When the Texas financing scheme is taken as a whole, I do not think it can be doubted that it produces a discriminatory impact on substantial numbers of the school-age children of the State of Texas.
Funds to support public education in Texas are derived from three sources: Under Texas law, the only mechanism provided the local school district for raising new, unencumbered revenues is the power to tax property located within its boundaries. The first factor is determined by the property-taxpaying voters of the district.
The necessary effect of the Texas local property tax is, in short, to favor property-rich districts and to disfavor property-poor ones. The seriously disparate consequences of the Texas local property tax, when that tax is considered alone, are amply illustrated by data presented to the District Court by appellees. It is clear, moreover, that the disparity of per-pupil revenues cannot be dismissed as the result of lack of local effort -- that is, lower tax rates by property-poor districts.
To the contrary, the data presented below indicate that the poorest districts tend to have the highest tax rates and the richest districts tend to have the lowest tax rates. Nor are these funding variations corrected by the other aspects of the Texas financing scheme. School Fund is composed of revenues obtained from a number of sources, including receipts from the state ad valorem property tax, one-fourth of all monies collected by the occupation tax, annual contributions by the legislature from general revenues, and the revenues derived from the Permanent School Fund.
Obviously, such a flat grant could not alone eradicate the funding differentials attributable to the local property tax. The Minimum Foundation School Program provides funds for three specific purposes: The stated purpose of the Minimum Foundation School Program is to provide certain basic funding for each local Texas school district. Yet the index is not developed simply on the basis of each district's taxable wealth. It also takes into account the district's relative income from manufacturing, mining, and agriculture, its payrolls, and its scholastic population.
It is difficult to discern precisely how these latter factors are predictive of a district's relative ability to raise revenues through local property taxes. Thus, in , one of the consultants who originally participated in the development of the Texas economic index adopted in told the Governor's Committee on Public School Education: Moreover, even putting aside these criticisms of the economic index as a device for achieving meaningful district wealth equalization through cost allocation, poor districts still do not necessarily receive more state aid than property-rich districts.
And even the appellants go no further here than to venture that the Minimum Foundation School Program has "a mildly equalizing effect. Despite these facts, the majority continually emphasizes how much state aid has, in recent years, been given. What the Court fails to emphasize is the cruel irony of how much more state aid is being given to property-rich Texas school districts on top of their already substantial local property tax revenues. And it is these stark differences in the treatment of Texas school districts and school children inherent in the Texas financing scheme, not the absolute amount of state aid provided to any particular school district, that are the crux of this case.
There can, moreover, be no escaping the conclusion that the local property tax which is dependent upon taxable district property wealth is an essential feature of the Texas scheme for financing public education. The appellants do not deny the disparities in educational funding caused by variations in taxable district property wealth. They do contend, however, that whatever the differences in per-pupil spending among Texas districts, there are no discriminatory consequences for the children of the disadvantaged districts.
They recognize that what is at stake in this case is the quality of the. But appellants reject the suggestion that the quality of education in any particular district is determined by money -- beyond some minimal level of funding which they believe to be assured every Texas district by the Minimum Foundation School Program. In their view, there is simply no denial of equal educational opportunity to any Texas school children as a result of the widely varying per-pupil spending power provided districts under the current financing scheme. In my view, though, even an unadorned restatement of this contention is sufficient to reveal its absurdity.
Authorities concerned with educational quality no doubt disagree as to the significance of variations in per-pupil spending. It is an inescapable fact that, if one district has more funds available per pupil than another district, the. In this regard, I believe the question of discrimination in educational quality must be deemed to be an objective one that looks to what the State provides its children, not to what the children are able to do with what they receive. That a child forced to attend an underfunded school with poorer physical facilities, less experienced teachers, larger classes, and a narrower range of courses than a school with substantially more funds -- and thus with greater choice in educational planning -- may nevertheless excel is to the credit of the child, not the State, cf.
Indeed, who can ever measure for such a child the opportunities lost and the talents wasted for want of a broader, more enriched education? Discrimination in the opportunity to learn that is afforded a child must be our standard. Hence, even before this Court recognized its duty to tear down the barriers of state-enforced racial segregation in public education, it acknowledged that inequality in the educational facilities provided to students may be discriminatory state action as contemplated by the Equal Protection Clause.
As a basis for striking down state-enforced segregation of a law school, the Court in Sweatt v. In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review and similar activities, the [whites-only] Law School is superior. It is difficult to believe that one who had a free choice between these law schools would consider the question close. See also McLaurin v. Likewise, it is difficult to believe that, if the children of Texas had a free choice, they would choose to be educated in districts with fewer resources, and hence with more antiquated plants, less experienced teachers, and a less diversified curriculum.
In fact, if financing variations are so insignificant to educational quality, it is difficult to understand why a number of our country's wealthiest school districts, which have no legal obligation to argue in support of the constitutionality of the Texas legislation, have nevertheless zealously pursued its cause before this Court. The consequences, in terms of objective educational input, of the variations in district funding caused by the Texas financing scheme are apparent from the data introduced before the District Court. For constitutional purposes, I believe this situation, which is directly attributable to the Texas financing scheme, raises a grave question of state-created discrimination in the provision of public education.
At the very least, in view of the substantial inter-district disparities in funding and in resulting educational inputs shown by appellees to exist under the Texas financing scheme, the burden of proving that these disparities do not, in fact, affect the quality of children's education must fall upon the appellants.
Yet appellants made no effort in the District Court to demonstrate that educational quality is not affected by variations in funding and in resulting inputs. And, in this Court, they have argued no more than that the relationship is ambiguous. This is hardly sufficient to overcome appellees' prima facie showing of state-created discrimination between the school children of Texas with respect to objective educational opportunity.
Nor can I accept the appellants' apparent suggestion that the Texas Minimum Foundation School Program effectively eradicates any discriminatory effects otherwise resulting from the local property tax element of the. Appellants assert that, despite its imperfections, the Program "does guarantee an adequate education to every child. But I fail to understand how the constitutional problems inherent in the financing scheme are eased by the Foundation Program.
Indeed, the precise thrust of the appellants' and the Court's remarks are not altogether clear to me. The suggestion may be that the state aid received via the Foundation Program sufficiently improves the position of property-poor districts vis-a-vis property-rich districts -- in terms of educational funds -- to eliminate any claim of inter-district discrimination in available educational resources which might otherwise exist if educational funding were dependent solely upon local property taxation.
Certainly the Court has recognized that to demand precise equality of treatment is normally unrealistic, and thus minor differences inherent in any practical context usually will not make out a substantial equal protection claim. But, as has already been seen, we are hardly presented here with some de minimis claim of discrimination resulting from the play necessary in any functioning system; to the contrary, it is clear that the Foundation Program utterly fails to. Alternatively, the appellants and the majority may believe that the Equal Protection Clause cannot be offended by substantially unequal state treatment of persons who are similarly situated so long as the State provides everyone with some unspecified amount of education which evidently is "enough.
It is, of course, true that the Constitution does not require precise equality in the treatment of all persons. The Fourteenth Amendment enjoins 'the equal protection of the laws,' and laws are not abstract propositions. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. See also Douglas v. But this Court has never suggested that, because some "adequate" level of benefits is provided to all, discrimination in the provision of services is therefore constitutionally excusable. The Equal Protection Clause is not addressed to the minimal sufficiency, but rather to the unjustifiable inequalities of state action.
It mandates nothing less than that "all persons similarly circumstanced shall be treated alike. Even if the Equal Protection Clause encompassed some theory of constitutional adequacy, discrimination in the provision of educational opportunity would certainly seem to be a poor candidate for its application. Neither the majority nor appellants inform us how judicially manageable standards are to be derived for determining how much education is "enough" to excuse constitutional discrimination.
One would think that the majority would heed its own fervent affirmation of judicial self-restraint before undertaking the complex task of determining at large what level of education is constitutionally sufficient. Indeed, the majority's apparent reliance upon the adequacy of the educational opportunity assured by the Texas Minimum Foundation School Program seems fundamentally inconsistent with its own recognition that educational authorities are unable to agree upon what makes for educational quality, see ante at U.
If, as the majority stresses, such authorities are uncertain as to the impact of various levels of funding on educational quality, I fail to see where it finds the expertise to divine that the particular levels of funding provided by the Program assure an adequate educational opportunity -- much less an education substantially equivalent in quality to that which a higher level of funding might provide. Certainly appellants' mere assertion before this Court of the adequacy of the education guaranteed by the Minimum. Foundation School Program cannot obscure the constitutional implications of the discrimination in educational funding and objective educational inputs resulting from the local property tax -- particularly since the appellees offered substantial uncontroverted evidence before the District Court impugning the now much-touted "adequacy" of the education guaranteed by the Foundation Program.
In my view, then, it is inequality -- not some notion of gross inadequacy -- of educational opportunity that raises a question of denial of equal protection of the laws. I find any other approach to the issue unintelligible, and without directing principle. Here, appellees have made a substantial showing of wide variations in educational funding and the resulting educational opportunity afforded to the school children of Texas.
This discrimination is, in large measure, attributable to significant disparities in the taxable wealth of local Texas school districts. This is a sufficient showing to raise a substantial question of discriminatory state action in violation of the Equal Protection Clause. Despite the evident discriminatory effect of the Texas financing scheme, both the appellants and the majority raise substantial questions concerning the precise character of the disadvantaged class in this case. The District Court concluded that the Texas financing scheme draws "distinction between groups of citizens depending upon the wealth of the district in which they live," and thus creates a disadvantaged class composed of persons living in property-poor districts.
Rhodes Wood v. Strickland O'Connor v. Donaldson Paul v. Davis Imbler v. Pachtman Monell v. Navarette Owen v. City of Independence Harlow v. Fitzgerald Felder v. Casey Will v.
Doe Inyo County v. Abrams Fitzgerald v. Barnstable School Committee Ashcroft v. Iqbal Los Angeles County v. Humphries Connick v. Hardy Muller v. Oregon Buck v. Bell Powell v. Alabama West Coast Hotel v. Alabama Griswold v. Connecticut Loving v. Virginia Epperson v. Arkansas In re Winship Kolender v. Lawson Edwards v.
Aguillard Troxel v. Granville Caperton v. Cruikshank Pace v. Hopkins Plessy v. Ferguson Buchanan v. Warley Lum v. Rice Skinner v. Oklahoma Perez v. Sharp Goesaert v. Cleary Shelley v. Kraemer Sipuel v. Board of Regents of Univ. Painter McLaurin v. Oklahoma State Regents Brown v. Board of Education of Topeka Hernandez v.
Texas Griffin v. Morgan Loving v. Virginia Swann v. Johnson Reed v.

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by Luis E. Insignares, Esq.
—-3. All personal property titled jointly by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. In the event a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.
—-4. The burden of proof to overcome the gift presumption shall be by clear and convincing evidence.
§ 61.075(6)(a)3, 4, FLA. STAT. (2008) (emphasis supplied).
Prior to the above additions, the equitable-distribution statute provided only that jointly titled real property was presumed to be marital property. See, § 61.075(5)(a)5, FLA. STAT. (2007). The statute said nothing about personal property, nor about what evidentiary standard would be applied to determine whether the gift presumption would be overcome in a particular case.
As to the applicable evidentiary standard, there was little accord in the case law. Some opinions required proof “beyond a reasonable doubt.” See, e.g., Lindley v. Lindley, 84 So.2d 17 (Fla. 1955); Antonini v. Antonini, 473 So.2d 739 (Fla. 1st DCA 1985); Smith v. Smith, 597 So.2d 370 (Fla. 3d DCA 1992). The standard of proof favored in other decisions was “clear and convincing evidence,” Harrison v. Harrison, 314 So.2d 812 (Fla. 3d DCA 1975); Abbot v. Abbot, 297 So.2d 608 (Fla. 2d DCA 1974), while yet another decision applied the “greater weight of the evidence” standard. See, Heim v. Heim, 712 So.2d 1238 (Fla. 4th DCA 1998) (reversing trial court’s refusal to grant special equity in entireties property, because trial court imposed erroneous evidentiary standard of “beyond a reasonable doubt” to husband’s assertion that no gift was intended and that his nonmarital funds were source of funds purchasing jointly titled property).
As noted in the companion article to this one that concerns overcoming the real property gift presumption, practitioners have found the gift presumption difficult to overcome, whatever evidentiary standard formerly has been applied. Frequently, the only documentation as to title or the parties’ intent regarding a gift is the deed itself. Thus, the issue of whether a gift was intended has historically devolved to a “swearing match” between the spouses. In such scenarios, a gift typically is found and the presumption is not overcome.
In considering attempts to overcome the gift presumption in a real-property context, Florida courts have proven very reluctant to accept special-equity claims, because of the generally self-serving nature of the claim and testimony in support of it, and have rejected such claims if there were virtually any evidentiary basis to do so. See, e.g., Bomwell v. Bomwell, 676 So.2d 508, 510 (Fla. 4th DCA 1996) (“Wife presented no evidence to rebut the presumption that she had intended the funds to be a gift.”) [applied to the marital home] (bracketed material supplied); Smeaton v. Smeaton, 678 So.2d 501 (Fla. 1st DCA 1996) (stating simply that “there was insufficient evidence to overcome the statutory presumption that real estate held as tenants by the entireties constitutes a marital asset”); Rutland v. Rutland, supra (husband’s premarital down payment on marital home owned by husband alone prior to marriage, but transferred into entireties property following marriage, was insufficient to rebut gift presumption, where husband deeded property “without reserving his known claim – his premarital down payment. . .”); Glover v. Glover, 601 So.2d 231 (Fla. 1st DCA 1992) (noting presumption, but reversing award of special equity in marital home because “final judgment includes no specific finding as to whether the marital home and property are marital or nonmarital assets.” 601 So.2d at 233-34); Escudero v. Escudero, 739 So.2d 688, 692 (Fla. 5th DCA 1999) (although husband’s testimony regarding testamentary purpose [for joint titling] was unrebutted, trial court “did not have to believe . . . testimony even if unrebutted;” held: denial of special equity affirmed) (bracketed material added).
Presumably, the results typically occurring in the real-property context will now carry over to disputes involving jointly titled personal property. In the real-property arena, the most frequent claim made has been that the property was jointly titled for estate-planning purposes; in the rare case where both spouses agree that this was the intent behind the joint titling the gift presumption will be overcome. See, Hill v. Hill, 675 So.2d 168 (Fla. 5th DCA 1996); compare, Hay v. Hay, 944 So.2d 1043 (Fla. 4th DCA 2006) (holding that home was marital property where gift presumption was not rebutted; husband testified that he placed wife’s name on deed merely to ensure that she could have property if something happened to him, and wife testified that husband told her that, “This is our house,” and that he had purchased it for the two of them and her children); Lyons v. Lyons, 687 So.2d 837 (Fla. 2d DCA 1996) (presumption rebutted where wife testified as to estate-planning purpose, but husband failed to present any evidence contradicting such purpose); see also, Kronfeld v. Kronfeld, 761 So.2d 411, 412 (Fla. 3d DCA 2000) (holding that in determining equitable-distribution scheme, husband was entitled to $300,000 credit against lump-sum amount due his wife because he had paid $300,000 to satisfy lien on marital home during separation period; husband overcame gift presumption by proving that he was not making contribution to intact marriage, but was satisfying corporate debt owed by parties that encumbered business owned solely by husband).
The Archer court’s conclusion, however, was based on its holding that the prior statute’s gift presumption “clearly extends only to real property,” and that the prior statute did “not contain a similar presumption for personal property.” Since the statute now does contain such a provision, it appears that even “traceable” nonmarital assets within an entireties account will become presumptively marital. Certainly it could be argued that if specific assets can be traced to nonmarital sources, and there is no other contradicting evidence, then gift presumption should be overcome. Other pre-amendment factors, such as control over the asset, and the length of the marriage, see, e.g., Grieco v. Grieco, 917 So.2d 1052 (Fla. 2d DCA 2006) may also retain some relevance to overcoming the new gift presumption in entireties accounts. However, the burden of producing “clear and convincing” proof that no gift was intended will be on the spouse seeking to keep an asset nonmarital. If the real property gift presumption case law is any indication, virtually any credible testimony from a spouse -to the effect that the couple considered all the contents of an entireties account “ours” – will defeat a spouse’s attempt to overcome the gift presumption.
—-[A]s between the debtor and a third-party creditor . . . , if the signature card of a bank account does not expressly disclaim the tenancy by the entireties form of ownership, a rebuttable presumption arises that a bank account titled in the names of both spouses is held as a tenancy by the entireties as long as the account is established by husband and wife in accordance with the unities of possession, interest, title, and time and with right of survivorship.
Beal Bank, SSB v. Almand and Associates, 780 So.2d 45, 58 (Fla. 2001). Thus, the practitioner should check the actual bank documents regarding exactly how the account is titled, as there is a potential possibility that an account simply titled in two names without further elaboration will be presumed to be an entireties account. Compare, Crouch v. Crouch, 898 So.2d 177, 182-84 (Fla. 5th DCA 2005) (refusing to recede from Archer and rejecting argument that Beal Bank analysis had any proper application to equitable-distribution scenarios). Exactly how “survivorship” accounts will be handled under the new statute is unclear, but the “commingled/traceable” dichotomy may still retain significance as to such accounts.


D.C. Law Library - § 47–4474. Redemption of property.
↪ § 47–4474. Redemption of property.
§ 47–4473. Storage and sale of perishable property.
§ 47–4475. Certificate of sale; deed of real property.
§ 47–4474. Redemption of property.
(a) A person whose property has been levied upon shall have the right to pay the amount due, together with the expenses of the proceeding, if any, to the Mayor at any time before the sale of the property, and upon the payment, the Mayor shall restore the property to him, and all further proceedings in connection with the levy on the property shall cease.
(b)(1) The owners of real property sold as provided in this chapter; their heirs, executors, or administrators; any person having an interest in or a lien on the property; or any person on their behalf, shall be permitted to redeem the property sold at any time within 180 days after the sale.
(2) The property may be redeemed upon payment to the purchaser (or if the purchaser cannot be found, to the Mayor), for the use of the purchaser, his heirs, or assigns, the amount paid by the purchaser and interest thereon at the rate of 18% per year.
This section is referenced in § 47-4475.