The Challenge of Judge Dietz

School finance decision puts responsibility where it's always been on all of us

The Challenge of Judge Dietz
Illustration By Doug Potter

Declaring "It's the right thing to do," state District Judge John Dietz last week found the current Texas public school finance system unconstitutional. His rulings were brief and straightforward, finding that the current system both fails to provide an "adequate suitable education" and has also become an unconstitutional state property tax, because so many districts are effectively required to tax at the maximum $1.50 rate in order to meet constitutional, state, and federal requirements – and yet still lack sufficient resources to fulfill those obligations.

The judge amplified his decisions with a brief commentary, making it abundantly plain that at its heart this is a legal dispute over money. "The lesson is this, education costs money, but ignorance costs more money." His remarks stand as a challenge as much to Texas citizens as to Texas government: "So, are Texans willing to pay the price, to make the sacrifice to close the education gap, to secure their future and their children's future?"

That is as much a political question as a legal one, and it will reverberate through the upcoming months, as the Texas Supreme Court takes up the state's appeal of Dietz's decision, and as the Legislature convenes, most likely in next spring's regular session, to decide what to do. Dietz pointedly recalled Texas history and the insistence of the state's founding documents that public education was a central goal of the Texas revolution. "Are we, at this present day, to turn our back on our 168 years of heritage of Texas public education," the judge asked, "and say that we aren't prepared for the sacrifice? Are we to say that to close the gap is too hard, too much money, and that we simply give up?"

In theory, the Supreme Court could reject Dietz's decision and his argument, and conclude that the current system, financially strained as it is, remains within constitutional boundaries. That was the approach taken immediately by Texas Attorney General Greg Abbott, who acknowledged that the system might not be "perfect" or "without flaws." "But the reality also is," Abbott insisted, "that just because the education system is not perfect does not make it unconstitutional." Abbott's team had gamely defended the same position the previous 51é2 weeks, but Dietz thought so little of the state's case that he announced his decision within 15 minutes of final arguments. More importantly, even if the Supreme Court should be swayed, it would leave the Legislature in exactly the same predicament it's in now: facing a broad public consensus that the school finance system, constitutional or not, is out of capacity, and that something needs to be done to fix it.

There remains, of course, one valiant holdout against that consensus: Gov. Rick Perry, who argued that the legal process is "only beginning" (although the case has been to the Supreme Court once already) and that in any case the latest decision represents only "one judge's opinion." (His repeated references to "that judge," meaning Dietz, began to sound oddly reminiscent of Clinton's to "that woman.") Unfortunately for Perry, his state colleagues Lt. Gov. David Dewhurst and House Speaker Tom Craddick are already on record supporting broad new statewide taxes to upgrade school financing and to reduce the burden on local property taxpayers.

Perry's potential GOP opponents in 2006 are weighing in as well. Following the decision, U.S. Sen. Kay Bailey Hutchison told reporters, "Even if this is appealed and the state won, we can't let our schools be second-tier, second-rate. ... We know that we don't have a system that is fair in taxation [and] we don't have a system that produces a quality education for every child in Texas, and that should be our goal." Perry's response, "I happen to think that this state has made great progress," sounds increasingly wan, and politically feeble.

Robin Hood Lives

The weeks of trial were as important for what did not happen as for what did. Despite headlines in several of last week's state dailies (and almost universally in TV coverage), "Robin Hood" – the share-the-wealth "recapture" system – was not overturned in the courtroom, and indeed was hardly even addressed. In fairness to the Capitol press corps, the term has become misleading shorthand for the entire school finance system, and the detail reporting generally contradicted the teasers.

Recapture – or much more fundamentally, the legal commitment to school funding equity – was taken for granted, and largely unchallenged, throughout the proceedings. That was true even though the case was initiated by property-wealthy districts (the West Orange-Cove plaintiffs) seemingly as a challenge to their predicament under recapture – like Austin ISD, returning a considerable portion of their local revenues to the state for redistribution to poorer districts. Once the Alvarado intervenors (several hundred lower-wealth districts who benefit from recapture) and the Edgewood intervenors (a couple dozen of the very poorest districts carrying on the fight of the original school equity lawsuit) joined the case, the issue of equity became moot.

"For the first time," said Alvarado attorney Buck Wood, "all the school districts are on the same side, and there are no districts on the side of the state." That indeed left the state and its defenders from the AG's office in an awkward position. When the district witnesses, beginning with AISD's Pat Forgione, presented irreducible evidence that the state had effectively abandoned its constitutional obligation for the "support and maintenance of an efficient system of public free schools," the state could only respond that despite what the people actually running the schools say, things are not that bad.

There were several memorable moments during the trial. The plaintiffs brought a string of superintendents, including Forgione and former Dallas Superintendent (and former Texas Education Agency commissioner) Mike Moses, who described the constrained circumstances big urban districts faced, with growing numbers of financially and linguistically disadvantaged students, yet unable to raise the revenues to adequately educate those students. Former Lt. Gov. Bill Ratliff, who literally designed the financial side of the current system, testified with his characteristic understatement that nobody expected, 10 years ago, that the system would reach its legal and effective taxing capacity within less than a decade. And in response to a question from Edgewood attorney David Hinojosa of the Mexican American Legal Defense and Educational Fund, Ratliff said quietly that for "Robin Hood" to be abolished, the Supreme Court would have to reverse itself on the meaning of equity under the Constitution. That's an unlikely outcome, whatever Gov. Perry may surmise.

The plaintiffs also elicited useful testimony from former state Rep. Paul Colbert, educational researcher Walter Haney, and former Equity Center director Craig Foster. Some of it was highly technical – there were moments when only Judge Dietz seemed able to endure the drone from the witness stand without dropping off – but a consistent thread demonstrated that the state has a pattern of doing just enough to keep schools functioning at a mediocre level, and then devising financial and academic standards that conveniently confirm that mediocre is good enough.

Haney was particularly strong on the state dropout rate, which he believes may be reaching as high as 40%, even higher for minority and poor students. Dietz was particularly interested in these figures, having mentioned the apparent attrition rate on the trial's first day. Haney's testimony cast considerable doubt on the TEA witnesses' later insistence, in the face of all the apparent evidence, that the actual dropout rate is lower than 2%. Finally, Hector Montenegro, superintendent of Ysleta ISD, and Nabor Cortez, of South San Antonio ISD, testified simply and eloquently about the desperate conditions and extreme needs of their campuses and students – and their inability to raise the resources to improve those conditions, given the financial circumstances in their communities.

Pound the Table

In response, the state produced little that could refute the plaintiffs' case, and indeed much that apparently served to do the opposite. Lead defense witness Shirley Neeley, current TEA chief, cheerily tried to uphold the state's contention that districts have sufficient resources to educate Texas students, but she was belied by her own history as superintendent of Galena Park ISD, where state waivers allowed her district to tax at greater than the $1.50 rate. Neeley could not deny that increased academic achievement had inevitably been connected to greater funding. When it was pointed out to her under cross-examination that she herself has said publicly that the system is out of capacity and that "the state should provide 60% of the funding for public education," Neeley could do little but nod.

Perhaps even more damaging to the state was the testimony of Lori Taylor of Texas A&M, responsible for the recent legislative study on "adequacy," which purported to show that current levels of funding are just about right – maybe even a little higher than absolutely necessary. Much of this material was fairly arcane – ongoing statistical warfare over methodology among the various experts – but the most telling revelation was Taylor's admission that the study's definition of "adequacy," a 55% all-student passing rate in reading and math only, was in fact an overall average for both tests, something not made explicit in the report. Coupled with the revelation of an e-mail to Taylor from Rep. Kent Grusendorf, R-Arlington, chair of the House Public Education Committee, asking her to lowball her estimate (initially $3.6 billion) of what it would take for significantly higher achievement, and the state's legal pretensions to "adequacy" were severely undermined.

The nadir of all this damning with faint praise was reached by David Armor of George Mason University, brought from Virginia by the state purportedly to show that Texas schools are doing just fine. When he isn't being a professional right-wing witness, Armor has devoted much of his research to arguing (e.g., in his book Forced Justice) that desegregation was a bad idea. With a straight face, he testified that the Texas education system is really among the very best nationally – as long as the analysis "corrects" for the presence of economically disadvantaged and minority students. Since it had already been abundantly established that both groups now form a majority of Texas students, it was difficult to determine Armor's point – until he went on to say that no amount of money, and indeed no amount of education, could ameliorate economic and racial disparities among students.

In other contexts, Armor's testimony would be known as "surrender." A couple of days later, when the state came to its final arguments, one could sympathize with state attorney Robert O'Keefe when he declaimed plaintively, "I wish I had a chart that could measure the will, leadership, determination, character, and dedication of educational leaders and teachers." Alas for O'Keefe, there was plenty of that sort of evidence in the courtroom, but it was all on the other side.

It was left for Judge Dietz to shape the conclusion that appears to be obvious to nearly everyone fully familiar with the subject, still excepting Perry. Whether the rest of the state leadership is up to the challenge – directed at us as much as at them – is another matter. "Again I repeat," said Judge Dietz, "it is the people of Texas who must set the standards, make the sacrifice, and give direction to their leaders. And the time to speak is now. These problems only get more difficult the longer we wait." end story

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John Dietz, public school finance, Greg Abbott, Rick Perry, Kay Bailey Hutchison, Robin Hood, recapture

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