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GUEST COMMENTARY: WEST ORANGE COVE V. NEELEY by Rep. Bill Keffer Print E-mail
by Special to DallasBlog.com    Fri, Dec 9, 2005, 03:11 PM

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Rep. Bill Keffer
On November 22, the Texas Supreme Court issued its long-awaited opinion, and the latest in a series, on public education and the state’s constitutional obligation to provide for it. The story of lawsuits and constitutional challenges in this area began with Rodriguez in 1971, which was then followed by the four Edgewood cases – Edgewood I (1989), Edgewood II (1991), Edgewood III (1992), and Edgewood IV (1995).

The four Edgewood cases resulted in the state legislature creating our current "Robin Hood" system, which seeks to "equalize" funding between "rich" and "poor" districts by taking local property tax money from the "rich" and redistributing it to the "poor." The $400 million taken under this system at its beginning has now mushroomed to over $1.2 billion. The "robbed" districts have understandably grown weary and burdened; Highland Park now has over 70% of its budget taken, and Richardson sends over $50 million to Austin. Districts that have been on the receiving end of the "robbing" have no strings attached to how they must spend their new-found funds and have grown understandably dependent on other people’s money. What a classic recipe for disaster!

And so certain districts once again sued the state because they were taxing as much as they could under the law, but they still had insufficient money to do their job – one reason being that the state was taking so much of it under Robin Hood. And then other districts joined the suit, once again claiming that even with Robin Hood, they needed more money from the state.

While this case (known as West Orange Cove) was pending, the legislature made several attempts on its own not only to address the property tax dilemma, but also more fundamentally to start changing the long-entrenched culture of public education, in hopes of creating improved efficiencies through increased transparency, accountability, and incentives. Introduced during the 2005 session, HB 2 was a sweeping effort full of significant, substantive reforms that was passed by the House twice, only to die because of our failure to reach consensus with the Senate.

As we debated HB 2 during endless Public Education Committee hearings, one reality became clear. The various state education organizations had locked arms in defiance of the reform effort represented by HB 2. Their opposition was so firm that they were even willing, incredibly, to refuse the $4.2 billion in new money that would have accompanied HB 2. Why? Because, while the court case was still pending, they held out hope that an activist Supreme Court would order the legislature to increase spending by as much as $8 billion – and it was worth the gamble.

So what does the recent Supreme Court opinion say? Justice Nathan Hecht wrote the majority opinion in the 7-1 decision (one new justice was appointed too late to participate), and Justice Scott Brister wrote a lone dissent. But, in many ways, the two opinions end up being a debate between conservative views, and to a large extent validate the reform themes promoted in HB 2.

The districts alleged four different ways that the system had become unconstitutional: 1) so many districts were now having to tax at the $1.50 cap that, in effect, the system was operating as a statewide property tax, which is specifically prohibited by the state constitution; 2) the system was inadequate because it had insufficient money; 3) the system was inefficient because there was still too much of a funding difference between districts; and 4) the system did not suitably provide for these other objectives to be achieved.

The Court sustained only one of these arguments, holding that the system had become an unconstitutional statewide property tax. But the majority opinion is much more instructive in other points it chose to make, while rejecting the remaining constitutional challenges.

The first theme the majority emphasized is that efficiency might continue to be an elusive goal, as long as over two-thirds of our 1031 districts have fewer than 1200 students, one-half have fewer than 700 students, one-fourth have fewer than 350 students, eleven districts have fewer than 60 students, and the smallest district has 10 students.

Although the definition of the constitutional requirement of "efficiency" need not be any more complicated than "produce results with little waste," the Supreme Court in Edgewood I added the seemingly misplaced definition of "substantially equal access to similar revenues per pupil at similar levels of tax effort." Nevertheless, the Court did not find a constitutional violation in the West Orange Cove case; only a system that is, in many ways, stacked against being efficient. It is one thing for a community to want its own school district; but it is an altogether different thing for that district to require excessive funding from the state to be able to survive. That is the definition of inefficiency.

A second theme throughout the opinion is that, while more money might extend the life of the current system for a time, ultimately the system itself needs to be overhauled. "…[M]ore money does not guarantee better schools or more educated students." Quoting from their Edgewood III opinion, the Court wrote: "… money is not the only issue, nor is more money the only solution." And then, "The Legislature may well find ways of improving the efficiency and adequacy of public education – ways not urged by the parties of this case – that do not involve increased funding." And the dissent raised the question of whether the discretionary spending of some districts is really down to the "bare bones" we have been led to believe. The undisputed evidence of their expenditures included: "…swimming pools, nature trails, athletic stadiums, tennis courts, and unconventional classes such as broadcast journalism, ceramics, power lifting, ballet, film critique, lego robotics, advanced mariachi, and culinary arts." Again, quoting from Edgewood III, the majority wrote: "We have not been called upon to consider, for example, the improvements in education which could be realized by eliminating gross wastes in the bureaucratic administration of the system. The Legislature is not so restricted."

Other significant observations from the majority opinion are:

  • Any system involving a tax cap will eventually suffer the same unconstitutional fate as the one in this case; but a tax cap is presumably essential to keep the system "efficient."
  • The legislature’s constitutional obligation is to ensure the delivery of a "general diffusion of knowledge." Local supplementation beyond that need not be equalized among the districts.
  • The constitutional standard is plainly result-oriented.

The majority opinion closes with the following unambiguous admonition: "As we have said since Edgewood I, structural changes, and not merely increased funding, are needed in the public education system to meet the constitutional challenges that have been raised."

Opponents of HB 2 were hoping for a solution defined only in dollars. HB 2 supporters, and now the Texas Supreme Court, believe that our public education system is in need of something much more fundamental than dollars. The legislature should clearly define its constitutional obligation of delivering a "general diffusion of knowledge" as ensuring that every public school student is taught the required curriculum; that the "suitable provision" requirement simply means making sure each district has the wherewithal to deliver that curriculum; and that "efficient" delivery of that obligation has the common meaning of producing results with little waste. The reforms contained in HB 2 are intended to start the overhauling of an inefficient system. The court has now provided its guidance, and the legislature has already proposed the path. We need only start the journey.

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