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Texas Taxpayer & Student Fairness Coalition

Supreme Court to hear school finance appeal in September

Mark your calendars.

The Texas Supreme Court will hear oral arguments Sept. 1 in the long-running case challenging the state’s school-finance system.

“We are very pleased that the court is moving so expeditiously,” attorney David Thompson, representing the Houston Independent School District, Fort Bend ISD and dozens of others, said Friday. “We think it’s a recognition of how important this issue is to every community in the state.”

More than two-thirds of Texas districts sued the state in 2011 after lawmakers cut $5.4 billion from public education amid a budget crunch while raising academic standards. In the suit, hundreds of school districts argued that, despite warnings from the Texas Supreme Court over the years about school funding, “the State has fallen back on temporary fixes that ultimately fail to support the increasing expectations Texas has set for a student population that is rapidly growing and disadvantaged.”

In response, the suit argued, districts have had to respond “in what amounts to an unconstitutional state property tax.”

In addition, the suit also claimed the current system was inefficient and inadequate to fund districts at a constitutional and equitable level.

[…]

Then-Attorney General Greg Abbott, now governor, appealed the ruling directly to the state Supreme Court, which agreed to hear the case in January.

“After nearly four years of successful litigation, the inequities in the current system remain critically excessive,” said Wayne Pierce, executive director of the Equity Center, which provided research and testimony for the Texas Taxpayer & Student Fairness Coalition representing the school districts in the suit.

He said the system has long been broken, with many districts underfunded while taxpayers are burdened with property taxes.

“It is not unusual at all for the poorest districts to receive 50, 60,000 dollars less per typical elementary classroom than what the state system routinely makes available in the wealthier districts,” added Pierce.

Just as a reminder, the original trial was held in 2012 with the first of the six suits being filed in October of 2011; the final verdict was rendered last August after a rehearing in June of 2013 to consider the effect of that year’s legislative session. Abbott appealed the latest ruling last September, and here we are. Depending on how things go, we could have a special session sometime next year, or the Lege could try to address any needed changes in the regular 2017 session. If Judge Dietz’s ruling is upheld and the Lege is going to have to pony up a few more billion dollars to the schools, it will make for a very interesting session, that’s for sure.

More plaintiffs respond to Abbott’s recusal motion

I think it’s fair to say that the plaintiffs are strongly opposed to Greg Abbott’s attempt to get Judge Dietz recused in the school finance trial.

Lawyers representing hundreds of school districts pushed back Thursday against Texas Attorney General Greg Abbott’s effort to remove a judge who is weighing the constitutionality of the school finance system.

The attorney general accused District Judge John Dietz of “coaching the plaintiffs’ counsel in order to improve their case,” and cited a series of emails this year among the judge, his staff and plaintiff’s lawyers from mid-March to mid-May. Those emails have not been publicly released.

Plaintiff’s lawyers responded Thursday with a 49-page motion that says state attorneys have failed to prove that Dietz showed partiality.

“One would think that, under the circumstances, the state would have taken great pains to provide a full and accurate account of the relevant facts, in fairness to the trial judge accused of partiality,” the motion states. “But the state did not do so.”

[…]

School district lawyers disputed the state’s allegation that Dietz coached them on how to present their findings, arguing that Dietz’s communications were “nothing more than the judge giving guidance as to how he wants the findings revised to reflect his view of the law and the evidence.”

They also refuted the notion posed by the state that Dietz should not have a stance on the issue.

“Having heard all the evidence, and having already announced his oral ruling from the bench in the first phase of the case, it is not only unsurprising but expected that Judge Dietz would have developed opinions about the facts and the parties’ claims,” the motion says.

See here and here for the background. The plaintiffs that filed this particular motion are the Texas Taxpayer & Student Fairness Coalition, and yesterday their attorney Mark Trachtenberg sent me a (slightly redacted) copy of the motion, which you can see here. You don’t need to read the whole thing, but the brief introduction is well worth your time. Here’s a bit from the end of it:

Another glaring omission in the motion is the State’s failure to acknowledge that it has participated in numerous hearings when exactly these same topics were discussed, in much the same way they are discussed in the communications the State challenges. All parties took part in hearings in which Judge Dietz provided instructions on how he wanted the findings to be revised, making clear that he was asking the ISD Plaintiffs to modify them in certain ways to better conform to his views of the law and the evidence, as considered and weighed by the judge during sixteen weeks of trial. (See generally, e.g., Ex. 26, 8/20/13 Tr.; Ex. 34, 3/19/14 Tr.; Ex. 36, 5/14/14 Tr.) Not once did the State or Intervenors ever object to the guidance provided during these hearings. In addition, the State and Intervenors have had—and continue to have—every opportunity to be heard on all of the factual and legal issues in this case.

[…]

Finally, the State’s motion does not account for the unique challenges posed by this case which made the agreed-upon submissions of proposed findings not only appropriate but necessary. This case involves six sets of parties bringing seven different affirmative constitutional claims, as well as the State, which is defending against these claims. These parties collectively submitted seven different sets of proposed findings to the Court without service to the other parties, pursuant to the scheduling orders agreed to by all parties at the beginning of the case. Some of these submissions were hundreds of pages long. The parties agreed to this procedure to facilitate the judge’s review of the findings and to contextualize the evidence presented at trial, without having to disclose their internal work product and trial strategy. All were fully aware that the judge would need to direct counsel for the prevailing parties to integrate the separate submissions into one document (which now runs hundreds of single-spaced pages), and to modify the proposed findings to his liking, a task that his staff did not have the capacity or technical capability to accomplish alone. Understanding these challenges, neither the State nor the Intervenors ever raised an objection to these procedures. The State’s untimely and improperly verified recusal motion—which noticeably was not signed or verified by any of the State’s primary attorneys who appeared at trial—should be promptly rejected.

Emphasis in the original. If there’s an equivalent to bench-slapping by opposing counsel, this motion is a pretty good example of it. If you do continue reading all the way through the document, you will notice how some variation of “neither the State nor the Intervenors ever raised an objection” is repeated over and over and over again. Those of you that read the recusal motion as a delaying tactic, such as the Wendy Davis campaign, these plaintiffs at least would appear to agree with you. Bexar County District Judge David Peeples will hear the arguments on June 20, and will hopefully rule in short order to dismiss the state’s motion. Stay tuned.

Judge Dietz refuses to recuse himself

Game on.

The Travis County District Court judge overseeing a contentious trial over the state’s school finance system rejected a request by the attorney general’s office to recuse himself from the case.

Attorney General Greg Abbott’s office asked state District Judge John Dietz to remove himself from the proceedings after learning of emails between Dietz and plaintiffs’ lawyers, some of which state lawyers say “suggest that the judge is coaching the plaintiffs’ counsel in order to improve their case.”

In an order signed Monday, Dietz declined to step aside, instead asking Billy Ray Stubblefield, presiding judge of the 3rd Administrative Judicial Region of Texas, to assign a separate judge to hear the motion of recusal.

Lawyers for hundreds of school districts slammed the state’s motion as an effort to delay a ruling.

If that were the attorney general’s intent, it worked, said Rick Gray, attorney for the Texas Taxpayer Student Fairness Coalition.

Gray said Dietz likely won’t continue work on the case until the recusal matter is resolved.

A ruling had been expected sometime this summer.

The attorney general’s office “shut it down and the ultimate losers are the schoolkids,” Gray said. “Every day, they stall and delay this is one more day we’ve got kids going through an underfunded, inefficient and inadequate system.”

See here for the background. The main thing I learn from this is that at least one other plaintiff group is on the same page as the David Thompson plaintiffs, who have already said they will “vigorously oppose” the state’s motion. Here’s more from the Statesman:

It is unclear how much delay the recusal motion will add to the school finance case, begun in 2011. Court rules require the motion to be heard “as soon as practicable,” even allowing a hearing to be held by conference call, with briefs and documents to be submitted by fax or email.

If the new judge denies the recusal motion, Abbott may appeal, but an order to remove Dietz from the case may not be appealed.

Before the recusal motion, Dietz had been expected to rule by late June or July.

A judge has been appointed to hear the arguments for this. Hopefully, we’ll get a ruling soon, as well as an updated opinion in the lawsuit.

School finance retrial wraps

We’re back where it all began.

The Texas Legislature failed to bridge funding gaps between wealthy and poor school districts despite partial restoration of funds that were cut, lawyers representing schools told a state district judge Friday.

“They have put a Band-aid on a Band-aid on a Band-aid,” said Rick Gray, attorney for the Texas Taxpayer Student Fairness Coalition, during closing arguments in the second phase of a school finance trial. “We have a constitutionally and fundamentally broken system, and it’s time that that be repaired and be repaired on a non-Band-aid approach.”

State lawyers countered that previous actions have addressed the plaintiffs’ concerns and the system is constitutional.

Hundreds of schooldistricts sued the state in 2012 after the Legislature cut $5.4 billion from public school funding during the 2011 session.

State District Judge John Dietz ruled the finance system unconstitutional last February. He reopened the trial in January to examine the effects of House Bill 5, an overhaul of the state’s graduation standards passed by the Legislature in 2013, and the state’s new biennial budget, which injected about $3.4 billion back into the school finance system.

Dietz could rule by mid-March.

It remains the case that public education is down $2 billion from the 2009 budget, and that’s before factoring in enrollment growth. It remains the case that many property-poor districts receive far less money per pupil than many property-rich districts despite having a higher property tax rate. It remains the case that the state of Texas thinks everything is hunky dory, just as it was in 2011 after $5.4 billion had been cut from public ed. And it remains the case that it will ultimately be the State Supreme Court that settles this. Assuming there isn’t a settlement, of course.

Sen. Wendy Davis

Sen. Wendy Davis

State Sen. Wendy Davis, the leading Democratic candidate for governor, called on her likely Republican opponent Monday to use his power as Texas attorney general to settle a massive school finance lawsuit instead of defending the troubled funding system in court.

“Attorney General Greg Abbott continues to defend the indefensible,” the Fort Worth Democrat said at an Austin news conference. “He’s wasting time and taxpayer money on a frivolous lawsuit that hurts Texas.”

[…]

Davis said Monday that Abbott should have instructed the Legislature last year how to avoid the litigation. She said lawmakers could have avoided cuts that she said caused teacher layoffs, increased classroom sizes and led to the elimination of vital programs.

“As our lawyer, it was Greg Abbott’s job to come and work with the Legislature to stave off yet another lawsuit. We knew that this lawsuit was coming,” Davis said. “And yet Greg Abbott remained silent.”

The Davis campaign distributed a memo outlining past cases in which the state settled litigation, ranging from prison overcrowding issues to redistricting. It was written by Dave Richards, who has been tangling with Texas in court for decades on issues including civil rights and voting rights. (Richards is the ex-husband of the late Gov. Ann Richards).

“Texas’ Constitution and case-law provide clear precedent that establishes the attorney general’s discretionary power to settle cases,” Richards wrote. “Based on precedent, past actions and any informed interpretation of law, it is absolutely within the power of the attorney general to settle cases of this nature.”

Davis was asked during the news conference how Abbott would settle a case that ultimately requires legislative action. She said he should advise lawmakers, probably in a special session, to consider changes to the complicated school finance system.

I don’t think that would be terribly complicated, but it ain’t gonna happen. As has always been the case, Texas will have to be forced to do what is right. My guess is that Judge Dietz will rule in substantially the same was as he did last January, which is to say in favor of the plaintiffs on all counts. This time he’ll release a full opinion, which will be for the Supreme Court to suss out. Just keep in mind that if the ruling I think Dietz will deliver is upheld, the Legislature is going to have to find billions of dollars more for public education. Who do you trust as Governor to work with the Legislature to do that? The Observer and BOR have more.

A cheat sheet for the school finance lawsuits

The Trib has a useful guide to the six (so far!) lawsuits that have been filed over school finance.

Texas’ latest round of school finance litigation adds some new players to the courtroom, with interests that are more varied than ever before. We’ve created a cheat sheet to help you keep all six lawsuits — and the plaintiffs’ basic arguments — straight.

Charter schools and a newly formed organization pushing for more school choice are both suing the state for the first time. Four different groups of school districts, by now veterans in the school finance wars, are returning once again.

A judge has already consolidated these five lawsuits into one trial, and will likely do the same with the latest claim, filed by the Texas Charter School Association. In many instances, the plaintiffs’ arguments will overlap, but in some, their interests will conflict — that’s why there are so many different parties.

(And note that at least one party doesn’t agree their cases should all be heard at once. MALDEF has filed a petition to dismiss the complaint from Texans For Real Efficiency and Equity in Education, saying that group should be making their argument to the Legislature, not the courts.)

The main thing to know as far as I’m concerned is that the TREE lawsuit is the skunk at the garden party. It’s the one of these things that isn’t like the others. I think MALDEF’s petition has a lot of merit, and I hope the judge looks favorably on it. Anyway, you can see all of the plaintiff’s complaints as well as a chart showing who’s alleging what and a summary of the key issues. Check it out.

Calling for a special session

It started with the Texas State Teachers Association.

The Texas State Teachers Association today urged Gov. Rick Perry to call the Legislature into special session now to appropriate $2.5 billion from the Rainy Day Fund and head off another round of harmful cuts in local public school budgets for the 2012-2013 school year.

“It is time to stop the bleeding and stop the cuts, now!” said TSTA President Rita Haecker, who appeared at a state Capitol news conference with State Rep. Donna Howard of Austin.

[…]

TSTA believes there is enough money in the Rainy Day Fund to restore the school cuts and leave a substantial balance to address other important needs. The comptroller has estimated the fund will have a balance of $7.3 billion by the end of this budget period. Other experts believe it may grow even larger, because of higher oil prices and increased production.

Gov. Perry insisted that the Legislature leave a large balance in the Rainy Day account, even while making deep cuts in state services, during last year’s sessions. TSTA will be circulating petitions, urging the governor to do the right thing now and call lawmakers to Austin. Texans also can sign the petition at:

http://www.tstaweb.net/forms/2012cutsPetition.html

“It is time for the governor to cut the politics and stop cutting away at our children, their education and our state’s future,” Haecker said. “He can call a special session, stop the cuts and do what’s right for Texas.”

Remember, the Lege underfunded Medicaid by nearly $5 billion, so most of the Rainy Day Fund is spoken for. Haecker and the TSTA are calling for the extra Rainy Day funds, which have accumulated over the past few months as the economy has improved, to be used.

Former Democratic House Caucus chair Jim Dunnam echoed the call in the op-ed pages.

Just back from his failed presidential bid, Gov. Perry has been urged by Senate Finance Chair Steve Ogden, R-Bryan, and by educator groups to call a summer special session of the Texas Legislature to address budget and school finance issues. It’s so bad that even Perry’s own appointee as head of the Texas Education Agency, Robert Scott, just said he can’t certify Texas’ ban on social promotion until the current lack of funding is addressed. Perry should heed these responsible calls to fix the problem.

In 2011, $5.4 billion was cut from public education; that’s more than $1,000 per child. Those cuts will be felt even more in the fall than in the current school year. In addition, distribution of public school dollars has gotten way out of kilter, with students really the ones suffering.

Last week, Perry ignored the calls for a special session and instead chose to minimize the role of money in education, saying, “ultimately success is about the results that we get out of our schools.” Results do measure success, but the fact is that schools receiving the most money are the ones showing the successful results.

[…]

Gov. Perry needs to listen to Ogden and others and convene a special session this year. Why await the inevitable Supreme Court ruling when the problem is staring us in the face? School funding is once again totally inadequate, and funding imbalances are determining the winners and losers in our accountability system. Ironically, Texas now has $6.1 billion just sitting in our rainy day fund – more than what was cut from schools last year.

We have to stop blaming everyone else for our problems and look in the mirror when we look at unemployment, the deficit and our economy. Our methodical and steady defunding of education at all levels is a root cause of many of these problems. The Legislature needs to go back to work now. Otherwise, our tomorrow might not come out like we want, and only we will be to blame.

Democratic Senate candidate Paul Sadler, who was an education finance policy expert while in the State House, put the focus on his presumed opponent in November, Lt. Gov. David Dewhurst.

Lt. Gov. David Dewhurst should “get to work or resign,” says Paul Sadler, former House Public Education chairman, who believes state lawmakers need to come back to the state Capitol to work on school funding in a special legislative session.

Dewhurst is running for the Republican nomination for the U.S. Senate; Sadler is running for the Democratic nomination.

Only Gov. Rick Perry can call a special legislative session, but Dewhurst should be supporting the call, Sadler says.

“Massive cuts to education this year, followed by systematic cuts planned for next year, will create a “Double Robin Hood” scenario for many public schools,” Sadler said. “I call this ‘The Dewhurst Disaster.

Paul Sadler has a simple message for David Dewhurst: “Get to work, or resign.”

“During the last legislative session, it is now obvious that both Governor Rick Perry and Lt. Gov. Dewhurst were interested only in their selfish desire to run for higher office and were too afraid of the right-wing extremists to tackle the hard issues of our state created by their mismanagement,” Sadler said. “I can certainly understand why both of these men would try to leave the State before Texans learn of the disaster they have created.”

I’ve put Sadler’s full statement beneath the fold. I confess that calls for special sessions always make me queasy. Only the Governor can set the agenda for a special session. Once the door is open, you never know what he might let in. Even if I knew the scope would be limited to this issue, I can’t say I’m comfortable with this Legislature being called back into action by this Governor to fix the problems they caused. Why should we expect a different outcome this time around? But these are academic concerns, because everyone knows Rick Perry has no interest in fixing anything. What’s important is keeping the spotlight on this failure, and how the recent welcome news about sales tax receipts and the Rainy Day Fund balance obviate the already limp excuses that Perry and Dewhurst and the rest of them had for gutting public education in the first place. This election, the next election, however many elections it takes, need to be about the failure of the state’s Republican leadership and Legislature to provide for Texas’ future. So sign the petition and join the call, and mark this date on your calendar:

And if that’s not enough, as BOR suggests, you can join with the Texas Taxpayer & Student Fairness Coalition, who are one of the school finance plaintiffs.

(more…)

A field guide to the school finance lawsuits

The Trib has a handy overview of the school finance lawsuits – who the plaintiffs are, who their lawyers are, and on what grounds they are suing. Among other things, it shows that I was correct in saying that there had only been three suits filed at the time that was written, with the Thompson lawsuit now in as of last Thursday. Anyway, since it’s often hard to tell the players without a scorecard, now you have a scorecard. Check it out.

More schools join the lawsuits

Lubbock:

The Lubbock Independent School District announced Monday they will join the Texas Taxpayer and Student Fairness Coalition in an equity lawsuit against the state.

Simply put, LISD is receiving less money per student because they are one of the poorest districts, and LISD claims that is unfair.

LISD officials say the district currently receives $4,600 per student, where as Austin districts receive nearly $6,500 per student. Now they are joining 300 other Texas Schools and taking their case to the courtroom.

“We remain constant in the 2005-2006 school year in terms of revenue. This past legislative session we were cut well over $13, almost $14 million dollars,” said LISD Superintendent Dr. Karen Garza.

LISD says with those cuts from Austin, standards increased. For instance, The Texas Assessment of Knowledge and Skills Test will now be replaced with the State of Texas Assessments of Academic Readiness or STAAR test. LISD says that requires students to have more math and science with less money.

“It’s largely contingent upon the legislature that eventually needs to fix some of the challenges and the issue in the ways schools are funded in the state of Texas,” said Garza.

Abilene:

The Abilene Independent School District board of trustees voted unanimously Monday night to join more than 20 other school districts in a lawsuit challenging the constitutionality of Texas’ school funding system.

“No fundamental change in the education system has ever occurred without going to the courts for relief,” said Stan Lambert, board president.

[…]

The board voted to join a coalition of more than 20 school districts — including Fort Worth ISD, Austin ISD, Houston ISD and Katy ISD — being represented by Houston law firm Thompson & Horton LLP.

Lambert said the firm’s David Thompson argued a similar case before the Texas Supreme Court six years ago and won some small changes in the education funding system.

Lambert said the lawsuit was necessary because the state’s education funding system was fundamentally broken.

There are more than 1,000 school districts in Texas, and Lambert said he expected more than half of them to join the lawsuit by the time it is filed.

“We felt it was important for us to do our part,” Lambert said.

So that’s one more district for each of the known lawsuits; the Texas Taxpayer and Student Fairness Coalition has already filed its suit, while the Thompson suit is still in the works. At this point I’m more interested in the reasons why a given district would not be suing rather than why they are.

First school finance lawsuit filed

More will follow, it’s just a matter of when and how many.

A coalition representing public school districts, taxpayers and parents filed a lawsuit against the state in Travis County district court Monday night. The Texas Taxpayer & Student Fairness Coalition claims the state’s public school finance system is unconstitutional because it does not treat Texas taxpayers and school children fairly.

[…]

The group of more than 150 school districts represented by the coalition continues to grow daily, and many more districts, taxpayers, parents and even business owners are expected to formally join in the coming months, Gray said.

Named as plaintiffs to represent the Texas Taxpayer & Student Fairness Coalition are the Hillsboro, Hutto, Nacogdoches, Pflugerville, San Antonio, Taylor, and Van independent school districts.

The trustees of the Houston Independent School District are expected to meet Thursday to discuss possible legal options, according to HISD spokesman Jason Spencer.

As noted in the wire story, this is the Equity Center lawsuit that I have blogged about before. You can read their press release here, and a copy of the complaint they filed here. Needless to say, I look forward to seeing this play out.

The actual filing comes a couple of days after this Statesman story about the state of the anticipated litigation, which has a succinct summary of what’s at stake.

At least three legal teams representing different types of school districts intend to file lawsuits soon.

Each of the lawsuits, while making somewhat different claims, will center on the 48 words included in the Texas Constitution since 1876 that require the Legislature to provide an “efficient system of public free schools.”

Schools argue that the system is anything but efficient because, they say, funding levels are arbitrary, irrational and inequitable.

They maintain that the Legislature has once again levied a statewide property tax, which is constitutionally prohibited.

Finally, they say funding is inadequate to prepare students to meet the state’s standards, which have been ratcheted up in recent years.

The lawsuits will be combined for a trial that would probably be held next fall in Travis County, which could produce a district court ruling in time for the 2013 legislative session. A direct appeal to the Texas Supreme Court would almost certainly follow.

In other words, despite the Equity Center’s hope of a 2013 conclusion, which would be in time for the next regular legislative session, we likely won’t get a resolution to this until 2015. It is possible that the Supreme Court could mandate a deadline before then, however, as was the case with the 2005 West Orange-Cove lawsuit, which required a special session to meet its 2006 goal. On the plus side, that ought to make fixing school finance a genuine issue for the 2014 elections. I can hope, can’t I? There’s a lot more detail in the story, so read the whole thing.