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Mandating Egalitarian Education Funding (Part Two)

My first post underscored how state courts became the next stronghold of judicial activism after the Warren Court. This has been particularly true with regard to school funding measures. In Texas, the school funding fiasco was unleashed by judicial creativity in order to get an egalitarian result.

Edgewood was a ridiculous decision when it was issued.  The term “efficient” in Article 7, section 1 of the Texas Constitution plainly does not mean “equal.”  Using any reasonable technique of interpretation, “efficient” means cost-effective, economical, or inexpensive.  Despite clear legislative history of the term, Mauzy rejected the obvious meaning, stating that the Texas Constitution is “an organic document to govern society and institutions as they evolve through time.”  In other words, to Mauzy and his activist colleagues, the Texas Constitution is a “living” document—the ultimate refuge of activist judges.

Mauzy was voted off the court in 1992, and by the mid-1990’s—around the time that Texas turned “Red”—the court was (and has remained) under the control of conservative justices.  Yet for 26 years, despite numerous opportunities to overrule Edgewood, and abundant evidence that Edgewood created a quagmire of endless litigation, the Texas Supreme Court has unaccountably persisted with Mauzy’s folly.

Actually, the court, in a mind-numbing series of subsequent decisions (Edgewood I-IV, West Orange-Cove I & II) has doubled (and even tripled) down and strayed even further from the language of Article 7, section 1.  John Cornyn, who is now a U.S. Senator from Texas, was previously a justice on the Texas Supreme Court.  As the author of the majority opinion in Edgewood IV in 1995, Cornyn had the dubious distinction of making a bad precedent even worse.  In order to soften the “parity of funding” holding of Edgewood, Cornyn introduced two other elements supposedly contained in the text of Article 7, section 1: public schools have to be funded adequately to achieve a “general diffusion of knowledge,” and the Legislature is obligated to ensure that instruction provided by each of the state’s thousand-plus districts is “suitable.”

The words “general diffusion of knowledge” and “suitable” do appear in Article 7, section 1, but prior to Edgewood IV had never been assigned any substantive meaning.   That is, for 119 years, from the time the Texas Constitution was ratified in 1876 until Cornyn and his colleagues put on their magic goggles (the ones that allow judges to see what is hidden from the rest of us) in 1995, the true meaning of this innocuous boilerplate language lay undetected.

What is the legacy of Edgewood?  For 26 years (even more, when you consider that the Edgewood case—filed by the Mexican American Legal Defense and Education Fund, which previously lost the Rodriguez case in the U.S. Supreme Court–commenced in 1987), school funding in Texas has been the subject of nearly-constant  litigation.  The lawsuits have all been heard in Travis County District Court, a solidly-Blue bastion in which every single judge is a Democrat.

In the latest chapter, styled Texas Taxpayer & Student Fairness Coalition v. Williams, Judge John Dietz conducted a marathon bench trial in 2012-13 and 2014 (interrupted by the Legislature’s biennial session).  Hundreds of school districts—eager to get more money than the Legislature appropriated—participated in the trial.   After 12 weeks of testimony, Dietz issued a 404 page decision that—in addition to awarding $8.5 million in attorneys’ fees to the disgruntled school districts (with more to come on appeal)–predictably concluded that Texas’ school finance system is unconstitutional under all three of the Edgewood prongs:  efficiency, suitability, and adequacy.  Ever the micro-manager, Dietz concluded that the state was not spending enough, that the funds were not allocated fairly, and that the entire K-12 school finance system should be enjoined until the constitutional “infirmities” are corrected.

The state appealed directly to the Texas Supreme Court, which will hear the case on September 1, 2015. This appeal, with its massive record, marks the seventh time the court has embroiled itself in a quintessentially legislative matter, based on an erroneous interpretation of the state constitution.  Will this madness ever end?

Reader Discussion

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on July 10, 2015 at 10:34:54 am

Like you presentation. What a sad scenario that laws -- are living -- when they should be constants. I wonder if ever the concept of theft, the icon of communism, will ever be rejected by political entities that wish to do it in some logic they have some civil right to take from others. Ah the wonder of the 14th -- and insane amendment, with its Due Process Clause, made the court Cesar!

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Dan Short
on July 10, 2015 at 10:36:32 am

"Will this madness ever end?" - Nope! - not while access to the taxpayers wallets is still readily available; nor while Public Employee unions are able to negotiate with a *third* party (i.e., one that does not make the payments) and are able to extract ever greater rents from the people.
Perhaps, if ALL public employee contract revisions were subject to a vote of the people, we could see some change.
Then again, the Black Robes would probably deem this unconstitutional.

Another thought:

It strikes me that when constitutional text(s) incorporate some aspirational goal, say "general diffusion of knowledge", or as in Washington State, "paramount duty", we give license to some State actor, in this case the Black Robes, to make all kinds of mischief in pursuit of that aspirational goal.
The people's starry-eyed hopes are best confined to a "preamble" - constituent law ought to be plain and straightforward and limit the opportunit(ies) for State adventurism.

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gabe
on July 10, 2015 at 10:49:24 am

And once again just for the fun of it, wherein a Court determines that there is no need to follow a specific constitutional constraint against raising taxes - just because, well because, "We need it for education." "Tis the children, don't you see"
(FROM Bench Memos, NRO, Ed Whelan)

2003—Under the Nevada constitution, the legislature cannot raise taxes except by a 2/3 vote of both legislative houses. Or so the constitution says. But when Nevada governor Kenny Guinn can’t get the legislature to fund his education budget, he runs to the Nevada supreme court for help. By a vote of 6 to 1, the court (in Guinn v. Legislature of the State of Nevada) somehow orders the legislature to proceed “under simple majority rule” to raise taxes. Citing the “impasse that has resulted from the procedural and general constitutional requirement of passing revenue measures by a two-thirds majority,” the court orders that “this procedural requirement must give way to the substantive and specific constitutional mandate to fund public education.” (For more, see this analysis by Eugene Volokh, who describes the ruling as “one of the most appalling judicial decisions I’ve ever seen.”) Three years later, the Nevada supreme court quietly repudiates its ruling.

Read more at: http://www.nationalreview.com/bench-memos/420557/day-liberal-judicial-activism-july-10-ed-whelan

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gabe
on July 10, 2015 at 12:57:07 pm

From a variety of factors and developments (referenced in comment to your prior post)
the "public," acting as the electorate, has placed schools ("Education") as a collective activity.

Most of the actions noted are not so much for objectives of "equality" as for preservation of collectivity. Once political direction of a social function (cooperation in providing learning to children) has been established (as it was for financing) it will take the course of preserving (and for the objectives of particular interests who use that political direction) and expanding its collective nature.

Instead, ask the questions: Should the provision of learning be a collective effort; or, a cooperative effort? Why is the provision of learning a function of governments? What are the consequences of making it so; can they be avoided or mitigated? Why do those consequences occur? Can they be "corrected?" Are there alternatives; if so, what is impeding them.

Otherwise we will simply continue to examine the consequences of previous and continuing determinations made for objectives other than learning.

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R Richard Schweitzer
on July 10, 2015 at 15:27:10 pm

So it would appear that John Dewey is triumphant (although the trend, but not the forceful exposition of same, began earlier).

The illusion is that the collective has a mind / goal of its own - it does not. Rather, what we see is the confluence of a variety of interests / motivations that have coalesced to form an almost monolithic structural edifice (mechanism) that serves the needs of a whole host of interests: indoctrination into the new social order for some adherents, higher salaries / benefits for others and of course the political influence exercised (and clearly enjoyed) by public sector unions via the "lock-step" voting proclivities of said union members. Add to this the "crackpot" academics, seeking distinction within (and without) their field by advancing novel approaches to learning ( where the correct mathematical solution is awarded less credit than a "good effort" and we have the makings of our current academic underachievement. Oops, I forgot - Nothing wrong with this - after all, we NOW have ANOTHER problem that can be used to feed the monolith with added tax dollars, more interventions, etc. etc.

It is a hungry beast, this collective - but a truly mindless one!
All this as an outgrowth of the motivations of one man, John Dewey, attached so profoundly to his motivational vision that he was profoundly taken with the Soviet "collectivity."

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gabe

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