Lost Opportunities: MALDEF Closing Argument Part One

Part One of final argument by the Mexican American Legal Defense and Educational Fund in the 2004 Texas school funding trial. Delivered on Sept. 15 by attorney David Hinojosa in the District Court of Judge John Dietz.

Your Honor, if it please the Court, “lost opportunities” are two simple and yet profound words to describe why our clients, the Edgewood intervenors, appear once again in court.

Lost opportunities for our clients to provide a quality education to each and every child in their district because of the inequity in funding between property poor and property rich districts.

Lost opportunities for our clients to provide a quality education to each and every limited English proficiency child in their district because of the insufficient weight and allotment provided for bilingual education.

Lost opportunities for our clients to provide a quality education to each and every poor child in their districts because of the insufficient weight and allotment provided for compensatory education.

Lost opportunities for our clients to provide a quality education to each and every child in their districts because of the inequitable and insufficient funding for facilities, forcing our districts to place their children in overcrowded, deteriorating and unsafe facilities.

And all of these lost opportunities lead to the most glaring, the most disheartening opportunities lost, and those are for our Texas children.

Lost opportunities for our children to succeed in school, to make the most of their abilities, and to learn in facilities that are safe and not overcrowded, ultimately lost opportunities to fully participate in the social, economic and educational opportunities that present themselves now and those that await them in the future.

Our clients ask for nothing more and our children deserve nothing less. And what our children deserve is exactly what our Constitution guarantees.

Is it too much to ask our great state of Texas for equal access, meaningful opportunities for each and every child, whether they’re rich or poor, black, white, Hispanic or whatever other race or ethnicity, whether the children live in Alamo Heights or in west side San Antonio, in Edgewood, in the downtown suburban district of Highland Park, or the
little town in the Valley known as Edcouch-Elsa.

Each and every child has a constitutional right to access meaningful opportunities. Yet the State defendants, whom we entrust to deliver these opportunities to our children are the very same ones who deny our children.

Your Honor, I would like to introduce some of our clients who were able to join us in court today, representatives of the Edgewood intervenors. And I would ask them to stand at this time.

I would also like to acknowledge our team of lawyers and staff who are present today. I won’t go through the names, because there’s kind of a long list here today.

And I would like to also acknowledge our attorneys from Meta, Jennie and Roger from Boston, who came down and joined us, and Leticia from UNLV, who aren’t present today but who committed their time and energy in our fight for justice, as well our intern, one of which we have here today, who continued to help even after their internship had expired.

So is the notion of equal access to meaning opportunities for each and every child simply an ambitious, unattainable goal? Well, if it is labeled as such, there can be no explanation for it, because our Constitution does not allow for it.

So how are they denying children access to opportunities? Now, that question was answered in this case, at least by a preponderance of the evidence. And I would submit to you that the evidence most likely even climbed the hurdles of being clear and convincing, without even needing to, of course, as our designated focus districts, who represented all of the 22 Edgewood intervenors, as agreed upon by the State, have exhibited.

How has the current system caused our children to lose opportunities because of the inequity in funding between the property poor and property rich districts?

Well, it’s by allowing the average property rich district, the Chapter 41 district, to be provided with more than at least $1009 per WADA, weighted average daily attendance — as we found out, which is slightly more than just one child — $1009 more than the average property poor district, that is, the Chapter 42 district. And how can that be?

All of the research, every single opinion offered in this case — save for one, and that was of an expert offered and paid for by the State, all of those opinions and the evidence offered in this case point to the fact that children in property poor districts should
receive more resources in order to bring them up to a level playing field.

The tax payers in the districts, both Chapter 41 and Chapter 42 districts, are paying the same tax rate, yet the average property rich district manages to take home at least $1009 more per WADA than the property poor district.

What this amounts to is $20,000 for a classroom of 20, at least $600,000 more for a campus of 600, and at least 5 million more for a district of 5,000 students.

All of that money going to property wealthy districts, those children who are lucky enough to live in that district’s boundaries, for those who live on the right side of tracks even in this day and age, to access $5 million more of opportunity to succeed in life.

And for those unlucky children living on the other side of the tracks, this gross disparity amounts $5 million of lost opportunities to succeed in life, even though the parents of those children are making the same tax efforts, paying the same tax rates as the parents who live on the other side.

And the evidence showed that $1009 of WADA difference resulted from a number of provisions. Those provisions include the hold harmless provisions that were promised to the Court in 1995 to be phased, but were instead phased in, phased up and written permanently into law.

They include the compensatory education set-asides, where a Chapter 41 district gets the full benefit of .2 weight for compensatory funds, while the property poor district must set aside 10 percent of their compensatory ed funds and therefore receive what amounts to only .18 weight for the property poor district.

It includes the Available School Fund allotment that operates with an effective bonus for Chapter districts but is lumped into the State aid received by Chapter districts.

It includes discounts on recapture, wherein Chapter 41 districts can benefit from entering into early agreements, agreements that they must enter into anyway, and they receive either 4 to 5 percent benefits on selecting one of the two recapture methods.

The Tier 2 guaranteed yield cap in which property poor districts are guaranteed up to an equalized wealth level of $271,400, but the wealthy district are able to take advantage of a wealth level of $305,000.

The Tier 1 guaranteed basic allotment gap.

Once again, the property poor districts are equalized for a basic allotment of up to 295,000 per WADA. Property wealthy districts are able to take advantage of a wealth level of 305,000.

Also the facility funding gap, in which property poor districts must tax at substantially higher rates to raise funds to pay for the same amount of bonds simply because of the substantially lower tax base, coupled with the limitations on State funding and the absence of recapture from the facility funding.

But the $1009 gap, that doesn’t tell the entire story. What was commonly referred to as $600 gap found by the 1995 Supreme Court in Edgewood IV has actually grown to $1670 per WADA.

Dr. Cortez used the same analysis performed by then State defendants’ witness, Lynn Moak. And in that analysis, it showed a projected gap in revenue of $631, when comparing the 5 percent of students in the wealthiest districts versus

the five percent of students in the
poorest districts.

Dr. Cortez’ analysis, undisputed analysis compared the 5 percent, once again. And the evidence shows that the equity gap has grown to almost 300 percent higher than the projected $600 gap back in 1995.

For classroom of 20 students, this translates to over 33,000 more for the children in the wealthiest districts. For a campus with 600, $4 million more, and for a district of 5,000 students, this translates to more than $8.3 million dollars for the children fortunate enough to be able to live in and attend the public schools in the wealthiest districts.

Even with similar tax efforts by the parents in each of the respective districts, the wealthy districts have access to over $8 million for their children.

The Honorable Paul Colbert also analyzed the equity gap looking at what is referred to as the actual gap. And he depicted a gap in favor of Chapter 41 districts in the amount of of $1,716 up to $1,868 per WADA in favor of the rich districts.

His alternative analysis confirms Dr. Cortez’ analysis. And even when you look at the State’s own witness, Dr. Joe Wisnoski, even after he manipulated the figures used by the Honorable Mr. Colbert, he offered evidence of an equity gap existing between an average of $929, but looking at maintenance and operations only — he didn’t even touch facilities in that analysis — in favor of wealthy districts over the poor.

He said nothing to discount the gap by Dr. Cortez. The State did not touch Dr. Cortez’ analysis or even attempt to address the analysis, even though it was the same analysis used by Mr. Moak for the State in 1995 and adopted by our Texas Supreme Court.

What does this equity gap mean to our property poor districts? It means that, despite similar tax efforts between taxpayers in the rich and poor districts, the wealthy districts are able to generate substantially more revenue, and greater revenue translates into greater opportunity for the children in the property rich districts.

The wealthy districts are better able to hire, recruit, train, develop and retain quality teachers. They’re able to hire more specialized support staff, including counselors, curriculum specialists.

They’re able to offer a broader and more rigorous curriculum, and even to provide far better opportunities to their students to achieve their potential and to fully participate in the social, economic and educational opportunities of our state and nation.

I am not saying that they’re able to provide what is required by our Constitution because of that equity gap. They just have more in their efforts to reach toward the meaningful opportunities.

So 15 years after Edgewood I was announced, proclaiming justice for property poor districts, the Edgewood intervenors stand before you once again because the equity gap still exists and, in fact, has grown to unconstitutional proportions. And who suffers? Who loses out on opportunities to succeed and to escape poverty?

It is our children who attend the public schools in the property poor school districts, such as those of the Edgewood intervenors, and at no choosing of their own, oftentimes at no choosing of their parents.

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