The Austin Chronicle

Texas Joins the Inadequacy Club

By Kimberly Reeves, October 1, 2004, News

If District Judge John Dietz's decision earlier this month that Texas school funding is not adequate is just "one individual's opinion" – as it was termed by Gov. Rick Perry – then it's an opinion held in common with almost two dozen state Supreme Courts.

Texas has a tough road ahead. For a dozen years, in the wake of the last big courtroom showdown over school finance, the state has focused on the issue of equity – just how its big pot of public-education money should be divided among school districts. What the decision in the West Orange-Cove CISD v. Neeley case brings with it, however, is the new challenge of adequacy – the argument that the state's big pot of money isn't that big after all.

Until Dietz releases his findings of fact and conclusions of law at the end of the month, reading his opinion is a bit like reading tea leaves. We know "Robin Hood" – the state's existing "recapture" system for redistributing resources from "wealthy" districts – is not dead. We know Dietz validated the plaintiffs' major claims: School districts don't have meaningful tax discretion; substantial inequity still exists, despite recapture; and, finally, total education funding in Texas is not sufficient to provide an adequate suitable education that meets the mandates of the Texas Constitution.

Adequacy challenges to state school-finance systems are a national trend that began with recent years' emphasis on accountability. About the time school districts were hit with new, higher accountability standards, plaintiff attorneys recognized that those same standards provided useful tools in courtroom efforts to secure more money for education.

Molly Hunter of the New York-based Center for Fiscal Equity tracks school-finance litigation. Hunter says plaintiffs who can argue their claims by citing the existence of state academic standards, and who can prove state-mandated testing (like the Texas Assessment of Knowledge and Skills) aligns to those standards, rarely lose an adequacy challenge – courts understand the concept of passing rates. In the 27 challenges litigated so far in the U.S., plaintiff school districts won 23 times. (Between adequacy and equity challenges, 43 of the 50 states have fought school-finance litigation, with plaintiffs prevailing in 25; see map.) "Certainly there are weak links in standards, and the alignment between standards and assessments is not perfect, but courts are assessing adequacy based on meeting those standards," Hunter said. "You look at a case like North Carolina, [where] the plaintiffs argued that the child should be on grade level. The state argued strongly the [funding] standard should be ... below grade level. The court just didn't buy that."

This recalls one of the state's (so far) unsuccessful key arguments in the West Orange-Cove case. Should Texas fund schools at a level that equates with a mere 55% average passing rate for the TAKS reading and math tests? That was the low standard set forth in the state's own adequacy study, presented in court and at the Legislature by Texas A&M professor Lori Taylor. Or should the state instead aspire to provide enough school funding to secure an 80%, or 90%, passing rate, or to support mastery of other areas of the curriculum? Certainly, the plaintiffs liked that idea. And throughout the nation, courts have favored the latter, if the current wave of judicial opinion is any indicator.

But to paraphrase a line from a recent movie, with great gifts come great responsibility. If the state agrees to fund at a level everyone agrees is adequate to bring a child up to grade level, then the school and the teacher no longer have an excuse not to meet that standard. The standard refrain, "We just don't have enough money," cuts both ways.

Throughout the nation, plaintiff districts and defendant states argue these cases by wielding dueling adequacy studies like Taylor's. These come in a variety of formats, the most objective being the "cost-function analysis," a model used by both the state and the plaintiffs in the West Orange-Cove case. Of course, both of those studies came to different conclusions about whether Texas' present level of funding was enough to support adequacy, and Dietz took only 10 minutes to decide which one he believed.

John Munich, a partner with Sutherland Asbill & Brennan in Atlanta, represents states like New York in school-finance challenges. At the National Conference of State Legislatures' convention in Salt Lake City this summer, he had one recommendation for the lawmakers in attendance who might be considering commissioning an adequacy study: Don't do it. "I can guarantee you it will be plaintiff Exhibit No. 1 in their case against your state," Munich said, citing a recent Kansas decision. "You start any school funding case with that sort of confession, and you're not a very good lawyer."

Here in Texas, Attorney General Greg Abbott has promised a speedy appeal to the Supreme Court. The state should be ready for the next round of litigation by year's end.

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