ACLU, NAACP, LULAC Ask Texas Supremes for 'Bright Line' Equity in School Funding
By Greg Moses
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."
The brief filed by the ACLU, NAACP, and LULAC on the eve of Tuesday'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 intended40-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."
Greg Moses is editor of the Texas Civil Rights Review.