No Small Matter: Kagan, Stevens, Marshall and a Rural Child Named Kadrmas

Last Updated: May 27, 2010

This article appeared in the May 2010 Rural Policy Matters.

Robin Lambert, Policy Analyst
Rural School and Community Trust

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Supreme Court nominee Elena Kagan’s disagreement with Justice Thurgood Marshall, for whom she clerked in 1988, on an important equal protection case involving educational opportunity has drawn considerable attention. Both Marshall and Justice John Paul Stevens, whom Kagan is slated to replace, dissented in the 5–4 decision. The case and the reasons for their dissent are important contemporary educational opportunity issues.

The case has significant meaning for rural schools and communities because the issue involved school consolidations and the cost of transportation. 

Stevens’ position is worth noting because he not only concurred with Marshall on the equal protection aspects of the case, but he made additional claims about the rights of poor children and the circumstances in which government — school boards and states in this case — could treat them unequally.

The case was Kadrmas v. Dickinson Public Schools and the Court was deciding whether a rural North Dakota school district could charge a low-income nine-year-old student a fee to ride the bus to school, 16 miles from her home. North Dakota’s Supreme Court had upheld the fee as constitutionally permitted.

The core issues in the case were whether poor people constitute a “protected class” and whether education was a “fundamental right.” The case would set important precedent because fundamental rights for protected classes are subject to “strict scrutiny,” meaning that the government (in this case the state of North Dakota) must show that a measure that discriminates against a protected class serves a “compelling state interest” and is narrowly designed to serve that interest with the least harm to those discriminated against. Whatever the Court decided would have broad implications for poor children across the country.

Marshall, who had argued and won the 1954 Brown v. Board of Education case that declared the segregation of public schools unconstitutional, maintained that the busing fee unduly burdened access to education for the poor and therefore violated the Equal Protection Clause of the Fourth Amendment. In Kadrmas, he asserted that poverty was a protected class, subject to strict scrutiny, as race had been in Brown.

Ultimately, the Court made a 5–4 decision in Kadrmas to uphold the right of the schools to charge the fee. Writing for the majority, Justice Sandra Day O’Connor stated: “Statutes having different effects on the wealthy and the poor are not, on that account alone, subject to strict equal protection scrutiny. Nor is education a ‘fundamental right’ that triggers strict scrutiny when government interferes with an individual’s access to it.”

Marshall’s Dissent

Distressed that the Court’s decisions were affirmatively narrowing educational access and leading the country away from commitments to equal opportunity, Marshall wanted a vigorous dissent. He instructed Kagan to draft an opinion for him to review. But Kagan’s disagreement with Marshall’s position made it difficult for her to express his ideas and Marshall repeatedly returned her drafts for revision.

In the end Marshall’s dissent, which was joined by Justice William J. Brennan, is strongly worded. Quoting Lane v. Wilson, “the Constitution is concerned with ‘sophisticated as well as simple-minded modes of discrimination,’” the dissent cites prior rulings establishing the importance of educational access as a primary avenue through which the poor could advance and the nation could guard against the creation of a “permanent underclass.” Marshall wrote:

Today, the Court continues the retreat from the promise of equal educational opportunity by holding that a school district's refusal to allow an indigent child who lives 16 miles from the nearest school to use a school-bus service without paying a fee does not violate the Fourteenth Amendment's Equal Protection Clause. Because I do not believe that this Court should sanction discrimination against the poor with respect to ‘perhaps the most important function of state and local governments,’ Brown v. Board of Education, (1954), I dissent.
…This case involves state action that places a special burden on poor families in their pursuit of education. Children living far from school can receive a public education only if they have access to transportation; as the state court noted in this case, ‘a child must reach the schoolhouse door as a prerequisite to receiving the educational opportunity offered therein.’ … Indeed, for children in Sarita's [Kadrmas] position, imposing a fee for transportation is no different in practical effect from imposing a fee directly for education.
…The statute at issue here burdens a poor person's interest in an education. The extraordinary nature of this interest cannot be denied.

Further, Marshall’s dissent asserts that the State’s rationale for the fee is “based entirely on fiscal considerations” and that “exempting indigent families from the busing fee… would not require Dickinson [school district] to make any significant adjustments in either the operation or the funding of the bus service.” Calling the state interest “insubstantial,” Marshall stated, “it does not begin to justify the discrimination challenged here. …In allowing a State to burden the access of poor persons to an education, the Court denies equal opportunity and discourages hope.”

Stevens’ Dissent

Stevens concurred with Marshall’s dissent on the basis of equal protection on the “strict scrutiny” standard, but also maintained that the state court’s decision upholding the busing fee failed to meet the much less stringent standard that permits discrimination if it is a “rational” means of accomplishing a compelling state interest.  

Writing for himself and Justice Harry Blackmun, Stevens recognized the special hardships imposed on rural children and their families by the transportation fee and wrote that the decision of the North Dakota Court lacked the “elements of legitimacy and neutrality” necessary to meet the rational standard for imposing the “geographic discrimination,” that the Court “unequivocally identified.” 

In concurring with Marshall, Stevens asserted educational opportunity protections for children in poverty; in naming geographic discrimination he identified a unique challenge that poses special hardships for rural children and their families, especially those in poverty. In fact, issues involved in North Dakota’s rural school district consolidation policy formed the basis of Stevens’ dissent. 

North Dakota law required “reorganized” (consolidated) school districts to offer free transportation. The requirement was part of a state initiative, begun in 1947, to persuade rural voters to consolidate their school districts. If they voted to consolidate, they would have no fear of having to use their own time and money to get their kids to more distant schools. Schools that were not part of a consolidation, however, were not required to provide free transportation. The Dickinson Public School district, challenged in Kadrmas, had not reorganized and was therefore not subject to North Dakota’s free transportation law.

In its ruling upholding the transportation fee, the North Dakota Supreme Court had recognized that the “obvious purpose” of the legislation was to encourage consolidation and accepted that the Dickinson school was under no obligation to provide free transportation. 

Stevens wrote that this justification made two conclusions clear. First, free bus transportation in sparsely populated areas is very important because it would not otherwise have been much of an incentive for voters to close schools. Second, once voters had an opportunity to decide whether or not to consolidate, there was no longer any purpose in allowing non-consolidated districts to impose transportation fees that “place an obstacle in the paths of poor children seeking an education…” 

Implications: Kagan, Stevens, Marshall and the Rural Poor

School consolidation with its burdens, financial and otherwise, on rural children and their families is alive as a constitutional issue today. A number of states across the country continue policies that encourage, coerce, or force the consolidation of small rural schools and districts. One result is long bus rides: three, four, or more hours every day for many rural children. For these students, the issue is generally not whether their families have to pay for the bus, but whether such long distances and lengthy bus rides do harm or raise barriers to equal educational opportunity — like robbing students of time needed for advanced courses or after-school activities and excluding their parents from most school activities. In the view of many rural families, especially those with limited financial means, these results of consolidation are obstacles placed in the paths of their children’s education.

We don’t know how Justices Marshall or Stevens would have decided such questions. But it is no small matter that they wrote dissents in Kadrmas, one centered on equal protection for the poor, one claiming that educational obstacles “placed in the paths” of some children and not others are unconstitutional, both recognizing the uniquely rural circumstances of the case and the plaintiff child.

While dissents don’t carry the day, many are important articulations of core American political values and judicial philosophies that are revisited as law and legal interpretation evolve.

In Marshall’s view, the decision in Kadrmas was a significant “retreat from the promise of equal educational opportunity.” But many related issues are not settled, and other cases that challenge or champion the educational rights of poor children will certainly make their way to the High Court again. 

If Kagan is sitting on the Court when such a case is heard, the Kadrmas dissents will likely be re-visited, and when they are, let’s hope she can be persuaded to think more like the Justice for whom she clerked and the Justice she replaced.

You can read the Kadrmas opinions here.

You can read oral arguments here.

You can read Kagan’s remembrance of Justice Marshall, including her work on the Kadrmas case, here.

For more information regarding the Rural School and Community Trust contact Robert Mahaffey, Director of Communications, 202-822-3919 or visit our website at

Read more from the May 2010 Rural Policy Matters.