No. 14-0776
IN THE SUPREME COURT OF TEXAS
MICHAEL WILLIAMS, COMMISSIONER OF EDUCATION, IN HIS OFFICIAL
CAPACITY; GLENN HEGAR, COMPTROLLER OF PUBLIC ACCOUNTS OF THE STATE
OF TEXAS, IN HIS OFFICIAL CAPACITY; THE STATE BOARD OF EDUCATION; AND
THE TEXAS EDUCATION AGENCY,
APPELLANT/CROSS-APPELLEES
v.
CALHOUN COUNTY INDEPENDENT SCHOOL DISTRICT ET. AL.,
Appellees/Cross-Appellants/Cross-Appellees,
v.
TEXAS CHARTER SCHOOLS ASSOCIATION, ET AL., AND JOYCE COLEMAN, ET AL.,
Appellees/Cross-Appellants
V.
THE TEXAS TAXPAYER AND STUDENT FAIRNESS COALITION, ET. AL.;
EDGEWOOD INDEPENDENT SCHOOL DISTRICT, ET. AL.; AND
FORT BEND INDEPENDENT SCHOOL DISTRICT, ET. AL.,
Appellees/Cross-Appellees
ON DIRECT APPEAL FROM THE 200TH JUDICIAL DISTRICT COURT
OF TRAVIS COUNTY, TEXAS
BRIEF OF APPELLEES EDGEWOOD ISD INDEPENDENT
SCHOOL DISTRICT, ET. AL.
Marisa Bono
Texas Bar No. 24052874
Celina Moreno
Texas Bar No. 24074754
Mexican American Legal Defense
and Education Fund
110 Broadway, Suite 300
San Antonio, TX 78205
Tel: (210) 224-5476
Fax: (210) 224-5382
Attorneys for Edgewood ISD, et al. Appellees
IDENTITY OF PARTIES AND COUNSEL
I.
State Appellants/ Cross-Appellees:
Michael Williams, in his official capacity as Texas
Commissioner
of
Education; the Texas Education Agency; Susan Combs, in her official
capacity as the Texas Comptroller of Public Accounts; and the Texas State
Board of Education
II.
Counsel for State Appellants/Cross-Appellees:
Rance Craft (trial and appellate)
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711
III.
Edgewood Independent School District Appellees/Cross-Appellees:
Edgewood Independent School District; McAllen Independent School
District; San Benito Consolidated Independent School District; La Feria
Independent School District; Harlingen Consolidated Independent School
District; Yolanda Canales, individually and as next friend for her minor
children, XX. and XX. XXXXXXX; Arturo Robles, individually and as next
friend for his minor child, X. XXXXXX; Araceli Vasquez, individually and
as next friend for her minor children, X.X. and XX. and XX. XXXXXXX;
and Jessica Ramirez, individually and as next friend for her minor children,
X. and X. XXXXXXX
IV.
Counsel for Edgewood Independent School District Appellees/CrossAppellees:
Marisa Bono (trial and appellate)
Celina Moreno
Mexican American Legal Defense Fund and Educational Fund
110 Broadway, Suite 300
San Antonio, Texas 78205
Roger Rice (trial and appellate)
ii
META, Inc.
Box 440245
Somerville, MA 02144
V.
Texas Taxpayer and Student Fairness Coalition Appellees/CrossAppellees:
The Texas Taxpayer and Student Fairness Coalition, Alief Independent
School District, Canutillo Independent School District, Elgin Independent
School District, Greenville Independent School District, Hillsboro
Independent School District, Hutto Independent School District, Lake Worth
Independent School District, Little Elm Independent School District,
Nacogdoches Independent School District, Paris Independent School
District, Pflugerville Independent School District, Quinlan Independent
School District, Stamford Independent School District, San Antonio
Independent School District, Taylor Independent School District, and Van
Independent School District; (3) taxpayers Randy Pittinger, Chip Langston,
Norman Baker, Brad King; and (4) Shelby Davidson, individually and as
next friend of XXXXXXXX XXXXXXXX, XXXXXXXXXXXXX, and
XXXX XXXXXXXX
VI.
Counsel for Taxpayer and Student Fairness Coalition Appellees/CrossAppellees:
Richard E. Gray, III (trial and appellate)
Gray & Becker, PC
900 West Avenue
Austin, Texas 78701
Randall (Buck) B. Wood (trial and appellate)
Douglass (Doug) W. Ray
Ray & Wood
2700 Bee Caves Road, #200
Austin, Texas 78746
VII.
Calhoun County Independent School District Appellees/CrossAppellants/Cross-Appellees:
Calhoun County Independent School District, Abernathy Independent
School District, Aransas County Independent School District, Frisco
iii
Independent School District, Lewisville Independent School District, and
Richardson Independent School District
VIII.
Counsel for Calhoun County Independent School District
Appellees/Cross-Appellants/Cross-Appellees:
Mark R. Trachtenberg (trial and appellate)
Haynes & Boone, LLP
1 Houston Center
1221 McKinney Street
Suite 2100
Houston, Texas 77010
John W, Turner (trial and appellate)
Haynes & Boone, LLP
2323 Victory Ave., Suite 700
Dallas, Texas 75219
IX.
Fort Bend Independent School District Appellees/Cross-Appellees:
Fort Bend Independent School District, Abilene Independent School
District, Allen Independent School District, Amarillo Independent School
District, Angleton Independent School District, Austin Independent School
District, Balmorhea Independent School District, Bluff Dale Independent
School District, Brazosport Independent School District, Carthage
Independent School District, Channelview Independent School District,
Clear Creek Independent School District, Cleveland Independent School
District, College Station Independent School District, Coppell Independent
School District, Crosby Independent School District, Cypress Fairbanks
Independent School District, Dallas Independent School District, Damon
Independent School District, Decatur Independent School District, Denton
Independent School District, East Central Independent School District, Edna
Independent School District, Fort Worth Independent School District,
Hardin- Jefferson Independent School District, Hays Consolidated
Independent School District, Hempstead Independent School District,
Highland Independent School District, Houston Independent School District,
Huffman Independent School District, Humble Independent School District,
Katy Independent School District, Keller Independent School District,
Kenedy Independent School District, Kingsville Independent School
District, Klein Independent School District, La Marque Independent School
iv
District, La Porte Independent School District, Lamar Consolidated
Independent School District, Leggett Independent School District,
McKinney Independent School District, Midland Independent School
District, New Caney Independent School District, North East Independent
School District, Northside Independent School District, Pampa Independent
School District, Pasadena Independent School District, Pearland
Independent School District, Perrin-Whitt Consolidated Independent School
District, Pleasant Grove Independent School District, Rice Consolidated
Independent School District, Rockdale Independent School District, Round
Rock Independent School District, Royal Independent School District, Santa
Fe Independent School District, Sheldon Independent School District,
Spring Branch Independent School District, Stafford Municipal School
District Sweeny Independent School District, Trent Independent School
District, Waco Independent School District, West Orange Cove
Consolidated Independent School District, Woodville Independent School
District, Albany Independent School, Beaumont Independent School
District, Corsicana Independent School District, Deer Park Independent
School District, Dumas Independent School District, Duncanville
Independent School District, Ector County Independent School District,
Galena Park Independent School District, Goose Creek Consolidated
Independent School District, Graford Independent School District, Liberty
Independent School District, Sharyland Independent School District,
Schertz-Cibolo-Universal City Independent School District, Splendora
Independent School District, Sudan Independent School District,
Weatherford Independent School District, Pine Tree Independent School
District, Troup Independent School District, and Kerrville Independent
School District
X.
Counsel for Fort Bend Independent School District Appellees/CrossAppellees:
J. David Thompson, III (trial and appellate)
Thompson & Horton, LLP
Phoenix Tower, Suite 2000
3200 Southwest Freeway
Houston, Texas 77207
Holly G. McIntush (trial and appellate)
Thompson & Horton, LLP
Wells Fargo Tower
v
400 W. 15th Street, Suite 1430
Austin, Texas 78701
Wallace B. Jefferson (trial and appellate)
Alexander Dubose Jefferson and Townshend
515 Congress Ave., Suite 2350
Austin, Texas 78701
XI.
Texas Charter Schools Association Appellees/Cross-Appellants:
Mario Flores, individually and as next friend of his minor child XXXXX
XXXXX; Christopher Baerga, individually and as next friend of his minor
child XXXX XXXXXX; Dana Allen, individually and as next friend of her
minor child XXXX XXXXXXXXXXX; Jason and Sarah Christensen,
individually and as next friends of their minor children XXXX and
XXXXXXXXXXXXXXXX; Brooks Flemister, individually and as next
friend of his minor child XXXXX XXXXXXXXX; and the Texas Charter
Schools Association
XII.
Counsel for Texas Charter Schools Association Appellees/CrossAppellants:
Robert A. Schulman (trial and appellate)
Schulman, Lopez, Hoffer and Adelstein, LLP
517 Soledad Street
San Antonio, Texas 78205
Leonard J. Schwartz (trial and appellate)
Schulman, Lopez, Hoffer and Adelstein, LLP
700 Lavaca, Suite 1425
Austin, Texas 78701
James C. Ho (trial and appellate)
Gibson, Dunn & Crutcher, LLP
2100 McKinney Avenue
Dallas, Texas 75201
vi
XIII.
Joyce Coleman Appellees/Cross-Appellants:
Joyce Coleman, individually and as next friend of her minor children;
Danessa Bolling, individually and as next friend of her minor child; Lee
Beall and Allena Beall, individually and as next friends of their minor
children; Joel Smedshammer and Andrea Smedshammer, individually and as
next friends of their minor children; Darlene Menn, individually and as next
friend of her minor child; Texans for Real Efficiency and Equity in
Education, a non-profit Texas corporation; and the Texas Association of
Business
XIV.
Counsel for Joyce Coleman Appellees/Cross-Appellants:
J. Christopher Diamond (trial and appellate)
The Diamond Law Firm, PC
17484 NW Freeway, Suite 150
Houston, Texas 77040
Craig T. Enoch (trial and appellate)
Enoch Kever, PLLC
600 Congress Ave., Suite 2800
Austin, Texas 78701
vii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ....................................................................................... viii
INDEX OF AUTHORITIES.................................................................................. xvi
RECORD REFERENCES .........................................................................................1
ABBREVIATIONS ...................................................................................................2
STATEMENT OF THE CASE ..................................................................................3
ISSUES PRESENTED[] .......................................... Error! Bookmark not defined.
PRELIMINARY STATEMENT ...............................................................................7
STATEMENT OF FACTS ........................................................................................8
I.
Since WOC II, The Texas Student Population has Become Poorer,
has less English Language Proficiency, and is More Costly to Educate. .....8
A. It is undisputed that the population of poor and limited English
proficient students has grown in absolute terms as well as a
percentage of Texas public school students. ............................................9
B. It is undisputed that economically disadvantaged and ELL students face
additional challenges to achieving the same level of education as their
peers. ..............................................................................................................11
1. Economically disadvantaged students face educational obstacles at
home. ........................................................................................................12
2. ELL Students face challenges distinct from those created by
poverty. .....................................................................................................15
C. Economically disadvantaged and ELL students can overcome
challenges with appropriate interventions, but they are expensive. ..............16
1. Economically disadvantaged and ELL students require high quality
preschool program to enter school ready. ................................................16
viii
2. Economically disadvantaged and ELL students require more
individualized attention to make up for educational deficits at home. ....18
3. High-quality teachers, the most important school-based factor, play
an even more vital role in the academic success of ELL and economically
disadvantaged students. ............................................................................19
4. Access to bilingual instructional materials that help engage ELL
students play a critical role in student success and dropout prevention...21
5. The State imposes additional educational requirements for educating
ELL students which makes them more expensive to educate. .................22
II. Amidst Drastic Demographic Changes in the Texas Public Education
System the State has Steadily Increased Standards Without Providing Sufficient
Means for All Students to Meet those Standards. ..............................................24
A. Through the Texas school funding cases, the Court has established the
State’s constitutional duties to provide a public education system that is
adequate, suitable, equitable, and does not constitute a state property tax. ..24
B. The Court in WOC II held that the system constituted an
unconstitutional state property tax and warned of “an impending adequacy
violation.” ......................................................................................................28
C. Starting with the special session in 2006, the State made extensive
structural changes to the school finance system in response to WOC II that
fell short of the “significant changes” the Court warned was necessary to
avoid a “constitutional crisis.” .......................................................................33
1. Tax compression created a structural deficit, which created a revenue
shortfall for the State. ...............................................................................33
2. Without any consideration of how budget cuts would affect
educational opportunities for students, the Legislature cut $5.3 billion
from public school funding to compensate for revenue shortfall created
by HB 1. ....................................................................................................37
3. The Legislature has not taken sufficient action to remedy the
structural deficit, outdated funding formulas, and overall inadequate level
of funding. ................................................................................................38
ix
a. The 83rd Legislature’s partial restoration of the 2011 budget cuts
was inadequate........................................................................................39
b. Even after the Legislature restored some of the pre-2011 funding,
real per-student funding remained below 2003-04 levels. .....................41
c. The State failed to update the weights that address the needs of its
most vulnerable students. .......................................................................42
D. Since WOC II, the Legislature adopted college and career readiness as
the standard for a general diffusion of knowledge, without any consideration
of costs for implement the new, more rigorous system. ................................43
1. Texas adopted and implemented the postsecondary readiness
standard, which is not aspirational. ..........................................................43
2. The Legislature integrated college and career readiness standards into
more rigorous state curriculum and graduation requirements..................44
3. The Legislature adopted a more challenging assessment and
accountability system to measure whether students meet the State’s
college and career readiness standards. ....................................................46
4. The State’s increased standards generated increased costs, but the
State did not even attempt to calculate those costs as required by law. ...48
III. THE LACK OF IMPROVEMENT IN ACADEMIC PERFORMANCE OF
TEXAS’S MOST VULNERABLE STUDENTS IS THE FORESEEABLE
RESULT OF COMBINING CHRONIC UNDERFUNDING WITH HIGHER
ACADEMIC STANDARDS. .............................................................................51
A. The STAAR results show stagnant performance and unacceptable
performance gaps between economically disadvantaged students and their
more affluent counterparts. ............................................................................52
B. The STAAR results show “dismal” and stagnant performance of and
unacceptable achievement gaps between ELL and non-ELL students. ........53
C. Even under other measures, the performance of economically
disadvantaged and ELL students has stagnated or worsened since WOC II,
and show that students are not graduating college and career ready. ...........55
1. TELPAS scores indicate that Texas grossly underserves its ELL
student population. ...................................................................................55
x
2. Current retention, graduation and dropout rates of Texas’s high-need
students serve as warning signs to the future of the State’s economy and,
left alone, spell disaster. ...........................................................................57
3. The low and declining benchmark SAT and ACT scores show that
Texas’s ELL and economically disadvantaged students are not prepared
for college. ................................................................................................58
4. NAEP and TAKS scores tapered off after WOC II. ..........................59
SUMMARY OF ARGUMENT ...............................................................................62
STANDARD OF REVIEW .....................................................................................66
ARGUMENT AND AUTHORITIES ......................................................................68
I. THE TRIAL COURT PROPERLY DECLARED TEXAS’S EDUCATION
SYSTEM CONSTITUTIONALLY INADEQUATE. .......................................68
A. The trial court properly identified applicable legal standards for
adequacy claims under article VII, section 1.................................................69
B. Several issues that the State has identified are not subject to de novo
review, and are thus outside of the Court’s direct appeal jurisdiction. .........70
C. The Trial court properly found that Edgewood ISD Plaintiffs rebutted
any presumption that accreditation is equivalent to adequacy under the
current system. ...............................................................................................72
1. The State’s focus on the accreditation standards is not dispositive of
the presumption of adequacy. ...................................................................72
2. The State’s assertion that its accreditation standards presumptively
prove an education that provides GDK is not supported by the evidence
in the record. .............................................................................................74
a. The State’s accountability system does not accurately capture the
performance of economically disadvantaged and ELL students. ..........74
b. The use of phased-in testing standards permits an accountability
standard below GDK. .............................................................................75
xi
c. The trial court’s reference to the exclusion of community and
student engagement ratings was not a significant consideration for
determining that accreditation was defective. ........................................76
3. The State’s own witnesses admitted that the accountability system is
based on getting as many schools and districts accredited as possible, not
measuring a GDK. ....................................................................................77
D. The trial court properly found that the system’s “outputs” provided
sufficient evidence of inadequacy. ................................................................79
1. The trial court considered the same factors the Court in WOC II, and
found that outputs had remained the same or had deteriorated. ...............79
2. The trial court properly relied on evidence of the growing disparity
of performance between economically disadvantaged and ELL students
and their peers...........................................................................................81
3. The trial court’s fact finding is entitled to deference.........................83
E. Funding “inputs” support the trial court’s ruling on inadequacy. ..........84
1. The State has a duty to calculate the costs of providing the education
that they require the school districts to provide, but they have failed to
conduct updated cost studies. ...................................................................85
2. The trial court’s conclusion that the State denied the Edgewood ISD
Plaintiffs meaningful access to acquire the State mandated education is
supported by sufficient evidence. .............................................................86
a. Overwhelming evidence shows that the State did not provide
sufficient resources to provide the State mandated education. ..............86
b. Overwhelming evidence shows that the State has not taken
sufficient measures to address the gap between the resources provided
under the current system and the resources needed to acquire the
adequate education mandated by State standards. .................................88
3. The State failed to show that its legislative choices, at least with
respect to “funding levels and mechanisms” for better educated students,
were reasonable. .......................................................................................90
xii
F. The trial court properly considered the evidence of disparities between
performance of economically disadvantaged and ELL students to support its
finding that the system is inadequate.............................................................91
1. The fact that Texas has experienced rapid growth of economically
disadvantaged and ELL students as a percentage of the total student
population is significant to adequacy analysis. ........................................91
a. The achievement gap between economically disadvantaged and
ELL students and their peers will hamper the achievement results for all
students as the percentage of students grows. ........................................92
b. Concentration of economically disadvantaged and ELL students in
property-poor districts solidifies existing disparities in performance. ...92
2. The duty to provide all Texas children a meaningful opportunity to
acquire GDK includes economically disadvantaged and ELL children. .93
a. The trial court’s finding that economically disadvantaged and ELL
students are being denied a meaningful opportunity to achieve GDK is
supported by the facts in the record. ......................................................93
3. The Legislature’s decisions affecting funding and programs that can
narrow the achievement gap are crucial for economically disadvantaged
and ELL students to bridge the achievement gap. ...................................95
a. The Legislature’s decisions to cut funding for programs that are
proven to improve educational outcomes for economically
disadvantaged and ELL students directly caused the increase in the
achievement gap. ....................................................................................95
b. The trial court correctly determined that the Legislature’s decisions
were arbitrary because of the nexus between decreased funding for these
programs and the perpetuation of the achievement gap. ........................96
II. The Trial court Properly Declared the Educational System of Texas
Consitutionally Unsuitable. ................................................................................97
A. The trial court correctly defined the applicable constitutional suitability
standards. .......................................................................................................97
xiii
B. The evidence presented at trial demonstrates that the system is not
structured, operated, and funded so that it can achieve a general diffusion of
knowledge for all Texas school children. ......................................................99
1. The trial court determined that several Legislative choices were
arbitrary because they were not guided with reference to guiding rules
and principles properly related to public education. ................................99
2. The Legislature’s failure to fund the school system at a level
sufficient to provide its own stated educational goals is arbitrary. ........100
a. The State has never calculated the costs of providing an adequate
education...............................................................................................101
b. Persistent achievement gaps between economically disadvantaged
and ELL students and their peers are attributable to inadequate funding
levels that do not reflect the actual costs of providing an education that
meets state mandates. ...........................................................................102
c. The State does not address the relationship between spending and
student performance, as evidenced by the cuts to proven methods of
improving outcomes for vulnerable students. ......................................103
3. The trial court correctly concluded that the formulas and weights
used to allocate funding for economically disadvantaged and ELL
students were arbitrary because they are not guided by any rules and
principles regarding the cost to educate these specific student
populations..............................................................................................105
a. Economically disadvantaged and ELL students are more expensive
to educate, but school finance formula relies on outdated weights that
are not calculated based on the actual cost of educating economically
disadvantaged and ELL children. .........................................................105
b. The trial court’s conclusion that outdated weights and adjustments
that were not calculated with reference to rules and principles relevant
to public education are arbitrary is supported by substantial evidence.
105
C. The State’s argument that the trial court erred by finding that Texas’s
Public Education system is unsuitable ignores well-established suitability
precedent. .....................................................................................................107
xiv
1. The State’s assertion that the mere existence of accreditation and
accountability standards as proof of suitability is misguided. ...............107
2. The State’s assertion that a system that is adequate and efficient is
per se suitable has no foundation in the applicable precedent. ..............110
III. THE TRIAL COURT WAS WELL WITHIN ITS BOUNDS WHEN IT
FOUND THAT THE SYSTEM WAS INADEQUATE AND UNSUITABLE
FOR ECONOMICALLY DISADVANTAGED AND ELL STUDENTS. .....111
IV. THE TRIAL COURT’S AWARD OF ATTORNEY’S FEES WAS
REASONABLE, NECESSARY, EQUITABLE, AND JUST. ........................112
CONCLUSION AND PRAYER ...........................................................................113
CERTIFICATE OF COMPLIANCE .....................................................................115
CERTIFICATE OF SERVICE ..............................................................................116
xv
INDEX OF AUTHORITIES
CASES
Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist.
826 S.W.2d 489 (Tex. 1992) (Edgewood III).........................................passim
City of Marshall v. City of Uncertain, 206 S.W.3d 97 (Tex. 2006) ......................110
Edgewood Indep. Sch. Dist. v. Kirby,
777 S.W.2d 391 (Tex. 1989) (Edgewood I) ...........................................passim
Edgewood Indep. Sch. Dist. v. Kirby,
804 S.W.2d 491 (Tex. 1991) (Edgewood II) .........................................passim
Edgewood Indep. Sch. Dist. v. Meno,
917 S.W.2d 717 (Tex. 1995) (Edgewood IV) ........................................passim
Episcopal Diocese of Fort Worth v. Episcopal Church,
422 S.W.3d 646 (Tex. 2013), cert. denied, 135 S. Ct. 435 (2014) ............... 65
General Tire, Inc. v. Kepple, 970 S.W.2d 520 (Tex.1998) .....................................66
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003)....................67
Harris Cnty. v. Hall, 141 Tex. 388 (Tex. 1943) .................................................67,74
HCA Healthcare Corp. v. Tex. Dep't of Ins.,
303 S.W.3d 345 (Tex. App.—Austin 2009, no pet.).............................67, 110
Mumme v. Marrs, 40 S.W. 2d 31 (Tex. 1931) .......................................................109
Neeley v. West Orange-Cove Consol. Indep. Sch. Dist.,
228 S.W.3d 864 (Tex.App.—Austin 2007, pet. denied) ...............................65
Neeley v. W. Orange-Cove Consol. Indep. Sch. Dist.,
176 S.W.3d 746 (Tex. 2005) (WOC II) ........................................................23
Oake v. Collin County, 692 S.W.2d 454 (Tex. 1985)..............................................67
xvi
O’Quinn v. State Bar of Texas, 763 S.W.2d 397 (Tex. 1988) ...........................66, 70
Perry v. Del Rio, 67 S.W.3d 85 (Tex. 2001) ...........................................................66
Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578 (Tex. 2000) .........................110
State v. Hodges, 92 S.W.3d 489 (Tex. 2002).....................................................65, 66
W. Orange-Cove Consol. I.S.D. v. Alanis,
107 S.W.3d 558 (Tex. 2003) (WOC I) ..........................................................23
STATUTES AND RULES
Tex. Const. art VII, § 1 ............................................................................................24
19 TEX. ADMIN CODE § 74.4.....................................................................................21
19 TEX. ADMIN CODE § 89.1201...............................................................................21
19 TEX. ADMIN CODE § 89.1207 (a)(I)(D) ................................................................22
19 TEX. ADMIN CODE § 89.1207 (b)(I)(E) ................................................................22
19 TEX. ADMIN CODE § 89.1210 (a) .........................................................................21
19 TEX. ADMIN CODE § 89.1210 (b) .........................................................................21
19 TEX. ADMIN CODE § 89.1210 (c) ........................................................................ 21
19 TEX. ADMIN CODE § 89.1220 (e) .........................................................................22
19 TEX. ADMIN CODE § 89.1220 (f) ..........................................................................22
19 TEX. ADMIN CODE § 89.1220 (g) .........................................................................22
19 TEX. ADMIN CODE § 89.1220 (k) .........................................................................22
19 TEX. ADMIN CODE § 89.1225 (e) .........................................................................21
19 TEX. ADMIN CODE § 89.1230...............................................................................22
xvii
19 TEX. ADMIN CODE § 89.1250...............................................................................22
TEX. ADMIN. CODE § 97.1055 ..................................................................................77
TEX. EDUC. CODE § 4.001 ......................................................................................107
TEX. EDUC. CODE § 4.0001(a) ...............................................................................107
TEX. EDUC. CODE § 28.001................................................................................passim
TEX. EDUC. CODE § 28.008.....................................................................................107
TEX. EDUC. CODE § 28.025.....................................................................................107
TEX. EDUC. CODE § 28.025(b) ..................................................................................44
TEX. EDUC. CODE § 29.051 ......................................................................................21
TEX. EDUC. CODE § 29.053.......................................................................................21
TEX. EDUC. CODE § 29.053(d) .................................................................................21
TEX. EDUC. CODE § 29.056 (1) .................................................................................22
TEX. EDUC. CODE § 29.056 (I)(a) .............................................................................22
TEX. EDUC. CODE § 29.056 (I)(b) .............................................................................22
TEX. EDUC. CODE § 29.060.......................................................................................22
22
TEX. EDUC. CODE § 29.061.......................................................................................22
TEX. EDUC. CODE § 39.023.....................................................................................107
TEX. EDUC. CODE § 39.024.....................................................................................107
TEX. EDUC. CODE § 39.023(c) ..................................................................................45
TEX. EDUC. CODE §39.0241 .......................................................................................7
xviii
TEX. EDUC. CODE § 39.052.....................................................................................107
TEX. EDUC. CODE § 39.052(b) ..................................................................................77
TEX. EDUC. CODE § 39.053.....................................................................................107
TEX. EDUC. CODE § 39.053(f)...................................................................................45
TEX. EDUC. CODE § 39.054.....................................................................................107
TEX. EDUC. CODE § 39.103.....................................................................................107
TEX. EDUC. CODE § 39.104.....................................................................................107
TEX. EDUC. CODE § 42.001............................................................................... 48, 101
TEX. EDUC. CODE § 42.007.......................................................................................41
TEX. EDUC. CODE § 42.007(a) .................................................................................48
TEX. EDUC. CODE § 42.007(b) .................................................................................47
TEX. EDUC. CODE § 42.007(c)(2) .............................................................................41
TEX. EDUC. CODE § 42.007(c)(3) .............................................................................41
TEX. EDUC. CODE § 42.007(c)(4) .............................................................................41
TEX. EDUC. CODE § 42.007(c)(5) .............................................................................41
TEX. EDUC. CODE § 42.007(c)(6) .............................................................................41
TEX. EDUC. CODE § 42.007(c)(7) .............................................................................41
TEX. EDUC. CODE § 42.151.......................................................................................33
TEX. EDUC. CODE § 42.152(a) ..................................................................................41
TEX. EDUC. CODE § 42.152(b) ..................................................................................41
xix
TEX. EDUC. CODE § 42.153.......................................................................................33
TEX. EDUC. CODE § 42.154.......................................................................................33
TEX. EDUC. CODE § 42.156.......................................................................................33
TEX. EDUC. CODE § 42.157.......................................................................................33
TEX. EDUC. CODE § 42.158.......................................................................................33
TEX. EDUC. CODE § 42.159.......................................................................................33
xx
RECORD REFERENCES
Appellees will cite to the record as follows:
Clerk’s Record
CR(volume):(page)
Reporter’s Record
RR(volume):(page)
References to the trial court’s
findings of fact and conclusions of
law dated August 28, 2014
(CR12:209-591)
FOF(number) or COL(number)
References to admitted exhibits
(non-Excel files)
Ex.(number):(page)
References to admitted exhibits
(Excel files)
Ex.(number):(tab name), (cell/row/column
number)
1
ABBREVIATIONS
Appellees will use the following abbreviations:
Average Daily Attendance
“ADA”
English-Language Learner
“ELL”
Foundation School Program
“FSP”
General Diffusion of Knowledge
“GDK”
House Bill
“HB”
Interest and Sinking Fund
“I&S”
Maintenance and Operations
“M&O”
Pre-Kindergarten
“Pre-K”
Senate Bill
“SB”
State Assessment of Academic Skills
“STAAR”
State Board of Education
“SBOE”
Student Success Initiative
“SSI”
Texas Education Agency
“TEA”
Texas Essential Knowledge and Skills
“TEKS”
Texas Assessment of Knowledge and Skills
“TAKS”
Weighted Average Daily Attendance
“WADA”
2
STATEMENT OF THE CASE
The Edgewood ISD Appellees are five property-poor school
Nature
of the Case districts, and four parents and their collective eight children who
reside in and attend school in property-poor school districts across
Texas. Together with other appellees,[1] the Edgewood ISD
plaintiffs presented four constitutional challenges to the Texas
school finance system: “adequacy,” “suitability,” and “financial
efficiency” claims under article VII,[2] section 1 of the Texas
Constition, and a “state property tax” claim under article VIII,
section 1-e of the Texas Constitution.
The Texas Charter School Association Cross-Appellants/Appellees
sought a judgment declaring that the funding system does not
adequately, suitably, and efficiently fund charter schools. The Court
consolidated their lawsuit with the ISD Plaintiffs.
The Intervenors sought a declaration that the system is
“qualitatively” inefficient.
Trial Court The Honorable John Dietz, 250th Judicial District Court, Travis
County.
Trial Court The trial court held a thirteen week bench trial that involved over
Disposition eighty live witnesses and 5,000 exhibits. After the conclusion of
trial but before the trial court rendered its final judgment or findings
of fact and conclusions of law, the 83rd Legislature passed
legislation related to the school finance system. CR5:349-50. The
[1]
The other appellees are the Texas Taxpayer and Student Fairness Coalition, et al. (the
“Fairness Coalition Plaintiffs”), Calhoun County Independent School District, et al. (the “CCISD
Plaintiffs”), and the Fort Bend Independent School District, et al. (the “Fort Bend
Plaintiffs”). The Edgewood ISD Plaintiffs refer to these plaintiffs groups collectively as the
“ISD Plaintiffs.” The trial court consolidated the ISD Plaintiffs’ lawsuits together.
[2]
Unlike the other ISD Plaintiffs, the CCISD Plaintiffs, a group of property-wealthy districts,
did not raise a “financial efficiency” claim.
3
trial court reopened the evidence at the request of the CCISD
Plaintiffs to consider the impact of the 2013 legislative
changes. Trial resumed on January 21, 2014. RR54:8; CR7:42426. During this second phase, which last three weeks, twelve live
witnesses testified and the Court admitted an additional 700
exhibits. RR1:550-657.
On August 28, 2014, the court declared the Texas school finance
system unconstitutional because it violates (1) the state property tax
prohibition in article VIII, section 1-e; (2) the “suitability” clause of
article VII, section 1 because the State has failed to structure,
operate, and fund the system to accomplish its purpose of a general
diffusion of knowledge; (3) article VII, section 1’s “general
diffusion of knowledge” requirement (i.e. “adequacy”); and (4)
article VII, section 1’s “efficiency” clause because the school
finance system does not provide substantially equal access to the
level of funding necessary to achieve a general diffusion of
knowledge and permits an amount of unequalized enrichment that is
so great as to destroy the system’s efficiency. CR12:193-97.
The trial court declared that financing for charter schools violates
article VII, section 1’s adequacy requirement because charter school
funding is based on the average funding of school districts, but
denied the charters schools’ other claims. CR12:196, 198.
The court rejected the Intervenors’ claim that the system violated
article
VII,
section
1’s
“qualitative
efficiency”
requirement. CR12:198.
The trial court enjoined the State from distributing any money under
the school finance system until the constitutional violations are
remedied, but stayed the injunction until July 1, 2015. The trial
court awarded attorneys’ fees to the ISD Plaintiffs. CR12:199-200.
The State Defendants, Intervenors, the charter school plaintiff
coalition, and the CCISD Plaintiffs (challenging only the resolution
of the financial efficiency claim) each filed direct
appeals. CR12:778-87.
The Court has noted probable jurisdiction over all appeals.
4
ISSUES PRESENTED3
Jurisdiction (State Issues 1-3 and State Argument I)
1. Even though the Court has held for over thirty years that the ISD Plaintiffs’
claims under article VII, section 1 are justiciable, should it now reverse
precedent and hold that their claims are political questions beyond judicial
review?
2. Will the trial court’s declaratory relief redress the ISD Plaintiffs’ injuries as
it has repeatedly in past school finance cases?
3. Did the trial court’s reopening of the evidence to consider the impact of
legislation passed and updated data suddenly render the ISD Plaintiffs’
claims unripe, where the legislation did not substantially change the system?
Adequacy (State Issue 5 and State Argument III)
1. Did the trial court err in concluding that the school finance system violates
the adequacy requirement of article VII, section 1 of the Texas Constitution?
Suitability (State Issue 7 and State Argument V)
3
The Edgewood ISD Plaintiffs do not respond to State Issue 4, because it only relates to claims
that the Charter School Plaintiffs assert. With respect to the remaining State Issues 1-3 regarding
jurisdiction, and State Issue 6 related to “financial efficiency” arguments raised by the State
Defendants and the CCISD Plaintiffs, the Edgewood ISD Plaintiffs have set forth their position
on those claims in Edgewood ISD Appellees/Cross-Appellees’ brief filed concurrently on July 2,
2015. The Edgewood ISD Plaintiffs also cite and incorporate by reference arguments made
related to State Issues 1-3 regarding jurisdiction in the Fort Bend ISD Appellee Brief at Section
I.
The Edgewood ISD Plaintiffs cite and incorporate by reference arguments made related to State
Issue 8 regarding state property tax in the Fort Bend ISD Appellee Brief at Section II and the
CCISD Appellee Brief at Section IV.
The Edgewood ISD Plaintiffs cite and incorporate by reference arguments made related to State
Issue 10 regarding continuing jurisdiction in the CCISD Appellee Brief at Section VI.
Edgewood ISD Plaintiffs requests that the Court incorporate the referenced arguments in order to
avoid repetition, to save space, and to conserve judicial resources.
5
1. Did the trial court err in concluding that the school finance system violates
the suitability clause in article VII, section 1 of the Texas Constitution?
State Property Tax (State Issue 8 and State Argument VI)
1. Did the trial court err in concluding that the school finance system imposes a
state property tax in violation of article VIII, section 1-e of the Texas
Constitution?
Attorney-Fee Requests (State Issue 9 and State Argument VII)
1. Did the trial court abuse its discretion by awarding Edgewood ISD
Plaintiffs’ reasonable and necessary attorneys’ fees?
Continuing Jurisdiction (State Issue 10 and State Argument VIII)
1. Can the trial court retain jurisdiction over the case, in order to enforce its
injunction?
6
TO THE HONORABLE SUPREME COURT OF TEXAS:
PRELIMINARY STATEMENT
A common question adults pose to children is: “What do you want to be
when you grow up?” They ask children about their dreams but too often stop short
before helping to see them realized. The development of Texas’s public school
system essentially turns on the same question: what is its vision for the future?
As expressed through statute, Texas’s mission has evolved toward higher
expectations of itself: prepare every child to enter college ready to succeed. Also
changing is who the State educates. The student population includes more people
who do not speak English in their home and who come from poverty. Thus, while
Texas’s students come many with many of the same dreams as those before them,
its schools face new challenges in how to help them achieve their potential. By
failing to plan, to study, and to meaningfully evaluate Texas’s stated goals, we put
such dreams beyond reach and offer only lip service. Texas children, all of them,
deserve better than overcrowded classrooms and underfunded schools. They
deserve high quality curriculum and high quality teachers to help them navigate a
system that has life-long implications on their opportunities in life.
The Edgewood ISD Plaintiffs are a group of five property-poor school
districts, as well as economically disadvantaged and English Language Learner
7
(ELL) public school students who seek a meaningful opportunity to finish high
school ready for college and a 21st century workforce.
The Edgewood Plaintiffs seek investment in an education system designed
to help them succeed – one that genuinely assesses what it takes to meet their
needs. While the State seeks to distract this Court by painting the current debate as
one between a group of lawyers and interest groups, the Edgewood Plaintiffs
respectfully ask this Court not to adopt that ahistorical view. Doing such would
ignore the historic fight for equal opportunity – a fight now even more pertinent
given the major demographic shifts and the cumulative consequences of failing to
act to deliver a school funding system designed to match Texas’s vision for itself.
STATEMENT OF FACTS
I.
SINCE WOC II, THE TEXAS STUDENT POPULATION HAS
BECOME POORER, HAS LESS ENGLISH LANGUAGE
PROFICIENCY, AND IS MORE COSTLY TO EDUCATE.
The story of this case must start with Texas students.
The State is
experiencing dramatic student population growth and a sea change in student
demographics. Since this Court’s 2005 ruling in West Orange-Cove II (“WOC
II”),[4] Texas’s student population has grown rapidly and become poorer and more
diverse. Dr. Steve Murdock, the former state demographer and former director of
[4]
176 S.W.3d 746 (Tex. 2005).
8
the U.S. Census Bureau, presented demographic trends before the trial court that
tell two starkly different stories about how the future of Texas could look: one in
which Texas embraces its growing diversity, fosters a better-educated workforce
and promotes a robust economy or, alternatively, a more impoverished Texas that
continues to under-educate children who belong to its historically marginalized
communities and thrust them into a cycle of poverty. FOF16-FOF22.
A.
It is undisputed that the population of poor and limited
English proficient students has grown in absolute terms as
well as a percentage of Texas public school students.
Of Texas’s over five million public school children, more than 60% are
economically disadvantaged,[5] more than 17% are English Language Learners
(“ELL”)[6] and the majority (51.3%) are Hispanic. FOF14, FOF245.
Considering that the percentages of ELL, economically disadvantaged, and
Hispanic schoolchildren in Texas are even higher in the lower grade levels, the
trend toward dramatic growth of these populations will persist. FOF16, FOF245;
RR3:72 (referring to Ex.3228:72); RR3:75-76, 88-89 (referencing Ex.3228:78-79,
90-92); Ex.3228:66; Ex.1123:10, 20; Ex.3228:78; Ex.4258:13. For example, from
[5]
An economically disadvantaged student is one eligible for free or reduced-price meals under
the National School Lunch and Child Nutrition Program. FOF13.
[6]
The Texas Education Code defines Limited English Proficiency, or “LEP” as a student whose
primary language is other than English and whose English language skills are such that the
student has difficulty performing ordinary class work in English. TEX. EDUC. CODE § 29.052.
ELL and LEP are used interchangeably in this brief.
9
2000-13, the Hispanic student population grew by more than 50%, greater than
twice the overall student growth rate in Texas over the same time period. FOF14.
While experts expect the enrollment of White students to decrease by 7% from
2010 to 2050, Hispanic student enrollment is projected to rise by 148% during the
same time span. FOF16.
A decade ago, 52.7% of the State’s students were economically
disadvantaged—today that number is over 60%. FOF245. During the same time
period, the number of ELL students increased by over a quarter of a million
students (from 14% to 17% of all students). By 2050, the number of Texas
students needing bilingual services will reach 1,480,000. FOF15, FOF245.
Dr. Murdock warned that if existing gaps in educational attainment and
household income levels remain in place, Texas faces a stark future with declining
income and higher rates of poverty. FOF19. Texas’s average household income
will decline by $7,759 in constant dollars from 2010 to 2050, and the poverty rate
will rise from 14.4% to 17%. Id. Each student who does not receive a high school
diploma in Texas represents an estimated revenue decline between $139,000 and
$158,000 for the State. FOF292; RR15:7-102; Ex.4040:8-9. All Texans will bear
the brunt of reduced consumer spending, reduced tax revenues, and higher state
welfare expenditures. FOF19.
10
By contrast, higher education levels produce tangible benefits such as
increased consumption of goods and services, a more robust tax base and,
ultimately, a more educated and productive society. FOF22; Ex.3229:80-82, 9597. A more educated workforce would also lead to lower rates of crime and
incarceration, less reliance on social services, and a reduced need for college level
remediation. FOF292; Ex.4040:3-5.
In short, the State’s mandate to provide an adequate, suitable, and efficient
education is more important now than ever. The success of minority students,
economically disadvantaged students, and ELL students is inextricably linked with
the success of all Texans. As Dr. Murdock stated, “how well minority populations
do in Texas is how well Texas will do.” RR3:93.
B.
It is undisputed that economically disadvantaged and ELL
students face additional challenges to achieving the same
level of education as their peers.
The Court has repeatedly confirmed that the State has an obligation to
provide an adequate education to all students. FOF64; See Edgewood I, 777
S.W.2d at 396-97; Edgewood III, 826 S.W.2d at 494-95; Edgewood IV, 917
S.W.2d at 730; Edgewood II, 804 S.W.2d at 488.
ELL and economically
disadvantaged students have similar hopes for the future as their peers, bring their
own unique assets upon entering school. The State expects all students to meet the
11
same state standards, but economically disadvantaged and ELL students confront
barriers their counterparts do not. FOF94, FOF273.
1.
Economically
disadvantaged
educational obstacles at home.
students
face
The challenges that economically disadvantaged students face stem largely
from the opportunities they have available to them where they live. Because their
parents and caregivers tend to have lower educational levels and less income, they
are not able to supplement their children’s’ educational opportunities at home.
Children from low income homes have less access to books and computers at
home.
Economically disadvantaged students have fewer adult language- and
literacy-related interactions with their parents. Life experiences such as vacation
and museum trips that supplement learning are limited.
FOF277, FOF280;
RR15:18-24; Ex.1102:24; Ex.3207:15-17. In contrast, some poorer students have
never traveled beyond a several-block radius of their homes. FOF280; RR5:182,
R19:18-19; Ex.3207:14-18. Because their parents often lack financial and social
capital, low income children often experience delayed development and have a
weaker foundation for learning. Many low income children begin school without
knowing the alphabet, basic colors or animals, and have smaller, less developed
vocabularies than those of their non-economically disadvantaged classmates.
FOF277—FOF281; Ex.3202:15-17; Ex.3206:12-13.
12
Once in school, economically disadvantaged students face barriers to
obtaining the academic support they need. In families where parents ae working,
children whose families do not have an available car must rely on the school bus
and thus may miss before- or after-school tutoring, extracurricular activities
important to social and educational development, pre-school, and summer school.
FOF283; RR4:77-78.
Whether due to eviction, familial conflict, or financial
hardship, poor students have higher mobility rates, leading to disruptions in their
social and academic adjustment in school.
FOF284; RR19:150-52; RR4:72;
Ex.4224-S:196; RR22:140-42 (noting that in Edgewood ISD, one in five students
are defined as “mobile”).
Students from low-income families also often lack basic needs that can
inhibit their success in school. Learning while malnourished or on an empty
stomach impedes their ability to concentrate and learn compared with students who
do not have to contend with food insecurity.
FOF273, FOF289; RR22:139;
RR24:131-32. Sometimes due to the unavailability of affordable health insurance,
poor students are also more likely to lack basic health care needs, such as vision
care, that can impact their ability to learn. FOF289; RR4:70; Ex.1102:23-24
With poverty comes a higher rate of abuse, neglect, single-parent homes,
homelessness, and the emotional trauma that accompanies them.
FOF276—
FOF277, FOF286. Low-income parents often work multiple jobs and have lower
13
levels of education, making it more difficult to attend parent-teacher meetings,
school events, or to offer academic support on schoolwork. FOF282; RR4:70-71;
Ex.4224-S:173; RR17:239-40, 250-51; Ex.6341:14-15. Children frequently must
work to help their families meet basic needs. FOF282; Ex.6341:35. In addition,
over 100,000 students live in the impoverished colonias along the Texas-Mexico
border that have no paved roads, clean drinking water, light, or heat. FOF287;
Ex.3207:27; Ex.508; RR24:118-123; RR4:61-62.
Low-income students are also often concentrated in low income areas where
schools have less access to counselors, high-quality teachers, or adequate
buildings, libraries, and technology. FOF281; see generally RR18:29-34; RR4:81;
Ex.4224-S:30; RR22:155-57, 160, 162-64; Ex.4237:11; Ex.3207:53-54, 283-85;
RR5:244-47; RR20:78, 105-06; Ex.1102:24. The concentration of economically
disadvantaged students compounds educational needs in those districts.
For
example, the higher the concentration of these students in a district, the lower the
STAAR and SAT/ACT performance results for all students. FOF95, FOF296.
These populations represent an even greater percentage of students among the
districts comprising the Edgewood ISD Plaintiffs. FOF1093, FOF1120, FOF1135,
FOF1150, FOF1172. For example, 95.7% of Edgewood ISD’s student population
in the 2012-13 school year was economically disadvantaged and 17.4% was ELL.
FOF1093.
14
2.
ELL Students face challenges distinct from those
created by poverty.
While many are poor, ELL students as a group face barriers to academic
success that are separate from any challenges they face as economically
disadvantaged students. FOF334; RR34:173; RR17:152. Those without a strong
academic foundation in their native language confront a tough task: acquire basic
English while learning academic content with high-level vocabulary. FOF343;
RR14:145-48; Ex.1104:23. Often they lack confidence in their English-speaking
abilities and thus do not ask questions when they need help. FOF336; RR22:156.
Immigrant ELL students face additional barriers and enter school needing
greater levels of support, e.g. refugees from countries rife with war or violence
typically have little formal schooling and have suffered trauma. FOF337, FOF339;
RR19:42-45. Most parents of ELL students have their own language and cultural
barriers that prevent them from engaging in their children’s education. FOF338.
Adding complexity is the fact that in more recent years, the ELL student
population is increasingly diverse; in some districts students speak almost 100
home languages. FOF347; RR4:211-12; RR8:96; RR19:145-48. ELL students
whose native language is not Spanish may not have access to certain services, testprep materials, and other resources in their home language. FOF348.
15
C.
Economically disadvantaged and ELL students can
overcome challenges with appropriate interventions, but
they are expensive.
The obstacles economically disadvantaged and ELL students face are not
insurmountable. FOF273, FOF379—FOF380; RR4:73-80; RR19:64-65; RR20:78,
105-06; see generally Ex.1101. However, for achievement gaps to narrow, these
students require access to effective, high-quality educational programs including,
but not limited to: High quality pre-kindergarten programs; smaller class sizes;
qualified teachers who receive appropriate professional development; and extended
learning time. FOF273, FOF293; RR4:73-80; RR19:64-65; RR20:78, 105-06;
Ex.1101; Ex.4243:6. Such programs not only increase graduation rates and test
scores for these students, but also reduce retention rates, discipline problems, and
crime. FOF384; RR11:140; Ex.1074:2-3; RR19:185; Ex.5613:23-24; RR5:172;
RR8:103-04; RR20:50-56, 74-75; RR24:115-17, 195-96; Ex.3208:210-11.
1.
Economically disadvantaged and ELL students
require high quality preschool program to enter
school ready.
Experts and superintendents uniformly agreed that full-day pre-K and
preschool for three-year-olds are critical to close achievement gaps, by
compensating for any educational and life experiences which low-income and ELL
students lack when they start school.
FOF385; RR5:43, 172; RR8:103-04;
RR20:74-75; Ex.3208:210; RR22:154-56; RR37:207-08; RR3:142-43. Intensive,
16
high-quality pre-K programs can halve the 18-month school readiness gap that
poor students normally face and break the cycle of poverty for those students.
FOF388; RR11:141-42, 146-147; Ex.1074:2-3; see generally FOF384-FOF394.
Full-day pre-K is especially important for poor children placed in
substandard day care simply because their parents’ work schedules prevent their
participation in half-day pre-K programs.
FOF387; RR5:43; Ex.1074:11.
Preschool programs have higher-quality teachers and are more likely to produce
long-term benefits than either Head Start programs or regular day care. FOF392.
For ELL students, pre-K programs serve as important early interventions at a time
when students can best absorb new language and literacy skills.
FOF391;
RR11:141-143; Ex.1074 at 12-13. Even State witnesses recognize the significance
of pre-K for the progress of poor and ELL students. FOF396, FOF553; RR34:1213, 93; RR II:186-87: Ex.1074, Barnett Report at 15; Ex.5630, Scott Dep., at 32,
43; Ex.15.) Despite such acknowledgment, however, the Legislature’s budget cuts
have forced districts to move from a full- to half-day pre-K program or, alternative,
to place hundreds on their waiting lists. FOF400; see, e.g., Ex.4237 at 11 and
RR22:152-153 (discussing how Edgewood ISD has a 165-student waiting list for
full-day pre-K after the budget cuts).
17
2.
Economically disadvantaged and ELL students
require more individualized attention to make up for
educational deficits at home.
Smaller class sizes, another effective intervention for poor and ELL
students, build students’ self-esteem, encourage student engagement, improve high
school graduation rates and college readiness, and close achievement gaps.
FOF402, FOF404—FOF405, FOF407, FOF411; e.g., Ex.1101:11-14; RR4:73-74,
259-260; RR22:158-159, 215-16; RR15:123-128.
Smaller class sizes allow
teachers to better tailor their teaching toward individual student needs. RR22:20917; RR15:123-128; RR4:259.
Again, superintendents from across Texas, and
many experts, including the State’s experts, agreed that class size reduction is
particularly beneficial for economically disadvantaged students.
See, e.g.,
RR4:258-60; Ex.5618:53-55; Ex.5614:33-37; Ex.5613:17-22, 34-35; RR4:73-74;
RR19:50-52; RR37:163-64; RR26:81; Ex.20062A:25-31.
To remediate low-income and ELL students who fail standardized tests or
fall behind with classroom work, schools look for ways to extend learning time by
offering before- and after-school tutoring, summer school, and extended schoolday programs. FOF420, FOF424. This gives struggling students an opportunity to
catch up and master difficult material. Providing more learning time and interface
with instructional materials particularly benefits ELL students who are newcomers
to the United States; many did not have consistent formal schooling in their home
18
country and, consequently, need additional exposure to both academic content and
the English language to prevent falling further behind their peers.
FOF425.
Struggling students also need tutors, academic coaches, reading specialists and
instructional aides. FOF429.
Counselors too play a significant role in the academic success of ELL and
poor students, who are less likely to have family members who can assist them in
applying for college. FOF434, FOF439. Counselors as well as parent liaisons help
students cope with abuse and trauma, address basic food and shelter needs and,
when bilingual, facilitate parent involvement among parents of ELL students.
FOF433, FOF435—FOF436, FOF443—FOF444; see, e.g., Ex.1345:4, 7;
RR22:152; RR14:155-56; RR24:126-27, 133. However, in some districts, there is
up to an 800:1 student-counselor ratio, making meaningful interactions with
students less likely and less effective. FOF438; RR24:133; see also RR22:156.
(showing that Edgewood ISD cut counselor positions at the high school level).
3.
High-quality teachers, the most important schoolbased factor, play an even more vital role in the
academic success of ELL and economically
disadvantaged students.
Quality teaching is the top school-based factor for student achievement;
thus, investment in teachers offers high returns. RR23:209-210. Teachers need
high-quality professional development by coaches and mentor teachers to share
19
strategies and update knowledge generally and, more specifically to ELL students,
to implement effective bilingual education programs and second language
acquisition strategies.
FOF416—FOF418.
Since schools often place ELL
students, especially those in high school, into regular classrooms, all secondary
content-area teachers should have professional development on how to deliver
instruction aimed at fostering both the language acquisition and academic progress
of ELL students. FOF415; Ex.4233-B:107; Coultress Dep., at I 07; Ex.4224-T.
Givens Dep., at 146-47.
Even when schools invest in teacher training, if they do not couple that with
an investment in paying teachers higher salaries, they face difficulty with
recruiting and retention and leave themselves prone to losing teachers to higherpaying neighboring school districts after the first or second year of teaching.
FOF414; Ex.1122:21-26; Ex.3188:105; Ex.3203:24-25. Thus, schools serving
mostly minority, ELL and poor students must pay a higher price to retain and
recruit teachers who have similar qualifications.
FOF414; Ex.1122; Yigdor
Report, at 21-26; Ex.3188. Baker Report. at 49-50.
Even when teachers volunteer to work in high-need areas, they may find a
dearth of other high-quality professional staff to support their instructional
delivery, particularly in high-minority areas.
FOF523, FOF431—FOF432,
FOF685—FOF686, FOF734—FOF735, FOF931—FOF933.
20
As an example,
highly-specialized professionals are needed so ELL students are not improperly
placed into special education because their language acquisition needs are
misinterpreted or, alternatively, so that they are not denied needed services because
of a scarcity of bilingual evaluators who can recommend them for special
education eligibility.
FOF455; RR14:766-78; Ex.4230:34, 35; Ex.1085:13-14;
Ex.4233-B:166-67.
4.
Access to bilingual instructional materials that help
engage ELL students play a critical role in student
success and dropout prevention.
Bilingual books, curriculum materials, interactive digital technology and
other learning visuals in an ELL students’ native language play a critical role in
both dropout prevention among Texas students and in ensuring that they meet state
standards. FOF450-451; RR5:178-179. High-quality materials bridge the gap
between languages, help students grasp complex material, and offer the
illustrations useful when learning new words. FOF 450. These materials serve the
added function of enabling parents to offer additional support at home in a
student’s native language—a valuable supplement to students’ classroom learning
particularly since so many fall behind and attend under-resourced schools.
FOF451; Ex.1104, Izquierdo Report, at 23-24. The trial court found that the lack
of such materials leaves a devastating impact on the achievement of ELL students.
21
FOF 450; RR14:49-56 (referencing Ex.4230 at 18); Ex.1085. Pompa Report. at 78; RRI8:12-13, 18-19,21-26, 28.)
5.
The
State
imposes
additional
educational
requirements for educating ELL students which
makes them more expensive to educate.
The Legislature has mandated bilingual education programs in order to give
ELL students the “full opportunity” to become competent in English through
special programs. TEX. EDUC. CODE § 29.051; 19 TEX. ADMIN. CODE § 89.1201;
FOF480.
ELL students impose unique program requirements on districts. The State
requires bilingual, ESL, or other transitional program curricula if there are more
than twenty enrolled ELL students in a district. TEX. EDUC. CODE § 29.053(d); 19
TEX. ADMIN. CODE §§ 89.1225(e), 89.1210. The State considers bilingual and ESL
programs, which are full-time programs of instruction, necessary to ensure that
ELL students have a full opportunity to master the State curriculum. 19 TEX.
ADMIN. CODE § 89.1210(a)-(b).
Districts must implement English language
proficiency standards ("'ELPS") in conjunction with the State curriculum. Id. at §
74.4; Ex.1104:11. Bilingual and ESL programs similarly have certain required
components to meet the cultural, academic, and linguistic needs of students. 19
TEX. ADMIN. CODE § 89.1210(c); FOF486, FOF487.
22
In those districts where the State requires ELL services are required, school
districts must meet other requirements related to ELL education separate from the
requirements of the programs themselves. For example, schools must conduct
home language surveys for all students entering public school in Texas in both
English and the home language. TEX. EDUC. CODE § 29.056 (1). For students who
are identified as possible ELL students, districts must administer English and
primary-language oral and written proficiency tests by professionals or
paraprofessionals with certain training. Id. at § 29.056 (I), (a)-(b). School districts
must then form a language proficiency assessment committee (''LPAC") to
determine the language proficiency level of each potential ELL student, select a
program suitable for his or her needs, and provide monitoring of all exited students
for the first two years after program exit. 19 TEX. ADMIN. CODE § 89.1220(e)-(g).
(k); FOF491.
Texas also requires teachers in bilingual or ESL programs to be certified in
bilingual education or ESL. TEX. EDUC. CODE § 29.061. If a district obtains a
waiver of this requirement, it must use at least l0% of its bilingual education
allotment to fund a teacher training program for its teachers. 19 TEX. ADMIN.
CODE § 89.1207 (a)( I )(D), (b)( I )(E). School districts that are required to offer a
bilingual education program must also offer certain types of preschool programs,
23
assessment procedures, and campus improvement plans. 19 TEX. ADMIN. CODE §§
89.1230, 89.1250 ; TEX. EDUC. CODE § 29.060; FOF493—FOF495.
With the ability to implement proven interventions to support economically
disadvantaged and ELL students, school districts will be able to adjust the
remarkable demographic shift the State has experienced over the past decade.
Unfortunately the State’s action (and inaction) has made that impossible for many
districts.
II.
AMIDST DRASTIC DEMOGRAPHIC CHANGES IN THE
TEXAS PUBLIC EDUCATION SYSTEM THE STATE HAS
STEADILY
INCREASED
STANDARDS
WITHOUT
PROVIDING SUFFICIENT MEANS FOR ALL STUDENTS TO
MEET THOSE STANDARDS.
A.
Through the Texas school funding cases, the Court has
established the State’s constitutional duties to provide a
public education system that is adequate, suitable,
equitable, and does not constitute a state property tax.
The State has a storied history of school funding cases.[7]
The school
funding cases are rooted in the State’s heavy reliance on local property taxes to
fund public schools. See Edgewood I, 777 S.W.2d at 392–93; Edgewood III, 826
[7]
Edgewood Indep. Sch. Dist. v. Kirby (Edgewood I), 777 S.W.2d 391 (Tex. 1989); Edgewood
Indep. Sch. Dist. v. Kirby (Edgewood II), 804 S.W.2d 491 (Tex. 1991); Carrollton-Farmers
Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist. (Edgewood III), 826 S.W.2d 489 (Tex.
1992); Edgewood Indep. Sch. Dist. v. Meno (Edgewood IV), 917 S.W.2d 717, 726 (Tex. 1995)
(detailing history of school funding cases from Edgewood I through Edgewood IV); W. OrangeCove Consol. I.S.D. v. Alanis (WOC I), 107 S.W.3d 558 (Tex. 2003); Neeley v. W. Orange-Cove
Consol. Indep. Sch. Dist. (WOC II), 176 S.W.3d 746 (Tex. 2005).
24
S.W.2d 489, 500 (Tex. 1992). Property values across the State fluctuate wildly,
resulting in substantial funding advantages for students living in property wealthy
districts, and underfunding for economically disadvantaged students and students
attending schools in property poor districts. FOF1210–FOF1212. Since the early
1980’s, Texas parents, students, and school districts like the Edgewood ISD
Plaintiffs have turned to state courts for redress in light of chronic underfunding
and inequity in the public school finance system. These cases focus primarily on
combinations of four different constitutional claims – the requirements of
“efficiency,” “adequacy,” “suitability,” and the prohibition on a state property
tax.[8]
[8]
Edgewood I, 777 S.W.2d at 391 (Edgewood ISD, sixty-seven other school districts, and
numerous parents and school children filed suit seeking a declaration that the school financing
system violated the Texas Constitution); Edgewood II, 804 S.W.2d at 493 (numerous school
districts and individuals sought a declaration that the state public school finance system was
unconstitutional); Edgewood III, 826 S.W.2d at 492 (numerous school districts and individual
citizens challenged the constitutionality of the school finance system because it levied a state ad
valorem tax in violation of Article VIII of the Texas Constitution, it levied this tax without the
approval of voters in violation of Article VII, and because it created county education districts in
violation of Article VII); Edgewood IV, 917 S.W.2d at 727 (property-poor school districts
challenged the constitutionality of Senate Bill 7 on efficiency grounds); WOC I, 107 S.W.3d at
562 (four school districts contended that they and other districts were forced to levy a state ad
valorem tax because they had lost meaningful discretion in generating revenue); WOC II, 176
S.W.3d at 751 (47 school districts contended that property taxes had become a state ad valorem
tax in violation of Article VIII of the Texas Constitution because of a loss of meaningful
discretion, and intervenor school districts contended that the school finance system violated
Article VII of the Texas Constitution).
25
Article VII, section 1 of the Texas Constitution, known as the Education
Clause, is central to all of the school funding cases. Tex. Const. art VII, § 1.[9]
The Education Clause requires the Legislature to meet three standards in funding
public schools: the system must be adequate, or provide “a general diffusion of
knowledge,” it must be suitable, and it must be efficient. See, e.g., WOC I, 107
S.W.3d at 563. In addition, Article VIII, section 1-e, which prohibits state ad
valorem property taxes, requires the system to allow districts “meaningful
discretion” in setting their property tax rates. See, e.g., WOC II, 176 S.W.3d at
751. With each case, plaintiffs have met with varying levels of success on various
combinations of these constitutional claims, depending on the features and
operation of the school finance system at that point in time.[10] These cases,
challenging the levels of state funding for school districts and the manner in which
the State has distributed those funds, have been the driving force behind state
[9]
“A general diffusion of knowledge being essential to the preservation of liberties and the
rights of 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.” Tex.
Const. art VII, § 1.
[10]
Edgewood I, 777 S.W.2d at 397 (holding that revenue and tax rate disparities between
property-poor districts and property wealthy districts violated efficiency requirement);
Edgewood II, 804 S.W.2d at 491-497, 500 (holding that local supplementation above a general
diffusion of knowledge is permissible, but system was inefficient overall); Edgewood III, 826
S.W.2d at 524 (holding that uniform property tax rate violated state property tax prohibition);
Edgewood IV, 917 S.W.2d at 750 (holding that system was inefficient because districts were
unable to raise revenue needed to achieve a general diffusion of knowledge at similar tax rates);
WOC I, 107 S.W.3d at 579–83 (holding that state control over the district taxes is the
determining factor for tax violation); WOC II, 176 S.W.3d at 754, 794, 800 (holding that system
created de facto state property tax by forcing districts to tax at or near the legislative cap on
property taxes, and that system fell just short of an adequacy violation).
26
reforms in the school funding system. For example, after the Edgewood I Court
ruled for the first time that the State did not distribute funds equitably for property
poor school districts, the Legislature responded with Senate Bill 1 (“SB 1”), which
was expected to place 95 percent of public school students in an equalized system.
Edgewood II, 804 S.W.2d at 492–93, 495. Parents, students, and school districts
sued again because SB 1 excluded over one hundred thirty property wealthy
districts, but ultimately it was a step in the right direction towards constitutional
efficiency. Id. at 495–96. As the Court in Edgewood III stated, since Edgewood I,
“the manner in which local funds are contributed to the system has changed
dramatically. . . [towards] reduc[ing] the geographical disparities in the availability
of revenue for education.” Edgewood III, 826 S.W.2d at 500. Similarly, after the
trial court in this case ruled from the bench that the current system was inadequate
and inequitable, specifically referencing the $5.3 billion the State cut from the
public education budget, the Legislature restored approximately $3.5 billion to
public schools during the following session. FOF65. As is shown below, the
restoration of funds was incomplete, did not ameliorate the overall decline in total
per-student revenues over time, and did not remedy the constitutional violations
identified by the trial court. FOF66–FOF68; RR63:18-20, 108-11; Ex.20216-A. It
was, however, a clear response to the court’s ruling, and at least a small step in the
right direction.
27
The Court has recognized the vital importance of stare decisis in this area,
noting that the “constitutional requirements as declared by this Court . . . have been
crucial to the development of the public education system.” WOC I, 107 S.W.3d at
585. Over the decades, the State has engaged in an almost predictable pattern of
abdicating its constitutional duties to meet the standards the Court has established,
or in the alternative, implementing changes that fall just short of its constitutional
obligations. See Edgewood I, 777 S.W.2d at 397; Edgewood II, 804 S.W.2d at
492; Edgewood III, 826 S.W.2d at 524; WOC II, 176 S.W.3d at 754, 800; Albert
Kaufman, The Texas School Finance Litigation Saga! Great Progress, Then Near
Death By A Thousand Cuts, 40 St. Mary’s L.J., 511 (2008).
The Court’s
determinations on whether the State has discharged its constitutional duty have
held the State accountable for the promise of an adequate, suitable, and efficient
education under the Education Clause. The absence of these standards would
“threaten havoc to the system” and “undermine the rule of law to which the Court
is firmly pledged.” WOC I, 107 S.W.3d at 585.
B.
The Court in WOC II held that the system constituted an
unconstitutional state property tax and warned of “an
impending adequacy violation.”
When the Court last addressed the constitutionality of the school funding
system in WOC II, the public school finance system consisted of two tiers known
collectively as the Foundation School Program (“FSP”). WOC II, 176 S.W.3d at
28
758; FOF24. The system capped maintenance and operations (“M&O”) tax rates
at $1.50 per $100 of assessed property valuation. WOC II, 176 S.W.3d at 758.
Tier 1 guaranteed, for all districts taxing at or above the rate of $.86, a basic
allotment of $2,537 per student in “average daily attendance” (“ADA”), subject to
special adjustments for various district and student characteristics. See id. For
each penny of effort above the $.86 tax rate, Tier II guaranteed $27.14 per
“weighted average daily attendance” (“WADA”). See id. at 759. The Legislature
intended for Tier 1 to provide for a general diffusion of knowledge, and Tier II to
provide for local enrichment. WOC I, 107 S.W.3d at 569–70. Debt service on
facilities, which were funded separately from M&O, was capped at $.50 per $100
valuation (known as “I&S”). See WOC II, 176 S.W.3d at 758.
The system also includes an equalization provision, called “recapture,”
meant to prevent wealthy districts from accessing substantially greater revenue for
each penny of tax effort. For example, the Legislature imposed a cap on a school
district’s taxable property at $305,000 per student.
Id. at 759.
If districts
generated revenue in excess of the set wealth levels, they could exercise one of five
options: consolidate with other districts, voluntarily combine tax bases, detach
territory, purchase average daily attendance credits from the State, or contract for
the education of nonresident students. Id. at 759-60.
29
Property wealthy districts sued arguing that the system had evolved into an
unconstitutional property tax, as the State was forcing them to tax at or close to the
$1.50 cap just to provide an adequate education. WOC I, 107 S.W.3d at 562.
Property poor districts intervened, defending recapture and arguing that the system
was inadequate and inequitable for both facilities and instruction, and recapture.
Id. at 574.
The Court held that the system violated the prohibition on state
property tax in violation of article VIII, section 1-e, but was adequate and
financially efficient under article VII, section 1. WOC II, 176 S.W.3d at 754, 794,
800.
The Court remarked that the state property tax claim was “not a close
question.” See id. at 796. It held that the trial court’s finding that school districts
lacked meaningful discretion to set their local property taxes was supported by
non-conclusory evidence, including: “a demographically diverse and changing
student population;” high costs of educating economically disadvantaged and
English Language Learner (“ELL”) students; fewer qualified and certified
teachers; budget cuts; increased curriculum, testing, and accreditation standards;
and the increased costs of meeting them. See id. at 796. The Court warned the
State that it could not make provisions for enrichment, then pressure districts to tax
at the maximum rate with increasing accountability and academic standards. See
id. at 797; see also id. at 798 (“[A] cap to which districts are inexorably forced by
30
educational requirements and economic necessities . . . will in short order violate
the prohibition of a state property tax.”). The fact that 494 out of 1,031 school
districts were taxing at the $1.50 cap, and 691 school districts were taxing within 5
cents of the cap, weighed heavily into the Court’s ruling. Ex.6396:1; WOC II, 176
S.W.3d at 755, 794-98.
On the adequacy claim, the Court described the constitutional standard as
“result—oriented” at the level of “what is required to achieve a general diffusion of
knowledge.” WOC II, 176 S.W.3d at 788. The Court affirmed that the district
court underwent the proper analysis to determine whether the system as a whole
provided for a General Diffusion of Knowledge (“GDK”) by considering “how
funding levels and mechanisms relate to better-educated students,” and by drawing
the Legislature’s understanding of a general diffusion of knowledge from statutory
language. See id. at 788-89 (noting that “statutory provisions properly inform the
construction and application of the constitutional standard of a general diffusion of
knowledge”). The Court held that the system did not violate adequacy because (1)
standardized test scores “steadily improved over time,” and (2) the Legislature did
not act “arbitrarily in structuring and funding the public education system so that
school districts are not reasonably able to afford all students the access to
education and the educational opportunity to accomplish a general diffusion of
knowledge.” Id. at 789–90. The Court cautioned that there was an impending
31
adequacy violation that would only be “avoided by legislative reaction to
widespread calls for changes,” and that there was substantial evidence that the
system had “reached the point where continued improvement would not be
possible absent significant changes.” See id. at 790.
For the first time, the Court articulated the standard for “suitability;” before
that time, parties had always conflated the standard for suitability with the standard
for adequacy. Id. at 793. The Court explained that suitability referred specifically
to “the means chosen to achieve an adequate education through an efficient system.
See id. In other words, the structure and operation of the funding system must
allow the system to accomplish a general diffusion of knowledge. See id. at 794.
In short, through the Edgewood cases, the Court required the Legislature to
structure and operate the funding system so that districts can accomplish a GDK,
distribute funding so that districts have substantially equal access to similar
revenues at similar level of tax efforts, and ensure overall that the school finance
system provides for a GDK without taking away school districts’ discretion to set
their tax rates. Instead of responding to the Court’s call for “significant changes”
to avoid the impending adequacy violation, the Legislature implemented a number
of changes to create a system that deprived school districts of the ability to raise
the needed revenue to help an increasingly challenging student population meet
heightened academic requirements. Id. at 790.
32
C.
Starting with the special session in 2006, the State made
extensive structural changes to the school finance system in
response to WOC II that fell short of the “significant
changes” the Court warned was necessary to avoid a
“constitutional crisis.”
In 2006, the 79th Texas Legislature passed House Bill 1 (“HB 1”), which
essentially converted the system into three tiers and added a number of new
features to the system. CR12:230; FOF25, FOF27-FOF30. With the passage of
HB 1, the Legislature meant to cut property taxes and provide school districts with
meaningful discretion to set their tax rates, in response to WOC II. FOF26. In
effect, however, these reforms served to limit taxpayer discretion, decrease
capacity to raise additional revenues, eliminate funding for the neediest groups of
students, and increase disparities in the funding system. FOF27-FOF29, FOF38,
FOF51, FOF56. In all, the Legislature made these changes without regard to the
cost of providing an adequate and suitable education system. FOF39.
1.
Tax compression created a structural deficit, which
created a revenue shortfall for the State.
HB 1 compressed permissible tax rates by one third, from a maximum of
$1.50 down to $1.00 by 2009. CR12:234; FOF25. In an attempt to ensure that this
compression did not result in reduced funding for schools, the Legislature
increased the yield per penny to ensure a basic allotment at the compressed tax rate
(“Tier I”). School districts at the compressed tax rate of $1.00 were entitled to
basic allotments of $4,765 in 2012-13 and $4,950 in 2013-14 per each student in
33
Average Daily Attendance (“ADA”).
FOF40; Ex.5653:22; Ex.5654:32;
Ex.6593:22R. School districts with tax rates below $1.00 receive a smaller basic
allotment. See id. The formula then adjusts the basic allotment based on a number
of factors, such as size and population, resulting in the “Adjusted Allotment.” See
id. The “Regular Program Allotment” is the Adjusted Allotment per student in
ADA that each district receives.
See id.
The formulas then provide special
program funding based on the number of students covered by certain programs or
conditions, such as economic disadvantage or ELL status. FOF41; Ex.5653:37-56;
Ex.5654:44-54; see TEX. EDUC. CODE §§ 42.151-154, 42.156-159. The formula
calculates that funding using “weights” multiplied by the relevant number of
students. Id. In this sense, the State's financing system explicitly recognizes (and
defense witnesses acknowledge) that certain student groups, specifically
economically disadvantaged students and ELL students, are more difficult and
more expensive to educate. See RR29:105-07; Ex.5630:30–34; RR26:67; FOF467,
FOF497.
Following compression, HB 1 allowed school districts to increase their tax
rates up to $1.04 without voter approval, and up to $1.17 through a tax ratification
election (“TRE”). CR12:230; FOF212. The system maintained recapture, but
through a new yield structure. The first six pennies of additional M&O taxes
above the compressed rate, referred to as “golden pennies,” guarantee a yield of
34
$59.57 per penny and are not subject to recapture (“Tier II-A”). FOF44, FOF29.
The remaining pennies up to $1.17, referred to as “copper pennies,” guarantee a
yield of $31.95 and are subject to recapture (“Tier II-B”). FOF44. Like the
system in place at the time of WOC II, Tier I was intended to provide revenue to
fund a general diffusion of knowledge, and Tiers II-A and II-B were intended to
provide local enrichment. FOF40—FOF44, FOF623; see WOC II, 176 S.W.3d at
797. The reality, however, is that property poor and property wealthy districts
alike rely on Tier II funding just to provide a basic, adequate education. FOF623.
Finally, the Legislature created a new “hold harmless” provision called
Additional State Aid for Tax Reduction (“ASATR”), or “target revenue,” which
essentially ensured that school districts received the same level of funding as the
greatest of the 2005-06 school year, 2006-07 school year under 2005-06 formulas,
and 2006-07 school year at the “effective rate” (rate that maintains revenue per
student from preceding year). Essentially, if Tier I funding and district M&O tax
collections did not generate the revenues needed to maintain target funding, the
district could receive ASATR funding. FOF30—FOF31; Ex.1328:17-18.
Although one driving force behind the Legislature’s passage of HB 1 was
the WOC II decision, another motivator was passing the “largest tax cut in Texas
history,” an impetus bearing no relationship to improved educational outcomes for
Texas children.
FOF32; Ex.5731.
The Legislature was fully aware that the
35
passage of HB 1 meant a projected annual revenue loss of at least $5.85 billion for
school districts from 2008 to 2011, and a $10 billion shortfall per biennium
statewide.[11] FOF33, FOF35; Ex.6395:1. To partially replace this, and other,
local revenue, the Legislature created the Property Tax Relief Fund (“PTRF”),
financed primarily by the business margins tax and increased cigarette and tobacco
taxes.
FOF34; Ex.5592:8–9; Ex.5657:194.
However, legislators knew at the
outset that the PTRF would not be enough to compensate for the shortfall. FOF35.
Ultimately, the PTRF underperformed from the start, raising only about $5 billion
dollars of the originally projected $8.3 billion for the 2008-09 biennium. FOF36;
Ex.5658:2.
The PTRF fell billions of dollars short of the $14.2 billion per
biennium that the Legislative Budget Board (“LBB”) estimated was needed to
cover the loss of revenue from tax compression. See id.
Although the State was able to avoid the full impact of this loss in the short
term due to approximately $12 billion in federal stimulus funds, those funds were
gone by January 2011, the start of the 82nd Legislative Session. FOF37–FOF38;
Ex.6322:42; RR7:192-93; RR31:37-38. Instead of taking action to prepare for the
perfect storm on the horizon to ensure that the system was “funded so that it can
accomplish its purpose for all Texas children,” the Legislature opted to slash
[11]
The 84th Legislature, despite the pending outcome of this case and under a trial court
decision that unequivocally found the current public school finance system unconstitutional,
against passed tax legislation that would this time cut the franchise tax rate to 25%, and increase
the size of the property tax homestead exemptions by $10,000, if voters approve – both
impacting revenue available for the public education system.
36
funding to public education further. FOF38. (quoting WOC II, 176 S.W.3d at
753).
2.
Without any consideration of how budget cuts would
affect educational opportunities for students, the
Legislature cut $5.3 billion from public school
funding to compensate for revenue shortfall created
by HB 1.
By 2011 the Legislature faced an anticipated revenue shortfall and recurring
structural tax revenue deficit. FOF52; Ex.6322:47. To make up for the shortfall,
the State passed Senate Bill 1 (“SB 1”), which cut approximately $5.3 billion,
including $4 billion from the FSP. See FOF52, FOF64; Ex.6322:47; Ex.6362:A57.
SB 1 “generated” the remainder by eliminating or drastically reducing funding for
specific educational programs meant to close achievement gaps, by supporting
Texas students who are at-risk, need remediation on state exams, or are at risk of
dropping out.
FOF56; RR6:203-07; RR32:194; Ex.6322:47; Ex.4000:49-50;
RR31:171-72; Ex.10748. For example, SB 1 meant a reduction from $300 million
to $41 million for the Student Success Initiative (''SSI") grant program, which
targeted students in need of accelerated remediation to help them pass standardized
tests. FOF56; Ex.6322:49; RR6:204-05; Ex.5630:28-29; Ex.10748. In addition,
SB 1 eliminated $201 million in grants that helped districts provide full-day pre-K
services, which, as shown below, are critical for at risk-students.[12] Ex.6322:49.
[12]
See Section C.1 (Facts), infra.
37
The trial court found, and State Defendants cannot dispute, that the special
programs and grants cuts particularly impacted the state's highest need children.
FOF56, FOF68; RR6:204-07.
In addition to cutting funding for at-risk school children, SB 1 also reduced
funding distributed through the FSP by $4 billion for the biennium. FOF52. The
Legislature achieved this cut to FSP funding through different mechanisms in each
year of the 2012-13 biennium. FOF53. The Legislature used an adjustment known
as the Regular Program Adjustment Factor (“RPAF”) to reduce the Tier 1 regular
program allotment to 92.3% of prior-year levels.
Ex.5653:147.
See id.; Ex.6322:48;
Because reducing the basic allotment in Tier 1 reduced the
calculated number of students in weighted average daily attendance for all districts,
SB 1 affected the funding calculation for Tier II and ASATR, reducing state
funding at those levels as well. FOF53; Ex.6322:48.
3.
The Legislature has not taken sufficient action to
remedy the structural deficit, outdated funding
formulas, and overall inadequate level of funding.
In 2013, the 83rd Legislature restored $3.5 billion of the $5.3 billion it cut,
but the restoration of funds was neither permanent nor complete. FOF65-FOF66.
38
a.
The 83rd Legislature’s partial restoration of the 2011
budget cuts was inadequate.
The 83rd Legislature achieved partial restoration of the 2011 budget cuts in
four ways. First, it increased the basic allotment for each year of the biennium,
and correspondingly raised the Tier I equalized wealth level for each year. FOF66;
Ex.6593A:22R; RR54:103 (referencing Ex.6618:5).
Second, it increased the
RPAF for each year of the biennium. See id. Third, it raised the Tier II-A
guaranteed yield in the 2014-15 school year. See id. Finally, it raised the target
revenue reduction factor for each year of the biennium, resulting in an increase of
ASATR for certain districts. See id. The Legislature made all four modifications
through an appropriations bill, which meant the changes were not permanent, did
not change the structure of the system, and expired at the end of biennium.
FOF65-FOF66. 13 Notably, the 2013 Legislature only restored approximately $290
million of the initial $1.3 billion cut from state grant programs in 2011. As noted
by the trial court, the Legislature in 2013 did not meaningfully restore funds for
SSI for remedial instruction, early childhood and full-day pre-K programs, teacher
merit incentives, extended learning programs, and teacher training or funds for
other programs meant to support, and proven to support Section I.C. (Facts), infra,
[13]
During its 2015 Session, the Texas Legislature again adjourned without making any structural
changes to the public school finance that would address the claims brought by the ISD Plaintiffs.
39
the most vulnerable Texas children. FOF68, FOF457; RR63:111; Ex.20216-A; see
also RR6:205-06; Ex.16:30, 55: Ex.17:18; Ex.5630:46, 70.
The following table summarizes the trial court’s findings regarding the
funding levels for specific programs before and after 2011:
(All funding is expressed per biennium in millions of dollars)
Program
Pre-2011
Post-2011 Current
Net
funding
funding
funding
percentage
(2014-15)
change
SSI
$272
$41
$50.5
-81.48%
Limited English Proficient
Student Success Initiative
and Special Projects
$19.3
$0
$0
-100%
Full-day pre-kindergarten
state grants
$201
$0
$30
-85%
Regional Service Center
funds
$42.7
$25
$25
-41.52%
FSP Extended Year
Programs
$12.1
$0
$0
-100%
$9.9
$0
$0
-100%
Teacher Advanced
Placement Incentive
$18.2
$13.8
$16.3
-11.86%
Reading, Math, and
Science Initiative
$15.4
$0
$0
-100%
Instructional materials
funds
$718
$608
$838
16.79%
$4
$0
$0
-100%
Teacher Mentor Program
Center for Improvement of
40
Districts and Schools
The trial court made clear that current funding for these crucial programs are
insufficient, inadequate, and produce an inefficient public education system.
FOF68; RR63:108-11; Ex.20216-A.
b.
Even after the Legislature restored some of the pre2011 funding, real per-student funding remained
below 2003-04 levels.
The trial court concluded that:
“there has been a significant decline in total per-student operating
revenues for public education on an inflation-adjusted basis over the
past decade, and in particular in the last five years, even as
performance standards have risen.” FOF69 (emphasis added).
The steady decline of per-student revenues is evident:
School year
2003-04
Per-student
$7,128
revenue
(in 2004 dollars)
FOF69; Ex.6618:7.
2008-09
2014-15
$7,415
$6,816
The decrease in funding has had dramatic negative effects on almost half of
the school districts in the state, with only marginal improvements for the rest.
FOF70; Ex.6618:10.
The 2013 remedial funding measures did not address the fundamental
structural inequities of the school finance system, stating that the partial restoration
41
of cuts “did not cure the constitutional deficiencies in the school finance system
which remains inadequate, unsuitable, and financially inefficient.”
FOF66,
FOF71; COL14, COL21, COL29, COL31, COL41, COL44, COL45.
c.
The State failed to update the weights that address the
needs of its most vulnerable students.
The Legislature’s inaction fares just as important as its action when
determining whether the public school system meets constitutional muster. Since
1984, and even during recent years where the Legislature introduced substantial
changes in the system, it never made any attempt to ensure that funding levels
“represent the cost per student of a regular education program that meets all
mandates of law and regulation” as state law requires.
TEX. EDUC. CODE §
42.007(c)(1). For all the changes and reforms it implemented to deliver historic
tax cuts on the backs of Texas students, it never once conducted any study or
analysis to ensure a link between the implemented changes and sound educational
principles, or to determine the impact on Texas public school students. FOF603;
RR63:104-06.
The Legislature has not modified the outdated weights in the
formula meant to support economically disadvantaged and ELL students since
1984.
FOF67, FOF246; RR56:124-27, 132, 148-49; RR63:19-20; see also
Ex.6322:58. The compensatory education weight, meant to support supplemental
programs and services for poor students is .2, or 20% of the basic allotment. TEX.
42
EDUC. CODE § 42.152(a)-(b); FOF467; Ex.1328:15. The bilingual weight, intended
to meet the additional costs of programs for ELL students, is set at .1. FOF497.
The Legislature did not base those weights on the actual costs of education when it
created them arbitrarily in 1984 and has not adjusted them since.
FOF498, FOF591—FOF593.
FOF468,
In short, the Legislature failed to take the
opportunity to examine the special weights and allotments to determine that they
are “properly structured, operated, and funded to ensure that all districts could
provide all students with a meaningful opportunity to achieve a general diffusion
of knowledge.” Id. at § 42.007(c)(2)-(7).
D.
Since WOC II, the Legislature adopted college and career
readiness as the standard for a general diffusion of
knowledge, without any consideration of costs for
implement the new, more rigorous system.
1.
Texas adopted and implemented the postsecondary
readiness standard, which is not aspirational.
In the years since WOC II, Texas has linked postsecondary readiness to its
duty to provide for a “general diffusion of knowledge.” TEX. EDUC. CODE §
28.001; FOF82, 87; RR28:167, 177; RR5:125; Ex.4273:28-29; RR63:138-140.
The Legislature and the Texas Education Agency (“TEA”) took concrete steps to
make college and career readiness more than a lofty goal.
They have
operationalized that standard by incorporating it into the curriculum, the state
43
assessment system, and graduation requirements.
See RR28:167-68, 177;
RR5:125; Ex.4273:28-29; Ex.5785:212; RR63:138-40.
Specifically, in 2006, the Legislature directed TEA and the Texas Higher
Education Coordinating Board (“THECB”) to jointly develop college readiness
standards and re-evaluate the state’s curriculum. FOF87. Tᴇx. Eᴅᴜᴄ. Cᴏᴅᴇ §
28.008; Act of May 15, 2006. 79th Leg. 3rd C.S., ch. 5, Tex. Gen. Laws at 45 (HB
1) (available at Ex.6393). FOF87; RR28: 120-21, 176-77; RR5:125-26. Toward
those ends, in 2008, Texas adopted the college and career readiness standards
(''CCRS") approved by the Commissioners of Education and Higher Education.
FOF89; see RR27:13-14; RR28: 119-21; Ex. 742:iii; Ex. 10336:1-47, App. B.
2.
The Legislature integrated college and career
readiness standards into more rigorous state
curriculum and graduation requirements.
After the approval of the CCRS by the State’s two top education leaders, the
State Board of Education (“SBOE”), at the direction of the Legislature,
subsequently incorporated those standards into the state curriculum, known as
Texas Essential Knowledge and Skills ("TEKS"). TEX. EDUC. CODE § 28.001;
FOF89; see RR27:13-14; RR28:119-21; Ex.742:iii; Ex.10336:1-47, App. B. To
prepare students to enter college, the State essentially aligned the TEKS
curriculum vertically from kindergarten all the way to high school completion.
FOF89; RR28:121-23.
44
Texas’s current default high school graduation program requires completion
of the Foundation Plan (22 course credits) plus four credits under one of five
endorsement pathways: STEM (science, technology, engineering and math),
multidisciplinary studies, public service, business and industry, or arts and
humanities. TEX. EDUC. CODE § 28.025; FOF90, FOF106; RR55:129-130;
RR63:140-141; RR54:125-127. The “Foundation plus Endorsement” plan requires
completion of 26 credits, compared to the only 22 credits required under the less
rigorous default plan at the time of WOC II.
FOF236; see Ex. 6618:21;
Ex.4336:98.
In 2013, when the Legislature passed House Bill 5 (“HB 5”), it did so with
the stated intention of maintaining rigor while offering students flexibility in the
high school curriculum to pursue college or career interests. FOF90; Ex.6532:9.
While students do have the option to graduate under the “Foundation Plan,” the
State implemented numerous safeguards to make it harder for students to move
away from the State’s default college readiness standards. FOF106. For instance,
to graduate under the “Foundation Plan,” a student must be a junior or senior, have
written parental permission, and both the student and parent(s) must be advised by
a counselor of the benefits of graduating under the more rigorous default plan.
TEX. EDUC. CODE § 28.025(b); FOF106.
45
3.
The Legislature adopted a more challenging
assessment and accountability system to measure
whether students meet the State’s college and career
readiness standards.
To ensure that Texas’s standardized testing system measured student
performance under the new college readiness standards, the State replaced the
Texas Assessment of Knowledge and Skills (“TAKS”) with the more rigorous
State of Texas Assessment of Academic Readiness (“STAAR”). FOF93, FOF95.
As outlined in HB 3, passed during the 2009 legislative session, the dual goals of
the new testing system include: 1) that Texas rank within the top states in terms of
college readiness, and 2) that the State eliminate any significant achievement gap
in terms of race, ethnicity and socioeconomic status. TEX. EDUC. CODE §
39.053(f); FOF88-FOF89, FOF93. Under the STAAR assessment system, students
must take five end-of-course (EOC) exams – Algebra I, English I and II, Biology
and U.S. History – that correspond to the college readiness standards.[14] TEX.
EDUC. CODE § 39.023(c); FOF94. Moreover, they must take STAAR tests in
grades 3 to 8, and those exams must also align with the college readiness
standards. FOF94.
None of the parties dispute that the STAAR exams are
significantly more advanced than TAKS and designed to assess higher order,
[14]
The 2015 Legislature passed Senate Bill 149, which allows an individual graduation
committee comprised of an administrator, teacher, counselor and parent to determine whether a
student can graduate based on other criteria when a student’s failure to pass an EOC exam
remains his or her only barrier to graduation. S.B. 149, 84(R) (Tex. 2015).
46
critical thinking skills.
FOF95, FOF99; see RR28:21-22; RR27:35-36;
Ex.5624:113-114; Ex.10937.
Students began taking STAAR exams in the 2011-12 school year, and Texas
began its implementation of the STAAR-based accountability system during the
following academic year. FOF114. As part of the assessment system, the State
developed four indexes to gauge the following: 1) “Student Achievement” of all
students; 2) “Student Progress” of students by subject area and within 10
disaggregated subgroups; 3) “Closing Performance Gaps,” by subject area focusing
on economically disadvantaged students and the lowest-performing racial/ethnic
groups; and 4) Postsecondary Readiness. FOF115; Ex.20224. Notably, although
the new accountability system claims to measure college readiness, it does so
incompletely. For example, in the 2012-13 school year, three of every five Texas
students was economically disadvantaged; however, Index 2 does not measure, or
hold districts accountable for, the growth of these students as a disaggregated
group. FOF116, FOF13; Ex.20224. Similarly, although ELL students have among
the greatest educational needs and some of the largest performance gaps occur
between ELL and non-ELL students, Index 3 completely ignores the performance
47
of ELL students as a disaggregated group in measuring whether districts have
closed achievement gaps. FOF116; Ex.20224.[15]
Nevertheless, through the passage of HB 5, the State chose to add even more
college readiness indicators to its accountability system, supplementing the
existing indicators within Index 4.
FOF91; Ex.20062A:13.
The TEA
Commissioner for Standards and Programs affirmed that, under HB 5, the
Legislature did not regress from the State’s college readiness standards. FOF92;
see Ex.4273:28-34, 52-54; RR63:138-140; RR54:125-127.
Finally, in addition to developing the STAAR regime as part of its
assessment system, Texas also established its own target scores on the SAT and
ACT exams to determine whether a student is college and career ready. FOF160.
4.
The State’s increased standards generated increased
costs, but the State did not even attempt to calculate
those costs as required by law.
The State’s own witnesses acknowledge that as educational standards
increase, costs increase.
FOF238; RR29:105-07, Ex.5630:91-92, RR26:67,
Ex.5676:1. This rings true historically, and the Legislature in the past has provided
additional funding every time it has introduced a new system of education
accountability standards. FOF123—FOF124; Ex.6322:40; Ex.6349:33-37. The
[15]
The 2015 Legislature passed HB 2804 that, in part, rebranded the four indexes as “domains”
and added a fifth domain for student and community engagement; however, it did nothing to
correct the abovementioned glaring omissions of economically disadvantaged and ELL students
in Index 2 and 3, respectively. H.B. 2804, 84(R) (Tex. 2015).
48
Legislature “failed to provide additional financial support with the introduction of
the STAAR regime,” as it had when it implemented TAAS in 1993, and TAKS in
2006. FOF124—FOF125; Ex.6322:47; RR6:203-04; Ex.6364:12.
As shown above, the State made the largest cuts to education funding in
Texas history while it overhauled major aspects of its education system that
redefined an adequate education — without any form of cost assessment as to how
those changes might impact Texas’s skyrocketing populations of economically
disadvantaged and ELL students.
FOF65, FOF52, FOF56, FOF81—FOF82,
RR603; see FOF39, FOF303—FOF331, FOF123—FOF125, FOF360.
Testimony showed that to successfully implement the new endorsement
scheme under HB 5, school districts would either need to hire more teachers to
teach additional coursework necessary to offer an endorsement, train existing
teachers, or both. FOF107; see Ex.20062A:8-9; RR55:140-148; Ex.6557:31-38.
Nonetheless, it seems clear that the Legislature never bothered to consider the
funds it would take to implement HB 5’s new Foundation plus Endorsement
program as the State’s default graduation plan.
The State not only disregarded the Court’s mandate that it assess the cost of
its own standards to determine adequacy, Edgewood IV, 917 S.W.2d at 732, n. 14,
but it also flouts its own laws. The LBB must adopt rules to calculate the funding
amount per student—including, among others, “appropriate program cost
49
differentials” for at-risk, bilingual/ESL, and other special needs student
populations—necessary to achieve a “thorough and efficient education system”
that provides each student with “access to programs and services that are
appropriate to the student’s educational needs.” TEX. EDUC. CODE §§ 42.007,
42.001. The LBB should provide that calculation for each year of a biennium, and
report the calculation to the Education Commissioner and the Legislature. Id. at §
42.007(a), (b). Since WOC II, before the adoption of the STAAR regime, the LBB
has not complied with its calculation and reporting requirements.
FOF605;
RR10:154-55 (referencing Ex.6352:9); RR56:170 (referencing Ex.6621:4).
Moreover, TEA has never attempted to calculate the costs to school districts of
meeting the State’s new standards. FOF603; e.g., RR32:75-76, 132-33, 196, 20205;
RR33:26-27,
138-41;
RR27:134-35,
147-48;
RR28:172-74,
185-86;
Ex.4273:40-41, 43-44, 53-54, 60, 73, 85-87, 102.
Failing to properly calculate the cost for, and subsequently fund, a public
education system under the STAAR regime essentially decoupled the State’s
standards from the funding. Without any idea of cost and, in fact, while cutting
costs at a time when students needed more support to meet rising state standards,
the State cannot plausibly claim that it has “structured, operated, and funded” the
public school system “so that it can accomplish its purpose for all Texas children.”
WOC II, 176 S.W.3d at 753.
50
III.
THE LACK OF IMPROVEMENT IN ACADEMIC
PERFORMANCE OF TEXAS’S MOST VULNERABLE
STUDENTS IS THE FORESEEABLE RESULT OF
COMBINING CHRONIC UNDERFUNDING WITH HIGHER
ACADEMIC STANDARDS.
A sea of difference lies between where the State has set its academic
performance standards and how students measure up – a gap not unpredictable
given the State’s shortsighted lack of investment in its schoolchildren. FOF102,
FOF109, FOF126—FOF128, FOF160, FOF169; see generally FOF130—FOF157.
Even under the Level II standard, after the second year of STAAR, hundreds of
thousands of students were still off-track to graduate based on their poor
performance on the EOC exams required under HB 5.
FOF9; Ex.6618:23;
Ex.11366; RR54:140-142. For example, on the STAAR Spring 2013 EOC exams,
less than half (49.5%) of all students met the Phase-in I Level 2 standard and less
than a quarter (23.5%) met the Level II Final standard, to say nothing of the State’s
Level III standard that it repeatedly equated with college readiness. FOF295;
Ex.6620. Unlike the TAKS exam—in effect during WOC II—where the passing
standard increased incrementally from the base to the recommended standard over
a span of three years, the State has not yet heightened the STAAR passing standard
as it was scheduled to do. See Ex. 6350. Also unlike previous results on the
TAKS test, student test scores did not meaningfully improve since WOC II under
the STAAR regime for economically disadvantaged and ELL students.
51
A.
The STAAR results show stagnant performance and
unacceptable performance gaps between economically
disadvantaged students and their more affluent
counterparts.
The STAAR results for economically disadvantaged students lagged at
daunting rates. For example, on the Spring 2013 STAAR EOC exams, only one of
three economically disadvantaged students reached even the lower Level II Phasein I standard on all tests. FOF302; Ex.6618:25. On the grades 3-8 tests, not even
half (47.9%) of economically disadvantaged students met that standard. FOF295;
Ex.6620.
The following table illustrates the flat performance, from the first STAAR
administration in 2012 to its second the following year, of both economically
disadvantaged and non-economically disadvantaged students:
STAAR Tests – Combined English and Spanish
% Passing at Level II
Phase-In 1 Standard
First Administration Only—Spring 2012 and Spring 2013 Spring Spring Change
2012
2013
Grades 3 – 8 Reading Econ. Disadvantaged*
67%
66%
-1
Grades 3 – 8 Reading Non- Econ. Disadvantaged*
88%
88%
0
Grades 3 – 8 Mathematics Econ. Disadvantaged*
63%
62%
-1
Grades 3 – 8 Mathematics Non- Econ. Disadvantaged*
83%
83%
0
Grades 4 and 7 Writing Econ. Disadvantaged*
63%
61%
-2
Grades 4 and 7 Writing Non- Econ. Disadvantaged*
84%
83%
-1
Grades 5 and 8 Science Econ. Disadvantaged*
62%
65%
+3
Grades 5 and 8 Science Non- Econ. Disadvantaged*
85%
86%
+1
Grade 8 Social Studies Econ. Disadvantaged*
48%
52%
+4
Grade 8 Social Studies Non- Econ. Disadvantaged*
75%
78%
+3
Algebra I Econ. Disadvantaged^
72%
71%
-1
52
Algebra I Non-Econ. Disadvantaged^
English I Reading Econ. Disadvantaged^
English I Reading Non-Econ. Disadvantaged^
English I Writing Econ. Disadvantaged^
English I Writing Non-Econ. Disadvantaged^
Biology Econ. Disadvantaged^
Biology Non-Econ. Disadvantaged^
World Geography Econ. Disadvantaged^
World Geography Non-Econ. Disadvantaged^
85%
56%
81%
41%
70%
81%
93%
72%
90%
84%
59%
83%
41%
70%
83%
94%
72%
90%
-1
+3
+2
0
0
+2
+1
0
0
Ex.6618:26.
In addition, the table also shows how poor students compare with their more
affluent counterparts for the STAAR tests grades 3-8 during both years, there was
at least a 20-point performance gap on every subject. Id. For the higher grades,
the performance gap between economically disadvantaged students and their noneconomically disadvantaged counterparts ranged from 13 to 20 percentage points.
Id. The performance gaps in reading, writing and math for STAAR exams at all
grade levels, except the English I EOC, either worsened or stayed the same.
B.
The STAAR results show “dismal” and stagnant
performance of and unacceptable achievement gaps
between ELL and non-ELL students.
Described as “dismal” by the State’s bilingual and ESL director, ELL
passage rates on the STAAR exams serve as a wake-up call to those who fail to
prioritize the education of one of the state’s fastest-growing demographic groups.
FOF 364; RR34:185-86; Ex. 4233-B. Coultress Dep., at 178. Almost four of five
53
ninth-grade ELL students failed to reach even the lower Level II phase-in standard
on the Spring 2013 English EOC. FOF361. In the lower grades, one third of ELL
third-graders did not meet the same standard on their English Reading STAAR. Id.
That performance gaps between ELL and non-ELL students widened for two
of the three EOC exams administered in 2013 presents a particularly troubling
trend. The following tables show both the “dismal” scores and achievement gaps.
2013 EOC
% ELL Students %
Non-ELL
Unsatisfactory
Students
Unsatisfactory
English I Writing
91%
48%
Algebra I
49%
20%
Biology
45%
12%
FOF362; Ex.4259 at 107, 110, 112.
2012 EOC
% ELL Students %
Non-ELL
Unsatisfactory
Students
Unsatisfactory
English I Reading
82%
28%
English I Writing
92%
41%
Algebra I
40%
16%
Biology
42%
11%
FOF363; Ex.4114:1; Ex.4115:1; Ex 4131:1.
54
Both ELL students and non-ELL students alike failed to meet even the lower
Level II phase-in standard, as shown above, again suggesting that the State does
not provide a general diffusion of knowledge. Id.
C.
Even under other measures, the performance of
economically disadvantaged and ELL students has
stagnated or worsened since WOC II, and show that
students are not graduating college and career ready.
1.
TELPAS scores indicate that Texas
underserves its ELL student population.
grossly
Inspection of the results on the Texas English Language Proficiency
Assessment System (“TELPAS”), which evaluates the English language
proficiency of the State’s ELL students, tells a story of stagnant or worsening
performance, even under outdated and less rigorous standards. FOF349—FOF350;
Ex.1104:13-14. Whereas Texas has deemed a student with a TELPAS score of
“advanced high”—the highest of four levels of proficiency—as predicted to pass
TAKS, the State has made no attempt to similarly align TELPAS with the more
rigorous STAAR standards. FOF349—FOF350; Ex.4054:36; Ex.4224-T:148-150.
Consequently, Texas does not have a way of accurately measuring against college
readiness standards under the STAAR system. FOF350. However, even as a
standalone measure, TELPAS scores indicate that the State “grossly underserv[es]”
ELL students. FOF360. In 2012, almost half (49%) of all ELL students in grades
3-12 failed to achieve the advanced high level that indicates likely success on
55
TAKS, saying nothing of how they would perform on the more difficult STAAR
exam. FOF355—FOF356; Ex.4180 at 30. The next year, in 2013, that percentage
remained “virtually the same” at 47%. FOF354, FOF356; Ex.4262.
Under TELPAS, the State expects ELL students to advance at least one level
of proficiency for each year of bilingual or ESL instruction, but the results indicate
that the State falls far short of that expectation. For example, 34% of ELL students
in grades 3 to 12 (about 134,000 students) failed to advance one level during 201213. FOF349, FOF352; RR35:73-74, 105-106. Under TELPAS, the State also
expects students to attain English proficiency within four to five years.[16]
FOF352; RR35:108.
However, Texas has again failed to meet its own
expectations, evidenced by a growing population of “long-term ELL students” –
students classified as ELL for at least six years in U.S. schools. FOF353. In 2013,
nearly one in three ELLs in grades 3-12 was a long-term ELL student. Id.;
Ex.4262. Performance among that category of ELL students also seems to have
worsened: in 2012, 36% of long-term ELLs in grades 3-12 failed to progress even
one level, with over 40% of ELL students in the upper grades (10 to 12) made no
progress; the following year, the percentage worsened to 41%. FOF354.
[16]
Pre-K and kindergarten, however, are not even counted for purposes of the number of years
students attended U.S. schools. FOF351; RR35:89-91.
56
2.
Current retention, graduation and dropout rates of
Texas’s high-need students serve as warning signs to
the future of the State’s economy and, left alone, spell
disaster.
Students struggling with English proficiency not surprisingly tend to
graduate at lower rates and dropout at higher ones. Few indicators sound the
warning alarm to Dr. Murdock’s bleak economic predictions as the State’s
retention, graduation and dropout rates.
FOF18—FOF19.
The trial court
concurred with one expert’s testimony stating that one in four students failing to
graduate was disastrous. FOF250, FOF207. If experts describe Texas’s overall
graduation rate as “a disaster,” they can only describe those of economically
disadvantaged and ELL students as catastrophic, particularly given the State’s
demographic shifts. Id. Poor and ELL students are far more likely to be held back a
grade, drop out at much higher rates than other students, and are less likely to
graduate. See generally FOF328—FOF329, FOF372—FOF375.
For example, in 2011-12, economically disadvantaged students were
retained at the secondary level at more than double the rate (6.2% vs. 2.9%) of
their non-economically disadvantaged counterparts. FOF328; Ex.4628:35. The
previous school year, districts retained ELL students in grades seven to twelve at a
rate 244% greater than non-ELL students. FOF373; Ex.4268:43; Ex.1085:3-4;
Ex.430:9.
57
Dropout data for economically disadvantaged and ELL students remain
dismal and have actually worsened. FOF329; Ex.4258 at 10. For example, the
State’s own numbers shows that one in twelve low-income students dropped out of
school and one in six did not graduate within four years. Id. Likewise, in the
Class of 2012, ELL students dropped out at three times the rate of the general
student population. FOF374; Ex.4269:73. In fact, in 2012 only 61.6% of ELL
students graduated – more than 25 percentage points below the rate for all students.
FOF374; Ex.4269:73 The gaps in both the graduation and dropout rates for these
two subgroups actually increased from the Class of 2011 to the Class of 2012
cohort.
3.
The low and declining benchmark SAT and ACT
scores show that Texas’s ELL and economically
disadvantaged students are not prepared for college.
The State has also looked to performance on the SAT and ACT exams to
measure students’ college readiness and developed its own benchmark scores on
those tests accordingly. FOF160, FOF1112; Ex. 10324 at 56. By the State’s own
measures, students from low-income families and in many districts with high
concentrations of ELL and economically disadvantaged students are not on track
for college, with percentages actually declining.
Among Edgewood ISD Plaintiffs, for example, in 2012-13, students in San
Benito CISD reached the State’s SAT/ACT college-readiness indicator at an
58
alarming one-third the state average – 6.8% versus 24.9% – a percentage that
actually fell from 9% the previous year. FOF1128; Ex. 805. at Sec. 1, p. 11. In La
Feria ISD, 7.2% of students reached the State’s criterion, a decrease of over two
percentage points from the year before. FOF1145; Ex.4015 at Sec. 1, p. 11. In
Edgewood, a mere 2.3% of all students met the benchmark, a drop from 3.8% the
previous year. FOF1112; Ex.828 at Sec. 1, p. II; Ex.20254 at 13-14.
In addition, the trial court found that as the percentage of poor students in a
district increases, that district’s SAT and ACT scores decrease:
FOF296 (citing Ex. 6349 at 49). Ex.6322:60; RR6:222–25.17
4.
NAEP and TAKS scores tapered off after WOC II.
At the time of the WOC II decision, the evidence available to the Court
showed increasing scores on the TAKS exam the National Assessment of
17
More troubling, the aforementioned data only accounts for students actually attempting the
SAT and ACT. For the class of 2012, only 55.9% of economically disadvantaged students took
the SAT or ACT exams, compared to 66.9% of all students statewide. FOF320; Ex.4258:11. Of
those tested, less than one in 10 economically disadvantaged students met TEA’s college-ready
criterion, compared to one in four of all students. FOF320; Ex.4258:11.
59
Educational Progress (“NAEP”) exams. WOC II, 176 S.W.3d 789-90. The Court
noted that passing rate on the TAKS had increased during the first five years of
that test from 2003 to 2007. FOF177; Ex.6322:21. Over the subsequent five
years, however, the passing rate for the TAKS exam increased by just seven
percentage points, or less than two pointes per year. Id. The State portrays the lag
in student performance on the TAKS as the result of students “topping out” on the
exam. State Br. at 111-12. To its own detriment, considering the current and
predicted shifts in population, the State completely disregards the performance of
economically disadvantaged and ELL students, who progressed even more slowly,
with one in three poor students failing to achieve “the low ‘met standard’” on each
of the TAKS tests taken. Id; FOF322. In addition, nothing about an 18 percentage
point performance gap between economically disadvantaged students and their
counterparts suggest that those students have “topped out.” Few would argue that
such scores reflect Texas’s students achieving their potential, particularly when
reminded that economically disadvantaged students comprise the majority of the
State’s students. FOF321.
Despite the State’s “topping out” spin, Texas’s NAEP scores during the
same period tell a different story. Student performance stalled on the NAEP, which
Texas fourth and eighth graders take in math and reading every other year.
FOF170—FOF176; RR26:160-61, 164-72; see generally FOF181—FOF188;
60
RR26;160-61, 164-72; Ex.5460:1. Since 2005, Texas’s scores have remained
relatively stagnant on three of the four NAEP tests. RR26:172.
Again, the State conveniently disregards the performance of economically
disadvantaged and ELL students, who have experienced increasing achievement
gaps on the NAEP since WOC II. State Br. at 114; FOF201; RR26:177. For
example, the performance gaps on the fourth grade reading NAEP between
economically disadvantaged students and their more affluent counterparts and
between White and Hispanic students have widened since 2005, and such gaps
minimize any gains. FOF201; RR26:157-177.
NAEP scores are questionable indicators for ELL students anyway, since
states and districts can outright exclude certain ELL students.
FOF203;
RR26:189–91, 200–01; Ex.5678:19–22. In 2011, Texas had the highest exclusion
rate of ELL students in the country. FOF203; RR26:191–92.
The abovementioned outputs, from SAT and STAAR to graduation and
retention rates, demonstrate the inadequacy of the current school funding system,
which the facts show does not provide for a meaningful opportunity to accomplish
a general diffusion of knowledge—particularly not for its poor and ELL students.
The State failed to take the steps needed to avoid the “impending adequacy
violation” of which this Court warned. WOC II, 176 S.W.3d at 790. Continuing
61
down the current path will lead to predictable yet devastating impacts for the future
of the State.
SUMMARY OF ARGUMENT
An adequate public education system is reasonably able to provide to all
students access to a quality education that enables students to achieve their
potential and fully participate now and in the future in the social, economic, and
educational opportunities of our state and nation; as well as a meaningful
opportunity to acquire the essential knowledge and skills reflected in curriculum
requirements sufficient to be college or career ready upon graduation from high
school. Adequacy is a results oriented standard that focuses on the results of the
educational process measured in student achievement.
In WOC II, the Court warned the State of an impending adequacy violation
if it did nothing to address the causes of the deficient and otherwise unacceptable
performance outputs, especially the achievement gaps between economically
disadvantaged and ELL students and their peers. From 2005 to today, student
performance has deteriorated, and even declined, while the State has
simultaneously cut funding to the system and implemented stricter educational
standards, including more stringent graduation requirements.
The trial court found evidence of dramatic growth of the population of
economically disadvantaged and ELL students both in absolute terms as well as
62
percentage of Texas public school students. Recognizing that the achievement gap
between these students and their non-disadvantaged peers would be an enduring
feature of the Texas educational system absent an intervention by the Legislature,
the trial court found that the educational system was inadequate because the school
districts were not able to provide economically disadvantaged and ELL students a
meaningful opportunity to achieve a general diffusion of knowledge, namely
because they could not offer the programs necessary to overcome their educational
obstacles. The trial court found that the size of the economically disadvantaged
population was so great that the achievement gaps they faced rendered the entire
system constitutionally inadequate.
The State objects to the trial court’s adequacy findings and conclusion,
arguing that the trial court erred when it found that the ISD Plaintiffs overcame the
presumption that an accredited education provided an adequate education, that the
trial court improperly relied on “inputs” to the system in making its adequacy
determination, and that the trial court improperly disaggregated the adequacy
determination to components of the system.
Edgewood ISD Plaintiffs establish here that the trial court’s findings were
supported by significant evidence of deficient outputs from the record, sufficient to
overcome any presumption that students receiving a state accredited education
were also receiving an education that accomplishes a general diffusion of
63
knowledge. Edgewood ISD Plaintiffs further prove that the trial court properly
used evidence of system inputs to show that the districts could not provide
meaningful access to the state mandated education. Edgewood ISD Plaintiffs
further prove that the trial court’s determinations that the Legislature acted
arbitrarily by failing to properly fund its own educational mandates, which were
necessary to achieve a general diffusion of knowledge, were supported by the facts
and applicable law. Finally Edgewood ISD Plaintiffs prove that the Legislature’s
failure to provide for, and elimination of, intervention programs that the State’s
experts and its policies acknowledge will narrow the achievement gap, was
arbitrary and unconstitutional.
The Legislature has a duty to make a suitable provision for the support and
maintenance of the public school system.
Suitability requires that the public
school system be structured, operated, and funded so that it can accomplish its
purpose.
The constitution requires that the Legislature provide the resources
necessary to meet the system’s goal of a general diffusion of knowledge for all
students.
The trial court properly relied on substantial evidence revealing that the
Legislature made an array of arbitrary choices that rendered the current system
constitutionally unsuitable: the decision to adopt college and career readiness as a
universal standard and increase performance standards accordingly without
64
providing the funding necessary to meet those goals; its decision not to update
weights and allotments that do not reflect the actual cost of education; the decision
to appropriate funds based on the funds available rather than on the funds required
for a suitable education; and the decision to eliminate funding for programs that
assist economically disadvantaged and ELL students in overcoming the
achievement gap.
The State alleges that the system is suitable because it is adequate and
efficient, and that the trial court erred by disaggregating the claims of economically
disadvantaged and ELL students. But the system is not suitable because it is
neither adequate nor efficient, and even if it was found to be both adequate and
efficient, it would still be unsuitable because it does not operate to accomplish a
general diffusion of knowledge for all students. Edgewood ISD Plaintiffs confirm
that the claims of economically disadvantaged and ELL students are not
improperly disaggregated, but are considered as part of the whole system which
guarantees a suitability for all students.
Edgewood ISD Plaintiffs join the arguments of other Plaintiff groups on the
issues of state property tax violation, justiciability, and attorneys’ fees.[18]
[18]
Throughout this brief, Edgewood ISD Plaintiffs make reference to arguments made in briefs
filed by other Plaintiffs in this case, as well as its own brief filed concurrently with this brief,
requesting that the Court incorporate those arguments by reference. Edgewood ISD Plaintiffs
requests that the Court incorporate these arguments in order to avoid repetition, to save space,
and to conserve judicial resources.
65
Edgewood ISD Plaintiffs request that the Court uphold the trial court’s award of
attorney’s fees and retain jurisdiction over this matter.[19]
STANDARD OF REVIEW
The jurisdiction of this Court on direct appeal is limited. Episcopal Diocese
of Fort Worth v. Episcopal Church, 422 S.W.3d 646, 657 (Tex. 2013), cert.
denied, 135 S. Ct. 435 (2014).
On direct appeal, this Court may not take
jurisdiction over any question of fact. Tex. R. App. P. 57.2; State v. Hodges, 92
S.W.3d 489, 493 (Tex. 2002). The Court may exercise jurisdiction over ancillary
issues of law over which it exercises direct appeal jurisdiction. Neeley v. West
Orange-Cove Consol. Indep. Sch. Dist., 228 S.W.3d 864, 868 (Tex. App.—Austin
2007, pet. denied).
The constitutionality of the statutes establishing the public education system
is reviewed de novo. WOC II, 176 S.W.3d at 784-85. See also Hodges, 92 S.W.3d
at 494 (citing Perry v. Del Rio, 67 S.W.3d 85, 91 (Tex. 2001)). The State’s actions
Edgewood ISD Plaintiffs responded to the State’s arguments regarding financial efficiency in its
brief in response to the CCISD brief which was filed concurrently with this brief. Edgewood
ISD Plaintiffs does not waive any arguments regarding either financial efficiency or subject
matter jurisdiction, both of which are addressed in its brief in response to CCISD.
Edgewood ISD Plaintiffs refer the Court to Section I (Argument) the brief they have
concurrently filed together with this brief that addresses the efficiency/equity issues, on the
matter of subject matter jurisdiction which is incorporated by reference herein.
[19]
Edgewood ISD Plaintiffs refer the Court to Section VI.B (Argument) of Fort Bend ISD
Plaintiffs’ brief, Section V (Argument) of the CCISD Plaintiffs’ brief, and Section VI
(Arguemnt) of the Fairness Coalition Plaintiffs’ brief, on the matter of the reasonableness of the
attorney’s fees award, as well as the arguments on why the Court should retain jurisdiction,
which are incorporated by reference herein.
66
are reviewed under an arbitrariness standard, which does not allow for a violation
of article VII, section 1 despite the existence of a rational basis or compelling
reason for doing so.
WOC II, 176 S.W.3d at 784.
Instead the Court must
determine whether the State’s action has been taken with reference to guiding rules
or principles. Id. (citing General Tire, Inc. v. Kepple, 970 S.W.2d 520, 526
(Tex.1998)); WOC I, 107 S.W.3d at 571. Similarly, the Legislature may not
“define the goals for accomplishing a general diffusion of knowledge and then
provide insufficient means for achieving those goals.” WOC II, 176 S.W.3d at
785. The arbitrariness standard creates appropriate boundaries for the Legislature’
broad discretion “to determine what public education is necessary for the
constitutionally required ‘general diffusion of knowledge’, as well as the State’s
determination of the “means for providing that education.” Id.
To the extent that a constitutional determination relies on disputed fact
issues, the Court relies “entirely on the district court’s findings.” WOC II, at 785;
see also O’Quinn v. State Bar of Texas, 763 S.W.2d 397, 399 (Tex. 1988). The
Court’s findings can only be overturned if they are supported by legally
insufficient evidence. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757,
67
761 (Tex. 2003).[20] The trial court’s fact findings on the weight given to evidence
should be given deference. Harris Cnty. v. Hall, 141 Tex. 388, 398 (Tex. 1943).21
The trial court’s judgment in granting attorneys’ fees is reviewed for an
abuse of discretion. Neeley v. West Orange-Cove Consol. Indep. Sch. Dist., 228
S.W.3d at 867 (citing Oake v. Collin County, 692 S.W.2d 454, 455 (Tex. 1985)).
The trial court’s award of attorneys’ fees will not be reversed unless there is
sufficient evidence that the fees were unreasonable and unnecessary, or when the
award was inequitable or unjust. Id.
ARGUMENT AND AUTHORITIES
I.
THE TRIAL COURT PROPERLY DECLARED TEXAS’S
EDUCATION SYSTEM CONSTITUTIONALLY INADEQUATE.
The trial court properly concluded that the constitutional right of adequacy
extends to all Texas schoolchildren, and both school children who are denied
access to adequate education as well as the general public will suffer irreparable
harm as a result of a constitutional violation. COL33. (citing WOC II, 176 S.W.3d
[20]
Despite the State Defendants’ claims otherwise, “as applied” constitutional challenges are
“cognizable” under Article VII, section 1. To raise a congnizable “as applied” challenge, the
ISD Plaintiffs need only show that the operation of a statute is unconstitutional as applied to
them. HCA Healthcare Corp. v. Tex. Dep't of Ins., 303 S.W.3d 345, 349 (Tex. App.—Austin
2009, no pet.). The trial court found that the system was inadequate and unsuitable for
economically disadvantaged and ELL students. COL35, COL79. The trial court was well within
its bounds.
21
Edgewood ISD Plaintiffs refer the Court to Section II.A (Argument) the brief of the Fort Bend
ISD Plaintiffs, regarding the standard of review for a violation of Article VIII, sec. 1-e, which is
incorporated by reference herein.
68
at 774). The trial court correctly found that the structure of the Texas school
finance system makes it impossible for districts to access adequate funds to
provide the required level of education, and that the Legislature failed to provide
adequate facilities funding. COL33; COL34. The trial court also properly found
that the Texas school finance system was in violation of the “general diffusion of
knowledge” clause of Article VII, section 1 of the Texas Constitution for all
students and in particular with respect to economically disadvantaged and ELL
students, because the Legislature failed to provide sufficient means for achieving
the general diffusion of knowledge it had prescribed. COL35.
A.
The trial court properly identified applicable legal
standards for adequacy claims under article VII, section 1.
A constitutionally adequate school system has three elements:
1.
it is reasonably able to provide to all of its students;
2.
access to a quality education that enables students to achieve
their potential and fully participate now and in the future in the
social, economic, and educational opportunities of our state and
nation; and
3.
a meaningful opportunity to acquire the essential knowledge
and skills reflected in curriculum requirements sufficient to be
college or career ready upon graduation from high school.
COL21 (citing TEX. EDUC. CODE §§ 4.001 28.001, WOC II, 176 S.W.3d. at 787).
All three elements must be met for a system to be found constitutionally adequate.
The State acknowledges and adopts this standard. State Br. 79-80.
69
The Court has held that “accomplishment of ‘a general diffusion of
knowledge’ is the standard by which the adequacy of the public education system
is to be judged.” WOC II, 176 S.W.3d at 787. The Court sanctioned using the
Legislature’s own “statutory language” to define a general diffusion of knowledge.
Id. at 788. Adequacy examines whether all students receive both access to an
education that meets the general diffusion of knowledge standard, as well as a
meaningful opportunity to acquire a general diffusion of knowledge. The Court
looks to “the results of the educational process measured in student achievement”
to determine if districts are reasonably able to provide both access and opportunity
for all students. Id. at 788. As part of this inquiry, the Court may consider “how
funding levels and mechanisms relate to better-educated students.” Id.
B.
Several issues that the State has identified are not subject to
de novo review, and are thus outside of the Court’s direct
appeal jurisdiction.
The trial court’s findings of fact that support its conclusions of law are not
subject to judicial review when on direct appeal. Tex. R. App. P. 57.2; WOC II,
176 S.W.3d at 785.
The State’s following points of error are within the Court’s de novo review.
• The evidence necessary for meeting the presumption that an
accredited education requiring GDK is adequate. Id. at 83-94.
• Whether adequacy determinations rely solely on educational
“outputs.” Id. at 94-102.
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• Whether the trial court can statutory goals to fault a system
working toward those goals. Id. at 102-106.
• Whether an inadequacy determination can rely on specific harm
to economically disadvantaged and ELL students. Id. At 107108.
The following points of error require the Court to engage in review of fact
findings and are not within the Court’s jurisdiction, because they rest on “factual
matters in dispute.” WOC II, at 785; see also O’Quinn v. State Bar of Texas, 763
S.W.2d 397, 399 (Tex. 1988) (appellant in direct appeal “voluntarily waived any
constitutional objections that would require fact findings in his favor”).
• The Court’s findings that the TEA accreditation standards don’t
sufficiently consider the performance deficiencies of
economically disadvantaged and ELL students. State’s Br. at
84-85.
• The Court’s finding that the TEA accountability standards don’t
measure whether districts and schools pass muster.
• The Court’s findings that the system is presumptively
inadequate are not supported by the evidence in the record. Id.
at 108-109.
• The Court’s findings that the system’s outputs don’t show
student achievement are not supported by the evidence in the
record. Id. at 109-116.
Although the Edgewood ISD Plaintiffs address these latter points, they still
respectfully urge the Court to limit its review to the legal questions properly raised.
71
C.
The Trial court properly found that Edgewood ISD
Plaintiffs rebutted any presumption that accreditation is
equivalent to adequacy under the current system.
Although the Court has recognized a presumption that accreditation is the
same as a GDK, it has also acknowledged that “it is possible for them not to be—
an accredited education may provide more than a general diffusion of knowledge,
or vice versa . . . .” WOC I, 107 S.W.3d at 581.
The trial court found that the Plaintiffs rebutted any presumption that an
accredited education is equivalent to a constitutionally adequate education.
FOF112, FOF122; See WOC II, 176 S.W.3d at 787. The trial court found that “the
accountability system does not measure, and accreditation is not equivalent to, a
general diffusion of knowledge,” and that the State requires much more from
schools and districts “beyond the requirements…measured by the accountability
system.” FOF121—FOF122.
The State’s argument that it provided an accredited education requiring the
trial court to find that the education meets GDK is legal and factual error, and is
not supported in the evidence in the record.
1.
The State’s focus on the accreditation standards is not
dispositive of the presumption of adequacy.
Contrary to the State’s claim, the trial court’s hands are not tied once the
State demonstrates that the TEA accreditation standards were sufficient to provide
72
GDK. If those standards are set so low as to avoid its constitutional obligation, the
Court does not have defer to them. Edgewood IV 917 S.W.2d at 730 n.8.
The trial court found that the Legislature’s duty was to ensure that districts
have resources sufficient to provide all schoolchildren a meaningful opportunity to
be college or career ready upon graduation from high school, to provide all
schoolchildren a meaningful opportunity to acquire and master the TEKS as
measured by the State’s assessment system, and to meet the mandates of the
Education Code.
In accordance with the State’s own stated goals and standards, the following
students do not receive an adequate education: those who do not graduate from
high school, those who graduate, but are not college or career ready, and those who
are not meeting adequate performance reviews based on their STAAR results.
FOF103; COL27.
Because the evidence in the record indicates that students who are not
receiving an adequate education attend accredited schools, the presumption that an
accredited education is constitutionally adequate is rebutted, and it is appropriate
for the Court to then turn to the next inquiry of whether students are receiving a
meaningful opportunity to obtain an adequate education.
73
2.
The State’s assertion that its accreditation standards
presumptively prove an education that provides GDK
is not supported by the evidence in the record.
a.
The State’s accountability system does not
accurately capture the performance of
economically disadvantaged and ELL students.
The trial court found the exclusion of these students as specific groups to
determine that accreditation does not accurately reflect or measure student
performance for those groups (and therefore does not demonstrate that those
groups are achieving GDK). FOF116. Specifically, as shown above in Section
I.A. (Facts), infra, the progress measure excluded economically disadvantaged
students, who make up the majority of public school students, and the measure for
whether the achievement gap is closing similarly excludes ELL students, who have
some of the largest performance gaps in the State. FOF116, FOF13; Ex.20224.
The State Defendants counter that the accountability system considered the
performance of included economically disadvantaged and ELL students in other
indices as “All Students,” just not as disaggregated groups. State Br. at 85-86.
The trial court’s conclusion was reasonable, however, because the “All student”
group outperforms economically disadvantaged and ELL students across the board,
and the higher performance of “All students” masks the lower performance of
economically disadvantaged and ELL students if the latter groups are not
disaggregated. FOF 318. Because the Court’s findings on the weight accorded to
74
the evidence are entitled to deference, the State’s argument cannot meet its burden
for reversal. See, e.g., Harris Cnty. v. Hall, 141 Tex. 388, 398 (Tex. 1943).
b.
The use of phased-in testing standards permits
an accountability standard below GDK.
The State argues that the accountability system’s use of phased-in testing
standards to determine whether districts and schools meet GDK is within their
discretion, and that the use of its satisfactory standard (“Level II”) in its
accountability regime is sufficient to determine GDK. State Br. 89-94; FOF96,
101; TEX. EDUC. CODE §39.0241; RR27:97. But Level II is really intended just to
determine minimum competence to graduate from high school - the State allowed a
four-year phase-in period (from 2011-12 to 2014-15) for Level II, designating
2015-16 as the first year students must meet the higher “final Level II standard.”
FOF96. The State has admitted that the college ready standard (known as “Level
III”) is the true metric for college readiness. FOF101; Ex.5624:47-50, 103-106,
180-181; Ex.37:8, 11; Ex.38:8; Ex.39:12; Ex.10871:31, 34, 36; RR30:114-115,
129-130.
Regardless, even though Level II was not the proper standard for
determining college readiness, the trial court focused on the low bar for
accreditation even using the inferior Level II standards as proof of the disconnect
between accountability system and GDK. FOF120, FOF122. Student performance
standards used to determine the “met standard” rating allows the rating to be met if
75
at least fifty percent of the students in a school or district meet Level II. FOF119.
The trial court found that a school can attain a “met standard” rating even if up to
25% of its students do not graduate. Id.
In other words, under the current system, a school can have a 25% drop out
rate, and 49% of its students can be failing the lower Level II standard (which is
not even the college readiness indicator), and still receive accreditation. The State
asks the Court to find that it has discretion to set these targets, because it intends to
improve results over time.
State Br. 89-94.
This is certainly the State’s
prerogative. But by arguing that the accountability system “reasonably factors in
the historic reality of moving to a more difficult testing scheme and judge[ing]
schools and districts accordingly” State Defendants implicitly admits that the
current system is not set up to measure whether districts are achieving a general
diffusion of knowledge today. The trial court found that this metric does not meet
the constitutional standard for adequacy, a finding that is within the judiciary’s sole
purview. Edgewood IV 917 S.W.2d at 730 n.8; WOC II, 176 S.W.3d. at 753.
c.
The trial court’s reference to the exclusion of
community and student engagement ratings was not a
significant consideration for determining that
accreditation was defective.
The State argues that the trial court relied on the exclusion of community
and student engagement ratings mandated by HB 5 from accountability ratings as
76
conclusive proof of the accountability system’s defectiveness. State Br. at 86-87.
This misrepresents the trial court’s findings. The trial court offered the exclusion
of the ratings as “an example” of requirements above and beyond the
accountability system. FOF121. The trial court’s finding that accreditation did not
ensure GDK turned on the traditional output factors cited by the State as the true
test of adequacy. FOF119—FOF120.
3.
The State’s own witnesses admitted that the
accountability system is based on getting as many
schools and districts accredited as possible, not
measuring a GDK.
The State argues that there is no evidence in the record that supports the trial
court’s conclusion that the TEA’s accountability system does not measure whether
students are achieving GDK, but rather is designed to ensure that “most districts
and schools pass muster.” State Br. at 88-89. To the extent that this point of error
presents a question of law that the Court can review, it is undermined by the
evidence in the record.
The State admitted at trial that its accountability system, which is closely
related to accreditation, is not set to set to measure whether districts are achieving a
GDK. FOF113, FOF122; TEX. EDUC. CODE § 39.052(b); 19 TEX. ADMIN. CODE §
97.1055. Instead, it is designed to ensure that most districts are accredited, or have
77
a “met” standard or higher. FOF115—FOF120. It also excludes performance
measures for economically disadvantaged students and ELL students.
Even if TEA intended the new accountability system to reflect a “broad and
comprehensive picture” of performance, at the end of the day, the system’s ratings
are based primarily on ensuring that as many districts as possible received
accreditation. Shannon Housson, the Director of TEA’s Division of Performance
Reporting, testified that the advisory committees that helped establish the system
standards based their recommendations to the Commissioner (which were
accepted) on how many schools could meet the targets at different levels – not on
the goals of the system. FOF117; Ex.5785, Housson Dep. Vol. II, at 48-50.
Furthermore, none of the indices consider whether any students, much less
economically disadvantaged and ELL students, have reached the Level II final
standard on STAAR, the level which indicates college and career readiness.
FOF118. The trial court credited this unrefuted evidence which showed that, under
the current system, accreditation targets are not linked in a meaningful way to
GDK, and targets are set low to ensure that higher numbers of districts and schools
receive accreditation.
The trial court also noted the exclusion of economically disadvantaged and
ELL students from certain indices to show that, as a whole, it was not a measure of
GDK for all students. Specifically, the index for student progress excludes
78
economically disadvantaged students as a disaggregated growth, meaning those
students are not included in the district or school’s measure for student growth.
FOF116; Ex.5785, Housson Dep. Vol. II, at 158. Similarly, ELL students are not
included as a disaggregated group in the index that measures whether districts are
closing achievement gaps, even though ELL students face some of the largest
achievement gaps in the state. FOF116; Ex.5785, Housson Dep. Vol. II, at 159
FOF361—FOF371. Because the accountability system as a whole is supposed to
reflect closing achievement gaps and postsecondary readiness, the exclusion of
struggling student groups from certain indices confirms that the system does not
measure GDK for those students the way it does for others.
D.
The trial court properly found that the system’s “outputs”
provided sufficient evidence of inadequacy.
The State argues that the trial court’s adequacy determination was based
solely on evidence of inputs, namely funding and education programs—this is
false. Compare State Br. 94-99. Contrary to the State’s assertion, the Trial court
provided extensive findings relating to “outputs” in support of inadequacy holding.
1.
The trial court considered the same factors the Court
in WOC II, and found that outputs had remained the
same or had deteriorated.
The trial court evaluated the same output measures recognized by this Court
in WOC II that prompted the Court to admonish the State of an “impending”
79
adequacy violation. WOC II, 176 S.W.3d at 790. Before finding that the public
school system was inadequate, the trial court reviewed overwhelming evidence
which revealed that several of the prior concerns of the Court in WOC II have not
only persisted, but magnified. Compare WOC II, at 789.
Facts in WOC II, 176 S.W.3d at 789
Fact findings in trial court record
Wide gaps in performance among
student groups, differentiated by race,
proficiency in English, and economic
advantage;
High non-completion rates
performance gaps differentiated by race,
proficiency in English, and economic
advantage have persisted - FOF209,
FOF298—FOF349
high non-completion rates - FOF329,
High dropout rates
High dropout rates - FOF374
Failure of the performance measures to
account for and the loss of students who
are struggling, leading to inflated
performance results
The performance measures continue to
exclude students who are struggling,
devaluing the integrity of performance
results - FOF203, FOF378
Very low rates of students meeting
college preparedness standards;
Low rates of students meeting college
preparedness standards - FOF160—
FOF164
The system still suffers from high
attrition and turnover among teachers
statewide - FOF526—FOF528
High attrition and turnover among
teachers statewide, due to increasing
demands and stagnant compensation.
The consistently dismal results of the STAAR evaluation of college
readiness shows that Texas children are not meeting the State’s minimum standard.
FOF130—FOF134. Even at the initial standards which are set much lower than
the final standards, over half of ninth graders tested in Spring 2012 failed at least
one STAAR college readiness exam (EOC). FOF131. At the final standards that
80
are scheduled to be implemented in 2015-16, 81% of ninth graders failed at least
one EOC. Id. The results of several retests did not show much improvement—
122,680 students statewide had still not passed all of the EOCs and were not on
track to graduate. FOF137—FOF139. The Spring 2013 STAAR exam similarly
showed little progress, with 51% of the students failing at least EOC. FOF140,
FOF145. As a result, “hundreds of thousands” of students still have not passed all
EOCs required to graduate, meaning that they are not receiving the education
promised by their accredited school districts. 22 FOF155.
2.
The trial court properly relied on evidence of the
growing
disparity of performance between
economically
disadvantaged and ELL students
and their peers.
The STAAR results for economically disadvantaged and ELL students lag
far behind their peers, with no trend toward narrowing the achievement gap.
FOF135, FOF145. The record contains voluminous findings about the dismal
performance results of economically disadvantaged and ELL students as compared
to their peers. FOF209, FOF294—FOF316. As recently as the Spring 2013
STAAR tests, 64% of economically disadvantaged students failed to pass at least
one EOC test at the Level II phase in 1 standard, as compared to 35% of their nondisadvantaged peers. FOF300. The evidence in the record demonstrates that
22
Edgewood ISD refer the Court to Section I.C. (Argument) in the brief of the CCISD Plaintiffs,
which is incorporated by reference herein.
81
nearly 135,000 economically disadvantaged students are not on track to graduate.
FOF307.
Dropout and graduation rates for economically disadvantaged children show
that nearly one in twelve dropout of school, and one in six fail to graduate within
four years. FOF329. This rate has increased from 2011. Id.
The trend of TELPAS results shows that 34% of ELL students failed to
progress one level in learning English in 2012-13. FOF352. The Spring 2012
TELPAS report showed that between 65-73% of ELL students in grades 9-12 were
not at the advanced high level of proficiency in writing at the secondary level,
which did not improve in 2013. FOF357.
The STAAR results for ELL students are predictably bad for English EOCs.
FOF363—FOF364.
The trend of STAAR performance has not improved.
FOF363—FOF366.
ELL students are retained at 244% greater rate than their non-ELL peers.
FOF372. ELL students are also three times more likely to drop out of school than
the rest of the student population. FOF374.
The evidence at trial showed little signs that the gaps between ELL and nonELL students were closing. FOF375.
The fact that STAAR and TELPAS assessment results have stagnated for
economically disadvantaged and ELL students, is evidence that there is persistent
82
and growing inequality between these children and their peers, especially in
performance assessments that are most reflective of college readiness.
See
FOF314—FOF315, FOF375. Non-disadvantaged students continue to outperform
disadvantaged students, as evidenced by persistent and growing achievement gaps.
FOF322—FOF325. The persistently higher drop-out rates and lower graduation
rates of economically disadvantaged students and ELL students compared to nondisadvantaged students proves that economically disadvantaged students and ELL
students are not even partially meeting the goal of finishing high school, much less
finishing college and career ready. FOF329, FOF374.
3.
The trial court’s fact finding is entitled to deference
In short, the trial court properly found that by all of the performance
measures considered at trial including “STAAR tests, EOC exams, SATs, the
ACTs, performance gaps, graduation rates, and dropout rates, among others,”
Texas public schools are not accomplishing a general diffusion of knowledge.
FOF71.
Moreover, there is no evidence of trend toward improvement in scores as
was demonstrated in WOC II. FOF169; Accord, 176 S.W.3d at 789-90. The
performance
of
economically
disadvantaged
and
ELL
students
more
overwhelmingly highlights the failure of public schools to deliver a GDK to all
students. See Sec. III (Facts), supra.
83
Based on the evidence presented, it is clear that trial court is entitled to
deference on its allocation of the great weight of the evidence it relied upon to
support its conclusion.
E.
Funding “inputs” support the trial court’s ruling on
inadequacy.
The State alleges that evidence of “inputs,” such as funding or education
programs, are never proper in an adequacy analysis. State Br. at 94-95. The
Edgewood ISD Plaintiffs don’t deny that the adequacy standard is “results
oriented.”
WOC II, 176 S.W.3d at 788.
Contrary to the State Defendants’
argument, “educational ‘outputs’” are not the “only proper adequacy metric.”
State Br. at 95. This standard still requires the funding of education up to the level
of a general diffusion of knowledge. WOC II, 176 S.W.3d at 788.
The State asserts that determining the amount of funding for programs
needed to attain GDK is not proper for adequacy analysis. State Br. 99-100. The
State also asks the Court to disregard any findings determining which programs are
necessary to meet GDK as improper consideration of “inputs.” Both arguments
fail for the same reason – providing a GDK costs money.
Once the trial court found the system to be inadequate based on “outputs,” or
student performance, it proceeded to consider “how funding levels and
mechanisms relate to better educated students.” WOC II, 176 S.W.3d at 788 The
84
trial court did not err by concluding that providing an adequate education for all
students costs money, and that the State has never cared to calculate, much less
provide, the “[]sufficient means for achieving” a general diffusion of knowledge.
See id. at 785.
1.
The State has a duty to calculate the costs of
providing the education that they require the school
districts to provide, but they have failed to conduct
updated cost studies.
The Texas Education Code requires the State to undertake studies on the
costs of meeting state performance requirements. TEX. EDUC. CODE § 42.007
COL30; FOF627; See Supra. The State has not updated its Cost of Education
Index (“CEI”) nor conducted any other study that can provide guidance on the
actual costs of its education policy. FOF597—FOF99. The existing CEI has not
been updated since 1990 and the trial court found it to be “outdated” and
inaccurate. FOF599, FOF604—FOF606.
The trial court relied on evidence presented by a host of school district
superintendents from all over the State and education experts to determine the
costs of providing adequate education because the State failed fulfill its
constitutional and statutory duty to determine the cost of its own performance
standards. FOF603—FOF624, FOF627. The superintendents testified regarding
the disconnect between the expectations set by the new state standards and the
85
current level of state funding. FOF607—FOF609. The education experts provided
cost models that estimated the expenditures required of prototypical school
districts located in different regions of Texas to meet state program requirements.
FOF610—FOF620.
The State’s own witnesses acknowledge that the State has not made any
effort to calculate the costs of compliance with its more rigorous standards.
FOF603; RR32:75-76, 132-33. 196, 202-05; RR33:26-27. 138-41; RR27:134-35,
147-48; RR28:172-74, 185-86; RR31:168-69, 174-75; RR34:85, 190-91;
RR62:105-06; RR63:119-20, 136; Ex.4273, Martinez Dep., at 40-41, 43-44, 53-54,
60, 73, 85-87, 102. The trial court thus properly relied on the evidence regarding
education costs provided by Plaintiffs at trial.
2.
The trial court’s conclusion that the State denied the
Edgewood ISD Plaintiffs meaningful access to acquire
the State mandated education is supported by
sufficient evidence.
a.
Overwhelming evidence shows that the State
did not provide sufficient resources to provide
the State mandated education.
The trial court considered evidence of a cost model of the public education
system that retained the core intervention strategies that are necessary to improve
at-risk student performance.
FOF615.
The resulting estimate of the cost of
providing an education that complied with the State’s definition of GDK in 201011, was $46.76 billion, $3.66 more than the actual education expenditures in
86
Texas. FOF619. After adjusting for “enrichment” expenditures, the adequacy
funding deficit widened to $7.76 billion. Id. The trial court found that this
conclusion was a reasonable estimate of the cost of an adequate education in
Texas, even though it did not factor the additional costs imposed by the new
STAAR regime. FOF620, FOF629.
The trial court considered and relied upon evidence that at least $1,000 of
additional funding per WADA is needed to correct the outdated weights and
adjustments and to allow the schools to meet increased state standards. FOF621.
The trial court cited expert testimony that the amount of spending per WADA
sufficient to provide an adequate education under the new standards was $6,404 in
2011. FOF622, FOF631—FOF632. The trial court found that only 259 out of
1,021 school districts could the lowest estimate of estimate for adequate spending
by taxing at the Tier 1 level of $1.04 or less. FOF640.
The trial court concluded that based on the evidence in the record, the
Edgewood ISD Plaintiffs demonstrated that the school finance system has provided
insufficient means for the Edgewood ISD Plaintiffs to provide the state mandated
education. COL35.
87
b.
Overwhelming evidence shows that the State has not
taken sufficient measures to address the gap between
the resources provided under the current system and
the resources needed to acquire the adequate
education mandated by State standards.
The trial court concluded that the evidence in the record conclusively
establishes a positive correlation between money well spent and student
performance. FOF641—FOF643; see also Edgewood I, 777 S.W.2d at 393. The
State’s own experts have acknowledged that funding is crucial to achieving high
student performance, which is borne out by research demonstrating higher student
achievement in districts with higher revenue per WADA. FOF642, FOF644.
Nevertheless, the State refuses to concede that the Legislature’s decisions to
cut education funding negatively impacted student performance. State Br. at 100102; FOF642. The State refuses to acknowledge that the Legislature’s decision to
abandon sound intervention strategies by decimating state funding resulted in
diminished academic performance of economically disadvantaged and ELL
students. State Br. at 95-99; FOF360, FOF379, FOF645.
As shown above in Section Sec. II.B, (Argument), infra, substantial
evidence shows that there are proven strategies founded in rules and principles
properly related to public education that can improve educational outcomes for
economically disadvantaged and ELL students.
FOF331, FOF359—FOF360,
FOF370, FOF384—FOF455. School districts must spend more money per student
88
to realize these improvements, but bridging the achievement gaps is not an
“insurmountable.” FOF331, FOF359. Among these strategies are programs that
the Legislature either severely cut funding or defunded completely in 2011,
including: SSI for remedial instruction, full day pre-kindergarten, teacher merit
incentives, extended learning programs, smaller class sizes, certified bilingual
teachers, and teacher training.
FOF359, FOF379—FOF381, FOF457.
The
evidence in the record proves that these services can be effective in improving
educational outcomes for economically disadvantaged and ELL students, can
reduce their dropout rates, and are “necessary…to meet the needs of these
students.” FOF380, FOF383. Had the Legislature resumed funding of these
programs in 2013, it is likely that economically disadvantaged and ELL student
performance would not have deteriorated to the present degree. FOF383, FOF457.
Instead, the Legislature prioritized tax cuts today over the future of school
children. FOF456—FOF458. There was no justification for this decision that was
based by rules and principles properly related to public education, as evidenced by
the trial court’s finding that the State never analyzed the impact of these cuts on
Texas’s most vulnerable school children.
FOF458.
The trial court’s finding
demonstrates the opposite, that the Legislature eschewed proven methods and
persisted in its dogmatic pursuit of tax reduction. FOF458—FOF459. The trial
89
court correctly characterized the Legislature’s decision as arbitrary and a violation
of the constitutional discretion permitted by the Education Clause.
3.
The State failed to show that its legislative choices, at
least with respect to “funding levels and mechanisms”
for better educated students, were reasonable.
The State cannot present evidence sufficient to warrant the Court granting it
discretion. The trial court considered the State’s evidence regarding the linkage
between funding and student performance but found that it was unpersuasive and
non-probative.
The trial court disregarded the weight of “cross-sectional” and “time-series”
evidence presented by the State and Intervenors as proof that funding does not
cause student achievement. FOF648—FOF654. The trial court noted that the
State’s expert Dr. Podgursky could not determine whether “spending has a causal
impact on performance based on his analysis.” FOF649. Dr. Podgursky agreed
that a concentration of social factors in a school such as economic disadvantage,
limited English proficiency, race, and the need for special education services can
have a significant impact on student learning. FOF650. Importantly, the trial court
noted that the State’s experts could not answer the effect of increases or decreases
in spending will have on student performance over a time-series because their
research only considered a “snapshot” of spending and performance data.
FOF651. Nevertheless, several of the State’s own experts acknowledged that
90
increased funding can have a positive impact on student performance in the right
circumstances. FOF653.
F.
The trial court properly considered the evidence of
disparities between performance of economically
disadvantaged and ELL students to support its finding that
the system is inadequate.
1.
The fact that Texas has experienced rapid growth of
economically disadvantaged and ELL students as a
percentage of the total student population is
significant to adequacy analysis.
Dr. Murdock’s cautionary tale of two visions for a future Texas was not lost
on the trial court.
FOF18; RR3:43-44; Ex.3228:44; FOF 76; Ex.3228:79;
Ex.3228:90-93. As discussed in the Fact Section at I, the economic future of Texas
depends on the public school system successfully educating the growing numbers
of economically disadvantaged, ELL, and Hispanic students walking through the
schoolhouse doors. Id. The trial court linked Dr. Murdock’s economic projections
of the two different versions of Texas’s future to the urgent need to address the
achievement gap. FOF23. The trial court determined that the rapid growth in the
student population required a corresponding growth in educational resources,
especially when the student population needed more resources in order to bridge an
existing achievement gap. FOF23. The trial court correctly found that school
districts were incurring higher costs that were not being adequately compensated.
FOF23.
91
a.
The achievement gap between economically
disadvantaged and ELL students and their peers will
hamper the achievement results for all students as the
percentage of students grows.
As discussed in the Fact Section I, the fastest growing segments of Texas’s
student population are economically disadvantaged and ELL students. FOF14,
FOF245. As their proportion of the total student population grows, the impact of
the existing achievement gap begins to spill-over onto the entire student
population. This is not just because economically disadvantaged and ELL students
themselves underperform in school, but also because of the well-documented
phenomenon of their effect on non-disadvantaged children in the same district.
FOF295—FOF297. The trial court found that the evidence presented by Mr. Moak
showed that as the percentage of economically disadvantaged students increases,
the percentage of all students passing the STAAR EOC and STAAR 3-8 exams
decreases, and the performance of all students on the SAT and ACT deteriorates.
Id. This fact underscores the trial court’s need to make particularized findings
relating to economically disadvantaged and ELL students.
b.
Concentration of economically disadvantaged and
ELL students in property-poor districts solidifies
existing disparities in performance.
The trial court’s findings regarding the overall negative effect of an
increasing percentage of economically disadvantaged students on the performance
outputs of all students underscores the challenges facing school districts with large
92
concentrations of economically disadvantaged students.
The fact that
economically disadvantaged students tend to concentrate in property poor districts,
means that districts that are already at a funding disadvantage need to spend more
money just to avoid falling behind. FOF475—476.
As discussed in detail in the Fact Section at I.C., economically
disadvantaged and ELL students are more expensive to educate. Additionally, the
State mandates certain programs for ELL students that increase their education
costs for school districts. FOF480—482. By 2050, the number of Texas students
needing bilingual services will reach 1,480,000. FOF15, FOF245. While the State
does provide additional funding to offset the costs of bilingual education, if that
funding does not cover the additional costs, school districts must find another way
to pay for the programs. FOF496—497, FOF513—FOF517. This dilutes the
funding available for all students in the district, negatively impacting the quality of
the education offered.
2.
The duty to provide all Texas children a meaningful
opportunity to acquire GDK includes economically
disadvantaged and ELL children.
a.
The trial court’s finding that economically
disadvantaged and ELL students are being
denied a meaningful opportunity to achieve
GDK is supported by the facts in the record.
The trial court’s finding that economically disadvantaged and ELL students
are being denied a meaningful opportunity to achieve GDK was based on the large
93
volume of output data documenting the gaps in economically disadvantaged and
ELL student performance. FOF298—FOF375, FOF520. The trial court then
found that the school districts were not able provide economically disadvantaged
and ELL students a meaningful opportunity to achieve GDK because they could
not offer the necessary interventions to overcome the educational obstacles that
they face. FOF520. The trial court finally found that the size of economically
disadvantaged population, which it estimated at 60% of the student population and
growing, “is so great that their failure to achieve a general diffusion of knowledge
renders the entire system constitutionally inadequate.” FOF521.
This finding is proper under the applicable standard. Compare WOC II, 176
S.W.3d at 787, 790. The finding does not “disaggregate” the adequacy claims of
these two groups, but instead links their verifiable deficient outputs to the entire
system. Compare State Br. 107-108.
The State’s argument that economically disadvantaged and ELL student
performance evaluates adequacy for only part of the system ignores the court’s
specific findings. The trial court did not find that these groups underperformance
in isolation was sufficient basis for its adequacy finding. Instead the trial court
demonstrated
how
the
measureable
outputs
detailing
these
groups
underperformance affected the entire system—because they represent a large and
growing percentage of the population.
94
3.
The Legislature’s decisions affecting funding and
programs that can narrow the achievement gap are
crucial for economically disadvantaged and ELL
students to bridge the achievement gap.
As discussed in detail at Argument, Section I.F, supra, analysis of inputs is
necessary to determine whether school districts are providing their students a
meaningful opportunity to acquire GDK.
The Court must examine the
Legislature’s decisions to provide or cut funding for intervention programs that can
narrow the achievement to determine whether the system provides the meaning
opportunity required by article VII, section 1. 23
a.
The Legislature’s decisions to cut funding for
programs that are proven to improve
educational outcomes for economically
disadvantaged and ELL students directly
caused the increase in the achievement gap.
As shown supra, there is abundant evidence in the record regarding the
efficacy of intervention programs in improving educational outcomes for
economically disadvantaged students. In a series of decisions, the Legislature cut
funding levels for many of these intervention programs, while at the same time
decreasing the capacity of school districts to raise revenue at the local level. See
Although the Legislature reinstated some of the lost State revenue in 2013, many
23
Assuming arguendo, that the Legislature fully funded intervention programs for economically
disadvantaged and ELL students but the outputs still showed a significant achievement gap. The
otherwise prima facie showing of inadequacy would be negated by the demonstration that the
State had provided a meaningful opportunity to achieve GDK. Edgewood IV, 917 S.W.3d at
737.
95
of the intervention program remain completely defunded or funded at a fraction of
their previous levels.
The trial court found that the special programs and grants cuts particularly
impacted the state's highest need children. FOF56, FOF68; RR6:204-07.
b.
The trial court correctly determined that the
Legislature’s decisions were arbitrary because
of the nexus between decreased funding for
these programs and the perpetuation of the
achievement gap.
The trial court concluded that “where research supports a practice as
effective” decisions that undermine effective practices “without replacing with
another approach supported by research as reasonable, could be considered
arbitrary and unconstitutional.” COL31. The trial court’s conclusion does not
prescribe a particular legislative policy, but instead analyzes the decision making
process as it should. WOC II, 176 S.W.3d at 785. The trial court didn’t look at the
decision to defund intervention programs for at-risk students in a vacuum, but
instead considered the other options that the Legislature chose to replace a proven
method. Upon finding that the Legislature chose to do nothing, the trial court
found that this could be arbitrary.
The decision to cut funding is also arbitrary because the trial court found that
the programs were part of the standards necessary to accomplish GDK, and the
Legislature provided insufficient means for achieving them. WOC II, 176 S.W.3d
96
at 785.
Under either theory the trial court’s determination is supported by
sufficient evidence, and should be upheld.
II.
THE TRIAL COURT PROPERLY DECLARED THE
EDUCATIONAL SYSTEM OF TEXAS CONSITUTIONALLY
UNSUITABLE.
A.
The trial court correctly defined the applicable
constitutional suitability standards.
The Constitution requires the Legislature to “make suitable provision for the
support and maintenance” of the public school system. Tex. Const. art. VII, § 1.
Suitability “requires that the public school system be structured, operated, and
funded so that it can accomplish its purpose for all Texas children.” WOC II, 176
S.W.3d at 753; see also id. at 794.
The suitability requirement “refers specifically to the means chosen to
achieve an adequate education through an efficient system.” WOC II, 176 S.W.3d
at 793. Suitability evaluates whether the system actually provides the adequate
education guaranteed by Article VII, section 1, and not just whether mechanisms
exist that could theoretically meet the constitutional requirements. The Court
offered the following illustration of a suitability violation:
the Legislature substantially defaulted on its responsibility such that
Texas school children were denied access to that education needed to
participate fully in the social, economic and educational opportunities
available in Texas.
97
Edgewood IV, 917 S.W.2d at 736-37. Similarly, the Legislature may “define the
goals for accomplishing the constitutionally required general diffusion of
knowledge,” but it must also ensure that districts have sufficient resources to meet
the goals. WOC II, 176 S.W.3d at 785. The Court has also indicated that the State
may not lower the definition of a general diffusion of knowledge to avoid its
constitutional obligations. Id. at 784; WOC I, 107 S.W.3d at 571; Edgewood IV,
917 S.W.2d at 730 n.8. The Court must examine each component of the system in
order to determine whether the system is accomplishing its task.[24]
[24]
A helpful analogy for understanding suitability is to imagine that the constitution
mandated standards for building a “suitable” car.
A suitable structure would analyze whether each car has certain necessary parts that
allow it to run (whether it is adequate). A car would be properly structured if it had four wheels,
an engine, a steering wheel, and a transmission at a minimum. Because society’s needs change
over time, a Model T would not be adequate today because it doesn’t have a windshield, and a
Ford Pinto would be inadequate because it blows up upon rear impact. Both may have been
adequate in the past, but are not deemed to be adequate now. All of the new safety regulations in
cars make them more expensive, but the expense provides safety not just to the drivers and
passengers of the cheapest cars but to everyone on the road (or even in close proximity to the car
if it explodes).
A properly funded car would provide a minimum of funding necessary to ensure that
every car has an engine, motor, four wheels, transmission, and the minimum safety features
deemed adequate. It is no excuse that a car maker builds a car that is unsafe or un-driveable
using the justification that it couldn’t afford to build a better car and still offer a low price point.
The savings on the purchase price of the car are not worth the costs of safety to the public.
Finally, a car is worth nothing if it doesn’t drive. A car that meets the safety
requirements on paper and has a sufficient budget to be built isn’t worth anything if it doesn’t
start, doesn’t turn, or doesn’t brake. The operation of the car is the final item on the checklist for
delivering a suitable car.
So it is with the Texas public school system. It has to provide the specifications for a
basic education, which are updated over time according to society’s needs. Every student should
get enough money to ensure that s/he meets the minimum specifications for an educated person.
Finally, each student has to be able to function as intended—in other words, they have to be able
to meet the goals of being an educated person as specified. Suitability is the final quality control
mechanism for Article VII § 1.
98
Suitability is not “merely redundant” of adequacy and efficiency. WOC II,
176 S.W.3d at 793. Suitability requires an examination of whether the goals of the
public education system are being met overall, rather than determining whether
specific components are constitutional.
Suitability protects against pro forma
constitutional compliance of the various parts by refocusing the analysis on
whether the entire system accomplishes the goal of equitable access to properly
funded, high-quality education, and is structured to do so. The Court should
certainly find a suitability violation if the system has failed to provide all students
with a constitutionally adequate education. WOC II, 176 S.W.3d at 753.
Consequently, the Court can find a suitability violation upon a finding of
inadequacy or inefficiency, if the inadequacy and inefficiency prevent the system
from providing a general diffusion of knowledge. WOC II, 176 S.W.3d at 793-94.
Nevertheless, it does not follow that the system is automatically suitable because it
has been found to be adequate and efficient. Id. An adequate and efficient system
that does not actually provide the education required is constitutionally unsuitable.
Id. at 793.
B.
The evidence presented at trial demonstrates that the
system is not structured, operated, and funded so that it can
achieve a general diffusion of knowledge for all Texas
school children.
1.
The trial court determined that several Legislative
choices were arbitrary because they were not guided
99
with reference to guiding rules and principles
properly related to public education.
The trial court referenced several Legislative choices that it deemed
arbitrary, rendering the current system constitutionally unsuitable:
• The Legislature’s decision to increase performance standards and
outcome goals without providing sufficient funding for all students to
meet those goals. COL39; COL40.
• The Legislature’s continued reliance on outdated weights and
allotments that do not reflect the actual cost of education to determine
funding levels for districts. FOF275, COL41.
• The Legislature’s decision to cut school funding by appropriating
school finance funds based upon funds that are available rather than
on funds that are required. COL41.
• The Legislature’s decision to eliminate funding for economically
disadvantaged and ELL students. FOF456—FOF457.
The trial court concluded that the school finance system is arbitrary because
it “bears no relationship to the actual cost of providing access to a constitutionally
adequate education.” COL42.
2.
The Legislature’s failure to fund the school system at
a level sufficient to provide its own stated educational
goals is arbitrary.
As explained in detail at infra. the Legislature stated that its goal for the
public education system is to prepare all Texas students to graduate from high
school ready to enter college or the workforce. FOF82-FOF83; see also TEX.
EDUC. CODE § 28.001. The assessment and accountability regimes created by the
100
Legislature provide further evidence of that the Legislature acknowledges its duty.
It is arbitrary for the Legislature to create standards for accomplishing a general
diffusion of knowledge but provide insufficient means for achieving those goals.
WOC II, 176 S.W.3d at 785.
As detailed at Section II.B.3a. (Argument), supra, the record contains many
findings highlighting the shortcomings of the public school system in meeting its
stated goals. The trial court’s finding that unsuitable funding of school districts,
especially those with high percentages of economically disadvantaged and ELL
students, have resulted in failure to meet the minimum state standards supports the
conclusion that the means provided by the system are insufficient to meet its goals.
FOF299—FOF304, FOF607—FOF609.
a.
The State has never calculated the costs of
providing an adequate education.
As explained in detail at Section II.B.3.a (Argument), infra. the trial court
found the evidence in the record shows that the true cost of per-pupil funding
sufficient to meet state standards is far more expensive than the current available
funding in the system. This is proof that the current funding is arbitrary and
unsuitable because it does not cover the costs of the education mandated by the
Legislature. COL35, COL41; FOF610—FOF624. The trial court cited the State’s
continued failure to conduct statutorily mandated studies of the cost of meeting its
101
own performance standards as support of its unsuitability finding. FOF625—
FOF626, FOF640; TEX. EDUC. CODE § 42.001.
b.
Persistent achievement gaps between economically
disadvantaged and ELL students and their peers are
attributable to inadequate funding levels that do not
reflect the actual costs of providing an education that
meets state mandates.
As detailed in Section III.A. (Facts), supra. STAAR assessments reveal
large and widening achievement gaps between economically disadvantaged and
ELL students and their peers. FOF300—FOF301. Because of the link between
required exams and college and career readiness, the underperformance of
economically disadvantaged students is a key question for suitability analysis.
FOF310.
Economically disadvantaged students are a significant and growing segment
of the Texas public school population. FOF13, FOF16, FOF23, FOF294, FOF345.
The Legislature’s stated goal and constitutional duty is to provide an adequate
education—which it has defined as an education producing high school graduates
who are college and career ready—yet the evidence in the record conclusively
proves that they have failed to meet this goal for a significant percentage of its
students.
A system that fails to provide adequate education to a large percentage of its
students cannot be found to be suitable.
102
c.
The State does not address the relationship between
spending and student performance, as evidenced by
the cuts to proven methods of improving outcomes for
vulnerable students.
The State refuses to acknowledge that there are strategies that improve
performance for economically disadvantaged and ELL students, that the
Legislature chose to abandon these strategies by decimating state funding, and that
the result is diminished academic performance for economically disadvantaged and
ELL students. State Br. at 95-99; FOF360, FOF379.
The trial court found that the evidence in the record demonstrate that there
are proven strategies founded in rules and principles properly related to public
education that can improve educational outcomes for economically disadvantaged
and ELL students.
FOF331, FOF359—FOF360, FOF370, FOF384—FOF455,
FOF645. School districts must spend more money per student to realize these
improvements, but bridging the achievement gaps is not an “insurmountable.”
FOF331, FOF359, FOF645.
Among these strategies are programs that the
Legislature either severely cut funding or defunded completely in 2011, including:
SSI for remedial instruction, full day pre-kindergarten, teacher merit incentives,
extended learning programs, smaller class sizes, certified bilingual teachers, and
teacher training. FOF359, FOF379—FOF381, FOF457. See Supra.
These services can be effective in improving educational outcomes for
economically disadvantaged and ELL students, can reduce their dropout rates, and
103
are “necessary…to meet the needs of these students.” FOF380, FOF383. Had the
Legislature resumed funding of these programs in 2013, it is likely that
economically disadvantaged and ELL student performance would not have
deteriorated to the present degree, and the system could be found to be
constitutionally suitable. FOF383, FOF457.
The state provided no justification based by rules and principles properly
related to public education for the decision to cut funding to these programs, as
evidenced by the trial court’s finding that the State never analyzed the impact of
these cuts on Texas’s most vulnerable school children. FOF458. The trial court’s
finding reveals that the Legislature eschewed proven methods and persisted in its
dogmatic pursuit of tax reduction. FOF458—FOF459. The trial court correctly
characterized the Legislature’s decision as arbitrary and a violation of the
constitutional discretion permitted by Article VII, section 1.
104
3.
The trial court correctly concluded that the formulas
and weights used to allocate funding for economically
disadvantaged and ELL students were arbitrary
because they are not guided by any rules and
principles regarding the cost to educate these specific
student populations.
a.
Economically disadvantaged and ELL students
are more expensive to educate, but school
finance formula relies on outdated weights that
are not calculated based on the actual cost of
educating economically disadvantaged and ELL
children.
As detailed at Section I.C. (Facts), supra economically disadvantaged and
ELL students are more expensive to educate. FOF23, FOF482.
Part of the supplemental school funding formula provides additional funding
to school districts based on the number of ELL students in ADA. FOF497. The
0.1 adjustment multiplier known as the “bilingual weight” is set by statute and has
never been adjusted since its introduction in 1984. FOF497—FOF498. The trial
court found that the multiplier was never based on actual studies of the costs of
bilingual education, which indicate that a higher weight of at least 0.6 reflects the
true cost. FOF498—FOF499. The trial court found that funding generated using
the 0.1 multiplier is insufficient to pay for adequate ELL educational programs and
to comply with state mandates. FOF500. The Texas bilingual weight ranks near
the bottom of a comparative inter-state study. FOF508.
b.
The trial court’s conclusion that outdated weights and
adjustments that were not calculated with reference
105
to rules and principles relevant to public education
are arbitrary is supported by substantial evidence.
The trial court correctly concluded that the bilingual weight “bears no
relationship” to the current STAAR standards. School districts’ expenditures per
ELL student far exceed the revenues generated using the 0.1 bilingual weight.
FOF510, FOF515. This evidence supports the trial court’s conclusion that the
current bilingual weight is an arbitrary method of providing a general diffusion of
knowledge and unsuitable. FOF512, FOF591.
As addressed in more detail in Edgewood ISD’s Appellees-Appellees Brief
to the Court on the issue of financial efficiency, the formulas used to calculate
virtually every aspect of the school finance system are arbitrary because they rely
on dollar amounts and weights that were not calculated with reference to rules and
principles properly related to public education. FOF590.
The adjustment formulas intended to supplement per student expenditures
based on unique characteristics of each school district fail to account for the rising
costs of education, and were not supported by research even when they were
adopted. FOF591—FOF593. The trial court found that these arbitrary formulas
contribute to the unsuitability of the system. FOF593.
The unwillingness of the State appellants to calculate the cost of adequate
education or the costs of compliance with STAAR performance standards is further
proof that none of the Legislature’s decisions regarding the school finance system
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are based on rules and principles derived from research properly related to public
education. FOF603. This is all the more puzzling in light of the volumes of
research available, including studies conducted by the State that are available to the
Legislature for the purposes of creating education policy. FOF604. The only
possible conclusion that can be drawn from these facts is that the Legislature
continues to intentionally make arbitrary decisions when engaging in education
policy making. COL41—COL42, COL48—COL49, COL72—COL75.
While the Court cannot prescribe the policies that the Legislature should
adopt, it is the sole arbiter of determining whether the education system is based on
sound principles as required by the Article VII, section 1. On this basis the Court
should uphold the trial court’s determination that the Legislature has acted
arbitrarily in the provision of the public school system by acting without adherence
to any guidelines based on empirical research relevant to public education. The
Legislature’s actions are unsuitable and violate the Texas Constitution.
C.
The State’s argument that the trial court erred by finding
that Texas’s Public Education system is unsuitable ignores
well-established suitability precedent.
1.
The State’s assertion that the mere existence of
accreditation and accountability standards as proof of
suitability is misguided.
As explained in detail at Section I.A. (Argument), supra,
the Texas
Education Code and its implementing regulations contain the Legislature’s clearly
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defined goals and standards for the public education system. See TEX. EDUC. CODE
§§ 4.001(a), 28.001, 28.008, 28.025, 39.023, 39.024, 39.052, 39.053, 39.054,
39.103, 39.104. These goals and standards are proof that the Legislature has
created a suitable structure for the public school system that furnishes the
mechanisms for providing an adequate education to all Texas students. The State
points to the existence of standards that require school districts to provide an
adequate education as proof that the system is suitable. State Br. at 152. The State
further asserts that a system that is adequate and efficient must be per se suitable.
Id. at 153.
The state’s analysis is incomplete, however, because suitability has three
elements. WOC II, 176 S.W.3d at 753 (describing suitability as ensuring proper
structure, operation, and funding of an adequate education for all Texas children).
The Court has found that accreditation standards and sanctions from the Education
Code precluding the provision of inadequate education are unsuitable if the State
does not “require that school districts achieve” the standards of adequate
education. WOC I, 107 S.W.3d at 580-81, 584. The Court has also found a
suitability violation where the Legislature has defined goals for providing an
adequate education but provided insufficient means for achieving its goals. WOC
II, 176 S.W.3d at 785.
108
Simply put, providing the structure alone is not enough.
Conversely,
providing the sufficient funding alone would not be enough. Assuming arguendo,
that the State’s assertion that the current system provides both constitutionally
sufficient structure and funding is correct, this is still insufficient to meet the
burden of proving suitability if the operation of the system does not produce the
intended results. The State’s argument fails because the evidence in the record
demonstrates that it does not meet the operation prong of suitability.
The State’s contention that it has provided funding sufficient to meet
suitability is neither supported by the record nor by precedent. The Edgewood IV
Court did not find a suitability violation citing “dramatic” increases in state aid,
and an overall growth in total state and local revenue for all districts. Edgewood
IV, 917 S.W.2d at 737. The same cannot be said in the present case, as state aid
has decreased both as a percentage of the total amount of school funding as well as
in absolute terms, and the total amount of spending per student has steadily
decreased since WOC II. FOF24—FOF38, FOF457. The State cannot contravene
the trial court’s finding that it has provided insufficient funding to achieve its goals
in light of the sharp contraction in total revenue for the public education system
and the declining per-student expenditures endemic to the system since WOC II.
FOF 64.
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2.
The State’s assertion that a system that is adequate
and efficient is per se suitable has no foundation in the
applicable precedent.
The Court has recognized “suitability” as a free standing and independent
requirement under Article VII, § 1. See Mumme v. Marrs, 120 Tex. at 396-397;
Edgewood I, 777 S.W.2d at 394 (identifying suitability together with efficiency
and adequacy as the necessary standards for determining the constitutional limits
on legislative discretion over the structure and operation of public schools); WOC
I, 107 S.W.3d at 563-64; WOC II, 176 S.W.3d at 793 (stating that suitability is not
“merely redundant” of adequacy and efficiency, and recognizing that an efficient
and adequate system may still be unsuitable if school districts were not actually
required to provide an adequate education).
The State asserts that if the current system is adequate and efficient, then it
necessarily must be suitable.
State Br. at 151-52.
The State advances the
previously unrecognized concept of “per se” suitability, which it defines as a
school finance system that is adequate and efficient, inferring that suitability must
follow. Id. The State’s assertion is not supported by the Court’s ample precedent,
and the State itself recognizes that the viability of “stand alone” suitability
challenges.[25]
The Court has unambiguously stated that suitability is not
[25]
The State mistakenly conceptualizes suitability as a chair propped up by adequacy and
efficiency. By the State’s reasoning, if the system is adequate and efficient then the chair of
suitability must logically stand. If the system is missing one of the legs of adequacy or
efficiency it logically must by unsuitable. State Br. at 152-154.
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“redundant” of adequacy and efficiency, and has described circumstances where an
otherwise adequate and efficient system can be found unsuitable. WOC II, 176
S.W.3d at 793-94.
III.
THE TRIAL COURT WAS WELL WITHIN ITS BOUNDS
WHEN IT FOUND THAT THE SYSTEM WAS INADEQUATE
AND
UNSUITABLE
FOR
ECONOMICALLY
DISADVANTAGED AND ELL STUDENTS.
Despite the State Defendants’ claims otherwise, “as applied” constitutional
challenges are “cognizable” under Article VII, section 1. To raise a cognizable “as
applied” challenge, the ISD Plaintiffs need only show that the operation of a statute
is unconstitutional as applied to them. HCA Healthcare Corp. v. Tex. Dep't of Ins.,
303 S.W.3d 345, 349 (Tex. App.—Austin 2009, no pet.). The trial court found that
the system was inadequate and unsuitable for economically disadvantaged and
ELL students. COL35, COL79. The trial court was well within its bounds.
Adopting the State’s interpretation invalidates the specific “suitability” requirement found in the
plain language of Article VII, § 1. The Court has adopted the time-tested canon of statutory
interpretation requiring courts to give effect to every clause and word of a statute, and to avoid a
construction that renders statutory language meaningless. See City of Marshall v. City of
Uncertain, 206 S.W.3d 97, 105 (Tex. 2006); Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578,
580 (Tex. 2000); see also TEX. GOV’T CODE ANN. §311.021(2) (West). The State’s
interpretation of suitability as necessarily conclusion following a finding of adequacy and
efficiency renders the specific requirement of suitability meaningless.
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IV.
THE TRIAL COURT’S AWARD OF ATTORNEY’S FEES WAS
REASONABLE, NECESSARY, EQUITABLE, AND JUST.
The trial court did not abuse its discretion by awarding fees in this case. The
State Defendants’ argument that the ISD Plaintiffs should have prevailed in order
to be entitled to fees is inconsistent with statute and caselaw.
The Uniform
Declaratory Judgments Act (UDJA) provides that in any proceeding under the Act
“the court may award costs and reasonable and necessary attorney’s fees as are
equitable and just.” Tex. Civ. Prac. & Rem. Code § 37.009; Bocquet v. Herring,
972 S.W.2d 19, 20 (1998). The trial court made clear rulings as to the reasonable
and necessary, and equitable and just nature of attorney’s fees for the Edgewood
ISD Plaintiffs. See COL113. The trial court based the award in part on the
Edgewood ISD Plaintiffs having prevailed, see COL113, 117. But the trial court
also stated that had they not prevailed, the fee award was still equitable and just
because the plaintiffs “made significant contributions to the public debate on
school finance law through this lawsuit.” See COL112 (citation omitted). These
findings were confirmed in the history of this case, The trial court was entrusted to
“weigh the equities” in making these fee decisions and it did so. See Bocquet, 972
S.W.2d at 21.
Moreover, the Sate Defendants fail to make any showing as to why the ISD
Plaintiffs’ aware is inequitable or unjust. The trial court did not err in awarding
appellate attorney’s fees to the Edgewood ISD Plaintiffs regardless of the appeal’s
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result, because a condition is necessarily implied for appellate attorney’s fees. See
La Ventana Ranch Owners’ Ass’n, Inc. v. Davis, 363 S.W.3d 632, 652 n.17 (Tex.
App.—Austin 2011, pet. denied) (“Because unconditional appellate fees are
improper, such a condition is necessarily implied.”). The Edgewood ISD Plaintiffs
cite and incorporate by reference the Calhoun County ISD Plaintiffs’ argument on
this issue. See CCISD Appellees’ Brief at Section V (Argument).
Finally, the fee request of the Edgewood ISD Plaintiffs was both reasonable
and necessary in light of the unique size, complexity, and duration of this case.
The Edgewood ISD Plaintiffs adopt and incorporate by reference the Fairness
Coalition Appellees description of these factors. See Fairness Coalition Appellees’
Brief at Section VI (Argument).
The trial court was correct in granting the fee request of the Edgewood ISD
Plaintiffs and in finding that the amount requested was reasonable, necessary,
equitable, and just. Because the trial court did not abuse its discretion in finding
that the Edgewood ISD Plaintiffs were entitled to attorney’s fees for their
substantial contribution on this important constitutional issue, remand is
unnecessary.
CONCLUSION AND PRAYER
For the foregoing reasons, the Edgewood ISD Plaintiffs respectfully request
that the Court affirm (1) the trial court’s judgment declaring the school finance
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system violates the suitability, adequacy, and efficiency requirements of article
VII, section 1, and violates the state property tax prohibition of article VIII, section
1-e of the Texas Constitution; (2) the related injunction relief awarded to the
Edgewood ISD Plaintiffs; and (3) the award of attorney’s fees to the Edgewood
ISD Plaintiffs. Edgewood ISD Plaintiffs also ask for all other relief to which they
may be entitled.
Respectfully submitted,
MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATIONAL FUND, INC
/s/ Marisa Bono
Marisa Bono
State Bar No. 24052874
Celina Moreno
State Bar No. 24074754
110 Broadway, Suite 300
San Antonio, Texas 78205
Telephone: (210) 224-5476
Telecopier: (210) 224-5382
mbono@maldef.org
cmoreno@maldef.org
ATTORNEYS FOR THE
EDGEWOOD ISD APPELLEES
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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the Texas Rule of Appellate
Procedure 9.4. The computer-generated word count for this document is 29,690
words, including headers and footers.
/s/ Marisa Bono
Marisa Bono
115
CERTIFICATE OF SERVICE
In accordance with the Texas Rules of Appellate Procedure, I hereby certify
that a true and correct copy of the Combined Appellees’ Brief has been sent to the
following counsel of record via E-Service and E-mail on this 2nd day of July,
2015:
Counsel for Michael Williams,
Commissioner of Education, et al.:
Rance Craft
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
rance.craft@texasattorneygeneral.gov
Counsel for Edgewood ISD, et al.:
Marisa Bono
Celina Moreno
MALDEF
110 Broadway, Suite 300
San Antonio, Texas 78205
mbono@maldef.org
cmoreno@maldef.org
Roger L. Rice
MULTICULTURAL EDUCATION,
TRAINING AND ADVOCACY, INC.
240A Elm Street, Suite 22
Somerville, Massachusetts 02144
rlr@shore.net
Counsel for Joyce Coleman, et al.:
J. Christopher Diamond
THE DIAMOND LAW FIRM, PC
17484 Northwest Freeway, Suite 150
Houston, Texas 77040
christopherdiamond@yahoo.com
Craig T. Enoch
ENOCH KEVER PLLC
600 Congress, Suite 2800
Austin, Texas 78701
cenoch@enochkever.com
Counsel for Texas Taxpayer &
Student Fairness Coalition, et al.:
Richard E. Gray, III
GRAY & BECKER, P.C.
900 West Avenue
Austin, Texas 78701
rick.gray@graybecker.com
Randall B. Wood
RAY & WOOD
2700 Bee Caves Road, Suite 200
Austin, Texas 78746
buckwood@raywoodlaw.com
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Counsel for Texas Charter Schools
Association, et al.:
Robert A. Schulman
SCHULMAN, LOPEZ & HOFFER, L.L.P.
517 Soledad Street
San Antonio, Texas 78205-1508
rschulman@slh-law.com
James C. Ho
GIBSON, DUNN & CRUTCHER LLP
2100 McKinney Avenue, Suite 1100
Dallas, Texas 75201
jho@gibsondunn.com
Counsel for Fort Bend ISD, et al.:
J. David Thompson
THOMPSON & HORTON LLP
Phoenix Tower, Suite 2000
Houston, Texas 77027
dthompson@thompsonhorton.com
Wallace B. Jefferson
Rachel Ekery
ALEXANDER DUBOSE JEFFERSON &
TOWNSHEND
515 Congress Avenue, Suite 2350
Austin, Texas 78701
wjefferson@adjtlaw.com
rekery@adjtlaw.com
/s/ Marisa Bono
Marisa Bono
117