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