Conservatives hoping to fix public education by shrinking it could finally get their day in court.
Update on Feb. 24: Sure enough, the suit discussed below was filed on Friday—here’s my post on that.
More than half the school districts in Texas will head to court later this year hoping to coax more money from the state. Their arguments—that the school funding system is unfair, inadequate, or both—have seen plenty of days in court over the past 30 years, and this year the overwhelming majority of school finance experts think the schools have a good case to make.
But there’s a group of conservatives making a novel and bold argument that could also see its day in court: Schools don’t need more money, but less.
The argument posits that if pouring more money into the school system hasn’t fixed it by now, the answer, clearly, must be less money. Shrink the schools and let the market sort ‘em out. It’s a notion that could revolutionize the state, if there’s a lawyer in Texas who’ll take the case. Word in the school finance community is that a mysterious conservative is shopping this lawsuit.
The notion echoes sentiments from conservative groups like Empower Texans and the Texas Public Policy Foundation, which agree our school system needs work, just not the way school districts want you to believe. Schools have gotten fat on carrots from the state, they say. Now it’s time we beat ‘em into shape with the stick.
In the messy combination of Texas’ tight budget and broken school finance system, government shrinkers see the chance for a free-market field day: saving money by consolidating districts (and laying off workers), paying teachers based on performance, expanding school choice with more charters and online schools.
“We look out there and see so many folks being asked in our schools to do so many things that have so little to do with educating kids,” says Empower Texans’ Michael Quinn Sullivan. “In every other human endeavor, efficiency does arise out of competiton. Well, what does competition look like in public education?”
In a newsletter for his group in January, Sullivan put it this way: “School finance is a disaster in part because the state doesn’t actually define what we’re trying to achieve with all this spending.”
It’s a point nobody’s tried out before a Texas judge before—in fact, many districts are arguing the exact opposite, that the state has set very high standards but doesn’t know what it costs to meet them.
This year, though, that could change. Texas Monthly’s Paul Burka and the state politics site Quorum Report both mentioned the possibility earlier this month—without saying where the rumors came from—that someone’s looking to bring a free-market critique of the school system before a judge, arguing districts have no incentive under the current system to spend their money wisely.
This masked reformer hopes the courts will be more amenable to tough-on-schools measures that can never quite catch on in the Legislature—scaling back district budgets and promoting a major expansion of school choice, if not vouchers. It’s dubbed the “Waiting for Superman” suit, after the 2009 documentary about the country’s supposed shortage of charter schools.
The four suits already brought by school districts are likely to be consolidated into a single trial, but if it lands in court, this fifth case would probably be heard separately. It’d be a long shot too, asking the court to interpret some constitutional language differently than it has in the past.
“We’ve heard a number of stories about such a lawsuit,” HillCo lobbyist David Anderson says, “but have no definitive information that indicated who will file it and when it will be filed.”
But it would probably have enthusiastic support from the Texas Public Policy Foundation, which has been trying for decades to make the argument that a free market, not new revenue, is the answer to school finance. As the group likes to remind, such a “Superman” suit would have some cover from the courts.
Former Texas Supreme Court Justice Scott Brister wrote a dissenting opinion on a 2005 school finance ruling in which he argues that by requiring an “efficient” school system, the Texas Constitution, in fact, calls for smart spending and free-market competition. (Traditionally, “efficiency” has been used to support the argument for equity between districts.)
No one considered fundamental reforms that efficiency might demand. No school expert considered whether it might be efficient to consolidate tiny school districts or redundant school administrations. No one asked whether it might be efficient to transfer students across district lines, or transfer funds to private providers that could meet their needs better. Instead, this trial focused entirely on getting more state funding through more taxes — all else in the system to remain exactly the same.
Brister suggested the failure of the Soviet Union was instructive here. “Even formerly communist countries recognize how efficiency is produced—not by protectionism, not by higher taxes, and not by state control, but by freedom for competiton,” he wrote. He summed it up cheerily: “[T]here is no end in sight; if the past is any indication, the new funding will not last long, and public education will not change much.”
Notably, no other justices signed on with Brister’s opinion back in 2005, but it’s made Brister something of a TPPF darling.
As Burka noted, though, a 20-year-old article in the University of Texas’ Review of Litigation offered further hints at how the “Superman” suit could unfold. At the time, a few state Supreme Court rulings on the Edgewood school finance cases had already emphasized local control and the need for a major overhaul of the school system. What better way to do that, the authors argued, than with a sweeping school choice program?
“Only educational choice, not equal public school funding, will give all children, rich or poor alike, the same choice and opportunity to choose between state-controlled, wasteful education or privately controlled education,” the authors write. Even in 1990, there were lessons for Texas schools in the fall of the Soviet Union.
Because an earlier court ruling said the school system should be as efficient as possible, they write, “public/private educational choice could save the legislature and the courts years of wasted effort and futile half measures by adopting the most efficient system ever devised for providing goods and services: a free market.”
One of that article’s authors is Allan Parker, a San Antonio lawyer who’s since made a name for himself in anti-choice circles. Parker even suggests there’s precedent for a statewide voucher system—the “community school model” Texas used from 1876 to 1883, when the Legislature screwed everything up with our modern system of public school districts.
More surprise: the article’s other author, Michael David Weiss, was a TPPF fellow at the time. If the phantom school finance suit does materialize, it’ll follow a decades-long effort from Austin’s free-market proponents, seizing on the conditions of the day to try out the same old arguments.
Bill Peacock, a TPPF vice president who’s been writing about education for years, says what his group wants is simply for funding to be controlled at a local level—very local. “The real consumers of public education are the parents, and just like any other kind of consumers, that’s where the true accountability needs to be,” Peacock says. “They either buy their product or they don’t. That’s the ultimate measure of accountability.”
And so the argument for accountability quickly turns into one about school choice and teacher performance pay. “There’s so little choice or competition going on in public schools today that you don’t see efficiencies coming into the system,” he says.
“We’ve been going through these school finance lawsuits in the state courts for over 20 years, and we keep getting lawsuits saying we need more money. And the schools keep getting more money, and it’s never enough,” he says. “My first question would be, if you need more money, well, how much do you need?”
In 2009, House Public Education Committee chair Rob Eissler (R-The Woodlands) took one step toward figuring that out, by grading school districts on how well they spent their money. As he’s said, this is the definition he prefers for the word “efficient” too: “who gets the most out of each dollar spent.” Based on a bill he wrote, the state Comptroller’s office created the annual Financial Allocation Study for Texas, which clumps districts together based on their size and wealth, then rates them on relative efficiency.
A favorite cost-cutting measure among fiscal conservatives is to make expensive school administrators redundant by consolidating Texas’ thousand-plus school districts, possibly along county lines. It’s an idea so cutting-edge that the Legislature tried it 20 years ago, reorganizing schools into 188 “county education districts” until the Supreme Court nixed the plan, saying it created unconstitutional local taxing entities.
That didn’t stop Rep. Fred Brown (R-Bryan) from filing a bill each of the last few sessions that would do the exact same thing over again, redrawing school districts to match county lines. His last attempt never got a hearing. Brown retired last year, and the cause may have lost its lone champion.
Jenny Caputo with the Texas Association of School Administrators says there’s one big problem with the idea that consolidating districts can save our schools: “It’s just frankly not true.”
Caputo says lawmakers understand this, and while some of them may talk tough about runaway school spending, they understand there’s not much support for cutting district budgets back home. “We don’t hear that a lot individually from them, because they understand what school ditricts are facing,” she says. “If you talk to the school district leaders, they’ll tell you that the fat has been trimmed and has been trimmed long ago.”
In rural communities, the school district is often the biggest employer in town. Those bloated “central administration” budgets are what pay for bus drivers, janitors and cooks. You won’t find too many redundancies in support staff, she says—certainly not enough to prop up a chronically underfunded school system.
Even if you fired all the superintendents in Texas at once, or made them all worked for free, Caputo says you’d shave just a quarter of one percent off the state’s education budget. “There’s really not much to be saved,” she says.
Sullivan says there’s plenty of money to save, though, if you just think bigger. Like that $3 million soccer stadium in San Antonio, Allen ISD’s $40 million bus barn, or the $18 million Fort Bend ISD spent on iPads. That’s money the districts raised locally with bond issues—money they can’t spend on teacher salaries if they wanted to. “We have incentivized that system, where literally, they can’t use that $33 million in the classroom. That’s crazy. To the taxpayer, that’s all education money,” Sullivan says. “We’ve rated this weird bifurcated system that kind of works against itself. What we’re tying to get at is to show people how the system is incentivizing bad decisions.”
But the most problematic piece of this attack on school spending could be the argument that more money doesn’t necessarily mean better schools.
Rep. Scott Hochberg (D-Houston) tackled that argument at a House Public Education Committee hearing in January. “A lot of people say, ‘so what, money doesn’t buy you anything,’” he said, but look at the average spending in districts at each tier of the state’s performance measures, and suddenly it becomes clear: more money can buy better schools.
“The exemplary districts have, on average, the lowest tax rates and the highest amount of money,” he said. Districts at the state’s highest rating spent, on average, $6,580 per student, while districts rated “unacceptable” spent $5,538, Hochberg found, with numbers compiled by the Texas Education Agency.
That’s a trend that holds true nationwide, according to a January report from the Albert Shanker Instute—a group funded by the American Federation of Teachers—that examines 50 years’ worth of studies showing a clear correlation between more money and better performance in schools:
“Clearly, money can be spent poorly and have limited influence on school quality. Or, money can be spent well and have substantive positive influence. But money that’s not there can’t do either.”