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To Have and to Have Not BY LOUIS DUBOSE Austin NOT EVEN THE DEFENDANTS will defend it. Nor will state Comptroller Bob Bullock, Treasurer Ann Richards, Land Commissioner Garry Mauro, or Lieutenant Governor Bill Hobby. Attorney General Jim Mattox publicly offers that it is unfair and that he doesn’t like it while his deputy, Kevin O’Hanlon, aggressively defends it in court and House Speaker Gib Lewis is in South America shooting something. Only Governor Bill Clements, it seems, has anything good to say about the state’s -cumbersome system of financing public education. “And there’s nothing broke about our public school system. It’s a good system. I’m proud of it. . . . I think that we’re doing exactly what we ought to be doing,” Clements told the Dallas Morning News. The Governor, of course, is right. At least he is two-thirds right, which is real good , for this particular Governor. For two million students residing in the state’s wealthier school districts nothing is broke. For the million students who reside in property-poor districts the system is so badly “broke” that even the defendants concede it does not provide a reasonably decent education. Discernible beneath the din of the Governor’s hyperbole is the din of inequity. By now most have heard something of the odd calculus of the Texas school financing: The owner of an $80,000 home in the South Texas town of Crystal City pays $1,106 in local school taxes. The owner of an $80,000 home in the West Texas town of Iraan pays $38 in local taxes. Yet Iraan still spends far more per capita on its students than does overtaxed Crystal City. In San Antonio, the Alamo Heights school district has $570,000 of taxable wealth for each student enrolled while across town San. Antonio’s Edgewood school district has only $38,000 in taxable wealth per student enrolled. .In the Panhandle, the Whiteface school district taxes its property owners at $.30 for each $100 of value and spends $9,646 per student each year while to its immediate north the Morton school district taxes property owners at $.96 for each $100 of value yet spends only $3,959 per student. The 300 poorest districts in the state tax their residents at an average rate of $.75 per $100 of property value to spend $3,023 per student while the state’s 300 richest districts tax their residents at an average of $.63 per $100 to spend $5,320 per student. And so it goes. ‘Behind these figures is a system so unfair that the state’s poorest students, clustered in the state’s poorest districts, cannot be properly educated. The system is so bad that after four months of testimony last year Travis County State District Judge Harley Clark declared it unconstitutional. Last April, Clark agreed with the claim made by parents, administrators, and students from the states property-poor schools that the state Constitution recognizes education as a fundamental right that many districts cannot provide. Clark ordered the Legislature to have something else in place by the beginning of the 1990 school year. The District Court decision represents an unprecedented advance for the have-nots the one million Texas school children residing within some 300 property-poor school districts in the state. For the haves, two million students residing in the state’s 700 districts with adequate or excessive sources of revenue in the form of taxable real property, ‘ the court’s decision is a portFnt of change. At the very least the decision will close the gap between funding and spending levels of wealthy districts and their property-poor counterparts. And a new financing scheme that would conform with the state Constitution, as interpreted by Judge Clark, might even include reclassification recapture of local mineral wealth to make it available as a source of revenue common to all of the state’s school districts, rather than the exclusive property of districts gerrymandered over oil and gas fields or around urban concentrations of wealth. So it is no surprise that dozens of the state’s wealthier school districts have signed on kith Commissioner of Education William Kirly as defendants trying to prop up the system threatened by Edgewood v. Kirby. For these intervening school districts, as the Governor might argue, “the system ain’t broke.” The defense designed by those wealthy districts is, of course, motivated by self-interest. Education Commissioner Kirby, it seems, comes close to being a technical defendant in the case. “He is not an intractable opponent of reform,” David Richards, attorney for one group of intervening plaintiffs said. And many of the findings of fact embodied in Clark’s opinion facts that argue for something considerably more than fine-tuning the existing system are lifted directly from the Commissioner’s previous writing or his testimony. WITH SO MUCH at stake, it was inevitable that the case would be appealed. So one year after the Clark decision, Edgewood v. Kirby has advanced as far as the third state district appeals court, with Justices Bob Shannon, Bob Gammage, . and Marilyn Aboussie presiding. There, with Assistant Attorney General Kevin O’Hanlon representing the state, and attorneys Jim Turner \(a former East Texas wealthy school districts, a penultimate decision will be reached sometime after June 6. Attorneys for both plaintiffs and defendants agree that the ultimate decision on the Edgewood case will be made by the Texas Supreme Court. The state’s position is that, according to the Texas Constitution, education is not a fundamental right; that is, it is not a right that should be elevated to the same plane as constitutionally guaranteed rights of religion, freedom of expression, and the right to vote. Turner conceded that standing before the court, the press, and the public and arguing that education is not fundamental in this state appears to be taking the moral low road. But it is not, he insists, as it appears. According to Turner, and O’Hanlon, to establish the right to public education as a fundamental right subjects school financing to “strict judicial scrutiny,” a standard of oversight that would deny the .state the usual presumption of validity. “Who would doubt,” Turner said, “that education is fundamental?” But a fundamental right, he insisted, means one thing to a lay person and another to a lawyer. According to Turner, under the system of strict judicial scrutiny the courts will continue to ask of the schools: “Is there any way to do this better?” Turner said. “And, of course there is always a better 6 MAY 20, 1988