Point Austin: The Dietz Decision

As more than one commentator has pointed out – notably my Chronicle colleague Richard Whittaker ("Texas School Funding: Still Unconstitutional") – District Judge John Dietz's Aug. 28 ruling in the public school funding case was a glaring instance of déjà vu all over again. Dietz reiterated his earlier oral ruling (prior to the 2013 Legislature) that the Texas school funding system is "unconstitutional in several respects." Having then given the Legislature another chance to remedy those "constitutional infirmities," Dietz concluded, once again, that "the Legislature has failed to meet its constitutional duty to suitably provide for Texas public schools."

Indeed, if it weren't for those pesky drafters of the Texas Constitution, Texans would have little recourse in enforcing this obligation upon the current generation of legislators. Can anybody really believe our state officials would now freely endorse what the founders required: "A general diffusion of knowledge being essential to the preservation of 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, Par. 1) The Legislature may still pay lip service to its constitutional responsibilities, but the biennial evidence of their actions (and inactions) on education is much more eloquent in demonstrating their ingrained neglect of their "duty."

We shouldn't get carried away with deference to Texas' founding fathers; their enthusiasm for "free public schools" rested also on the explicit premise that such public schools were for the exclusive use of the children of white residents. It follows that their mostly Anglo legislative descendants, nearly 150 years later, have become increasingly unwilling to sustain the system when a majority of schoolchildren are of distinctly darker hues.

Structural Failure

Nevertheless, in his summary decision and his extensive "Findings of Fact and Conclusions of Law," Dietz made abundantly clear what the Constitution requires, and how poorly the current funding system meets those requirements. "[T]he school finance system is structured, operated, and funded," he wrote, "so that it cannot provide a constitutionally adequate education for all Texas schoolchildren." He continued, "Fur­ther, the school finance system is constitutionally inadequate because it cannot accomplish, and has not accomplished, a general diffusion of knowledge for all students due to insufficient funding. Finally, the school finance system is financially inefficient because all Texas students do not have substantially equal access to the educational funds necessary to accomplish a general diffusion of knowledge."

What's particularly telling in that summation is not that the judge describes the system as inadequate to its purposes, but that it is "structured, operated, and funded" in such a manner "so that it cannot" fulfill its constitutional obligations. As if to dismiss directly Judge Dietz's judgment on that score, the 2013 Legislature returned about three-fifths of the $5 billion it had slashed from school funding in 2011, and then patted itself on the back for a job well done.

That continues the historical pattern; the state has repeatedly lost every public school funding lawsuit that has been brought against it, and has responded by dragging its feet, returning to court, waiting for the next Legislature to apply a cosmetic Band-Aid or two – and found itself in court once again, while another generation of students endures another generation of unconstitutional lack of support.

Never-ending Story

Attorney General (and gubernatorial candidate) Greg Abbott said he would appeal Dietz's decision to the state Supreme Court, while acknowledging that the litigation has continued for "three decades" – thanks in no small part to the state's intransigence. He also waffled on the underlying causes, at once suggesting that "part of what is needed is additional funding to achieve certain goals" while simultaneously trotting out the conservative bromide, "Just throwing money at it ... is no solution." As Dietz repeatedly documented, the state has never remotely attempted to "throw money at" the public schools (historically preferring to fund highways and prisons), and legislators who reflexively campaigned on "no new taxes" are loathe to submit to their constitutional responsibilities.

This whole subject pinches harshly in Austin, where as one of a few "property-rich" districts AISD must annually return many millions to the state for redistribution, thus depriving its majority low-income students of needed resources. Consider, if you will, the situation of "property-poor" districts, unable by definition even to raise the requisite funds for basic maintenance and resources in the first place. Austin's current property-tax backlash is largely aimed at the city, and therefore at the margins of the overall residential property tax bill, of which the school district constitutes more than half.

Austin taxpayers have traditionally voted to support our public schools (and consequently all of Texas' public schools). If the Legislature fails, once again, to take Dietz's decision to heart, one can only hope the electoral backlash extends to the state's habitual failure to fulfill its constitutional duty.