Point Austin: Somebody Else's Job

It's difficult to be surprised by last week's decision by the Texas Supreme Court that the state's system (if that's the right word) of public school finance is constitutional, overruling the judgment of state District Judge John Dietz that the system is unconstitutionally both inadequate and unfair. In the tradition of the nostrum, "hypocrisy is the tribute vice pays to virtue," the justices acknowledge being a trifle embarrassed, reiterating numerous times that the system devised by the Legislature to fund the schools meets "minimal" constitutional standards. They then take great pains to suggest that, just maybe, state legislators could consider doing something to improve matters.

Since over the years the Legislature has resisted doing anything of the kind – and indeed in the last decade has done what it can to make things worse – and since the state's attorneys fought Dietz's judgment tooth and nail, it's difficult to comprehend why the justices bothered to encourage the Lege to take action. Gov. Greg Abbott's response confirmed his priorities: "Today's ruling is a victory for Texas taxpayers and the Texas Constitution." His statement thanked the attor­ney general's lawyers, but didn't mention schools or schoolchildren, who are less than an afterthought.

The justices grudgingly acknowledged that the system could be improved. "Our Constitution endows the people's elected representatives with vast discretion in fulfilling their constitutional duty to fashion a school system fit for our dynamic and fast-growing State's unique characteristics," wrote Justice Don Willett. "We hope lawmakers will seize this urgent challenge and upend an ossified regime ill-suited for 21st century Texas." At that clarion call, one can readily envision those lawmakers, next January, rising to the challenge and ... doing nothing, or worse, once again.

Not Our Responsibility

There are actually three opinions issued by the court: the unanimous ruling written by Willett and two concurring opinions by Justice Eva Guzman and Justice Jeffrey Boyd. Willett, who fancies himself a wit ("Tweeter Laureate," as he would have it) calls the current finance system "recondite" and worse than "Byzantine," and begins with what roughly translates as "this is gonna hurt you more than it does me." The courts cannot "micromanage" the schools, Willett writes, and therefore can only manage a judicial shrug: The system "meets minimal constitutional requirements."

He follows that with an exhortation aimed at the Legislature: "Imperfection, however, does not mean imperfectible. Texas's more than five million school children deserve better than serial litigation over an increasingly Daedalean 'system.' They deserve transformational, top-to-bottom reforms that amount to more than Band-Aid on top of Band-Aid. They deserve a revamped, nonsclerotic system fit for the 21st century." Why he and his colleagues imagine that legislators – absent judicial mandate – will do anything other than apply (or rip away) more Band-Aids, is not explained.

Guzman's brief concurring opinion (joined by Justice Debra Lehrmann) reiterates Willett's call for "top-to-bottom reforms," particularly in regard to the neglected majority of Texas schoolchildren: "There is much more work to be done, particularly with respect to the population that represents the majority of the student base – economically disadvantaged students." The current system, of course, heavily discriminates against poorer students. As Sen. Rodney Ellis pointed out, "It's not a coincidence that schools ranked 'exemplary' by TEA receive more than $1,000 more per student to spend than schools ranked 'academically unacceptable.'" Nevertheless, says the court: "minimally constitutional."

Boyd's concurring opinion (joined by Lehrmann and Justice John Devine) is even more craven, relying entirely on repeating the constitutional phrase "it shall be the duty of the Legislature" (to suitably provide for public free schools) in order to dodge the Court's duty: to determine whether the Legislature has in fact fulfilled its responsibilities. Running through all three opinions is the "conservative" evasion of "legislating from the bench" – that is, an all-occasion escape clause for any judicial duty to determine when the Legislature has gone off the rails and abandoned its constitutional responsibilities to Texas citizens, rather than just "taxpayers."

Blind Leading Blind

Where does that leave the 5 million Texas schoolchildren? Waiting for years, once again, for the Legislature to respond to the justices' tepid counsel: "We hope lawmakers will seize this urgent challenge and upend an ossified regime ill-suited for 21st century Texas." And should they not do so – based on decades of experience, a Texan would be a fool to anticipate anything else in 2017 – that ossified regime will continue getting worse, for at least another decade. The 1876 Texas Consti­tution mandates "the support and maintenance of an efficient system of public free schools" – although it's also worth recalling that the children attending those schools would be whites only.

Now that majorities of Texas schoolchildren (including in "wealthy" AISD) are not just economically disadvantaged, but members of (no longer) minority groups, it's equally likely that the current legislative majority would themselves never have agreed to establish "a system of public free schools." Confronting that fundamental injustice, the Texas Supreme Court has decided that any responsibility for remedying it belongs to somebody else.