Since 1984, the Texas Supreme Court has ruled over and over again that the state’s school finance plan is inadequate, inefficient, and unconstitutional. The outcome of the current lawsuit will likely be no different. Why is this the most intractable problem in state government?
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Three days before Christmas, attorneys representing a coalition of 63 school districts delivered an unwelcome present to state officials: legal documents that would trigger the latest in a series of lawsuits over the way Texas finances—or more accurately, fails to finance—its public schools. The delivery was unwanted, but it was not unexpected. The ongoing battle between the state and its financially strapped school districts has become a story with a theme but no ending, dating back to the first successful school finance lawsuit, in 1984, Edgewood Independent School District et al. v. Kirby et al. (William Kirby was the commissioner of education at the time). Since then, Edgewood v. Kirby has been contested more times than the estate of J. Howard Marshall. David Thompson, the lead attorney for one of four groups of school districts that are suing the state, likens the long series of lawsuits to the Harry Potter novels: each one starts where the last one leaves off, and in the end, they fit together. Unfortunately, in school finance there is no philosopher’s stone that can turn bad policy into good.
It is, alas, all too easy to get lost in the intricacies of school finance and to lose sight of what is at stake, so let’s be clear at the outset: the argument is over nothing less than the future of Texas. When schools are underfunded, as they have been since at least 2005, students don’t learn. When students don’t learn, they emerge from high school unprepared for college. When they aren’t ready for college, they risk joining the 75 percent of adults in Texas who don’t have a college degree (the national average is 72 percent). When they lack a college degree, their chances of finding a secure place in the state’s workforce diminish accordingly.
And yet the process of financing public education remains the most intractable problem in state government. It never goes away, and it defeats nearly everyone who attempts to puzzle it out. Governors on both sides of the aisle have called some of the state’s most prominent citizens into service to work on the issue—John Connally brought in Houston lawyer (and soon-to-be Watergate special prosecutor) Leon Jaworski; Mark White turned to billionaire H. Ross Perot; Rick Perry relied on a longtime friend, former state comptroller John Sharp—but the basic problem has so far defied solution, and the legal fight never ends. In suit after suit, the issue is the same: Does the state’s approach to funding public schools violate the Texas constitution of 1876, which demands “the support and maintenance of an efficient system of public free schools”? In the initial Edgewood ruling, the Texas Supreme Court decided that the answer to this question was yes and established the precedent that an efficient system required that “children who live in poor districts and children who live in rich districts must be afforded a substantially equal opportunity to have access to educational funds.” This is an admirable and often expressed sentiment, and yet it has been immensely difficult to convert sentiment into reality.
Inequity is sewed into the fabric of the state. It doesn’t take a law degree to understand that students who live in districts with considerable property wealth (archetype: Highland Park) have a funding advantage over students who live in districts with low property values (archetype: Edgewood, a district of mostly frame homes on San Antonio’s West Side). When districts seek to raise revenue locally by levying taxes on property, those with high property values can rake in the money, even if their tax rates are low. Those with low values can never catch up, even if their tax rates are high.
No one doubts that the system lacks fundamental fairness. Of the nine school finance lawsuits that have come before the Texas Supreme Court, the plaintiffs have won every case but one, in 1995. (That year, the court ruled that the school finance system was indeed constitutional, a decision that spared incoming governor George W. Bush the battles over school finance that had plagued several of his predecessors, including Ann Richards.) The most recent school finance case, 2005’s West Orange-Cove v. Neeley, was decided again for the plaintiffs. Justice Nathan Hecht, the author of the opinion, began on a weary note: “Once again this Court is called upon to determine whether the funding of Texas public schools violates the Texas Constitution.” The answer was unsurprising. Further down in the opinion, Hecht resorted to a metaphor to explain the failings of the current system:
In some areas of the state, education resembled a motorcycle with a 1,000 gallon fuel tank, and in other areas it resembled a tractor-trailer rig fueled out of a gallon bucket. Some vehicles were flooded, some purred along nicely, and some were always out of gas. A fleet of such vehicles is not efficient, even though a few of them may reach their destinations.
The schools have chalked up some victories. In 1993 the court decided that wealthy districts could be required to allow the system as a whole to “recapture” their excess property values and share them with poorer districts, a policy that became known as “Robin Hood.” And yet, as Hecht’s opinion implied twelve years later, where a child lives is still the best measure of the quality of education he or she will receive. True equity remains elusive. The reason for this is simple: money, honey. The Supreme Court can scold the Legislature for not heeding its warnings that the school finance system is teetering on the edge of failing to meet constitutional requirements, but if ever there was a horse that can be led to water but not forced to drink, it is the Texas Legislature. As powerful as the Texas Supreme Court is, the reality is that it can only decide winners and losers. It can’t order the Legislature to raise taxes or spend money.
Consider recent history. In the years following the court’s 2005 decision, the increasingly conservative Legislature’s enthusiasm for supporting public education became less evident, not more. At times, it was undetectable. In 2006, for example, lawmakers adopted a funding mechanism that effectively capped a district’s revenue at whatever its current level was. That mechanism, known as “target revenue,” remains in effect today, and funding to individual school districts remains frozen at those 2006 levels. Then, last year, lawmakers opted to cut $5.4 billion from public education, an action that is without precedent in the history of Texas budgeting, prompting the current lawsuit. “This case is about broken promises,” David Thompson says.
Yet the villain in this drama is not an evil antagonist like Lord Voldemort. It is ourselves. We elected the people who designed the system—the members of the Texas Legislature over the past quarter century. And we stand by while they fail to fix the problem. The constitution and the case law speak clearly about what is required, but in session after session, our lawmakers dig in their heels and refuse to respond. Meanwhile, the underlying issues that propel the cases into the courthouse continue to get worse.
The differences between Texas in 1984 and Texas in 2012 are stark. Education in Texas today requires more money than it did 28 years ago. We are living through a demographic tsunami that has brought huge changes to the state. Enrollment is increasing at the rate of almost 90,000 new students a year. Dozens, perhaps hundreds, of languages and dialects are spoken in the schools, making the constitutional standard of “a general diffusion of knowledge” far more difficult to achieve. Critics say that money alone will not solve the problems schools face today, but without more money there is little hope of achieving the constitutional goal. The amount spent per pupil in the 2009–2010 school year was $9,227, and that was still $1,359 below the national average. One can only shudder to think how far Texas will slip when the 2011 budget cuts are factored in.
The schools are victims of a double whammy. At the same time that the Legislature was reducing funding to districts, it was also (to its credit) increasing the standards that students are expected to meet, instituting a more rigorous curriculum, tougher graduation requirements, and new accountability mandates that place additional burdens on schools. All of this requires better instructional materials and improved training of teachers. Higher standards and less money—a lot less money—do not make an efficient system, and once again, the schools will almost surely win their case. Indeed, the lead defendant in the lawsuit filed in December, education commissioner Robert Scott, all but acknowledged that the schools have a point in a speech he gave to the Texas Association of School Administrators in early February. Calling the current testing regime a “perversion of its original intent,” Scott apologized for the billions in budget cuts. He received a standing ovation.
Sometime in the upcoming months, the case of Fort Bend Independent School District v. Robert Scott will be tried in Travis County. The state will lose. The case will move on to the Court of Appeals and then on to the Supreme Court. Years will pass. Little will be settled. After 28 years, we are still fighting over many of the same points. And yet, in the time between the first Edgewood case and the Fort Bend case, Texas has undergone profound demographic changes. That schools are the first public institutions to be affected by this is what makes school finance such a critical issue. It compels us to address a situation that many Texans remain ambivalent toward: the profound cultural changes taking place within our state. But if the political system turns its back on today’s students, what kind of future can Texans expect?