2012-10-23 16:56:14

On School Finance Trial’s First Day, School Choice Backers Decry Public School 'Monopolies'

Outside the Travis County Courthouse in Austin Monday morning, Ron Avery passed out pamphlets and tried to attract the attention of folks passing by. "44 Years of Unlawful Funding of Public Schools is Enough!" one of his flyers proclaimed. "Texas Courts Are Closed to Citizens!" read the other.

Avery’s literature included a flowchart detailing how property taxes and school bonds put Texans in “bondage” at the hands of investment banks and "Very Wealthy Individuals." It decried the teaching of socialism in public schools. And it said real people, like him, are shut out of the process that shapes Texas’ school finance system.

Inside that courthouse, Monday was the opening day of the latest suit over Texas’ school finance system—the largest one the state has ever faced, with over two-thirds of Texas school districts lined up against the state. Avery said it was all just "a repeat of the same old tired arguments made by school districts over the last 40 years.” He said he's been asked to leave a courtroom when he tried to speak up about it.

Even though Avery never got closer than the sidewalk yesterday, some of the arguments in Judge John Dietz’s courtroom sounded an awful lot like his. “The current [school finance] system is simply a public monopoly,” lawyer Chris Diamond said in his opening statement, “and as we all know, monopolies are inefficient.” 

“Why do we have to have this lawsuit?” Diamond wondered. “And yet we hear that lawsuits are a necessary part of the school finance process.”

Diamond represents a group that wants schools to be subject to strict controls on how they spend taxpayer money, and says competition, through school choice, is the only way school funding will ever really be efficient. Diamond’s group has become known as the “efficiency intervenors” in the case, and is bringing a new argument to a fight that’s usually about more money or more equal funding. Diamond was the last of six lawyers to give opening statements Monday, one for each of the lawsuits that had been consolidated into this mega-trial.

In six school finance cases over the last 40 years, rich, poor, rural and urban school districts have teamed up to argue the state’s funding system is unconstitutional. Most of the time they’ve prevailed, forcing some change in the tax and school funding structure from the Texas Legislature. It’s been six years since the last case and those school districts are back to argue that the last legislative “fix” has only made things worse. This time around, though, they’re joined by a novel collection of other school interests, including the Texas Charter School Association—which wants the state to start paying for charter school buildings—and the “efficiency intervenors,” which will try arguing that schools don’t necessarily need more money, just better accountability for how they spend the money they’ve got.

On Monday, Diamond made it clear that while they were all sitting on the same side of the courtroom, his case wouldn’t have too much in common with school districts, which he took to collectively calling “the monopolists.” Diamond invoked said schools just get more and more money from the state, without any extra accountability for how they spend it—a favorite argument from conservative groups and Republican lawmakers. He even invoked Milton Friedman to suggest school choice is the best fix. Diamond recalled a comment from the Texas Supreme Court in the last school finance case, which suggested that while the funding system "might benefit from more competition," nobody had ever brought the argument to the court before.

Diamond said he was there to change that. “We stand here as the only ones here who have actually been invited to the litigation,” he said.

It’s a radical argument in a Texas school finance trial, and a long shot compared to the school districts’ well-trodden complaints, which are similar to their arguments in past cases. But Diamond is relying on the notion that he’s got some cover from the Supreme Court’s last school finance decision.

After Diamond finished, Assistant Attorney General Shelley Dahlberg closed out the trial’s first day by laying out her defense of the school funding system. Dahlberg agreed with the school districts’ arguments that Texas has raised its standards for students over the last few years, most recently with the STAAR, the new state testing regime that rolled out last year, which is tougher than the TAKS, which it replaced.

Lawyers for the school districts argue that schools can’t prepare students for STAAR with the funding they get today, but Dahlberg offered a novel defense. STAAR had been designed by teachers and administrators, she said, and ”it's hard to believe teachers would have written a test that students could not succeed on.” The state’s witness list in the case includes Laurie Davis, Vice President for Measurement Services at Pearson, which developed STAAR under a $468 million contract.

She also stressed that because so much of the school system is under local control, it’s up to school districts, not the state, to ensure enough money is being spent to prepare students. “You should seriously look at not only what the state is doing but at what the districts are doing as well,” Dahlberg told Dietz.

“I bet you one of those things I'm gonna look at is that big football stadium,” Dietz joked.

The trial continues today, with testimony from Rice University’s Steve Murdock, former director of the U.S. Census Bureau, who’s describing the shift in Texas schools population. The trial should go on until mid-January. After appeals, it could be 2014 before the state Supreme Court has a decision ready—only after that, if any of the school or parent groups prevail, will it be up to the Legislature to rework the school system to satisfy the courts.