Category: Uncategorized

By Greg Moses

Texas Ed Equity

A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.–Art. 7, Sect. 1, Texas Const.

In a brief filed on Friday, three progressive groups joined voices asking the Texas Supreme Court to stay in the fight for fair funding in Texas education and adopt a higher standard of equity than the one now used by the court. Because the principle of “limited equity” has been so unsuccessful in reforming school funding over the past sixteen years, the groups plead for a new “bright line rule” that will require “full recapture and equalization of every dollar of revenue collected in the system.”

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The brief filed by the ACLU, NAACP, and LULAC on the eve of Wednesday’s historic hearing on school funding says the principle that “requires equity in school funding, but only in some degree, and only up to point” does not work.

“Only full-funding equity—a bright-line rule—will help the Legislature fulfill its constitutional obligation to create an enduringly efficient system,” argued the groups in a brief signed by Houston attorneys Sylvia Ann Mayer and Sergio Garza (WEIL, GOTSHAL & MANGES LLP) and Florida attorney John Greenman (FLORIDA COASTAL SCHOOL OF LAW).

Keeping the Court in Play

The three groups also attempt to head off arguments now being made by the State “for the first time in this sixteen year battle” that the courts have no business in the fight. The framers of the Texas Constitution “were deeply distrustful of the legislature, and sought to control it,” argue the ACLU, NAACP, and LULAC. In the context of “distrustful” framers and a pliable constitution that has been amended over four hundred times, the three groups encourage the Texas Supreme Court to maintain its active role in making and enforcing principles that would test legislative acts for constitutionality.

“It is wrong to insist,” argue the three groups, “that the judiciary owes deference to the legislature on this issue because the legislature more truly reflects the will of the people, when, in fact, the framers envisioned judicial review as a check on the legislature and the people — as shown by their decision not to repeal §1 [article one quoted above] — very clearly want the Court to intervene. The Court’s decision not to impose full-funding equity is a frustration of the people’s will, not deference to it.”

The ACLU, NAACP, and LULAC argue that courts play a role in fulfilling the democratic imperative when they uphold key rights and principles that may be trampled over by powerful interests and voting blocs.

“The Court need only see that the legislative process has, in the past, failed to live up to its constitutional obligations to ensure the rights of members of minority groups, even when those minorities were legally enfranchised,” argue the ACLU, NAACP, and LULAC. “If the legislative process has previously been susceptible to distortions in voting power that allowed grossly unconstitutional inequities in school funding to develop even between enfranchised populations, it is surely susceptible to those same distortions today. It is in this light — with the awareness that the judicial process has an ongoing role to play, not as a usurper of democracy but a coequal partner in achieving it — that the Court should consider ensuring an enduringly constitutionally efficient system by adopting the rule of full-funding equity.”

For a Bright Line of Equity

The three groups agree with claims made by the Edgewood interveners represented by MALDEF that legislative funding formulas do not fairly reflect the true costs of educating students who are economically disadvantaged or who have limited English proficiency. And the three groups joined with MALDEF claims that funding for school facilities is also unfairly hurting property-poor school districts.

The Texas Supreme Court should order the state to clean up its funding formulas and facilities financing too, so that the only difference between school district funding can be traced to the willingness of local communities to raise taxes for education.

“In effect,” argue the ACLU, NAACP, and LULAC, “full-funding equity would ensure that — as the framers intended — the educational opportunity available to Texas children would be a function of their communities’ willingness to support them, not the economic circumstances of their birth.”

The courts must issue the standards, say the groups, because history shows that without “bright line” court guidance the state is most likely to resume old habits of unfair and discriminatory funding.

“It is by now apparent,” argue the three groups, “that without intervention from this Court, the Legislature will always unconstitutionally underfund certain districts. This observation is not based on conjecture or political hypothesis. It is, instead, a matter of historical fact.”

Besides the long history of litigation by property-poor districts, the three groups cite “a history of racial and economic discrimination” in Texas — a history that includes legislative actions which have “directed revenue away from property-poor districts and toward property-rich ones until the system reached its current unlawful state.”

A Human Right to Education

The inequality to be found in Texas violates not only the state’s constitution, but several codes of international law:

• Universal Declaration of Human Rights, General Assembly Resolution 217 A (III) (December 10, 1948)
• International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR (No. 16), U.N. Doc. A/6316 (1966), 993 UN.T.S. 3, entered into force January 3, 1976, Article 13
• Convention on the Rights of the Child, G.A. Res. 44/25, Part 1, Article 28
• American Declaration of the Rights and Duties of Man (1948), Chapter 1, Article XII
• Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, “Protocol of San Salvador”, Article 13
• The American Convention on Human Rights, Chapter III, Economic, Social and Cultural Rights, Article 26 (requires legislation or other appropriate means to achieve the rights set out in the Additional Protocol)

So long as the principle of equity is limited by Texas courts, the groups argue that the Texas Legislature will continue to “underfund property-poor districts” and continue depriving substantial classes of Texas students to their human rights to education.

“If it leaves the limited-equity rule in place,” argue the groups, “the Court can be sure of one thing—that it will be presiding over a school-funding case again soon, perhaps on different facts, but with the same finding below: that students in property-poor districts have not received their constitutional due.”

Equity Levels Up

Responding to claims made by property-rich districts that equity will lower the overall quality of education in Texas, the three groups argue that equity (like democracy?) tends to produce a more healthy environment for all students.

In the first place, argue the ACLU, NAACP, and LULAC, only an equitable system can pass the test of being fully
funded for all children. In the second place, only an equitable system can offer equal opportunities for children to meet more rigorous statewide standards. And in the third place, an equitable and fully funded school system is the one most consistent with American ideals.

“In the end,” argue the ACLU, NAACP, and LULAC, “the best reason to adopt full-funding equity is that it is the right standard.”

Note: link to pdf file for brief cited above.

Texas reports to the feds that it graduates 84 percent of its students through High School. But the Urban Institute says the number is more like 65 percent. That 19 percent gap earns Texas a tie for sixth place nationally when it comes to the size of the lie.

The denial factor grows to 21 percent when Latino students are isolated (with Texas reporting a 77 percent graduation compared to the Urban Institute’s 56 percent); 26 percent for African Americans (81 percent reported by Texas, 55 percent by the Urban Institute); and 48 percent for American Indians (who graduate only 37 percent of the time as opposed to official claims of 85 percent.

If Texas reports a 55 percent graduation rate for students with limited English proficiency, what could the real number be?

Get the report from the Educational Trust. Thanks to Angela Valenzuela for the link.

To read the report of how authorities dropped charges against detention protesters Ashley Turner y Benjamin Browning, go to the myspace blog for houston sin fronteras. Note: we’ve noticed a surge of international readers from countries such as Latvia, Ireland, Netherlands, Russia, Malaysia, United Kingdom, Australia, Poland, Italy, Germany, Thailand, China, Hong Kong, Israel, Norway, and Japan. WELCOME !

Philosopher David E. McClean lives in New York, where he is an active member of the Society for the Study of Africana Philosophy.–gm

By David E. McClean
by permission of the author

In Parents Involved in Community Schools Inc. v. Seattle School District No. 1 and Meredith v. Jefferson County (Ky.) Board of Education the Supreme Court erred. It erred because, notwithstanding all the intellectual horsepower at its disposal, it continues to fail to make the kinds of distinctions that a child can make in analyzing race-conscious policies designed to cure the effects of past injustices. It is stunning that Chief Justice Roberts is able to conclude that “You cannot use an individual’s race, and classify that person according to race, and then craft policies that take into account that person’s race” and “The way to stop discrimination on the basis of race is to stop discrimination on the basis of race.” This locks-up with the old conservative criticism, trumpeted by Ward Connerly and others, that all discrimination on the basis of race just is immoral racial discrimination, regardless of who is doing the “discriminating” or why. No, it isn’t. The equation does not hold.

Consciousness of such predicates as skin color, when setting public policy, is not necessarily immoral or necessarily a violation of important Liberal principles. To the contrary, both morality and logic require such consciousness under certain circumstances, which had been the Supreme Court’s position since the Brown decision. What is always immoral is invidious discrimination – discrimination designed to cause harm and strip rights – which is not the same thing as color-conscious or race-conscious policies designed to remedy invidious discrimination. Since this distinction is often lost on many conservatives, I started to search for a rather simple way to sketch it out so that it can be comprehended. So I thought of using the characters of Sesame Street. The following story, populated with Sesame Street characters, I call Mayor Bird Learns a Lesson.

Big Bird has become the mayor of the city where we find Sesame Street – likely somewhere in the liberal Northeast, since where else could you find such a motley crew living together on the same block? Then something terrible happens. Some of the other large but foul fowl of the city convince Mayor Bird that all the fuzzy and featherless creatures of the city are “bad” and should be treated harshly. Alas, Big Bird bows to the pressure of the foul fowl and passes various ordinances that restrict the movement and opportunities of fellow citizens like Cookie Monster and Elmo and even Ernie and Bert (because, you have to admit, they are both a little fuzzy and certainly have no feathers). This goes on for a long, long time, the result being that the fuzzy and featherless inhabitants (or “featherless fuzzies”) of the city, including those who live on Sesame Street, are moved from streets like Sesame Street, with their nice houses and happy workers, to what become various featherless fuzzy slums, because Mayor Bird denies them services, because they are, after all, “bad.” They don’t get to learn how to count by, well, The Count, or to sing, or skip rope, or read – not any more.

But one day, Mayor Bird is visited at his special office in City Hall, by none other than Aloysius Snuffleupagus (who got past the bird guards because, well, none of the bird guards actually saw him, but that’s another story). Anyway, Snuffleupagus greeted Mayor Bird with his old and familiar “Hey, Bird,” to which Mayor Bird responded, happily – “Snuffy!” (He had forgotten himself, not recalling that Aloysius Snuffleupagus is “bad,” too.) Snuffleupagus goes on with an important and simple message: “I have an important and simple message for you, Bird. What you’re doing to Cookie Monster and Elmo and Ernie and the rest of us is just wrong, Bird. Why, we don’t get to learn how to count, or sing, or skip rope, or read anymore. Why don’t you quit it, Bird?” Mayor Bird fell back onto his very large Aeron nest, and pondered Snuffy’s request, while Snuffy stood by and watched, and blinked. Why, Mayor Bird did remember the times, using that small brain of his, when he played with his old friends on Sesame Street! He did remember how he laughed and how The Count taught him to count, and how he learned to sing and skip rope and read, and when he saw Aloysius Snuffleupagus for the first time! After several ours, during which Snuffleupagus quietly watched him, and blinked, Mayor Bird shot to his feet and said, “You’re right, Snuffy! I’m gonna overturn all of these bad laws and make it clear that all of my featherless fuzzy friends must get to count, and sing and skip rope and read just like the birds, and I’m gonna make sure that they get all the things back that were taken away, and get to live in places like Sesame Street once again!” “Hurraaaay, Bird!” said Snuffy, who disappeared past the bird guards, who, never saw him come in to begin with.

So, Mayor Bird, after convincing his other feathered friends on the city council (only birds were on the council now since, after all, they were the only ones who weren’t “bad”) how wrong it had been to hurt all the featherless fuzzy citizens of the city, decreed that the featherless fuzzy citizens would be given what they were entitled to at last. And realizing that even the birds of the city were harmed by his actions (as well as the city itself, for how could anyone think that a city that treated featherless fuzzies the way Mayor Bird’s had is a good city?) he took the lead to establish policies and laws to see to it that the featherless fuzzy citizens and the birds would learn to play with and work with and count with and sing with each other once again. He would have to make it clear to all the birds who now believed that featherless fuzzies were “bad” that they were not “bad” and that calling them “bad” had been a big fat lie. But at the same time, he knew he would have to convince the other birds of the city to cooperate, given the big unfair thing that had happened to all the featherless fuzzy citizens. They would have to make some concessions for, after all, they had all benefited in ways that they should not have, and had been complicit in causing all sorts of harm to the featherless fuzzies, whom they shunned as “bad” for no good reason at all. Many, but not all, of the city agreed to help in any way they could, and to be patient while Mayor Bird’s new plan went into effect. But they would have to really try to stop treating the featherless fuzzies as “bad” if things were to work out.

Mayor Bird told all the citizens of the city, in a famous speech called the “All Together and All the Same” speech, that the featherless fuzzies would get help from the birds to find homes on nice streets like Sesame Street, where they once lived, and to find nice jobs, like the ones they once had but which now went only to the other birds, because they had feathers and the fuzzies didn’t (that’s why they were called featherless fuzzies, in case you weren’t keeping up). In his speech Mayor Bird announced passage of The Featherless Fuzzies Act, which made it very wrong to discriminate, invidiously, against featherless fuzzies (or fuzzy featherlesses – for they were not the same, but that, too, is another story – or big birds, or small birds, or any other citizens, regardless of what grew out of their skin, or didn’t) now and forever. (And yes, Mayor Bird knew that important word, “i-n-v-i-d-i-o-u-s” – and he also knew enough to use it, just in case someone would not understand what the big idea was in creating policies to help the featherless fuzzies get back on their feet by actually considering their featherless fuzziness, or lack thereof). And throughout the new Featherless Fuzzies Act, many references
were made to featherless fuzzies and featherless fuzziness and birds and big birds because, after all, those were the predicates – if you’ll excuse another big word that Mayor Bird knew (he did live on Sesame Street, after all!) – that were the bases for separating, invidiously, birds from featherless fuzzies.

One day, Oscar, who was himself a featherless fuzzy but didn’t much care about living in a slum, since, after all, he always had in a certain sense, saw Mayor Bird give the speech which, I neglected to mention, he gave on Sesame Street itself. Mayor Bird, seeing Oscar, said “Hey, Oscar! I’m really sorry for what I did to you and all the other featherless fuzzies. But I’ve now learned an important lesson, like we always do here on Sesame Street.” To which Oscar said, “Who cares about your stupid lesson, Bird? And didn’t I just hear you say in your speech that all of us here on Sesame Street should be treated according to who we are inside, by our ‘characters’ [Oscar said ‘characters’ in the mocking and sarcastic way that makes us all love him so] not by what grows on our skins?” Mayor Bird said: “Well, yes, Oscar. What grows on our skins is a dumb reason for treating each other badly. I learned my lesson!” Oscar, thinking he’d caught Mayor Bird in a contradiction, replied, “But you just passed another stupid law (Oscar loves to say “stupid”) that takes the stuff that grows on our skins into account in everything you want to fix, from where featherless fuzzies and big birds live, to how they should learn to sing and read and all that other stupid stuff you think is so important. That’s just more discrimination, you stupid Bird!” Big Bird replied, with a stunning display of what can be accomplished with just a fourth grade education in a good school system with adequate resources, “Oh, Oscar, taking into account the stuff that grows on our skins isn’t invidious like what I did before when my friends convinced me to pass laws to hurt featherless fuzzies. Why, how do you talk about helping featherless fuzzies without talking about, well, featherless fuzziness, and featheriness, and birdness and fuzziness? Don’t be silly, Oscar! See you soon, you silly, OK?” And Bird, went off down Sesame Street, with all his old friends, who forgave him, and they all read together, and sang together, and counted together, forever after.

Now, one can only hope that Chief Justice Roberts and all the other justices in the majority will stop and ask for directions of passers-by: “Can you tell us how to get – how to get to Sesame Street?” For on Sesame Street, as our story goes, such simple distinctions as that between invidious discrimination and what-grows-on-skin-conscious policies are understood with almost no effort at all. Why even a bird’s brain, albeit a Big Bird’s brain, can do it. And on Sesame Street, at least, Mayor Bird could count on the citizens of the city to rise to the occasion and do their part to put things right for those they had grievously harmed, and he expected them to.

The Supreme Court has sent a coarsening message to America’s parents and children alike that neither do they owe any personal sacrifices, nor should they shoulder even an inconvenience to help remedy, in their own time, the egregious wrongs of their country – wrongs that still haunt its soul to this day. This parallels a litany of cultural messages of retreat from the great ideals of our nation, which push us in the direction of ever more pronounced and shameless selfishness and individualism.