Reviewing the Oral Arguments
By Greg Moses
During Wednesday’s oral hearing on school funding, justices of the Texas Supreme Court seemed to agree that the right of Texas children to an “adequate” education is a Constitutional principle suitable for them to consider, but they seemed to have mixed opinions whether the question is “ripe” for their intervention at this time.
On the other hand, when it comes to the question of property taxes — the question that first started the recent round of court activity — justices seemed more clearly sympathetic. The current cap on local school property taxes at $1.50 per hundred dollars of valuation seemed to be heading toward a court-ordered lift.
Yet even the attorney for property-rich school districts seeking to lift the $1.50 cap argued that simply lifting the cap would not provide a viable solution to the complex inadequacies of funding.
On a third key issue before the court, justices seemed to accept as obvious claims made by MALDEF that facilities funding is not equitable.
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Adequate or Arbitrary?
Even with a substantial list of findings by a trial court that districts “lack sufficient funds” to provide adequate education to all children, some justices seemed to need more reasons to intervene in the educational affairs of the legislature. While justices seemed to reject the State’s claim that the Court had no business ruling on the “adequacy” of public education, some justices seemed reluctant to get on a slippery slope that might lead toward a special master.
In response to the suggestion of some justices that the Court should “give great deference to the Legislature” unless the lawmakers were acting so arbitrarily as “to be violative of the Constitutional rights of its citizens,” MALDEF attorney David Hinojosa argued that state funding formulas are indeed “arbitrary” for students who are economically disadvantaged or have limited English proficiency. MALDEF represents a group of property poor districts led by the historically significant Edgewood ISD.
Rough Going for Edgewood
But Hinojosa’s clients were not treated gently. One justice asked why didn’t the Edgewood District solve its funding problems by merging with a richer district such as the San Antonio ISD, or why shouldn’t the state force Edgewood to merge with another district if its test scores were so low, or why shouldn’t Edgewood just give parents $3,500 cash every year to take care of their children’s education outside the school district? To this hostile line of questioning, Hinojosa stressed that the Edgewood District was simply pursuing its right to receive equitable funding based on its tax rate — a right that had been previously honored by the Texas Supreme Court.
Some justices also questioned the right of property-poor school districts to raise the question of “adequacy” in the first place. Does the Constitution guarantee to students or to districts a right to “adequate” education? If it guarantees that right to students, then the Supreme Court might decide to dismiss Constitutional challenges brought by property-poor districts on the question of “adequacy.”
As one justice pointed out, the first three Edgewood cases featured children as plaintiffs. While this question would not affect the ability to of property rich districts to seek permission to raise taxes, it might seriously undermine the ability of property-poor interveners to introduce questions of “adequacy.”
To this challenge, Hinojosa answered that school districts — especially property poor school districts — have assumed the burdens of providing education but have not been properly funded by the state. This argument seemed to make sense to Justice Harriet O’Neill.
State Pleads Not Guilty
For its part, the State argued that the “constitutional standard has been met” — that the current system of education in Texas is “adequate” to provide a “general diffusion of knowledge” or “basic minimum education” — and that the system is not “irrational.” In fact, the State claimed that there has been “consistent improvement” in public education over the past decade.
Justices seemed sympathetic to arguments that Texas education could be considered “adequate” if student performance was “steadily improving” over the past decade. And they did not seem impressed by arguments that low test scores offer sufficient evidence of inadequacy. If the State wants to raise standards by introducing tougher tests, justices seemed reluctant to deter such policies.
In response to the State’s claim that things were going well in Texas education, one justice suggested that the State’s own case provided reasonable criteria by which “adequacy” could be measured — teach math, teach English, etc. “So coming back to the standards issue, it’s not clear to me that that’s not a standard like courts have to wrestle with in many other contexts,” said Justice Nathan L. Hecht.
Hecht’s question prompted the State’s attorney to admit that the court could come up with a manageable standard so long as “great deference” was given to the legislature.
In the view of attorney David Thompson who represents the property-rich plaintiffs led by West Orange Cove, the steady improvement of the past ten years cannot assure the Court that things will go equally well in the next decade. For Thompson the difference this time around is that standards are being rapidly increased and achievement gaps are showing up again but state appropriations are not matching the challenge. Although total state funding has gone up, the state is also growing, with the result that state spending per pupil has gone down. Meanwhile local tax options have reached capacity.
Focusing on DropOuts and College Transition
When it came to the question of dropout rates and college transition rates, however, there seemed to be a little more agreement that if the dropout rate in Texas was as high as the 30 percent figure cited by attorney Buck Wood, there might be a problem worthy of Supreme Court attention. Wood represents property poor districts led by Alvarado ISD. The state routinely denies that dropout rates are that high.
Justice David Medina asked about a fact presented in a June 30 brief filed by the Earl Carl Institute of the Thurgood Marshall School of Law at Texas Southern University:
“An alarming statistic that needs to be corrected is that only 58 percent of all high school students transition from Texas public schools into college, representing the fifth lowest rate in the nation!” says the report on page five. “The transition rate for African American and Hispanic students is even lower, and with ethnic enrollment in public schools increasing, Texas needs to be prepared to provide an adequate education to all of its students.”
Once again the State fell back on its usual arguments. In the first place, rates of transition and dropout need to be “adjusted for socioeconomic factors” — and when the adjustment is made, Texas performs best.
“Texas faces a challenging student body population to educate, and in the face of a challenging student body population to educate — a student body population that faces language difficulties, that faces recent immigration difficulties, that faces socio-economic challenges — Texas’ pattern of success has been extraordinary.” On national tests, Texas fourth graders have ranked at the top in math and reading. And gaps between race and ethnic groups have been closing dramatically. If only one adjusts expectations to compare how these specific populations are doing elsewhere, then Texas does very well — so answers the State.
What to do with Trial Court Findings?
As for the trial court that found districts “lack sufficient funds” to provide an “adequate” education, the state said the judge made use of the “wrong legal standard.” Because the trial court looked for something more than a system that met the “bare minimum” standards of “accreditation” — and because the trial court failed to itemize funds needed to answer the basic job of education — the trial court findings of fact should be rejected as a matter of law said the State.
It is not clear how justices will treat the trial court findings. Chief Justice Wallace B. Jefferson hinted that he might consider the findings of fact binding since they were not challenged by the State.
“So if we determine that there was,” asked the Chief Justice, “that the record supports that there was a substantial default here, then you would agree that we have substantial responsibility to oversee that constitutional deprivation.”
In terms of pure political timing, the Chief Justice was appointed by the Republican Governor of Texas as the Democrat trial judge was issuing dramatic findings of fact. And soon thereafter, the Republican State Attorney General’s Office introduced the claim that the entire case was none of the Supreme Court’s business. So there is circumstantial reason to wonder if — in this partisan context — the Chief Justice may be swayed by the State’s argument that the wrong legal standard was applied in the lower court.
Tax Cap May Get Lift
On the question of taxation, justices seemed to reject claims made by the State that districts were in tax trouble because they were spending far more than necessary to provide the educations mandated by rising state standards. Justices seemed sympathetic to claims that rising standards from the legislature had not been met with sufficiently rising funds, thereby forcing districts to raise taxes locally.
Although Justice O’Neill seemed to have difficulty believing that programs such as remediation or summer school should be considered “extra,” she raised questions about how the Court could set a Constitutional standard for “adequate” education without getting mired in policy questions that belong to the legislature. And her questions seemed supported by other justices who wondered if funding was the key factor affecting outcomes or if the answer to funding was to be found through popular pressures on the legislature rather than through Court orders.
More than a few moments were spent over the embarrassing question of “water slides” at Soccoro ISD in El Paso. But the water slides portrayed in photos at the district website hardly seem to offer pictures of embarrassment for the district. It is a little more embarrassing that the Texas Supreme Court would make an issue of them. But you can see for yourself.
Lifting Caps without Reviewing Adequacy?
While the Court seemed more inclined to respond to the tax cap than the “adequacy” issue, it would seem difficult to decide the question of tax limits without addressing “adequacy” in some respect. The case for raising tax limits would depend on a judgment that “meaningful discretion” had been denied districts. But in order to arrive at a standard of “meaningful discretion” some level of “adequate” education would have to be decided.
In other words, property-rich districts argue that the “ceiling” of $1.50 for local property taxes is now virtually very close to the “floor” of funding needed to provide bare minimum education, thus depriving local districts any chance of funding “enhancements.” But as Justice O’Neill pointed out, everything depends on where you put the “floor.” In this sense, questions of “adequacy” would not be introduced out of the blue by property-poor districts who are now intervening in the tax case brought by property-rich schools.
In the context of a pending tax ruling sought by property-rich districts, property-poor districts might argue that they too share an interest in crucial questions of “adequacy” that must be addressed along the way.
Furthermore, one justice feared that the interests of children in achieving “educational outputs” could be bypassed by school districts that were seeking “educational inputs.” But it was not clear why the justice thought that attending to school districts’ interest in “educational inputs” today would foreclose taking interest in children or “educational outputs” tomorrow.
Familiar ideologies seem to be at play. When asked why the Texas Supreme Court would not be able to find some suitable working definition for “adequate” education, just as the Court has to find suitable definitions for other vague practicalities such as “due process” — the State’s attorney argued that the question of education was substantially different from other vague but workable judicial concepts because in this case the Court would order the legislature to raise taxes and spend more money. “Is that in their prayers for relief” asked an incredulous Justice Phil Johnson. “Isn’t their prayer for relief to enjoin the state from using money in an unconstitutional manner?”
‘Bright Line’ Equity? Not
At the end of the day, if one takes clues from the hearing, we might expect to see the tax cap lifted by the Court so that property-rich districts can go above $1.50 in their tax rates.
Then if a majority of justices agree with MALDEF claims that funding formulas for low income students, for limited English proficiency students, and for facilities represent “substantial defaults” by the legislature in meeting its constitutional obligations, the Court may send the legislature back to work on another round of school legislation.
As for the more general question of “systemwide adequacy” there were a couple of clues that readiness for college might serve as a reasonable baseline for a Court standard. Whereas more rigorous test systems would seem to show that the state is hard at work, the performance on those tests combined with poor graduation rates might encourage a majority of the Court to support a more sweeping indictment, especially if they adopt trial court findings that the legislature has not provided funding needed to provide the children of Texas with their each and every right to an adequate education.
Other than glaring inequities in facilities funding, justices seemed not to be very interested in other questions of equity. None of them referenced a brief filed on Friday by the ACLU, NAACP, and LULAC asking for a ‘bright line’ ruling on equity that would treat every school dollar as sharable. The State’s repeated reference to ‘equity up to the point of adequacy’ met with no challenges. What’s ‘good enough’ for Texas children will continue to depend on where they are born.
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