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Halfway to Equity Sketches from Scott McCown’s Courtroom BY BRETT CAMPBELL Austin THERE IS A large color map of the Republic of Texas on the wall of state District Judge Scott McCown’s courtroom in the Travis County courthouse. During much of his lengthy cross-examination of the Edgewood plaintiffs’ witnesses, Kevin O’Hanlon had his back to that wall. The acerbic assistant attorney general is fond of scrawling diagrams on a large easel during his questioning; typically, he would stand directly in front of the map, oversized marker in hand, squared off before the witnesses, so that it has seemed as though that old map represented what the state’s lawyer was trying so doggedly to defend: an antiquated picture, a school-finance system more suited to the 19th century than the 21st. History is being made in this cramped chamber, and like all custom-made craftsmanship, it is a tedious process. I’m reminded of the ancient process of swordmaking for the Japanese samurai: The metal is fired on the forge, smoothed, folded back on itself, then folded again and again, back and forth, over and over. This series of lawsuits has been like that, from the original Rodriguez case filed in 1968 and wending its way to the U.S. Supreme Court five years later, to the agonizing battles over Edgewood v. Kirby in state courts, through the drawnout fights in the three special sessions, to this new suit, filed by the Edgewood plaintiffs in the same district court that originally declared the school system unconstitutional. What has been happening with the schoolfinance case since the Legislature finally adjourned, exhausted, hoping that the special sessions had at last produced a workable plan? For a week and a half, the plaintiffs’ attorneys, Al Kauffman and Rick Gray, called to the witness stand a succession of schoolfinance experts to explain, point by point, why the Legislature’s compromise package, known as Senate Bill 1, doesn’t comply with the Supreme Court’s directive to devise a “substantially equitable” school-finance plan. Then O’Hanlon, apparently intent on establishing a detailed record for appeal, painstakingly took the same witnesses through every aspect of the legislation that does seem to comport with the standard, all the while chipping away at the witnesses’ contentions with abstruse, technical questions. Buzzwords flitted about the room like gnats around a campfire “weighted a.d.a.,” “proration,” “revenue caps,” “priority funding.” The courtroom audience grew impatient as the 16 JULY 27, 1990 minutiae multiplied. Fortunately, McCown is an able ringmaster and has been able to speed things up to a slow canter by occasionally interrupting O’Hanlon or a witness, summarizing the testimony, asking a penetrating question, and arriving at a conclusion that might otherwise have taken hours to educe. Whenever the arcana threatened to overwhelm the hearing, McCown brought the exchange back on track, keeping the discussion framed around the two overriding issues: “Is what the Legislature did constitutional? If not, what should this court’s order be?” Whenever the heat rose between the abrasive assistant AG and the witnesses he was cross-examining, McCown’s exaggerated politeness and occasional interjected jokes helped defuse the tension. The judge parried 0 ‘Hanlon’ s occasional objections with a soft-spoken, “Well, let’s move along, now.” It’s an old judge’s trick, avoiding making a ruling on the objection, thereby avoiding a potential point of appeal. McCown knows when to depart from formal procedures, allowing the lawyers to “testify,” when that’s the most efficient and fair way to develop the information. Although O’Hanlon’s adversarial style sticks out glaringly in this collegial, low-key, “letus-reason-together” atmosphere \(in contrast appeared satisfied with the judge’s fairness at such junctures, though McCown increasingly evinced impatience with the state’s strategy, and seemed to be leaning, in his questions, toward the plaintiffs’ position. ET EVEN MCCOWN can’t make the train run faster than the tracks can handle. No matter how frustratingly leaden the defendants’ pace in crossexamination and the plaintiffs had just rested their case as we went to press the judge must allow them to make their voluminous case, to avoid reversal on procedural grounds. Which means that this trial seems destined to stretch on for days, then the judge will deliberate, issue an order, the order will be appealed, probably twice, which means more oral argument, perhaps interlocutory orders, more deliberation, more delay, as the new school year creeps closer. Then, back to the Legislature. McCown has already said that no matter how flawed SB 1 is, he almost certainly will allow it to go into effect for the upcoming school year, because school budgets are being drawn up for it even now, and the court process is so lethargic that to scuttle those plans now would cause chaos. \(He’s At this point in the trial, though, despite O’Hanlon’s best efforts, it appears that the plaintiffs are convincingly proving that what the Legislature did last spring did not significantly change the current, inequitable school finance system; it’s old wine in a new bottle. “I think it’s the identical system,” Dr. Jose Cardenas, former Edgewood ISD superintendent, told the court. \(Cardenas is now Based on the admittedly incomplete testimony so far, I’d venture that the judge will rule against the state, order it to try again, this time for the 1991-92 school year, and another cohort of students will graduate under an unfair system, albeit one with more money. You can’t blame the assistant attorney general for the torpid pace; as irritating as O’Hanlon can be, he’s a forceful and canny advocate, and he’s just doing the job the law requires of him vigorously defending the indefensible. But is that the right job? It needn’t be so. Just as modern technology affords us better ways to make weapons than samurais had, a modern state ought to be able to carry out the most important function of state government somewhere other than in a court of law. Even McCown’s commonsense approach can’t hide the fact that, whatever merits the adversary system might school-finance plan isn’t one of them. It’s a most inefficient method for designing an “efficient” system, and in a sane world, educational schemes wouldn’t be crafted in courtrooms. But the blinkered Legislature, unable to envision the critical need for adequate education, unwilling to muster the political courage to pay for it, has left the plaintiffs no other choice. They’ve tried every other conceivable avenue for over two decades now, and the rain still pours through rotting ceilings in some schoolhouses, while others fill their on-campus swimming pools. How will history weigh what is happening in this courtroom? All this debate will be seen as just another rearguard action by the forces of ignorance in the long, scorchedearth battle to achieve the promises made in the Texas and U.S. Constitutions an efficient system of education, and, in the larger sense, a state of unlimited potential for all its citizens. I can’t help thinking that among this aggregation of bright, reasonable people lawyers, witnesses, and foremost the judge