                                                 The Attorney             General of Texas
                                                                      August 16, 1983
     JIM MATTOX
     Attorney General



     Supreme   Court Building
                                                Honorable Gibson D. Lewis                 Opinion No. JM-60
     P. 0. Box 12546                            Speaker of the House
     Austin. TX. 78711. 2546                    Texas House of Representatives            Re:   Constitutionality of
     512/475.2501                               P. 0. Box 2910                            section 16.102(n) of the
     Telex    9101674-1367                      Austin. Texas   78769                     Education Code
     Telecopier      5121475-0266

                                                Dear Speaker Lewis:
     1607 Main St.. Suite 1400
     Dallas.   TX. 75201-4709                        You have questioned the legality of section 16.102(n) of the
     2141742-6944                               Texas Education Code. This section is part of the Foundation School
                                                Program, and provides as follows:
         4624 Alberta       Ave.. Suite   160
         El Paso. TX.       79905-2793                      (n) Notwithstanding Subsections (d) and (e) of
         9151533.3484                                    this section, a school district that has 1,000 or
r-                                                       fewer students in average daily attendance shall
         1220 Dallas Ave., Suite 202
                                                         be allotted not less than 12 personnel units if it
         Houston,     TX. 77002-6966                     offers a kindergarten through grade 12 program and
         7131650-0666                                    has a prior year's average daily attendance of at
                                                         least 90 students or is 30 miles or more by bus
                                                         route from the nearest high school district. A
         606 Broadway.        Suite 312
         Lubbock,     TX.    79401.3479
                                                         district offering a kindergarten through grade 8
         6061747.5236                                    program   whose    prior    year's   average daily
                                                         attendance was at least 50 students or is 30 miles
                                                         or more by bus route from the nearest high school
         4309 N. Tenth.     Suite B                      district shall be allotted not less than 7.2
         McAllen.     TX. 76501-1665
         5121662.4547
                                                         personnel units.     Not less than 4.2 personnel
                                                         units shall be allotted if a district offers a
                                                         kindergarten through grade 6 program and has a
         200 Main Plaza. Suite 400                       prior year's average daily attendance of at least
         San Antonio.  TX. 78205.2797                    40 students or is 30 miles or more by bus route
         5121225.4191
                                                         from the nearest high school district.          In
                                                         addition, each school district that has 1,000 or
         An Equal      Opportunltyi                      fewer students in average daily attendance shall
         Affirmative     Action     Employer             be allotted .6 personnel unit to be used
                                                         cooperatively with    other   districts to provide
                                                         support services necessary to meet accreditation
                                                         standards.

                                                     Several letters and briefs concerning this opinion request have
     P
                                                been submitted to this office. Essentially, the writers argue that
                                                section 16.102(n) violates both article I, section 3 and article VII,




                                                                                 p. 258
Honorable Gibson D. Lewis - Page 2   (JM-60)




section 1 of the Texas Constitution.      These two provisions state,
respectively:

            All free men, when they form a social compact,
         have equal rights, and no man, or set of men, is
         entitled to exclusive separate public emoluments,
         or privileges, but in consideration of public
         services.

             .   .   .   .

            A   general diffusion of      knowledge being
         essential to the preservation of the liberties and
         rights of the people, it shall be the duty of the
         Legislature of the State to establish and make
         suitable provision for the support and maintenance
         of an efficient system of public free schools.

We conclude that section 16.102(n) of the Education Code does not
violate either article I, section 3 or article VII, section I of the
Texas Constitution.

     The argument under article I, section 3, the state equal
protection clause, essentially is that the legislature acted
unconstitutionally in excluding those school districts eligible to
receive a minimum of 12 personnel units funded by the state districts
which operate a K-12 program, have fewer than 90 students in average
daily attendance, and are less than 30 miles by bus route from the
nearest high school district. These districts receive some personnel
units under a prescribed formula, see Educ. Code 116.102(c), but that
number will always be less than 12F Funding for additional personnel
units in these districts must come, if at all, from each district's
own tax revenues. The argument appears to be that this system
violates   the    state   equal   protection    clause   because    it
unconstitutionally burdens the taxpayers in the excluded districts and
detrimentally affects the quality of education received by the school
children in those districts.

     We have found no recent case decided by a Texas court in which
the court dealt with a challenge to a statute arising under the state
equal protection clause in a different manner than federal courts deal
with challenges arising under the federal equal protection clause. In
Attorney General Opinion MW-572 (1982), this office summarized the
fundamental components of federal equal protection clause analysis:

             For years courts dealt with equal protection
          challenges to state legislation by utilising a
          two-tiered analytical model. Under this model, if
          a   challenged statute burdens an      inherently
          "suspect" class of persons or impinges upon a




                                 p. 259
Honorable Gibson D. Lewis - Page 3   (JM-60)




         "fundamental" constitutional right, it will be
         struck down unless the government can demonstrate
         that the law is justified by some compelling need.
         If, on the other hand, no "suspect" class or
         "fundamental" right is involved, the statute will
         be upheld unless the contestant can show that the
         legislative classification bears no rational
         relationship to a legitimate state oblective.
         See, e.g., -Vance V, Bradley. 440 U.S. 93-(1979);
         San Antonio    Independent School District v.
         Rodriguez, 411 U.S. 1 (1973); Milligan v. State,
         554 S.W.2d 192 (Tex. Grim. App. 1977).

            Although the United States Supreme Court may at
         times apply the two-tiered model, see Clement6 V.
         Fashing, 50 U.S.L.W. 4869 (June 25, 1982)
         (plurality opinion), it also on occasion utilizes
         a more flexible, three-tiered approach. Under
         this approach, an intermediate test, which asks
         whether the challenged legislation "further[s] a
         substantial interest of the State," Plyler V. Doe,
         50 U.S.L.W. 4650, 4654 (June 15, 1982), will be
         utilized in some instances, apparently when the
         court believes that the right or the class of
         persons affected by the challenged statute is,
         although   not    "fundamental"   or    "suspect,"
         nevertheless deserving of special protection.
         See, e.g., Plyler v. Doe, e;      Craig V. Bore*,
         429 U.S. 190 (1976). No criteria that would
         enable one to predict when this intermediate level
         of scrutiny will be employed have yet been
         articulated.

     In San Antonio Independent School District V. Rodriguez, 411 U.S.
1 (1973). the plaintiffs contended that Texas' method of financing its
public school- system violates the federal equal protection clause
because it results in unequal expenditures among children who happen
to reside in different districts. The Supreme Court disagreed. It
held that the state financing system does not burden any "suspect"
class of persons. In discussing a "fundamental" right to an education
the court assessed "whether there is a right to education explicitly
or implicitly guaranteed by the Constitution." 411 U.S. at 33.
Ultimately it held that there is no such "fundamental" right. Because
the state system does not burden any "suspect" class or impinge upon
any "fundamental" right, the court applied the "rational basis" test
and upheld it.

     In Rodriguez, the parties did not challenge the Texas financing
system under the state equal protection clause. Accordingly, we are
afforded no guidance as to how our courts might have dealt with the



                                 p. 260
                               -._.




Honorable Gibson D. Lewis - Page 4      (JM-60)




constitutionality of this system under the state constitution. We
have, moreover, found no cases since Rodriguez in which a plaintiff
has challenged, under only the state equal protection clause, a Texas
statute which affects education.  Such a challenge could, however, be
handled differently from a challenge raised under the federal
Constitution.

     Unlike the federal Constitution, the Texas Constitution does
explicitly provide a right to an education. Tex. Const. art. VII, 91.
Accordingly, if, in determining whether an asserted right is
"fundamental" under our constitution, our courts would apply the same
test used by courts in determining whether rights are fundamental
under the federal Constitution, then the right to an education would,
under the Texas Constitution, have to be deemed "fundamental." And if
our courts would also analyze questions raised under the state equal
protection clause by applying the same test used by courts in
analyzing    federal   equal   protection   questions,    then   state
constitutional challenges to Texas statutes affecting education would
be resolved by applying the "compelling need" test. But see, m,
Thompson V. Engelking, 537 P.2d 635 (Idaho 1975) (state supreme court
declined to apply two-tiered analytical model in analyzing challenge
to state public school financing scheme arising under equal protection
clause of Idaho Constitution; instead, it applied "rational basis"
test); Robinson V. Cahill, 303 A.2d 273 (N.J. 1973). cert. denied sub.
nom., Dickey V. Robinson, 414 U.S. 976 (1973) (rejecting "fundamental
right" analysis used in San Antonio Independent School District V.
Rodriguez, supra).

     In this opinion, we need not decide whether, under the Texas
Constitution, education is a "fundamental" right, or whether our
courts would deal with state constitutional challenges to state
statutes affecting education by applying the "compelling need" test.
Even if both questions are answered in the affirmative, we believe
that section 16.102(n) would pass constitutional muster. We will
therefore assume, for purposes of this opinion, that both questions
would be answered affirmatively. If the challenged statute survives
under the most rigid constitutional test, it will survive if any less
stringent test is applied.

     It is, in our opinion, not at all difficult to characterize as
"compelling'~ the need for a statutory scheme which effectively
requires that, to receive at least 12 personnel units funded by the
state, a school district with a K-12 program must have, for each such
unit, some minimum average number of students in average daily
attendance, and must be 30 miles or more from the nearest high school
district. The state's financial resources are not infinite. The
portion of those resources which can reasonably be allocated to public
education is also not infinite. In our opinion, the state could, if
challenged, demonstrate that it has a compelling need for a statute
which effectively provides that, for a school district to be



                                      p. 261
    Honorable Gibson D. Lewis - Page 5   (JM-60)




    guaranteed a minimum of 12 state-funded personnel units, it must both
    satisfy the geographical requirement and have, for each such unit, an
    average of at least 7.5 students in average daily attendance. Indeed,
    it might be argued that the latter requirement is quite generous, and
    that the state could justify a statutory scheme premised upon the
    assumption that an efficient allocation of the state's financial
    resources requires a substantially greater student/personnel unit
    ratio.

         We also emphasize that even those districts which do not meet the
    geographical requirement and have fewer than 90 students in average
    daily attendance are not without state-funded personnel units; they
    receive a certain number of such units under the section 16.102(c)
    formula. Finally, districts with fewer than 90 students in ADA which
    are located 30 miles or more from the nearest high school -- which
    districts would find it difficult to consolidate with another school
    district -- are guaranteed a minimum of 12 state-funded personnel
    units. Thus, only those districts which could easily consolidate with
    another district but do not do so are excluded from the guarantee of
    section 16.102(n).

         For these reasons, we conclude that even if our courts were to
    analyze the instant question by applying the "compelling need" test
    they would hold that section 16.102(n) does not violate the Texas
    equal protection clause. However, in light of the cited cases from
    other states that deal with this question, we believe that the
    application of "compelling need" is doubtful.

         We turn next to your argument under article VII, section 1 of the
    Texas Constitution. In Mumme v. Marrs, 40 S.W.2d 31 (Tex. 1931), the
    Texas Supreme Court made several important statements concerning this
    provision. First, it stated that "liberal rules should apply in
    determining the power of the Legislature with reference to the public
    school system." 40 S.W.2d at 33. It also said that:

              The Legislature alone is to judge what means are
              necessary and appropriate for a purpose which the
              Constitution makes legitimate. The legislative
              determination of the methods, restrictions, and
              regulations is final, except when so arbitrary as
              to be violative of the constitutional rights of
              the citizen.

    40,S.W.2d at 36. Finally, with respect to the portion of article VII,
    section 1 which directs the legislature to make "suitable provision
    for the support and maintenance of an efficient system of public free
    schools," it observed that:

P             The word "suitable," used in connection with the
              word   "provision" in    this  section of    the



                                     p. 262
Honorable Gibson D. Lewis - Page 6    (~~-60)




          Constitution, is an elastic term, depending upon
          the necessities of changing times or conditions,
          and clearly leaves to the Legislature the right to
          determine what is suitable, and its determination
          will not be reviewed by the courts if the act has
          a real relation to the subject and object of the
          Constitution.



     It has been suggested that section 16.102(n) prevents the
constitutional goal of an "efficient system of public free schools"
from being attained. We disagree. If anything, for the reasons
discussed above, we believe that a statutory scheme which requires
some minimum average number of students in average daily attendance
for each state-funded personnel unit enhances the ability of the state
to achieve this goal. Such a scheme helps to ensure that the state's
finite resources are used where they are needed, rather than utilized
to fund more personnel units for a particular district than are
reasonably warranted by the number of students in that district. A
scheme which would allocate to each school district some guaranteed
minimum number of state-funded personnel units, with disregard for the
number of students in average daily attendance in that district, could
hardly be regarded as "efficient."

     As the Mumme court held, the legislature has broad discretion to
determine the components of an "efficient system of public free
schools."   In this instance, it has in effect determined that
efficiency requires that there be a least 7.5 students in average
daily attendance per each state-funded personnel unit. We believe
that such a determination is entirelv within its discretion. We
therefore conclude that section 16.102(n) does not violate article
VII, section 1 of the Texas Constitution.

                            SUMMARY

            Section 16.102(n) of the Texas Education Code,
         regarding the Foundation School Program. does not
         violate the equal protection clause, article I,
         section 3 of the Texas Constitution, or article
         VII, section 1 which requires the establishment of
         an efficient system of




                                        JIM     MATTOX
                                        Attorney General of Texas




                               p. 263
Honorable Gibson D. Lewis - Page 7      (~~-60)




TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Acting Chairman
Jon Bible
David Brooks
Colin Carl
Jim Moellinger
Nancy Sutton




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