Analysis of the West Orange-Cove decision

After I posted a roundup of reactions to the Texas Supreme Court’s ruling in the school finance lawsuit appeal (also known as Neeley et al. v. West Orange-Cove et al., No. 04-144), I received an email from one of the attorneys in the case, Mark Trachtenberg of Haynes and Boone, who represented the West Orange-Cove plaintiffs. He said that contrary to the mostly negative tone in the reactions that I linked to, there were many positives to draw from in the Court’s opinion. To prove it, he sent me a detailed analysis of the opinion, which was written as a memo for the plaintiffs and other interested parties, which I’ve posted here. It’s a ten-page PDF, and having read through it, I have to agree.

I’ll give you one excerpt to highlight why there’s a lot to be optimistic about. One issue in the case was the question about whether or not the Court even had the power to tell the Lege what to do with school funding. Here’s how that got resolved:

The State raised three arguments for why the Court should not even reach the issue of adequacy: (1) adequacy is a “political question” that is exclusively within the province of the Legislature, (2) the constitutional provision at issue is not “self-executing,” i.e., it does not provide a district the right to enforce the duties contained therein unless the Legislature first passes legislation authorizing such a suit, and (3) the districts lack “standing” to bring an adequacy claim, because the constitutional right is conferred only on students, not districts.

The Court unequivocally rejected each of these arguments. The significance of these holdings – particularly, the rejection of the political question argument – cannot be overstated. At least six state supreme courts previously had rejected adequacy challenges under the political question doctrine. Had the Texas Supreme Court followed their lead, as the State urged, the issue of adequacy would have been permanently off the table. The Legislature would know that its duty to provide an adequate education would be meaningless because the duty would not be enforceable in court. Instead, the Legislature now knows that the duty assigned to it in the Constitution is real and has teeth. Further, in any future round of litigation, the “sagebrush” will have been cleared. There is no longer any doubt that districts have the right to bring adequacy claims and that these claims are justiciable – permitting future litigants to proceed directly to the merits of their claims.

This is key. In rejecting the arguments that adequacy is not an issue for litigation, the Court agreed with the plaintiffs that they had a right to seek remedy in the legal system. It just didn’t agree that they were at a point of needing to be given that remedy yet, but as the rest of the analysis makes clear, they’re getting very close. Read the whole thing and see for yourself.

Here’s the bottom line:

[W]e believe that HB2/HB3, if implemented, would not survive judicial scrutiny today. As Scott McCown correctly observed, “[I]f the school property tax is an unconstitutional state property tax at $1.50, it does not become constitutional merely because it has been compressed to $1.20. Adding 3% more money to the system over two years does not create ‘meaningful discretion’ at the local level. To begin with, it doesn’t cover inflation, and in any event, would have to be spent on the new mandates in HB 2.”

Keep that in mind as the sparring over the impeding special session begins. Watch the primary battles to see who shares that viewpoint and who does not. It’s going to be an interesting spring.

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