The Time Was Now: How the Texas High Court Failed the People

By Greg Moses

IndyMedia Austin / Houston / NorthTexas

In the relationship between knowledge and freedom, children derive
their right to free education. Take for example the Texas constitution
of 1875 (Article VII, Section 1):

A general diffusion of knowledge being essential to the
preservation of the 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.

Into this succinct line of reasoning is packed a serious claim.
Where there is no suitable education, there can be no real hope of
preserving rights and liberties; therefore, elected representatives
have a duty to establish, support, and maintain public schools.

Yet in the wake of the latest collective judgment handed down by the
Texas Supreme Court, we are left shaking our heads. The court has
affirmed that Texas is dead last among the fifty states of the USA when
it comes to high school literacy among adults 25 and older. And the
court has stipulated that high-school-dropout rates consume fully half
of the state’s Hispanic students and nearly half of African Americans.
Yet, the court finds this system of public education adequate,
suitable, and efficient.
Had the court wanted to signal a higher standard of respect
for ‘essential’ conditions of education, justices could not have
concocted a more timely environment. A state district court had already
ruled the education system unconstitutional, and the legislature had
convened several special sessions ordered by the governor in open
admission that something better should be done. But legislators, time
after time, had failed; until finally they said it might be better to
wait until the high court gave guidance.

Because the trial court, the governor, and the legislature were already
behaving as if a constitutional crisis in education had been reached,
the Texas high court had only to stand squarely on the side of the
rights and liberties of the people to issue a profound and lifting
command. Yet the court retreated from the rights of the people and
aligned itself instead with the prerogatives of a decadent legislature,
whose inability to agree on some better course of action now stands in
a sentimental glow of constitutional sympathy.

Instead of casting into 21st Century law a progressive
commitment to vigorous support for the “essential” institution of
public ed, the court tottered backward, deferred to backward looking
comparisons, and anchored its logic squarely in 19th Century habits of
mind that have usually blunted the keen logic of the constitution.

With a decisive choice before it, whether to raise
expectations for the people or lower expectations for the legislature,
the court decided that deference to the legislature was its wisest
course. And so the court, when served up with a critical and hard-fought
opportunity to enliven the relationship between knowledge and liberty
among the people (an opportunity that will take many years to rebuild)–the court abandons its rare and recent tradition
of trying to be part of the public education solution.

In its deferential (cozy) embrace of the legislature, the
court decided that so long as the legislature is not being “arbitrary”
in its provision of education, its crucial provisions for the rights
and liberties of the people cannot be second guessed.

But what requires the court to be deferential to the legislature when
it comes to assessing public education, especially if public education
is so clearly founded on the need to preserve the liberties and rights
of the people? It is to the liberties and rights of the people that the
court is more urgently bound to defer, not to the liberties and rights
of the legislature.

A plain reading of the legislature’s actions since 1875 prove
that in the absence of a jealous court, the state legislature tends to
deflate the concept of public education, preferring to keep the rights
and liberties of some people hostage to the rights and liberties of
others. The paradigm for this pattern is marked out in two words: Jim
Crow.

Or to put it another way, if a jealous court is not actively
protecting the rights and liberties of the people one and all, then the
promise and hope of democracy loses an essential foundation of
legitimacy within the state structure upheld by that court. A lousy
court results not only in a lousy state, but in lousy hopes that the
state can ever be democratically reformed. Yet the court in this case
seems to believe that a lousy court can motivate a lousy legislature to
do what it has never voted to do to date without court pressure. As a result of the court
ruling, the promise of education for democracy in Texas is once again a revolutionary hope.