July 2016 issue interview

The Interview: Judge John Dietz on Texas’ School Finance Crisis

Now that he’s retired, the judge who found Texas’ school finance system unconstitutional has a few things to say.


Patrick Michels

A version of this story ran in the July 2016 issue.

July 2016 issue interview
Former Travis County District Judge John Dietz.  Patrick Michels

Texas Observer: When the Texas Supreme Court held the school funding system was constitutional, the justices spent plenty of time explaining why your ruling was wrong. What did you think about theirs?

John Dietz: Well, I don’t think they thought too much of my judgment, and I didn’t think too much of their decision. The way I viewed it was, [in the past] the Supreme Court has said this system needs to be fixed and you need to fix it now. The Legislature has never done that, unless you make them. They want to be told to do this because it gives them cover. I think that was an attempt, in my opinion — and it’s not a learned opinion — to get out of the school-finance litigation business altogether.

“Somebody ought to sit there and say, ‘Kids, pool your lunch money together and see if you can’t hire a lobbyist.’”

The law says that the Legislative Budget Board shall come up with a number. Nobody’s ever followed that law. So it’s always guesswork as to how much an accredited, adequate education costs. There is a criticism, which [Supreme Court Justice Don] Willett alludes to in the opinion, that there’s not a perfect correlation between the amount of money and the results. Now, there’s not no correlation. [It could be] that it’s inversely correlated, that the more money you get, the worse the outcome. Nobody’s saying it’s that way. Nobody, I think, really knows what the answer is. I think a lot of that has driven testing and accreditation. “Gosh, we’re giving ’em all this money and we’re not necessarily seeing the results.” That same test could be applied to just about anything the government does.

TO: That doesn’t mean you can stop funding it.

JD: Exactly. If you look at Justice [Nathan] Hecht’s opinion in West Orange Cove II [the last school finance case] in 2004, he says, after upholding me on the property tax issue, “Look, there’s really a lot of evidence that the court considered about how the schools are underperforming.” An achievement gap between economically advantaged and disadvantaged. There’s an achievement gap in the race characteristics. And between rural and urban. There were a number of problems. He lays them out and he goes, “You know, just looking at it, we think it’s just barely constitutional, but it could get worse.”

When I was drafting the [latest] judgment, I took every one of those things, and every one had gotten worse, and we could quantify it. Two hundred thousand students in the Texas higher education system are taking remedial math and remedial English. The achievement gap between the economically advantaged and disadvantaged — which had been narrowing as they put more money in — was now widening. The English-language learner (ELL) students, they were not catching the train. And what was really sad is that there was evidence in the trial that if the students stayed in the ELL program four to six years, they performed better in every test — SAT, any of the STAAR tests — than any other demographic group. Better than rich white kids? Yeah. They had developed cognitive abilities in two different languages. So it takes a period of time. But if they do it, the children will succeed more often than not.

TO: So this was one specific cost with clear evidence of results.

JD: One really important point, which was certainly not addressed [by the Supreme Court]: With economically disadvantaged students, the undisputed testimony is that if you didn’t grow up economically disadvantaged, when you arrived at school you had roughly a 1,500-word vocabulary and understood probably another 1,000 words. An economically disadvantaged child shows up knowing 500 words or less. What do you do about that?

The undisputed testimony is that it takes about time and a half over a period of four to six years to overcome the poverty of their experience. And you do it through preschool. You try to get them into a learning situation before kindergarten. When they’re in school, you try to have after-school programs, you try to pull their parents in to see the school not as an enemy but as a friend. You try to have summer programs that are not just remedial but try and get them excited about education. Because it’s the economically disadvantaged people who are substantially all of the dropouts that you lose beginning in eighth grade and ninth grade. And is the Legislature doing anything about that?

It’s undisputed, it takes 50 percent more of the resources to educate an economically disadvantaged child; 60 percent of our population in this state is currently economically disadvantaged and it’s only getting worse.

Travis County District Judge John Dietz
Judge John Dietz rules in August 2014 in Travis County’s 250th District Court, calling the Texas school finance system unconstitutional.  Patrick Michels

TO: What struck you as the strongest indicators that schools weren’t getting enough money?

JD: So, we want to make students career- and college-ready? Look at the number of Texas graduates who have to take remedial English and remedial math in college. Take a look at eighth grade, and the number of students who are still in school in the 12th grade, and you’re missing a whole lot of people. Isn’t that kind of a failure? Here’s one I’ve gotten an audible gasp at. I was speaking in Lubbock [and mentioned Texas’ No. 43 rank in per-student funding]. Think about Louisiana, or Arkansas, or New Mexico, they all spend more money. And we’re no longer 43rd. We’ve slipped to 45th. And here’s the most amazing thing: In 1996 we were 24th in the country. There were two Democrats in the room — my wife and myself — and the rest were Republicans, but they gasped. I said, “A football coach with this kind of record would’ve been fired and run out of town.” There’s this gradual diminution of the services that our government is providing because we’re being starved of money.

TO: When Governor Greg Abbott says he wants Texas to have the best education system in the country, but then year after year we rank so low in per-student funding, what’s your reaction?

JD: Personally, the worst part of this is that they were doing this to our kids. Kids don’t have a lobbyist. Somebody ought to sit there and say, “Kids, pool your lunch money together and see if you can’t hire a lobbyist.” Except 60 percent of our kids don’t have lunch money and they get free school lunch because they’re economically disadvantaged. They’re doing it to the children. So what do I think? Somebody should be ashamed. Where would any of us be but for our education?

TO: In your courtroom, I kept thinking what a great window onto the entire state that trial must have given you. What lessons about Texas stick with you the most from that time?

JD: A couple of impressions I had: As a class of witness, I have never seen a smarter, more savvy group as a whole than school superintendents. They’ve got to be experts on the content, and they’ve got to be experts on running the organization; they have to answer to a board, and then they have to go out into a community and drum up support from local businesses to raise the taxes they need to run the school. I must have had 70 school superintendents testify, and I never saw one that I wasn’t impressed with.

“Goddamn! What is more important than education?”

The second thing: There was a teacher who taught his students in Brownsville, Texas, to play chess. And eventually, Brownsville had, as I recollect, 4,000 kids participating in chess, far more than any other intramural activity. It had spread so that, when I first saw it, it was kids in Harlingen who won a state championship. Then it caught on with the University of Texas at Brownsville. They didn’t have a football team, but they had one of the preeminent collegiate chess teams in the country. And this was one teacher. I know there are some slugs that are there just to pick up a paycheck, but in general you are going to find some really smart and dedicated people trying to do better for our children under an enormous bureaucracy. That’s an image that just never goes away for me.

The third impression is just how devoid of caring the Legislature is, concerning this responsibility. If they had to pass a tax increase, and they pass a tax increase and the public runs them out of office, OK. But I think their oath is to preserve the constitution. It’s not to get re-elected. Goddamn! What is more important than education?