concurring.
Cases involving equal protection and lack of wealth present unique problems. Such cases may involve indigent defendants or, as here, they may involve school districts lacking wealth. In such cases, one question should be: Does equal protection require equality of *662treatment, or equality of result?1
State universities and colleges charge uniform tuition. No one suggests that uniform tuition violates equal protection because we think here of equality of treatment. If, on the other hand, we were to think in terms of equality of result, indigent students could demand a free college education.
Similarly if, instead of APEG, the state were to grant to each school district the uniform sum of $800 per student in ADA, that would be equality of treatment but not equality of result. The state has chosen not to use equality of treatment in APEG and the question here is, must the state provide equality of result.2 In order to answer this question, we must first decide whether education is a fundamental right because if the answer to that question is affirmative, then equality of result may well be mandated.
With this distinction between equality of treatment and result in mind, I agree with the majority opinion in all respects except one. I agree with the majority that under our equal protection clause, although education is a primary obligation of the state, Code Ann. § 2-4901, it is not a fundamental right under the constitution, and therefore equality of result is not mandated. As for satisfying the rational relationship test on the basis of local control of education, including local control of taxation, it is admitted that poor school districts cannot remedy the existing disparities in expenditures per child, and I do not find that the constitutional deprivations of those students adversely affected (and on whose behalf this litigation was brought) are justified by treating local control as a legitimate governmental purpose. However, I would find that even under the intermediate level of judicial scrutiny, the system of financing public education (APEG plus local supplementation) at present is substantially related to the important governmental objective of allowing those school districts capable of doing so to provide their students with a better education. I therefore concur in the judgment of the court.
The question arises in cases other than those involving lack of wealth.
A wealthy school district could challenge, probably not successfully, the state’s failure to use equality of treatment.