Let Them Compete!: Justice Brister's Dissent

We’re with Justice Brister in the early part of his dissent, when he
complains that the decision of the
Texas Supreme Court is too attentive to the arguments of rich
districts, and not attentive enough to the concerns of the poor.
"The constitutional guarantee invoked here requires an efficient system
of public schools; it cannot be used to demand more funding for an
inefficient system."

In the name of ‘efficiency,’ several school districts again
ask the Texas courts to close the Texas public schools unless the Texas
Legislature increases funding. Over the last two decades, we have been
asked to do this every two or three years, and have generally complied.
The Court goes too far by doing so again today. First, the Court finds
school districts are forced to tax at the highest possible rate only
because some of them do. Second, though only five percent of the
State=s school districts claim a single statute is unconstitutional,
the Court enjoins the State from distributing any money under the
current Texas school financing system, an order that applies to every
school district in Texas. Thus, because some districts get too little
state money, all districts may get none. It is hard to see how this
will help Texas school children.

Yet the Court also does not go far enough. By failing to
demand an ‘efficient system’ as the Texas Constitution requires, or to
demand standing and proof as Texas law requires, this case once again
focuses on short-term funding rather than long-term solutions.

Of course, the true goal of this litigation is to put pressure
on the Texas Legislature. We demanded legislative changes by holding
the Texas school-finance system unconstitutional in Edgewood I,
Edgewood II, and Edgewood III; we warned that we might do so again soon
in Edgewood IV and West Orange-Cove I. The Court fulfills that threat
today. But there is no end in sight; if the past is any indication, the
new funding will not last long, and public education will not change
much. Before we bequeath Edgewood VIII, IX, and X to our grandchildren,
we should consider whether we might do more by doing less. As the Court
fails to do so today, I respectfully dissent.

Having said this, Justice Brister then goes in a direction that is
troubling to the concept of public education. He would prefer to see
privatization, because the only way to an efficient anything is through
‘competition’. This is the kind of pressure he would put on the
legislature. "No one asked whether it might be efficient to transfer students across district lines, or transfer funds to private providers that could meet their needs better." So we see this dissent actually comes down to the right of
the opinion, not the left. Oh, Texas!

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