State District Judge John Dietz, ruling on the heels of closing arguments, said the state's system of funding public schools is unconstitutional and ordered the Legislature to fix it within a year. His detailed ruling won't be out for a couple of weeks, but if you do a quick calculation of what he said so far, it's easy to argue that the state will have to spend another $3 billion or so each year on public education. That's in addition to any money that would be used lowering local property taxes. (Click here for a copy of Dietz's bench ruling.)
The judge said the school finance system doesn't produce enough money to bring public school children to the constitutionally required education levels -- it "fails to provide an adequate suitable education" as required by the state constitution. Insert your own caveat, but keep watching: The districts that were suing the state point out that the judge didn't say that only poor districts are spending too little to hit the mark. While they don't have a final ruling in hand, some are taking that to mean he thinks even the richer districts don't spend enough.
Next, Dietz said the existing system forces many districts to levy property taxes at the top rate allowed by the state of $1.50 per $100 in property valuation. "Those districts have lost all meaningful discretion in setting the tax rates for their districts," he said, and called that another constitutional violation. State property taxes aren't legal, and if the state is effectively setting the rate for locals, that's effectively a state property tax. Again, the devil is in the details, and the details aren't yet available.
Finally, he said, "the state's school finance system is neither financially efficient nor efficient in the sense of providing for the mandated adequate education nor the statutory regime of accreditation, accountability, and assessment." That might sound like Esperanto to civilians, but the schoolies say he's talking about equity in the system, a constitutional requirement he finds lacking here.
He said a final order will be issued around October 1, and said the state will have one year from the time of the order to bring the system in line with the constitution.
Attorney General Greg Abbott said he'll file a direct appeal to the Texas Supreme Court -- asking permission to skip intermediate appeals and hear the case right away. In a statement, he didn't defend the state's system as a good one or label it as a bad one, but said he thinks it is a constitutional one. The Supremes can take the case now or tell the state to try its luck in lower appellate courts.
Dietz made some remarks as he issued his bench ruling that give some indication of what he was thinking. He said the state's public schools are suffering from a 10-point achievement gap between poor kids and those whose families aren't poor. He leaned on a report by State Demographer Steve Murdock of the University of Texas at San Antonio that showed that gap would translate over the next 30 years into lower average household incomes in the state; an increase in the number of Texans without high school diplomas, to 30 percent of the population; and higher populations in prisons, on welfare and in need of other forms of assistance.
"In other words, Texas in 2040 will have a population that is larger, poorer, less educated, and more needy than today," Dietz said. "Who in Texas would choose this as our future?"
For the judge, the solution is to close the gap in achievement between the haves and the have-nots, but he started and ended his remarks by saying it's not up to the courts to decide how to educate the children of Texas or how to pay for that education. "It is the people of Texas who set the standards, make the sacrifice, and give direction to their leaders," he said. "... The lesson is this: Education costs money, but ignorance costs more money."
Unwelcome, But Not Surprising
State leaders had hoped for better, but Judge Dietz's ruling didn't seem to faze anyone who had been paying attention. Lawmakers have been trying to rework the school finance system for several months now (in this iteration; it's been a problem off and on since World War II), and a fair number of them think an unfavorable court ruling could force risk-averse lawmakers to fix it.
Gov. Rick Perry said he thinks this is a problem for the Legislature to solve, and not the courts. He told a private group in Highland Park several months ago that he thought the Texas Supreme Court would uphold the current system (he had to backtrack after those remarks were reported by one of the participants, saying he hadn't talked to the judges about the case).
But he also called a special session last spring to make some changes and try to lower local school property taxes. Those taxes, as much as problems in the system, are the source of much political pain for Republicans who depend on suburban votes. It's an easy linkage: School taxes are driving those property taxes, those property taxes are very unpopular, those suburbs are populated by Republicans, and GOP officeholders are responsive. But with an election on the horizon and a court case just months away, lawmakers passed on the chance to vote on taxes and public education.
Lt. Gov. David Dewhurst took the opportunity to repeat a couple of points he's made before. One, the Senate passed a school finance plan in May 2003 that might have ducked the lawsuit and this ruling, but didn't get any support from either the House and the governor. Second, the Senate wants a "permanent and comprehensive" school finance plan that puts more money into schools (tied to accountability) and that cuts property taxes for owners of both business and residential properties. The code there is that he doesn't like proposals — like one earlier from Perry — that benefit residential property owners more than business property owners. And he doesn't want a school finance fix aimed solely at the property tax problem. Dietz's ruling appears to bolster that position.
Dewhurst also said -- this bit is new -- that he's talked to Perry about making school finance an emergency measure during the regular legislative session that starts in January. That would allow lawmakers to vote and amend a school finance measure during the first 60 days of the session (which isn't permitted for non-emergency measures) and it short-circuits the talk of a special session that would be tucked in between the November elections and that regular session.
House Speaker Tom Craddick said the ruling "confirmed what many of us long suspected, that the current "Robin Hood" school finance system fails to meet constitutional standards." He said Dietz's ruling gives the Legislature "important direction" on things like closing achievement gaps between students, and he reiterated his support for better numbers on dropouts from Texas schools. Current measures, he and others suspect, don't produce realistic numbers. And he's on the same page with Dewhurst, calling for emergency status for the issue in the regular session in January.
Other reactions were mixed. Several candidates challenging incumbents took the occasion to call the decision proof that new blood is needed in Austin. Two lawmakers — Reps. Dan Branch, R-Dallas, and Aaron Peña, D-Edinburg — called on the governor to bring the Lege back before the regular session to work on school finance.
That's possible, and some of the folks in management have talked about it. But there's a structural problem: Lawmakers in regular session can easily undo anything done in a special session. A compromise reached in special session could easily fall victim to public reaction during the regular session that follows. There's also the matter of the Texas Supreme Court; lawmakers might be reluctant to act without seeing what the high court wants to do. Rep. Kent Grusendorf, R-Arlington, the Public Education chairman in the House, said the Legislature will work on it, and said he's anxious to read a detailed ruling. But he said this is just one step on the road to the Texas Supreme Court.
Justice Breaks a Record
Gov. Rick Perry named Wallace Jefferson the first African-American chief justice in the Texas Supreme Court's history, replacing Tom Phillips, who had been chief since 1988. Jefferson, who joined the Texas Supreme Court as a Perry appointee in 2001 and then won election in 2002, will be the new chief justice of that panel. The appointment, in the mill for several days (we reported it a week ago), was announced in San Antonio, where Jefferson practiced law before coming to Austin.
Jefferson is the first Black named to head the court, and as your friendly neighborhood Republicans will be happy to point out, he's one of theirs -- not a member of the Democratic Party that has talked about civil rights and affirmative action for decades.
Still to come: Two appointments triggered by the departures of Phillips, who retired earlier this month, and of Michael Schneider, confirmed by the U.S. Senate for a federal judgeship last week. Jefferson gets Phillips' middle seat, subject to Texas Senate confirmation, and will have to run for office in 2006; technically Perry will be appointing someone to Jefferson's seat and to Schneider's.
When that's over with, Perry will have appointed four of the court's nine justices and helped a fifth — Paul Green — successfully challenge an incumbent — Stephen Wayne Smith — who beat another Perry appointee. Green beat Smith in the March primary and will take over in January. Only one member of Perry's majority faces opposition in November: Scott Brister is being challenged by Democrat David Van Os of San Antonio.
Jefferson is only the 8th chief justice since 1945, when the court was reconfigured, and only the 18th in state history. Phillips, who took his oath the first time in 1988, had the longest tenure of the modern bunch, and came to the court as a reformer appointed by Gov. Bill Clements to clean up the panel's "Justice for Sale" image. He joined a court whose critics said it was too oriented to the wants and needs of plaintiffs; Jefferson will take over a court critics contend is too protective of defendants. This might be redundant: Phillips joined a court dominated by Democrats, where Jefferson will head a panel that has no Democrats in any of its nine seats (two of which are empty at the moment).
Jefferson's appointment drew accolades from Republicans who like Jefferson's conservative record, and from Democrats who like the fact that Perry didn't appoint an Anglo male to a position that has only been held by Anglo males. Sen. Rodney Ellis, D-Houston, called it a "wise decision." U.S. Sen. John Cornyn, a former Texas Supreme Court justice himself, did the same, putting out his announcement praising the appointment on an "embargoed" basis before the announcement itself had even been made. Jefferson's appointment, and those of his two yet unnamed new colleagues, will be up for Texas Senate approval during the regular legislative session next year.
Flotsam & Jetsam
Take the Office of Public Utility Counsel off the burner for now. The Sunset Advisory Commission set aside a staff recommendation to kill that agency, but they'll keep it, with changes. As for the burner that had been occupied by OPUC? Put the Texas Worker's Compensation Commission on it. The sunset folks want to kill that agency and fold it into the Texas Department of Insurance. One measure of the dissatisfaction with workers comp could be found in the faxes and emails that followed the vote: The agency itself was the only voice against the move. Labor and business and other groups all said the shakeup — with some differences in details — is just what the agency needs. It's not a done deal: Sunset's votes turn into legislation and that'll get chewed during the regular session.
• The Texas Ethics Commission won't meet in October after all, now that they've hired an executive director, and that means no rulings on corporate political action committees until after the elections. The agency has been asked whether PACs affiliated with corporations, which are allowed to take corporate money for certain expenses, can contribute to unaffiliated PACs, which can't spend that money. The TEC board also ducked a request to clarify rules for corporate employees doling out PAC checks and such. The corporate folks want some certainty in their lives, but the agency doesn't want to mess with the issue while a Travis County grand jury is pondering related issues.
The Folks Back Home
Considering the fact that there's not really a presidential race going on in Texas this year, Texas political ops are sure busy. The Texans for Truth group formed to counter-antagonize the Swift Boat Veterans for Truth — a group whose biggest financial backer is Texas homebuilder Bob Perry — is now offering a $50,000 reward for information about a hole in the records of the president's National Guard service. Their offer, "for original information proving whether George W. Bush performed duties in the Air National Guard between May 1972 and May 1973 at Dannelly Air National Guard Base in Alabama," is spelled out in lawyerly form on their website at www.TexansForTruth.org/reward.html . They're only interested in stuff that comes in quick — their offer expires at the end of the month, and they're trying to make the case that Bush didn't fulfill his duties when he was in the Guard. When we checked at midweek, they said the only replies posted on their website were "vulgarities."
The Bush camp has said since his first campaign for president that he served his time whether the records that reflect that still exist or not. And the story of what actually happened has been buried in the news coverage about the authenticity of records that have surfaced.
Texans for Truth was started by Glenn Smith, a writer and political consultant who has run several Democratic campaigns in Texas and who also is the main figure in DriveDemocracy.org, a Texas-based offshoot of MoveOn.org. That national political outfit came to prominence when Howard Dean was running for president and scooping up record amounts of campaign moolah off the Internet.
The group is also behind a television commercial — it, too, is posted online — that features a former member of the Alabama unit saying he never saw Bush when the president said he was serving. That commercial, featuring former Guardsman Robert Mintz, is running in Arizona, Michigan, Oregon, Ohio, and Pennsylvania. Those are swing states, according to Smith, where the numbers of American casualties from the Iraq invasion are highest.
Enough Mud for Everybody
The other running storyline on Bush's military service also has its roots in Texas, and in an unexpected bounce could become an issue in the next governor's race here. Ben Barnes, the former speaker of the Texas House and lieutenant governor who says he helped Bush get into the Guard in the first place, is also a heavy contributor to Republican Comptroller Carole Keeton Strayhorn.
A quick recap: Barnes, now a lobbyist, testified in 1999 that he had helped get Bush into the Air National Guard after a friend of the Bush family asked him for that help. There wasn't any direct contact with anybody named Bush, he said (then and now). The news resurfaced this summer when Barnes told a group in Austin that he was sorry he helped Bush and others get into the Guard to avoid being sent to Vietnam. Barnes didn't really say anything new and didn't contradict what he said four years ago. It did, however, sound critical in the context of questionable memos unearthed by CBS News, and Republicans began attacking as soon as videos of Barnes' comments began making news.
Barnes is a major Democratic contributor, but has also contributed heavily to Republican Comptroller Strayhorn (you'll remember two of her sons, Mark and Scott McClellan, who work in the Bush Administration as, respectively, the head of Medicare and Medicaid, and the chief spokesman for the White House). Barnes and his wife have given Strayhorn $35,000 in political contributions.
That set up a bank shot from Lt. Gov. David Dewhurst, who issued a statement saying that Barnes had slipped into the role of a bitter partisan and that Dewhurst was returning a $5,000 contribution from the Democrat because of it. Within a couple of days, Republicans with ties to Dewhurst and to Gov. Rick Perry were calling reporters to suggest that Strayhorn should be asked about her contributions. Her reply: Barnes is an old friend, her sons work for the president and Bush has her "unwavering" support, she "appreciate(s) the support of Republicans, Democrats and independents, and she's keeping the contributions.
Winner Take Some?
U.S. Rep. Gene Green, a Houston Democrat who dodged the fusillade of redistricting bullets in Texas, wants Gov. Rick Perry to call a special session to change the way Texas allocates its Electoral College votes in presidential elections so that the outcome would be based on popular voting and presidential candidates would have to campaign here to win.
Each state gets an Electoral College vote for every person it sends to Congress. In Texas' case, that's two for U.S. Senate and 32 for the U.S. House, or 34 EC votes. Since George W. Bush soundly beat Al Gore statewide in 2000, he got all of the state's EC votes. And since his victory, then as now, was so predictable in Texas, he didn't have to spend a dime courting Texas voters.
A proportional system would make the EC counts closer to actual vote totals and would put a lot of states in play that aren't in play under the current system. Want a national office? There are 50 battleground states instead of a dozen. It would make small states seem small and increase the importance of the states where most Americans live. A perfectly likeable state like New Mexico, which has a smaller population than Dallas-Fort Worth, would be about as important as Dallas-Fort Worth in a presidential election. The same goes for Arizona, a swing state that may be smaller than Houston but that has much more clout in presidential politics than the nation's fourth-largest city.
In the current political environment, Democrats like the idea more than Republicans: The Democrat got more popular votes four years ago and with proportional counting in the Electoral College would have won the election for Al Gore. Another feature is that candidates would have to craft their messages for more of their voters instead of focusing only on the wishes of their supporters who happen to live in states where the political parties are evenly matched. Colorado voters are looking at a revision to how their electors are picked, and could opt this year for a proportional system over the current winner-take-all setup. And a few states parcel out votes on a proportional basis.
Make Texas your Guinea Pig: If you divvied up the EC votes on the basis of popular voting, Bush, who got 59.3 percent, would have received 20 votes. Gore, with 38 percent of the vote, would have received 13 votes. That last vote would have gone to Green Party candidate Ralph Nader, who got 2.2 percent of the Texas vote four years ago. Another system of splitting the votes, used in Nebraska and Maine, does it by congressional district, and then gives the votes corresponding to senators to the candidate with the most statewide votes. In 2000, that would have put 23 votes in Bush's column, 11 in Gore's, and none in Nader's. (We checked a blue state, for grins: California's 55 EC votes went to Gore in 2000, but would have been split 35-20 in Gore's favor using this method). The Republican ticket got 271 EC votes in 2000 to 266 for the Democrats.
Footnote: In 24 states, including Texas, electors who actually cast Electoral College votes are not required by law to follow the guidance of regular voters. They generally do so, but it's not required.
Heflin Loses a GOP Regular
Dallas investor Albert Huddleston, a reliably Republican contributor who has shown particular interest in public education, says he's breaking ranks to support Hubert Vo, a Democrat challenging House Appropriations Chairman Talmadge Heflin, R-Houston. Huddleston said he contributed $10,000 to Vo's campaign against the House's chief budgeteer, and said he did it because he's convinced Heflin "is an obstructionist standing in the way of education" and that the chairman "is no longer valuable to the process." Huddleston said he wasn't set off by anything in particular, but said Heflin never gave his ideas for public school finance serious consideration.
• The new Capitol Christmas ornaments are out, this time cut to look like the rotunda in the Pink building from the floor looking up. It's a popular place to stare straight up and get dizzy, and now you can put it on the tree every year. Nadine Craddick, wife of House Speaker Tom Craddick, announced the new design; as in years past, the money raised will go to the State Preservation Board to take care of historic stuff in state government's central building. They're available for $16 (ornaments from previous years are also available) at the gift shop in the Capitol or at www.TexasCapitolGiftshop.com .
Political People and Their Moves
Just in time for holiday shoppers, U.S. Sen. Kay Bailey Hutchison has a book coming out. Called American Heroines: The Spirited Women Who Shaped Our Country, the book is a series of profiles of historical and present-day women notable in areas like pioneering and preservation, faith, education, art, public life, journalism, and so on. They're not all Republicans and many aren't political at all. Hutchison got the idea while she and her fellow female senators were working on an earlier book: Nine and Counting: The Women of the Senate. She did the interviews for this one and some — but not all — of the research and writing. She hired a writer named Howard Cohn to help on the project. The book's on a major label and is supposed to be published in late October...
David Reisman is coming back to Austin to head the Texas Ethics Commission. He's been working in the Pentagon as an ethics officer. Before that, he worked in the Texas governor's office (under George W. Bush and Rick Perry) on budget and policy issues. Sarah Woelk, who's been the acting director at ethics, will move back to her old job as general counsel there. Reisman is replacing Karen Lundquist, who left TEC for a job with the University of Texas...
Margaret Hoffman, who resigned from the top job at the Texas Commission on Environmental Quality earlier this year, is starting a new environmental law practice within Chevron. The corporation is consolidating all of its environmental law into one office, and she'll head that operation, based in San Ramon, California...
J. David Hall, deputy for energy resources to Land Commissioners Jerry Patterson (current) and David Dewhurst (former), is outta there. After ten years with the General Land Office, Hall is joining the law firm of Scott Douglas & McConnico, where he'll lobby and practice energy and natural resources law...
The University of Houston elevates Richard Murray, pollster and political scientist, to the Bob Lanier Chair in Urban Public Policy, a position endowed in April 2002 and named for the former Houston mayor. Murray's been at the school since 1966 and heads the UH Center for Public Policy...
Amber Pearce is the new policy director with the Texas Healthcare and Biosciences Institute, after two sessions working for state Rep. Robby Cook, D-Eagle Lake...
Deaths: Reynaldo Garza, appointed to the federal bench in 1961 by President John F. Kennedy, becoming the first Hispanic federal judge in U.S. history. He was appointed to the 5th U.S. Circuit Court of Appeals by President Jimmy Carter, and went on senior status — continuing to work — in 1982. He was 89.
Quotes of the Week
The Judge in the school finance case, quoted by the San Antonio Express-News: "I'm changing my name to John 'Any Decision by Whom Will Be Appealed to the Supreme Court' Dietz."
Rep. Kent Grusendorf, R-Arlington, chairman of the House Education Committee, in a Fort Worth Star-Telegram story about the number of school districts hitting the state's maximum local tax rate: "We designed a system where school systems get more state money the higher their taxes are. Surprise, surprise, school property taxes went through the roof. Because of the incentives to raise taxes, local expenditures have increased at a much faster rate than state expenditures."
Lt. Gov. David Dewhurst, quoted in the Austin American-Statesman on why state leaders haven't worked out a solution to school finance: "It takes three, not two, to tango, and the speaker and a number of House members said they wanted to wait until the courts have ruled."
Dallas Republican Albert Huddleston, on deciding to help Appropriation Chairman Talmadge Heflin's opponent Hubert Vo: "Retribution is a big part of Austin, but I'm not like everybody else."
Ector County ISD trustee Doyle Woodall, quoted in the Odessa American: "When you teach children about contraceptives, you're giving them permission to have sex, and when you give a child permission to have sex, you give them permission to die. It's a falsehood to say condoms prevent STDs or pregnancy. You can't just mention abstinence, you've got to pound it into the ground."
Former Gov. Ann Richards, quoted in the Bucks County (Pennsylvania) Courier Times saying the Bush Administration's first budget cut health coverage of contraception for federal workers while leaving in coverage for Viagra: "They want to pay for fun, but not results."
Texas Weekly: Volume 21, Issue 14, 20 September 2004. Ross Ramsey, Editor. George Phenix, Publisher. Copyright 2004 by Printing Production Systems, Inc. All Rights Reserved. Reproduction in whole or in part without written permission from the publisher is prohibited. One-year online subscription: $250. For information about your subscription, call (800) 611-4980 or email biz@ texasweekly.com. For news, email ramsey@ texasweekly.com, or call (512) 288-6598.