Painted Windows Aren’t Good Enough:

MALDEF Stands its Ground in Texas School Funding Trial

By Greg

Moses
Texas Civil Rights Review
http://la.indymedia.org/news/2004/08/116354.ph

p

On a recent Friday, when Texas judge John Dietz summons attorneys “to the bench” in his

Austin courtroom, thirteen well-suited lawyers come forward. There are lawyers for the state, who

argue that the school funding system adopted by the legislature in 1993 is working as best it can.

There are lawyers for wealthier school districts, such as West Orange Cove or Highland Park, who want

the 1993 system shut down. And there are lawyers for the state’s impoverished school districts, such

as Edgewood or Alvarado, who at first tried to stop this fight altogether, but who are now looking for

ways to preserve, enforce, and extend the constitutional framework that the 1993 laws represent.

The public file for this school funding case (soon to be known as Edgewood Five?) approaches the

two foot mark. But on a day when parts go missing, the district clerk’s office is equipped with

something called DMS, or document management system, into which all the public documents for this case

have been scanned. And I am told there are, in addition, at least ten cd’s that the various attorneys

have made with all their exhibits in pdf, excel, powerpoint, and whatnot formats, that they can export

from their Dell laptops to bright-screen displays in court.

With all the lawyers,

paperwork, and documentary intrigue, the spectacle surrounding the school funding trial is Texas-sized

and more to my wire-rimmed taste than the Sandra Bullock mansion dispute going on somewhere in the

vicinity. Not that I wouldn’t mind seeing the movie star, or treating her to some sympathy about what

it feels like to have your life occupied by (alleged) runaway contractors, but I’m more interested in

how her vacant mansion works as a metaphor these days for where the whole story of Texas school funding

begins.

School history in Texas begins during the bad old days of statutory segregation,

followed by the rising hopes of civil rights, fading now into ever-so-nuanced cycles of postmodernized

vestiges, in which glaring inequalities between rich and poor neighborhoods become sites of

administrative analysis, consulting contracts, and formulas for funding so arcane that in order to

compute them, dude, you gotta get a Dell.

The first three Edgewood rulings by the Texas

Supreme Court (in 1989, 1991, and 1992) said that Texas had not yet come up with a constitutional

method of funding education—a method that should be at once “adequate, suitable, and efficient.” The

fourth Edgewood opinion by the Texas Supreme Court in 1995 said, finally, okay, the Texas Legislature

in 1993 had finally passed a constitutional plan.

Which brings us to the fifth Edgewood

suit, more properly styled West Orange Cove v. Nelson, named for a school district and a commissioner

of education. The school district is first among a list of almost fifty districts (hereafter referred

to as richer districts) who claim that the state has so poorly assisted public education in Texas that

local property taxes are doing all the state’s work and, therefore, that local property taxes have

become state property taxes. Since state property taxes are unconstitutional in Texas, the richer

districts want the very laws abolished that it took four Edgewood opinions to

produce.

The 1993 laws, known as Chapters 41 and 42 of the Texas Education Code, make it

somewhat possible for school districts to take money raised from a mansion in one district and spend

that money for education in another. Nearly fifty of these richer districts, in the precious language

of legalese, pray to the court, to prevent the state from enforcing Chapters 41 and 42. If these

districts succeed in shutting down the statewide system of re-allocation, they can go back to taxing

and spending as they please, keeping their mansion taxes closer to home.

I would be

surprised and disappointed if this so-called “recapture” of mansion taxes bothered a wealthy Hollywood

star, but it bothers enough other people in Texas, especially those who feel that children are born

where they deserve to be born, whether in mansions or manufactured homes. For such people it is

difficult to break the habit of thinking that neighborhood schools should rightfully mirror the ability

of neighborhoods to pay. And when they see taxes raised in one place being “recaptured” and sent to

another, they tend to think, like the Sheriff of Nottingham, that something has been

stolen.

On Friday morning, lead attorney for the Mexican American Legal Defense Fund,

David Hinojosa, was so tired he could barely read his own questions from a page of prepared notes. He

was speaking to the superintendent of the Edgewood school district, Richard Bocanegra. In the tableau

of the closing hours of week three, as Judge Dietz mercifully called a five minute break, the MALDEF

attorney and Edgewood superintendent were trying to hold onto a tenuous legal framework that had been

more than 30 years in the making. Of course it was neither this MALDEF attorney nor this Edgewood

superintendent who began the struggle way back then, but it is the MALDEF-Edgewood alliance that has

tenaciously over the years moved Texas education through the series of Edgewood lawsuits into the

equalizing practices of Chapters 41 and 42.

Neither crisply nor with brightening eyes,

Hinojosa and Bocanegra review their powerpoint slides, one by one. Here is a photograph of windows

painted over, to keep the sunlight out and the cooling costs down. There is a parking lot splotched

with standing water. Here is a portable classroom at Burleson Elementary. There is a photo of broken

sills and mold at Cenizo Park. Cinderblock walls of a 50-year-old gymnasium are shown split open by

shifting foundations. Here’s another photo of Coronado Elementary School’s gymnasium. Here are window

air conditioning units spaced motel-style at Edgewood Middle School. There is a sump pump in the slab

at Memorial High, because the school was built upon a landfill. Truman Middle School, Wrenn Middle

School, deteriorating blacktop, ceiling tiles stained and broken from roof leaks, garbage cans catching

water…

“Mr. Bocanegra?” Hinojosa is circling toward a question that I hope he finishes

before he falls out. “Given the insufficiencies of the resources, the challenging demographics of the

students, and the inequities of funding, what prospects do you hold for the parents of your children

and the children themselves?”

After Bocanegra finishes his answer, I notice that the

benches on the state side of the room look pretty empty. Gone are some of the heavyweight lawyers I’m

used to seeing there. They have assigned this cross examination to what looks like the youngest lawyer

on staff. She treads lightly with bouncing inflections. This is way different from some of the

barracuda attacks that I’ve seen. When the witness is given back to Hinojosa, he mops up the day’s

testimony by asking Bocanegra to explain what it’s like to take his prospective teachers on a campus

tour.

In the summer of 2001, MALDEF helped to convince Judge Dietz’s predecessor Scott

McCown, to dismiss the West Orange Cove lawsuit. In a sparkling opinion, McCown guarded the gates to

the state funding system, emphasizing the overwhelming practical value of the “recapture provisions”

for the history of Texas education. In a concluding flourish, McCown declared that, “history is

truth—Until equity was required, the State shamefully treated and woefully underfunded the property

poor districts.” He did not see that the richer districts were as yet so stressed out by the funding

system that they had lost t
he
ir ability to exercise local discretion over their tax policies. And he

seemed worried that the logic of the plaintiff’s attack might undercut completely the hard won

framework that the Edgewood era has produced for Texas (a state which Friday morning’s papers declared

was now officially no longer mostly white.)

An appeals court also dismissed the West

Orange suit. But the Texas Supreme Court on May 29, 2003 remanded the case back to trial and demanded

a thorough inventory of facts and issues. Furthermore, the court seemed to suggest that, if only one

district can show that its funding has become so bound up by state priorities as to deprive that

district of “meaningful discretion” in its tax policy, then school funding may well have turned into an

unconstitutional state property tax.

This time around, MALDEF is agreeing somewhat with

the richer districts. Texas does not provide sufficient funds or meaningful discretion, especially to

impoverished school districts. But unlike the richer districts, MALDEF pleads with the courts to find

some way of preserving the hard-won Edgewood principles of equalization. In fact, MALDEF is asking the

courts to place pressure on the state to increase its formulas for “special needs” and to make

equalization an even more robust practice, especially when it comes to paying for facilities. When it

comes to paying for buildings—as the slides from the Edgewood district were trying to show—there are

still glaring disparities.

There is some evidence that the Texas Supreme Court is not

happy with the bad faith practices of state policy makers who have retreated from Edgewood more than

they have built upon it. In its ruling of May 2003, the court quoted passages from its own majority

opinion of 1995, written by Republican John Cornyn, who is now a US Senator: “Surely Texas can and must

do better.” And then the court added, “Little change has been made.” Even Republican judges, it

seems, can be ashamed at this level of injustice.

What’s not so clear is how the Court is

leaning with respect to the richer districts. In the early years of Edgewood the court had to strike

down three funding regimes in three years’ time in order to impress upon lawmakers the importance of

equalization and improvement in education policy. Now that they are facing the third challenge in a

row from richer school districts trying to evade equalization, the court may want to draw a big, bright

line for them, too. The court may be in a mood to say both to the state and to richer districts, look,

we gave you some very clear principles, now get busy trying to build on them. But, somehow this

scenario seems too good to be true.

In plainer language, the court may find a way to say,

why not try helping MALDEF and Edgewood in school instead of wearing them out in court? At any rate,

it would be a perverse turn in history to punish the state by turning back the equity clock.

Politically, such a ruling would signal to state policy makers that any time they want to break down

the court-ordered enforcement of equity, they simply need to starve the total system of funds. Just

because the state has adopted a passive-aggressive posture, doesn’t mean it can’t be klanlike.

On the crucial issues of equalization and progress, MALDEF has found an ally in another

set of players known as the Alvarado Intervenors, who claim that their commitment to “maintaining

Edgewood mandates is intense and undisputed.” Like MALDEF also, the Alvarado Intervenors argue that

the legislature has retreated from equalizing facility funds. As a result, impoverished districts find

themselves “trapped in the vice” where the state demands more performance on one side and delivers

insufficient resources on the other.

On Tuesday the Alvarado Intervenors argued in a

“bench brief” that the State’s bad faith could be proved in the difference between the standards it

sets for students, on the one hand, and the standards it sets for districts on the other. While the

state hands out tests that students must pass, it accepts from districts very low passing rates. And

why does the state do this? Because policy makers know very well that if they demand higher passing

rates, they will have to spend more money for teachers, materials, facilities, and support. It is

time, argued the Alvarado Intervenors, that standards set the pace for state budgets rather than state

budgets starving the appetite for standards. “What the constitution requires of the legislature with

respect to education is to place it in a different and higher position than other budget items.”

During a Friday morning recess, Alvarado attorney Randall B. Wood picks up his copy of

the day’s Dallas Morning News, carefully folded into a tight rectangle. “Look at this,” he says,

exasperated, pointing to a story about a South Dallas school district that keeps behaving scandalously

and keeps getting away with it. “There is no accountability here. The state keeps doing nothing.”

Faced with a state that says things are good enough today and with a coalition of richer districts who

say it would be okay even to turn back the clock on equity, the Alvarado and Edgewood attorneys will

return next week to try once again to keep the Texas courts moving in a forward

direction.

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