Shirley NEELEY, Texas Commissioner of Education, et al., Appellants, v. WEST ORANGE-COVE CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, et al., Appellees; Alvarado Independent School District, et al., Appellants, v. Shirley Neeley, Texas Commissioner of Education, et al., Appellees; Edgewood Independent School District, et al., Appellants, v. Shirley Neeley, Texas Commissioner of Education, et al., Appellees, 176 S.W.3d 746
Opinion
Justice HECHT delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice O’NEILL, Justice WAINWRIGHT, Justice MEDINA, Justice GREEN, and Justice JOHNSON joined. Once again this Court is called upon to determine whether the funding of Texas public schools violates the Texas Constitution. Three groups of school districts raise three separate challenges. The plaintiffs, 47 districts led by West Orange-Cove Consolidated Independent School District, which educate over a fourth of the State’s more than 4.3 million school children, contend that property taxes, though imposed locally, have become in effect a state property tax prohibited by
article VIII,
section 1-e of the Texas Constitution, because the State leaves districts no meaningful discretion to tax below maximum rates.
Article VIII,
section 1-e states simply: “No State ad valorem taxes shall be levied upon any property within this State.” We held in Edgewood III that “[a]n ad valorem tax is a state tax when it is imposed directly by the State or when the State so completely controls the levy, assessment and disbursement of revenue, either directly or indirectly, that the authority employed is without meaningful discretion.” The other two groups, intervenors, totaling an additional 282 districts, also educate about a fourth of the State’s school children.
One group is led by Edgewood Independent School District, the other by Alvarado Independent School District. Intervenors contend that funding for school operations and facilities is inefficient in violation of
article VII,
section 1 of the Texas Constitution, because children in property-poor districts do not have substantially equal access to education revenue. All three groups also contend that the public school system cannot achieve “[a] general diffusion of knowledge” as required by
article VII,
section 1 of the Texas Constitution, because the system is underfunded.
Article VII,
section 1 states: A general diffusion Of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools. This provision sets three standards central to this case. One is that the public school system be efficient. In Edgewood I, we held: There is no reason to think that “efficient” meant anything different in 1875 [when
article VII,
section 1 was written] from what it now means. “Efficient” conveys the meaning of effective or productive of results and connotes the use of resources so as to produce results with little waste; this meaning does not appear to have changed over time.
As applied to public school finance, we added, constitutional efficiency requires that “[c]hildren who live in poor districts and children who live in rich districts must be afforded a substantially equal opportunity to have access to educational funds.” We have referred to efficiency in the broader sense as “qualitative”, and to efficiency in the context of funding as “financial”. The parties have also referred to financial efficiency as “quantitative”.
Another standard set by the constitutional provision is that public education achieve “[a] general diffusion of knowledge ... essential to the preservation of the liberties and rights of the people”. We have labeled this standard “adequacy”, and the parties have adopted the same convention. The label is simply shorthand for the requirement that public education accomplish a general diffusion of knowledge.
In this context, the word “adequate” does not carry its broader dictionary meaning: “[cjommensurate in fitness; equal or amounting to what is required; fully sufficient, suitable, or fitting.” Our responsibility in this case is limited to determining whether the public education system is “adequate” in the constitutional sense, not in the dictionary sense. That is, we must decide only whether public education is achieving the general diffusion of knowledge the Constitution requires.
Whether public education is achieving all it should — that is, whether public education is a sufficient and fitting preparation of Texas children for the future — involves political and policy considerations properly directed to the Legislature. Deficiencies and disparities in public education that fall short of a constitutional violation find remedy not through the judicial process, but through the political processes of legislation and elections. A third constitutional standard is that the provision made for public education be “suitable”.
We have mentioned this requirement only once, in Edgewood IV: Certainly, if 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, the “suitable provision” clause would be violated. In essence, “suitable provision” requires that the public school system be structured, operated, and funded so that it can accomplish its purpose for all Texas children.
Article VII,
section 1, makes it “the duty of the Legislature” to provide for public education. The judiciary’s role, though important, is limited to ensuring that the constitutional standards are met. We do not prescribe how the standards should be met. In this case, the district court, after a five-week bench trial, found in favor of the school districts on all their claims except for inefficient operations funding and enjoined the defendants (collectively “the State defendants”) from continuing to fund the public schools.
The court issued its judgment on November 30, 2004, but stayed the effect of its injunction for ten months, until October 1, 2005, “to give the Legislature a reasonable opportunity to cure the constitutional deficiencies in the finance system”. The Legislature convened in regular session in January 2005, and while it gave much attention to public education issues, it did not reach consensus. After adjournment, the Governor called the Legislature into special session on June 21, 2005, and that session was in progress when we heard oral argument in this case on July 6.
That session also ended without enactment of public education legislation, and the Governor immediately called a second special session to convene July 21. Thirty days later, the Legislature again adjourned without enacting public education legislation. The district court’s injunction has been stayed by the State defendants’ appeal. We now hold, as did the district court, that local ad valorem taxes have become a state property tax in violation of
article VIII,
section 1-e, as we warned ten years ago they inevitably would, absent a change in course, which has not happened. Although the districts have offered evidence of deficiencies in the public school finance system, we conclude that those deficiencies do not amount to a violation of
article VII,
section 1. We remain convinced, however, as we were sixteen years ago, that defects in the structure of the public school finance system expose the system to constitutional challenge. Pouring more money into the system may forestall those challenges, but only for a time. They will repeat until the system is overhauled. The judgment of the district court is modified and affirmed in part, reversed in part, and remanded for reconsideration of the award of attorney fees.
I We begin by summarizing first the structure of the public school finance system in Texas as relevant to the issues in this case, then the evidence regarding the adequacy of public education thus financed, and finally the procedural background of the case. The record contains evidence through the end of the 2003-2004 school year, and our discussion of the present status of the system generally refers to that time frame unless otherwise noted. A The basic structure of Texas’ present public school finance system derives from Senate Bill 7 enacted by the Legislature in 1993.
We have twice described the system thoroughly, including its historical evolution, and will not repeat here all that we have said before. In 1995, we held in Edgewood IV (among other things) that the system under Senate Bill 7 did not violate
article VII,
section 1, or
article VIII,
section 1-e of the Texas Constitution but noted that the system was “minimally acceptable only when viewed through the prism of history.” The parties in this case contend that the operation of the system has changed since Edgewood IV, and so in the discussion that follows we include several comparisons between then and now. Texas has a little over 4.3 million children in public schools, and the number is growing by more than 72,500 per year. More than half qualify for federally subsidized, free or reduced-price lunches and are therefore categorized by the State as economically disadvantaged.
About 15% have limited proficiency in English. According to the State defendants’ expert, the annual cost of public education is $30-35 billion, or about $7,000-8,000 per student, depending on what expenses are counted. More than half of the cost is funded by ad valorem taxes imposed by independent school districts on local property. The State funds only about 38% of the cost, down from about 43% in Edge-wood IV, the lowest level in more than 50 years. The balance, usually around 8-9%, comes from the United States government.
There are 1,031 independent school districts —more than four times the number of counties. A fourth of public school students are educated in 12 districts in seven counties; half are educated in 45 districts. The largest district, Houston ISD, has 211,499 students, more than the combined student population in half of all the other districts put together. Two-thirds of the districts have fewer than 1,200 students each; half have fewer than 700 each; almost a fourth have fewer than 350 each; 11 districts have fewer than 60 each. Divide Independent School District in Kerr County, the smallest, has 10 students.
The Legislature’s decision to rely so heavily on local property taxes to fund public education does not in itself violate any provision of the Texas Constitution, but in the context of a proliferation of local districts enormously different in size and wealth, it is difficult to make the result efficient — meaning “effective or productive of results and connot[ing] the use of resources so as to produce results with little waste” — as required by
article VII,
section 1 of the Constitution. Compensation must be made for disparities in the amount of property value per student so that property owners in property-poor districts are not burdened with much heavier tax rates than property owners in property-rich districts to generate substantially the same revenue per student for public education.
According to the evidence, in 2001, Dew ISD in Freestone County had an adjusted taxable value of $300,384,388, a “weighted average daily attendance” (“WADA”) of 147.43 students, and thus $2,037,488/ WADA, while Boles ISD in Hunt County had an adjusted taxable value of $8,831,414, a WADA of 876.95 students, and thus $10,071/WADA. This 200-to-l disparity was 700-to-l in Edgewood I.
Also, many districts have been created as tax havens — lots of property and few students — allowing property owners to escape paying their fair share of the cost of public education in Texas and making it more difficult to achieve efficiency. A system that operates with an excess of resources in some locales and a dearth in others is inefficient, as we held in Edgewood I and Edgewood II. Summing up in Edgewood III, we said: The inefficiency was this gross disparity both in tax burden and in tax spending.
To put it graphically, in some areas of the state, education resembled a motorcycle with a 1000-gallon fuel tank, and in other areas it resembled a tractor-trailer rig fueled out of a gallon bucket. Some vehicles were flooded, some purred along nicely, and some were always out of gas. A fleet of such vehicles is not efficient, even though a few of them may reach their destination. We did not hold that efficiency requires absolute equality in spending; rather, we said that citizens who were willing to shoulder similar tax burdens, should have similar access to revenues for education.
The large number of districts, with their redundant staffing, facilities, and administration, make it impossible to reduce costs through economies of scale. Bigger is not always better, but a multitude of small districts is undeniably inefficient. The justification offered for this situation is that as a matter of public policy, public schools should be locally controlled, although it has never been clear why the legitimate benefits of local control are so entirely inconsistent with efficiency in funding.
Districts are firmly entrenched and powerfully resistant to meaningful change, and while matters have improved somewhat over the past century, the number of school districts has not declined significantly in the past two decades. The purpose of Senate Bill 7 was to try to make funding public education with local property taxes efficient by reducing the effects of the vast disparities among the more than 1,000 independent school districts. School maintenance and operations (“M & 0”) are funded separately from facilities.
Tax rates set yearly are capped at $1.50/$100 valuation for M & O (except for seven districts in Harris County ), as they have been for sixty years, and $0.50/$100 valuation for debt service on facilities (referred to as “I & S”, for “inter-est and sinking fund”). For M & 0, disparities in available revenue among the school districts are reduced in two ways: by supplementing property-poor district tax revenues with state funds through the Foundation School Program (“FSP”) under
chapter 42 of the Education Code, and by “recapture” — a scheme under chap-fer 41 of the Education Code by which property, tax revenue is taken from property-rich (“chapter 41”) districts and given to property-poor (“chapter 42”) districts— referred to by some as “Robin Hood”.
Chapter 41 districts educate 12.3% of Texas students. The FSP has two tiers for M & 0. Tier 1 guarantees to all districts that tax at or above the rate of $0.86 per $100 valuation (and all districts but one do) a basic allotment of $2,537 per student in “average daily attendance” (“ADA”), subject to various special allotments and adjustments for district and student characteristics. Thus, any district with less than $295,000 value/ADA ($2,537 = .0086 x $295,000) receives FSP funds to supplement local revenue as if it had that much property value per student, up to an $0.86 tax rate.
The basic allotment includes a per capita distribution (usually $250-300) for each student from the Available School Fund (“ASF”), which consists of certain appreciation from the Permanent School Fund, as required by the Constitution. Districts with $295,000 value/ADA or more receive no Tier 1 state funds, although they do receive the ASF distribution. Tier 2 guarantees that for each $0.01 of tax rate above $0.86, the yield will be $27.14/ WADA — the yield a district would have if it had $271,400 value/WADA ($27.14 = .0001 x $271,400).
Thus, a district with only $100,000 value/WADA could generate only $10/WADA in local tax revenue for each $0.01 of tax rate, and the FSP would add $17.14/WADA to make up the difference. A district taxing at the maximum $1.50 rate is thus guaranteed $1,736.96/ WADA (($1.50 — $0.86) x $27.14). Districts with at least $271,400 value/WADA receive no Tier 2 funds. In Edgewood IV, the Tier 1 basic allotment was $2,300/AD A, and the Tier 2 guaranteed yield was $20.55/WADA, or $1,315.20/WADA at a tax rate of $1.50. Recapture helps fund the FSP and further equalizes access to revenue among districts.
Most districts with more than $305,000 value/WADA, and which therefore receive no funds under FSP Tier 1 or Tier 2 for M & O, must transfer that excess value- — in practical reality, the tax revenue derived from it — to the State or other districts for distribution under the FSP to
chapter 42 districts that have less. In Edgewood IV, the statutory retained value/WADA cap was $280,000. A
chapter 41 district may choose to effectuate the transfer in one of five ways: (1) consolidate with a
chapter 42 district, to reduce the value/WADA to $305,000 or less; (2) detach territory to a
chapter 42 district, to achieve the same effect; (3) purchase “average daily attendance credits” from the State; (4) agree to pay to educate students in a
chapter 42 district; or (5) consolidate tax bases with a
chapter 42 district — combining the finance mechanism while leaving district administration independent. The third and fourth options call for a district to simply write a check directly to the State or other districts. Options (1), (2) and (5) are rarely used. The net effect of recapture, generally speaking, is that a district with more than $305,000 value/WADA must pay, either to the State or to another district or districts directly, its local tax revenue that exceeds what the retained value generates.
Thus, for example: a district with a 10,000 WADA and $366,000/WADA in property value, taxing at a $1.50 rate, for a revenue of $5,490/WADA, would be required to purchase 2,000 credits from the State at $5,490 each, totaling $10,980,000, to increase its deemed WADA to 12,000, reducing its deemed value/WADA to $305,000, leaving it $4,575/WADA for its own use. For the 1993-1994 school year, the first under Senate Bill 7, 99
chapter 41 districts transferred $433 million. For 2003-2004, 134
chapter 41 districts transferred over $1 billion. For 2004-2005, the amount of recapture is estimated to be over $1.2 billion. Thus, recapture has doubled in less than a decade, and in 12 years it may have almost tripled. Several other statutory provisions reduce recapture payments and thus in effect raise the
chapter 41 districts’ average actual retained value/WADA above the statutory limit of $305,000. A
chapter 41 district receives an early-agreement discount of the lesser of 4% of its total recapture payment or $80/student for agreeing to the payment by September l, and an efficiency discount of the lesser of 5% or $100/student for agreeing to pay a
chapter 42 district or districts directly, rather than sending the payment to the State. These discounts saved
chapter 41 districts $43.4 million in recapture payments in the 2003-2004 school year, but the efficiency discount also benefitted
chapter 42 districts, who received $81.4 million more than they would have had the recapture payments been made through the State. Neither of these discounts existed when Edgewood IV was decided. Also, as we said above, most districts may retain only $305,000 value/WADA, but there is an exception: for a district taxing at the maximum $1.50 rate, recapture cannot reduce its revenue/WADA, excluding the ASF distribution, below the level for the 1992-1993 school year.
This exception was designed to mitigate the impact of Senate Bill 7 on the wealthiest districts and was initially intended to last only three years, but it has become permanent and has even been increased. There are 34 of these so-called “hold-harmless” districts, educating less than 1% of Texas students. On average they retain $421, 373/WADA instead of $305,000/WADA, thereby saving about $38 million in revenue that would otherwise have been transferred to the FSP. This raises the average retained value/WADA of all
chapter 41 districts to $341,457. In Edgewood IV we held that the effect of the hold-harmless districts was not so great as to render the entire system inefficient, especially since they were to be phased out in three years. Senate Bill 7 thus retains in its design a gap in available per-student M & 0 revenue attributable to property-wealth disparities among school districts. We discussed this gap in Edgewood IV.
To compare its size then and now, we must exclude hold-harmless districts, discounts, and other factors that effectively raise the statutory cap on a district’s retained wealth/WADA, disregard for purposes of a benchmark comparison the differences between ADA and WADA and other Tier 1 and Tier 2 formula differences, and assume a maximum tax rate of $1.50. With these assumptions, the FSP guarantees $4,273.96/student, while a district with a tax base of $305,000/student has $4,575/student — a difference of $301.04/student, or 7%.
Under the statutory parameters that existed in Edgewood IV, this gap was $584.80/student, or 16%. If a $300 ASF distribution is added to the non-FSP revenue, the gap is enlarged to 14% at present and 24% in Edgewood TV. In actual operation, however, this gap is wider. According to the intervenors’ expert, on average, at a tax rate of $1.48,
chapter 41 districts’ revenue is $5,457/ WADA while
chapter 42 districts’ revenue is $4,330/WADA, a difference of $1,127/ WADA or 26%. By comparison, at the time of Edgewood TV (as reflected in the record but not our opinion), the average tax rate was only $1.17,
chapter 41 districts’ average revenue was $3,510/WADA, and
chapter 42 districts’ average revenue was $3,005/WADA, a difference of $505 or 17%. The proportional size of the gap in actual operation has thus increased by about half, from 17% to 26%. But as we have noted, we did not consider in Edge-wood IV the effect of hold-harmless districts that would have made the gap much larger, and other discounts and factors that would affect these figures did not exist. According to the intervenors’ expert, these elements together contribute at least $599 to the present difference.
Assuming they would have impacted the calculations at the time of Edgewood IV similarly, the increase in the gap since then would be much smaller. Looking to the extremes rather than at averages, with similar tax rates near the maximum, districts at or above the 95 percentile level of property value per student have $5,895/WADA, while districts at or below the 5 percentile level have only $4,217/WADA, a difference of $1,678, or 40%.
In Edgewood IV, this gap was projected to be about $600 — actually, according to the evidence, $4,440 vs. $3,868, or 16% — with hold-harmless districts phased out and all districts taxing at a $1.50 rate. To generate the same revenue per student that the FSP guarantees to an average
chapter 42 district that taxes at the maximum $1.50 rate, taking into account differences between Tier 1 and Tier 2 formulas, the average
chapter 41 district need only tax at the rate of $1.33. A different comparison was made in Edgewood IV. There we calculated that to generate $3,500/WADA, which the trial court had found to be the cost of an adequate education — or in the words of'
article VII,
section 1 of the Texas Constitution, “[a] general diffusion of knowledge” — districts at or below the 15 percentile level of property value per student, averaging a $26.74 yield per $0.01 of tax, were required to tax at a $1.31 rate while districts at or above the 85 percentile level, averaging a $28.74 yield per $0.01 of tax, needed only a $1.22 rate. Thé parties in this case have not attempted to replicate this calculation for current data. Since the 1993-1994 school year, which we reviewed in Edgewood IV, M & O tax rates have migrated to the $1.50 maximum.
That year, most districts’ tax rates were below $1.20; now, only about 2% of the districts, with less than one-fourth of 1% of the students, tax below $1.20. The concentration of districts at the higher tax rates is shown in the following table: In the 1998-1994 school year, school districts spent only 83.3% of the revenue that could have been generated at maximum tax levels for public education; now they spend over 97%.
The trial court found that— any remaining capacity is not realistically available because accessing this capacity would require (1) a virtually 100% tax collection rate (practically impossible); (2) the repeal of any property tax exemptions (politically improbable); and (3) a district to have stable or increasing property values. In other words, these percentages represent virtual full funding for most of the larger districts in the system. Up to this point we have been describing the financing of school maintenance and operations.
For instructional facilities (as opposed to facilities used for administration and extracurricular purposes), the FSP includes what may be considered a third tier that partially equalizes access to funding up to the maximum $0.50 tax rate to support bonds. Through the Instructional Facilities Allotment (“IFA”), the State guarantees districts a yield of $35/ADA for each $0.01 of I & S tax rate for bonds for new facilities, with certain exceptions, up to a maximum of the lesser of $250/ADA or $100,000, for the life of the bonds.
To retire preexisting debt, the Existing Debt Allotment (“EDA”) guarantees districts $35/ADA for each $0.01 of I & S tax rate up to $0.29, with certain exceptions. However, unlike the FSP Tier 1 and Tier 2, both the IFA and the EDA are subject to funding being appropriated by the Legislature. A district that receives an EDA grant for debt service in one biennium has no guarantee that the grant will be renewed at all or at the same level for the life of the debt, and must assume the risk that the assistance provided will be limited.
Neither the IFA nor the EDA assists districts too poor to levy taxes in the first place. Property-poor districts are given priority for IFA funding but not for EDA. New and existing IFA awards now total about $270 million, but substantial requests have gone unfunded. In the 2002-2003 school year, 520 school districts got $457.5 million in EDA allotments. Together, the two allotments equalize districts’ access to revenue for 90% of eligible debt service.
I & S rates are excluded from Tier 2 allotments and are not used in recapture calculations, so that districts’ retained wealth for I & S taxes is not capped as it is for M & 0 taxes. Thus, property-rich districts have more than 20 times as much value/WADA to tax for facilities as property-poor districts. By contrast, in Edgewood IV, I & S tax rates for debt service were included within Tier 2 allotments and used for recapture calculations to cap retained value.
The district court found: Lacking sufficient funding, property-poor districts such as the Edgewood In-tervenors have been unable to provide adequate facilities for all the children in their districts. Substandard conditions include: overcrowded schools and classrooms; out-of-date buildings, equipment and fixtures; inadequate libraries, science labs, cafeterias, gymnasiums, and other school facilities.
The court identified health and safety concerns raised by some conditions, like inadequate heating, air conditioning, and ventilation, and science laboratories without emergency eye washes, fume hoods, exhaust fans, and other safety features.
The court found that inadequate facilities negatively impacted student scores on standardized tests, and that “property-poor districts like the Edgewood Intervenors lack all the facilities essential to providing students a learning environment in which to attain a general diffusion of knowledge.” The State makes a few other contributions to public education finance besides the programs and allotments we have described. It paid districts $110 per student for the 2003-2004 school year, and it has funded other projects, like Head Start and the High School Completion Initiative.
But 95% of all funds for public education flow through the Foundation School Program, including the IFA and the EDA, and are thereby equalized among the districts. The other 5% includes tax revenue that is not recaptured, taxes above the $1.50 M & O level in seven districts, and I & S tax revenue that exceeds the IFA and EDA yields or is not included under these allotments. On the whole, about 85% of the student population resides in districts with revenue equivalent to a district with $271,400/student.
B The finance system we have described funds an education system with four integrated components: a state curriculum, a standardized test to measure how well the curriculum is being taught, accreditation standards to hold schools accountable for their performance, and sanctions and remedial measures for students, schools, and districts to ensure that accreditation standards are met. The Legislature has prescribed the following basic public school curriculum: Each school district that offers kindergarten through grade 12 shall offer, as a required curriculum: (1) a foundation curriculum that includes: (
A) English language arts; (
B) mathematics; (
C) science; and (D)social studies, consisting of Texas, United States, and world history, government, and geography; and (2) an enrichment curriculum that includes: (
A) to the extent possible, languages other than English; (
B) health; (
C) physical education; (
D) fine arts; (
E) economics, with emphasis on the free enterprise system and its benefits; (
F) career and technology education; and (
G) technology applications. The Legislature has also required that “[t]he State Board of Education [‘SBOE’], with the direct participation of educators, parents, business and industry representatives, and employers shall by rule identify the essential knowledge and skills of each subject of the required curriculum that all students should be able to demonstrate”. After years of consultation and study, over a thousand public meetings, and thousands of public comments, the SBOE adopted the Texas Essential Knowledge and Skills (“TEKS”) curriculum for use beginning in the 1998-1999 school year.
The Legislature has also required the SBOE to “determine curriculum requirements for the minimum, recommended, and advanced high school programs that are consistent with the required curriculum”. In 2000, after study and input, the SBOE revised these programs, making them more difficult and restricting future participation in the minimum program. Beginning in the 2004-2005 school year, no high school student may be enrolled in the minimum program unless the student, the student’s parent or guardian, and a school administrator agree.
To correspond to the curriculum changes, the Legislature required the development of a new state standardized test — the Texas Assessment of Knowledge and Skills (“TAKS”) test — to replace the Texas Assessment of Academic Skills (“TAAS”) test. The TAKS test, developed after consultation with educators and testing experts and first given in the spring of 2008, has harder questions, covers more subjects — five (reading/English Language Arts, writing, math, science, and social studies) instead of three (for most of TAAS’s duration) — and is given at more grade levels.
A student must pass portions of the test for promotion to the fourth and sixth grades (and in school year 2007-2008 to the ninth grade), and cannot graduate high school without passing an exit-level test first administered in the eleventh grade. A student may take the test as many as three times in order to pass it for promotion, and for any student who fails any part, the district must provide accelerated instruction, an individualized graduation plan, and study guides to the student’s parents. A student may retake a necessary exit-level test any time it is administered.
There are special tests for Spanish-speaking students, students with limited English proficiency, and disabled students. At the Legislature’s direction, the SBOE determined after public input what scores would constitute passing — “cut scores” — and decided that they should be lower at first, increasing over three years, to give teachers and students time to adjust to the new and more difficult test.
To pass the 2004 TAKS test, an 11th grader was required to answer correctly 37 out of 73 questions (50.7%) on the reading test, 24 out of 55 questions on the science test (43.6%), and 25 out of 60 questions (41.7%) on the math test. The passing rates for the 2004 TAKS test, calculated statewide and for five different student populations — African-American, Hispanic, white, economically disadvantaged (“ED”), and limited-English-proficiency (“LEP”)— are shown in this chart: These passing rates were somewhat lower than those for 2002, the last year the TAAS test was given.
TAAS passing scores had increased significantly leading up to 2002, as shown in the following chart for reading, math, and writing tests in grades three through eight and ten (1994-2002), and social studies and science tests in the eighth grade (1995-2002): In 1994 the minimum passing rate for an “academically acceptable” rating was 25%, and by 2002 it had climbed to 55%. For accountability, schools and districts are rated “exemplary”, “recognized”, “academically acceptable”, or “academically unacceptable” based on “academic excellence indicators” chosen by the Commissioner of Education.
Those indicators are standardized test scores, high-school completion rates, and seventh- and eighth-grade dropout rates. For each accountability rating, the required test passing rate must be met in each of five student groups — all students, African-American, Hispanic, white, and economically disadvantaged. The completion rate is the percentage of students entering the ninth grade who have either completed or are continuing their high school education four years later. If any school in a district is rated “academically unacceptable”, the district cannot be rated “exemplary” or “recognized”.
With certain exceptions, the minimum requirements for each rating are as follows: These test passing rate requirements remain the same for the three years 2004-2006 that the test cut scores are phased in, then they increase incrementally for three years to the point that a district must have a test passing rate of at least 70% for all student groups in all subjects to be rated “academically acceptable”. After 2006, GED recipients will no longer be counted as completers. In 2005, the maximum dropout rate for an “academically acceptable” rating falls to 1%, and in 2007 a broader definition of dropout will be used.
Before the change to the TAKS test in 2003, many districts improved their accreditation rating, but at the same time the number of “academically unacceptable” districts also grew. After the change to the harder test, ratings predictably slid, although the number of “academically unacceptable” districts also declined.
The following table summarizes these trends: As sanctions for an “academically unacceptable” rating, the Commissioner of Education may, among other things, order a school board to hold a public hearing on the deficiency, order the school board president and superintendent to appear before the Commissioner, or order an on-site evaluation and recommendations for reform. After a year, the Commissioner may appoint a board of managers in place of the school board.
After two years, the Commissioner may annex the district to an adjoining district. (For example, the Commissioner has recently announced her intention to annex the Wilmer-Hutchins Independent School District to the Dallas Independent School District, pending pre-clearance by the United State Department of Justice under the federal Voting Rights Act.) Academic success is also measured by the National Assessment of Educational Progress (“NAEP”) achievement test, as witnesses for all parties at trial acknowledged.
In 2000, controlling for socioeconomic and family characteristics, Texas was first out of 47 states overall, first for white students, fifth for African-American students, ninth for Hispanic students, first for fourth- and eighth-graders in math, and second in rate of improvement. In 2003, Texas rankéd first in the nation in closing the gap between African-American and white fourth-graders in math, and second in the nation in closing the gap between Hispanic and white fourth-graders in math and reading.
But unadjusted NAEP data, which may more accurately reflect college preparation, showed Texas sinking to 37th among the states in fourth-grade and eighth-grade reading, although it had risen to 22nd in fourth-grade math and remained 34th in eighth-grade math. Because more students are failing the TAKS test than were failing the TAAS test, and because passing the TAKS test is now required for promotion to the fourth and sixth grades, the districts must spend more for remediation through summer school, remedial classes, curriculum specialists, reduced class-size, and more math and science teachers.
There is a worsening undersupply of teachers, aggravated by high attrition and turnover. Additionally, the percentage of LEP and ED students, who generally cost more to educate, has increased. The FSP provides an extra bilingual education allotment for LEP students and an extra compensatory education allotment for ED students, but the attendance weights used to determine those allotments have not increased since 1985.
Based on the eleventh-grade exit-level TAKS test, the percentages of student groups meeting the college-readiness standards of the Texas Higher Education Coordinating Board for English and math are shown in this table: In 2003, Texas ranked last among the states in the percentage of high school graduates at least 25 years old in the population. Texas also has a severe dropout problem: more than half of the Hispanic ninth-graders and approximately 46% of the African-American ninth-graders leave the system before they reach the twelfth grade.
The gaps between white students on the one hand and African-American and Hispanic students on the other are especially troublesome since the African-Americans and Hispanics are projected to be about two-thirds of Texas’ population in 2040.
According to the plaintiffs’ expert, if these gaps are not reduced, Texas will “have a population that not only will be poorer, less well-educated, and more in need of numerous forms of state services than its present population, but also less able to support such services ... [and] less competitive in the inereas-ingly international labor and other markets.” It is difficult to quantify the cost of an adequate education — one that achieves a general diffusion of knowledge.
The parties offered competing cost function studies prepared by economists, examining statistical relationships between spending and student performance, taking into account student and school characteristics. We do not attempt to describe here the detailed procedures used in the studies but focus only on the conclusions. The study offered by plaintiffs and intervenors, done by Dr. Jennifer Imazeki and Dr.
Andrew Res-chovsky (the “I/R study”), concluded that to achieve a 55% statewide pass rate on the 2005 TAKS test would require additional spending of from $1,653 billion to $6,171 billion — between $401 and $1,511 more per student. The study offered by the State defendants, done by Dr. Lori Taylor (the “Taylor study”), concluded that some 17% of school districts — 117 out of 695 studied — could not achieve a 55% pass rate in 2003 at a $1.50 tax rate without additional revenue of $563-$731 million. The district court accepted the I/R study and found the Taylor study flawed in several respects.
Despite those flaws, the court continued, the Taylor study showed that school funding was insufficient to provide an adequate education in many districts. The court also found that both studies underestimated the costs of meeting accreditation standards. As the State defendants noted, however, the cost studies and court findings overlook the reality that almost all schools are meeting accreditation standards with current funding. C Four of the plaintiff school districts initiated this action in April 2001, alleging that the $1.50 maximum M & O tax rate had become in effect a state property tax prohibited by
article VIII,
section 1-e of the Texas Constitution, because they and other districts had lost all meaningful discretion to tax at any lower rate. Forty school districts intervened in two groups, six with Edgewood ISD and 34 with Alvarado ISD, opposing the plaintiffs’ position but asserting that the public school finance system was inefficient, inadequate, and unsuitable in violation of
article VII,
section 1 of the Texas Constitution, because the State does not provide sufficient funding. About three months after suit was filed, the trial court dismissed the plaintiffs’ claims on the pleadings, concluding that the plaintiffs could not prove an unconstitutional state ad valorem tax unless about half of the school districts, more or less, were taxing at maximum rates, and by the plaintiffs’ own admission, less than a fifth of the districts were at the cap at the time.
The court of appeals affirmed, not because so many school districts were still taxing below maximum rates, but because it concluded that the plaintiffs had not alleged that taxing at maximum rates was necessary just to provide an accredited education, rather than being used for additional programs. We reversed.
The Legislature, we said, is constitutionally obligated “to make suitable provision for a general diffusion of knowledge through, free public schools”, and because it “has chosen to rely heavily on school districts to discharge its duty”, school districts must tax at levels necessary to achieve the constitutional mandate as well as to meet statutory accreditation standards that the Legislature has imposed to achieve a general diffusion of knowledge.
If school districts are forced to tax at or near maximum rates to meet constitutional and statutory requirements, then control over local ad valorem tax rates and spending effectively shifts to the State, depriving school districts of any meaningful discretion to tax below the rate cap set by the State or to spend on programs other than those required by the State and the Constitution. The result, we again warned as we had in Edgewood IV, would be a state ad valorem tax in violation of
article VIII,
section 1-e. We concluded that the plaintiffs’ pleadings had fairly alleged that such a violation was occurring. After we remanded the case to the trial court, 285 other school districts were added as plaintiffs or intervenors. The plaintiffs joined the intervenors in their
article VII,
section 1 claims that the public school finance system is inadequate and unsuitable, but not in their claims that the system is inefficient. To facilitate trial of the case, the plaintiffs, the Edgewood intervenors, and the State defendants agreed that each group would designate a few districts, which they called “focus districts”, on which the evidence would center. On November 80, 2004, the district court rendered judgment for the plaintiffs on all their claims and for the intervenors on all but one of their claims. In extensive findings and conclusions, the court held that local ad valorem taxes had become a state ad valorem tax in violation of
article VIII,
section 1-e, that the public school finance system is inadequate and unsuitable in violation of
article VII,
section 1, and that the funding of school facilities is inefficient in violation of
article VII,
section 1. The court refused to find that the funding of school maintenance and operations is also inefficient. The court enjoined the State defendants “from giving any force and effect to the sections of the Education Code relating to the financing of public school education (Chapters 41 and 42 of the Education Code) and from distributing any money under the current Texas school financing system until the constitutional violations are remedied.” The court stayed this injunction until October 1, 2005, “to give the Legislature a reasonable opportunity to cure the constitutional deficiencies in the finance system”.
Finally, the court awarded the plaintiffs and intervenors $4,273,120.50 in attorney fees through proceedings in this Court. The State defendants and each of the two intervenor groups filed separate, direct appeals to this Court. We noted probable jurisdiction in all three cases, consolidated them, and expedited briefing and oral argument. II At the outset, the State defendants challenge the district court’s subject matter jurisdiction on three grounds: that the plaintiff and intervenor school districts lack standing to assert any of their constitutional claims, that their claims under
article VII,
section 1 are nonjusticiable political questions, and that
article VII,
section 1 is not self-executing and thus cannot be enforced by court action. With one exception, we have previously rejected all of these contentions, either expressly or implicitly, in this case when it was last before us or in the other cases in which the constitutionality of the public school finance system has been at issue. In none of our prior cases has a school district’s standing to challenge the public school finance system under
article VII,
section 1 been challenged, and we have not specifically addressed that issue. To the extent we have already spoken to these issues, the State defendants urge us to reconsider. Our prior decisions have not ended litigation over school finance once and for all, and the State defendants argue that this is because the courts cannot give sufficiently certain meaning to the constitutional standards.
Each new case, they argue, threatens to drag the courts inescapably into a morass of policy-making where they do not belong and from which they will not be able to extricate themselves, endlessly second-guessing the detailed structures of public education. We think our prior opinions on these matters are clear enough and remain correct, but because the issues are important, we address each of the State defendants’ arguments in turn.
A In the plaintiffs’ earlier appeal, we held “that the plaintiff school districts in this case have standing to assert their claims.” At that time, the plaintiffs’ only claims were under
article VIII,
section 1-e. The State defendants argue that to allow the plaintiffs and intervenors standing to raise any of their constitutional claims is inconsistent with the general rule that governmental entities do not possess constitutional rights, citing our 1966 decision in Deacon v. City of Euless, the court of appeals’ decision in Nueces County Appraisal District v. Corpus Christi People’s Baptist Church, Inc., and the dissent in the prior appeal.
In Deacon, we held that a home-rule city could not complain that legislation affecting its power to annex territory was unconstitutionally retroactive, but we did not establish a broad rule that a governmental entity cannot sue to declare a statute unconstitutional. The court of appeals noted this in Nueces County, stating that Deacon did not “establish an mondad rule that a county may never attack the constitutionality of a state statute”, and held that a county was the proper party to challenge a statute that allowed churches to regain tax exemptions they had lost by failing to timely file claims.
Thus, of the three authorities on which the State defendants rely, only the prior dissent in this case lends support to their position. In answer to the dissent, we said: In Nootsie, Ltd. v. Williamson County Appraisal District, we held that a county appraisal district had standing to seek a declaratory judgment that the Legislature had unconstitutionally defined open-space land for tax purposes to include ecological laboratories. We see no difference in the standing of an appraisal district to assert its claims in Nootsie and the standing of the school districts here. Following Nootsie, we held in Proctor v.
Andrews that the City of Lubbock had standing to challenge the constitutionality of a statute requiting arbitration of disciplinary disputes with its police officers “ ‘because it is charged with implementing a statute it believes violates the Texas Constitution.” ’ That interest, we said, gave the City “ ‘a sufficient stake in [the] controversy to assure the presence of an actual controversy that the declaration sought will resolve.” ’ The City’s claims in Proctor were that the statute was an unconstitutional delegation of legislative power to a private authority and an impermissible infringement on the constitutional powers of home-rule cities.
A year later, in Wilson v. Andrews, we held that the City also had standing to challenge the statute on due process and equal protection grounds. “[T]he constitutional demands of standing,” we explained, “are that there is (
a) a real controversy between the parties, which (
b) will be actually determined by the judicial declaration sought. Under this standard, Lubbock indeed has standing.” The State defendants argue that Nootsie is distinguishable because there, the appraisal district had an “interest, as a tax-collecting entity, in ensuring the collection of those tax obligations legally due”, whereas here, the school districts “are merely representing the potential interests of students and parents in their districts.” But this argument with respect to
article VII,
section 1 ignores what we said in the plaintiffs’ earlier appeal, that the Legislature has required school districts to achieve the goal of a general diffusion of knowledge. This requirement is expressly imposed by
section 11.002 of the Education Code, which states: The school districts and charter schools created in accordance with the laws of this state have the primary responsibility for implementing the state’s system of public education and ensuring student performance in accordance with this code. School districts’ interest in discharging this duty is not merely representative of constituent students and taxpayers. And with respect to
article VIII,
section 1-e, the State defendants’ argument overlooks the fact that school districts’ interests in not collecting an illegal tax may conflict with taxpayers’ interest. For one thing, school districts’ concerns could be met simply by raising the cap on ad valorem taxes, something that could well be expected to aggravate taxpayers’ concerns. The dissent agrees that school districts have standing to challenge public school finance under
article VIII,
section 1-e but argues that they have no standing to assert challenges under
article VII,
section 1 because that provision confers rights only on school children, not districts. We think the guarantee of public free schools assured by
article VII,
section 1, extends not only to school children but to the public at large, which is vitally concerned that there be a general diffusion of knowledge. We agree that the provision creates no rights in school districts, but such rights are not a prerequisite for standing to assert that the provision has been violated. Standing to assert a constitutional violation depends on whether the claimant asserts a particularized, concrete injury. As we recently explained in Brown v.
Todd: under Texas law, standing limits subject matter jurisdiction to cases involving a distinct injury to the plaintiff and “a real controversy between the parties, which ... will be actually determined by the judicial declaration sought.” Texas Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 517-18 (Tex.1995); see also State Bar v. Gomez, 891 S.W.2d 243, 245 (Tex.1994). ... [W]e may look to the similar federal standing requirements for guidance. [Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993).] “To meet the standing requirements of
Article III [of the United States Constitution], ‘[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.’” [Raines v. Byrd, 521 U.S. 811, 818-819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)] (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 ... (1984)) ....
The United States Supreme Court has “consistently stressed that a plaintiffs complaint must establish that he has a ‘personal stake’ in the alleged dispute” and that the injury suffered is “concrete and particularized.” Id. at 819, 117 S.Ct. 2312 ... (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 ... (1992)). The dissent argues that school districts have suffered no injury because they have lost no funds that belong to them, and that “[t]he injury [the districts have] alleged in this case was suffered only by school students”.
But the school districts have alleged the very same injury that the appraisal district alleged in Nootsie and the city in Proctor, which is that they are being required to implement unconstitutional statutes. And this is also the same injury that gives the districts standing to complain that local ad valorem taxes have become a state property tax in violation of
article VIII,
section 1-e. The dissent argues that “[t]he districts do not complain that they are affirmatively compelled to perform unconstitutional teaching, testing, or any other services; they complain only that they are underfunded.” The dissent disregards the plaintiffs’ statement in their brief: the school districts stand in precisely the same position as the county appraisal district in Nootsie: all are required to implement statutes that they regard as unconstitutional.
Likewise, the Edgewood intervenors asserted standing in the district court because “they have been charged with implementing statutes which they believe violate the Texas Constitution.” The dissent repeatedly states that government agencies do not have standing to sue for increased funding, tacitly assuming that funding of governmental functions is always a matter of policy and allocation of resources. The dissent’s statements are not true when funding is required by the Constitution, as the districts claim here. In Vondy v.
Commissioners Court, we held that by providing that justices of the peace be compensated by salary,
article XVI, § 61 requires commissioners courts to set reasonable salaries. Similarly, we held in Mays v. Fifth Court of Appeals that a commissioners court must pay a district court’s court reporter the salary determined by the district court as authorized by statute. The dissent attempts to distinguish these cases as “involv[ing] nondiscretionary ministerial acts”, but the commissioners court in Vondy had discretion to determine what salary was reasonable, and making that determination was not simply a ministerial act. Similarly, the Legislature has discretion under
article VII,
section 1 to determine how to structure and fund the public education system to achieve a general diffusion of knowledge. However, in Vondy, as in this case, governmental discretion is circumscribed by the Constitution.
Article VII,
section 1 requires that public school finance be efficient and adequate to provide a general diffusion of knowledge. The school districts have standing to insist that this provision be obeyed. Finally, the dissent argues that to allow school districts standing to challenge public school finance under
article VII,
section 1 distorts the constitutional issues because school districts will advance only their own interests and not those of students or others, and “fundamental reforms may be overlooked if school districts may assert
Article VII claims by themselves”. Of course, a party’s standing to assert a claim does not depend on its ability or willingness to look out for interests other than its own, and the dissent has no authority to the contrary. Not all districts share the same view of the public school system. The plaintiffs and intervenors do not, and more than two-thirds of the districts have not joined this action. The fact that districts disagree among themselves and may also disagree with some students, parents, teachers, and taxpayers does not deprive them of standing to assert the claims they have.
The dissent argues that the record in this case would look far different if it could be brought only by individuals and not by districts, but this ignores two facts: individuals who the dissent thinks would take different positions were free to intervene, and essentially all of the arguments made by the school districts in this case have been made by individuals in prior cases. The suggestion that the plaintiff and intervenor districts could not find one student out of 4.3 million to join in asserting their positions, when dozens have joined prior actions, cannot be taken seriously.
Like the appraisal district in Nootsie and the city in Proctor and Wilson, the school districts here have a real controversy to be resolved in this case, -and thus they have standing. The dissent’s charge that we have abandoned judicial restraints like standing because this is a noteworthy case is simply not true. We do not suggest, of course, that only school districts have standing to raise the issues that have been raised here. Prior cases challenging public school finance have involved individual claimants as well as school districts.
The State defendants do not contest that individuals would have standing to raise the claims in this case. The interests of individual taxpayers in suitable, adequate, efficient public education and in avoiding a state property tax might well diverge from those of their school districts. But individuals’ standing to assert these constitutional claims does not deprive school districts of standing to assert the same claims. Accordingly, we conclude that the plaintiff and intervenor school districts have standing to assert the claims made in this case.
B Preceding our decision in Edgewood I, a divided court of appeals held that whether the public school finance system is efficient within the meaning of
article VII,
section 1 “is essentially a political question not suitable for judicial review.” We firmly rejected that view: This is not an area in which the Constitution vests exclusive discretion in the legislature; rather the language of
article VII,
section 1 imposes on the legislature an affirmative duty to establish and provide for the public free schools. This duty is not committed unconditionally to the legislature’s discretion, but instead is accompanied by standards. By express constitutional mandate, the legislature must make “suitable” provision for an “efficient” system for the “essential” purpose of a “general diffusion of knowledge.” While these are admittedly not precise terms, they do provide a standard by which this court must, when called upon to do so, measure the constitutionality of the legislature’s actions.
We do not undertake this responsibility lightly and we begin with a presumption of constitutionality. Nevertheless, what this court said in only its second term, when first summoned to strike down
an act of the Republic of Texas Congress, is still true: [W]e have not been unmindful of the magnitude of the principles involved, and the respect due to the popular branch of the government....
Fortunately, however, for the people, the function of the judiciary in deciding constitutional questions is not one which it is at liberty to decline.... [We] cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution; [we] cannot pass it by because it is doubtful; with whatever doubt, with whatever difficulties a case may be attended, [we] must decide it, when it arises in judgment. Morton v. Gordon, Dallam 396, 397-398 (Tex.1841).
If the system is not “efficient” or not “suitable,” the legislature has not discharged its constitutional duty and it is our duty to say so. We reaffirmed this position in the plaintiffs’ earlier appeal in this case, extending it to include not only efficiency but the other standards in
article VII,
section 1: The final authority to determine adherence to the Constitution resides with the Judiciary. Thus, the Legislature has the sole right to decide how to meet the standards set by the people in
article VII,
section 1, and the Judiciary has the final authority to determine whether they have been met. Nevertheless, the State defendants argue that the history of school finance litigation over the past two decades requires us to reconsider whether the court of appeals in Edgewood I was right after all, and that the issues of adequacy, suitability, and efficiency under
article VII,
section 1 are all nonjusticiable political questions because they involve either “a textually demonstrable constitutional commitment of the issue[s] to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving [them]”—the two principal tests set out in the United States Supreme Court’s landmark decision in Baker v. Carr. The first test is satisfied, the State defendants continue, by the language of
article VII,
section 1, which expressly makes the establishment, support, and maintenance of free public schools “the duty of the Legislature”. The second test has been demonstrated, according to the State defendants, because “[sjixteen years of school finance litigation ha[ve] disproved the Court’s expressed hope in Edgewood I that it could pass upon the legitimacy of the system without intruding upon the Legislature’s province.” The tests of Baker v. Carr define non-justiciable political questions for purposes of demarcating the separation of powers in the federal government under the United States Constitution.
Assuming that the same tests would serve equally well in defining the separation of powers in the state government under the Texas Constitution, we disagree with the State defendants that either of the tests categorically precludes the judiciary from deciding the issues raised in this case under
article VII,
section 1. As we explained in the first appeal in this case, “[b]y assigning to the Legislature a duty, [article VII,
section 1] both empowers and obligates.” The Constitution commits to the Legislature, the most democratic branch of the government, the authority to determine the broad range of policy issues involved in providing for public education. But the Constitution nowhere suggests that the Legislature is to be the final authority on whether it has discharged its constitutional obligation.
If the framers had intended the Legislature’s discretion to be absolute, they need not have mandated that the public education system be efficient and suitable; they could instead, have provided only that the Legislature provide whatever public education it deemed appropriate. The constitutional commitment of public education issues to the Legislature is primary but not absolute. Nor do we agree with the State defendants that the constitutional standards of adequacy, efficiency, and suitability are judicially unmanageable.
These standards import a wide spectrum of considerations and are admittedly imprecise, , but they are not without content. At one extreme, no one would dispute that a public education system limited to teaching first-grade reading would be inadequate, or that a system without resources to accomplish its purposes would be inefficient and unsuitable. At the other, few would insist that merely to be adequate, public education must teach all students multiple languages or nuclear biophysics, or that to be efficient, available resources must be unlimited.
In between, there is much else on which reasonable minds should come together, and much over which they may differ. The judiciary is well-accustomed to applying substantive standards the crux of which is reasonableness. This is not to say that the standards in
article VII,
section 1 involve no political considerations beyond the judiciary’s power to determine. We have acknowledged that much of the design of an adequate public education system cannot be judicially prescribed. Litigation over the adequacy of public education may well invite judicial policy-making, but the invitation need not be accepted. The judiciary’s choice is not between complete abstinence from
article VII,
section 1 issues, and being, in the State defendants’ words, “the arbiter of education and policy, overseeing such issues as curriculum and testing development, textbook approval, and teacher certification”. Rather, the judiciary’s duty is to decide the legal issues properly before it without dictating policy matters. The constitutional standards provide an appropriate basis for judicial review and determination. The State defendants argue that if the standards of
article VII,
section 1 had judicially manageable content, litigation over the constitutionality of the public education system would not have lasted as long as it has. It is true, of course, as this case illustrates, that disagreements over the construction and application of
article VII,
section 1 persist. But such disagreements are not unique to
article VII,
section 1; they persist as to the meanings and applications of due course of law, equal protection, and many other constitutional provisions. Indeed, those provisions have inspired far more litigation than
article VII,
section 1, which has been at the heart of only a few lawsuits in two decades. Moreover, the continued litigation over public school finance cannot fairly be blamed on constitutional standards that are not judicially manageable; the principal cause of continued litigation, as we see it, is the difficulty the Legislature has in designing and funding public education in the face of strong and divergent political pressures. To this point, we have assessed the State defendants’ arguments as if the tests of Baker v. Carr would apply under the Texas Constitution.
If they do—a question we need not reach—their application is limited. In the federal system, political questions are a rarity. The United States Supreme Court has held only two issues to be nonjusticiable political questions: whether the military was properly trained, and whether the impeachment trial of a federal judge may be conducted before a Senate committee instead of the entire Senate. The Court did not hold the one-man-one-vote congressional apportionment issue in Baker v. Carr to be a political question, and it has refused to hold issues to be political questions in at least seven other cases.
The Court did not even discuss the doctrine in Bush v. Palm Beach County Canvassing Board and Bush v. Gore, eases in which the winner of the 2000 national presidential election was at stake, certainly a “political issue” as conventionally understood, if not within the meaning of Baker v. Carr. Some have questioned whether the political question doctrine has any real vitality at all. This Court has never held an issue to be a nonjusticiable political question, and we have referred to the doctrine only in passing. The courts of appeals have applied the doctrine only rarely.
A few state supreme courts have refused to adjudicate constitutional challenges to public school finance on the ground that the issues were nonjusticiable political questions, but many others have rejected the argument. Like the majority of these states, we conclude that the separation of powers does not preclude the judiciary from determining whether the Legislature has met its constitutional obligation to the people to provide for public education. c The State defendants’ third challenge to the district court’s jurisdiction is that
article VII,
section 1 is not self-executing and thus does not allow for court action to enforce its provisions. The concept of a constitutional provision as self-executing, long-recognized in the law, was restated by this Court in 1898 in Mitchell County v.
City National Bank of Paducah, Ky.: “A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which these principles may be given the force of law.” In that case, Mitchell County issued bonds to obtain funds for building bridges and a courthouse and jail. When the county refused to pay on the bonds, the holder sued.
Article XI,
section 2 of the Texas Constitution states.that “[t]he construction of jails, court-houses and bridges ... shall be provided for by general laws”, and
section 7 of the same
article prohibited certain cities and counties from incurring debt for certain projects without imposing taxes for a sinking fund to repay the debt. The Legislature had enacted statutes authorizing the kind of bonds Mitchell County had issued, but the county argued in part that the statutes improperly added to the constitutional requirements. We held that the constitutional provisions were self-executing only in prohibiting conflicting laws and did not preclude statutes passed to effectuate the provisions. We have used the doctrine of .self-executing constitutional provisions to preclude judicial action only once.
Article XVI,
section 59 of the Texas Constitution makes “[t]he conservation and development of all of the natural resources of this State ... public rights and duties” and requires the Legislature to “pass all such laws as may be appropriate thereto”. In City of Corpus Christi v.
City of Pleasanton, we held that this provision did not provide a basis to declare “what types of conduits and reservoirs may be used for the transportation and storage of water, lawfully obtained and lawfully used”, and especially, to “declare the use of certain types of conduits and reservoirs to be. unlawful when the Legislature itself, by necessary implication, has declared them to be lawful.” The Legislature had acted to conserve river water, and the constitutional provision did not authorize us to impose a different, specific requirement. The standards of
article VII,
section 1— adequacy, efficiency, and suitability — do not dictate a particular structure that a system of free public schools must have. We have stressed this repeatedly.
In Edgewood I, we wrote: “Although we have ruled the school financing system to be unconstitutional, we do not now instruct the legislature as to the specifics of the legislation it should enact; nor do we order it to raise taxes.” In Edgewood II, we said: “We do not prescribe the means which the Legislature must employ in fulfilling its duty.” In Edgewood III, we reiterated: “As before, we do not prescribe the structure for ‘an efficient system of public free schools.’ ...
We have not, and we do not now, suggest that one way of school funding is better than another, or that any way is past challenge, or that any member of this Court prefers a particular course of action ..., or that one measure or another is clearly constitutional.” But like the constitutional provisions in Mitchell County,
article VII,
section 1 dictates what the public education system cannot be: it cannot be so inadequate that it does not provide for a general diffusion of knowledge, or so inefficient that districts which must achieve this general diffusion of knowledge do not have substantially equal access to available revenues to perform their mission, or so unsuitable that it cannot because of its structure achieve its purpose. Thus, we agree with the State defendants that
article VII,
section 1 does not provide the courts a basis for declaring what education or finance systems will alone satisfy its standards. But the provision is self-executing insofar as it prohibits any system that fails to meet those standards. Ill We come, then, to the question whether the public education system violates the requirements of
article VII,
section 1. A The State defendants argue that in determining whether the public school finance system is adequate, efficient, and suitable, the test should be whether there is any rational basis for the Legislature to have fashioned the system the way it has. The plaintiffs and intervenors disagree, arguing that a rational-basis test is too deferential to the Legislature, but they have not suggested a clear alternative. In Edgewood I and II, we did not find it necessary to articulate a standard of review; the public school finance system was simply not “efficient” by any stretch of the word.
Nor did we state a standard of review expressly in Edgewood IV, though it was a much closer case. But the standard of review the Court applied in Edgewood IV is apparent from the opinion. For example, the property-poor school districts complained that the public school finance system was inefficient because as Senate Bill 7 was structured, the richest districts could always raise on average $600/WADA more than the poorest districts. We concluded that this gap was not unreasonable, given that the poorest districts could still provide an adequate education at a slightly higher tax rate.
The property-poor districts also complained that the system was inefficient because Senate Bill 7 excepted a few “hold harmless” districts from full recapture for a three-year phase-in period. Again, we held that this accommodation was not so unreasonable as to render the entire system inefficient. In essence, we refused to find a constitutional violation when the challenged aspect of the system was not arbitrary. This comports with what we said in 1931 in Mumme v. Marrs: The purpose of [article VII,
section 1] as written was not only to recognize the inherent power in the Legislature to establish an educational system for the state, but also to make it the mandatory duty of that department to do so.... The Legislature alone is to judge what means are necessary and appropriate for a purpose which the Constitution makes legitimate. The legislative determination of the methods, restrictions, and regulations is final, except when so arbitrary as to be violative of the constitutional rights of the citizen.
The State defendants argue that there is no difference between a rational-basis test and a test based on arbitrariness. An action is arbitrary when it is taken without reference to guiding rules or principles —in other words, the State defendants argue, when it has no rational basis. But the phrase, “rational basis”, is more often associated with the minimal requirement a classification must meet to be consistent with the constitutional guarantee of equal protection when no suspect class or fundamental right is involved.
In that context, the idea is that the government is permitted to give classes disparate treatment, notwithstanding the constitutional guarantee, as long as it has a rational basis for doing so. The same idea does not fit in the context of
article VII,
section 1. That provision does not allow the Legislature to structure a public school system that is inadequate, inefficient, or unsuitable, regardless of whether it has a rational basis or even a compelling reason for doing so. But the provision does allow the Legislature, of necessity, much latitude in choosing among any number of alternatives that can reasonably be considered adequate, efficient, and suitable. These standards do not require perfection, but neither are they lax. They may be satisfied in many different ways, but they must be satisfied.
Article VII,
section 1 allows the Legislature a large measure of discretion on two levels. The Legislature is entitled to determine what public education is necessary for the constitutionally required “general diffusion of knowledge”, and then to determine the means for providing that education. But the Legislature does not have free rein at either level. “[T]he Legislature may [not] define what constitutes a general diffusion of knowledge so low as to avoid its obligation to make suitable provision imposed by
article VII,
section 1.” And “[w]hile the Legislature certainly has broad discretion to make the myriad policy decisions concerning education, that discretion is not without bounds.” It would be arbitrary, for example, for the Legislature to define the goals for accomplishing the constitutionally required general diffusion of knowledge, and then to provide insufficient means for achieving those goals. If the Legislature’s choices are informed by guiding rules and principles properly related to public education— that is, if the choices are not arbitrary— then the system does not violate the constitutional provision. For
article VII,
section 1, as for other provisions, “[t]he final authority to determine adherence to the Constitution resides with the Judiciary.” As we have said, “ ‘a mere difference of opinion [between judges and legislators], where reasonable minds could differ, is not a sufficient basis for striking down legislation as arbitrary or unreasonable.” ’ At the same time, “legislative action ... is not without bounds.” In assessing challenges to the public education system under
article VII,
section 1, courts must not on the one hand substitute their policy choices for the Legislature’s, however undesirable the latter may appear, but must on the other hand examine the Legislature’s choices carefully to determine whether those choices meet the requirements of the Constitution. By steering this course, the Judiciary can assure that the people’s guarantees under the Constitution are protected without straying into the prerogatives of the Legislature. Whether the statutory provisions creating the public school system are arbitrary and therefore unconstitutional is a question of law.
To the extent that this determination rests on factual matters that are in dispute, we must, of course, rely entirely on the district court’s findings. But in deciding ultimately the constitutional issues, those findings have a limited role. B The framers of the Texas Constitution of 1876 premised their mandate of free public education on the axiom that “[a] general diffusion of knowledge [is] essential to the preservation of the liberties and rights of the people”.
The delegates to the Constitutional Convention of 1875 were deeply divided over how best to provide for a general diffusion of knowledge, finally adopting
article VII,
section 1 by a vote of 55 to 25. No subject was more controversial or more extensively debated. Some believed that the job of educating the public should be done through private institutions rather than by public ones. Nearly all were for local control, having chafed under the centrally controlled schools of the Reconstruction Era. Many insisted on guaranteeing adequate funding sources, while others were concerned that the expense would overburden taxpayers. Still, none questioned that a general diffusion of knowledge was essential to self-governance.
The truth of the axiom had long been, and remains, beyond doubt. The framers may have borrowed the phrase from Thomas Jefferson’s 1778 draft of “A Bill for the More General Diffusion of Knowledge”, which provided for free public education in Virginia, observing that “the most effectual means of preventing [tyranny] would be, to illuminate, as far as practicable, the minds of the people at large”. George Washington used the same phrase a few years later in his 1796 farewell address, encouraging his countrymen: Promote, then, as an object of primary importance, institutions for the general diffusion of knowledge.
In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened.- The importance of public education was also recognized on the frontier.
In 1836, Texas declared its independence from Mexico, citing as one of the principal reasons that the Mexican government had— failed to establish any public system of education, although possessed of almost boundless resources, (the public domain,) and although it is an axiom in political science that, unless a People are educated and enlightened, it is idle to expect the continuance of civil liberty, or the capacity for self-government. Adopted at the
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