Texas will sue the federal government, yet again, if Texas-specific requirements are not removed from legislation that passed the U.S. Senate today, according to Lt. Gov. David Dewhurst.

The supplemental appropriations bill, HR 1586, includes language by U.S. Rep. Lloyd Doggett, D-Austin, requiring Gov. Rick Perry — in order to receive $820 million to fund education jobs — to make assurances that the percentage of the Texas budget going to fund education in fiscal years 2011, 2012 and 2013 will be equal to or greater than the percentage spent in 2011. According to Dewhurst, that $820 million would fund about 13,000 teaching positions. No other state is bound by such a requirement in the bill.

Perry and Dewhurst have both issued statements protesting the stricter requirements placed on Texas. "Washington is deft at placing targets on the backs of Texans, and this proposal paints a target on our school teachers and school children,” Perry said. They argue that the Texas Constitution prohibits lawmakers or Perry from appropriating money for more than two years, so they would be unable to make the required assurances, which means the state would be unable to receive the $820 million. 

“This legislation harms schoolchildren and schools and teachers,” Dewhurst said at a Thursday press conference. He said his conclusion that the bill is “blatantly unconstitutional” was influenced, in part, by a briefing with Attorney General Greg Abbott just prior to the gathering with reporters.

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Doggett isn't buying their argument. "Gov. Perry didn’t have any problem ordering every 6th-grade girl to be vaccinated for a sexually transmitted disease," he said in a statement. "He didn’t have any problem denying $3.2 billion in additional federal education monies to our local schools. This amendment says we have had enough."

Doggett says he added the language to the bill to ensure that the money would be used for its intended purpose. That, he says, is not what happened with federal stimulus money, which he argues was used to supplant existing dollars in the state budget.

He sees no constitutional barrier to the state making the necessary assurances. "Compliance is very easy, unless there remains a hidden Republican agenda to avoid accountability and to engage in more of the shenanigans of last year, which replaced state education dollars with federal dollars, leaving our schools no better off than if we had done nothing," he said. "Instead of concocting phony legalistic arguments to deny our local schools the funds that they so desperately need, Gov. Perry should join with us in support of public education.”

Doggett's amendment has received significant support from education organizations, school administrators and school board members around the state. Brock Gregg, government relations director for the Association of Texas Professional Educators, said in a statement, "Gov. Perry is merely being asked to pledge not to cut education funding more than any other part of the state budget. Unfortunately, even though the state is predicted to be nearly $18 billion short on revenue, the governor is playing politics with education funding that Texas needs.”

Dewhurst said that those arguing that state public education funding was supplanted by federal money are suffering from “a certain amount of amnesia.” He noted that the way Texas used stimulus funds for education was approved by U.S. Secretary of Education Arne Duncan.

Dewhurst says that while he supports funding education, this requirement will make Texas the only state forced to fund education based on federal — as opposed to state — funding formulas. “It’s not beyond the probability that some of our transportation spending in the 2011 session will go up, some of our Medicaid spending in 2011 will go up, which means that under (Doggett's amendment) our education spending will also have to go up."  That could be difficult in what is expected to be an extremely tight budget year.

The U.S. House of Representatives is expected to vote on the bill on Tuesday.  If “the Doggett language” is passed, Dewhurst says he “will be delighted to be a named plaintiff” in a lawsuit against the federal government.

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