               IN THE SUPREME COURT OF TEXAS
                                         444444444444
                                           NO . 14-0776
                                         444444444444


  MIKE MORATH, COMMISSIONER OF EDUCATION, IN HIS OFFICIAL CAPACITY;
  GLENN HEGAR, TEXAS COMPTROLLER OF PUBLIC ACCOUNTS, IN HIS OFFICIAL
     CAPACITY; THE TEXAS STATE BOARD OF EDUCATION; AND THE TEXAS
                    EDUCATION AGENCY, APPELLANTS,
                                                 v.


 THE TEXAS TAXPAYER AND STUDENT FAIRNESS COALITION, ET AL.; CALHOUN
 COUNTY ISD, ET AL.; EDGEWOOD ISD, ET AL,; FORT BEND ISD, ET AL.; TEXAS
   CHARTER SCHOOL ASSOCIATION, ET AL.; AND JOYCE COLEMAN, ET AL.,
                             APPELLEES

           4444444444444444444444444444444444444444444444444444
                                ON DIRECT APPEAL FROM THE
                       200TH DISTRICT COURT OF TRAVIS COUNTY , TEXAS
           4444444444444444444444444444444444444444444444444444


       JUSTICE GUZMAN , joined by JUSTICE LEHRMANN , concurring.

                “It is easier to build strong children than to repair broken men.”

                                      —Frederick Douglass

       A strong public education system is fundamental to building strong children. Regrettably,

this lawsuit—the most recent salvo in a long-waged battle over public-school funding—signals

widespread dissatisfaction with the current system for financing public education in Texas. The

majority of school districts—some property-rich, some property-poor—are joined by various

individuals, organizations, charter schools, students, and parents in challenging the school-finance

system’s constitutionality. The suit marries novel arguments based on new standards of “qualitative
efficiency” and accountability with more familiar ones, including allegations that the system imposes

an unconstitutional property tax and is constitutionally inadequate, unsuitable, and inefficient.1

Although disparate in their grievances, the parties are united in the firm conviction that the system

is broken.         Today, the Court holds Texas’s school-finance system passes the threshold of

constitutionality. But this is not an endorsement of the system; to the contrary, the Court calls for

“transformational, top-to-bottom reforms.”2 I fully join the Court’s opinion and write separately to

further emphasize that there is much more work to be done, particularly with respect to the

population that represents the majority of the student base—economically disadvantaged students.3

                                                                     I

         Our state constitution is a marvel—the intentional design of the people of Texas—but its very

length and detail is a testament to the core belief that our state government, including the Legislature,

must be guided and limited in the exercise of its power and discretion. The Legislature may devise

and adopt highly complex laws and systems, but its enactments can and must be measured against

the requirements of the charter that established its authority to govern and defines its powers and

duties. In the checks and balances of our political system, the Legislature’s powers are not

unfettered. Those aggrieved by legislative action are not entirely without recourse and may, in a

proper case, seek judicial review. While the Legislature has the duty and privilege to balance the

         1
             See T EX . C O N ST . art. VII, § 1; id. art.VIII, § 1-e.

         2
             Ante at 2.

        3
          Economically disadvantaged students are those eligible to participate in the national free or reduced-price
lunch program. See T EX . E D U C . C O DE § 5.001(4). For a household with four members, the qualifying annual income
is $44,863 or less for 2015–2016 and $44,123 for 2014–2015. 80 Fed. Reg. 17,026, 17,027 (March 31, 2015); 79 Fed.
Reg. 12,466, 12,467 (March 5, 2014).

                                                                     2
myriad policy choices inherent in adopting and financing an educational system that serves the

diverse citizenry of this vast state, this Court is charged with determining whether the sum of those

choices passes constitutional muster.

       The power of the courts is not unbounded, however. We can review, but not rewrite, the

Legislature’s enactments; we can only grade pass or fail, yes or no. As the Court explains, here and

in our prior cases, article VII, section 1 of the Texas Constitution affords the Legislature great

discretion.4 “The public education system need not operate perfectly; it is adequate if districts are

reasonably able to provide their students the access and opportunity the district court described.”5

Because our review is and must be “very deferential”6 to the Legislature, I agree the Court is obliged

to conclude the system passes muster under article VII, section 1 of the Texas Constitution. The

standard that governs our review is not whether the state educational and school-finance system is

ideal; the constitution merely requires the system to be good enough.

       Good enough now, however, does not mean that the system is good or that it will continue

to be enough. Shortfalls in both resources and performance persist in innumerable respects, and a

perilously large number of students is in danger of falling further behind. In the last fifteen years,

the number of economically disadvantaged students served by Texas schools has risen significantly




       4
           Neeley v. W. Orange-Cove Consol. Indep. Sch. Dist., 176 S.W .3d 746, 784 (Tex. 2005).

       5
           Id. at 787.

       6
           Ante at 25.

                                                        3
and continues to outpace increases in the overall student population.7 Statistics show these

students—close to 60% of the student populace8—have made performance gains but still

underperform academically in comparison to their more affluent peers. The majority of Texas

school children are presently categorized as economically disadvantaged, and that majority is likely

to grow. Enrollment data shows higher concentrations of economically disadvantaged students in

lower grades and an oncoming population bulge among younger children.9

          Low-income students come to school without the advantages enjoyed by many of their

classmates, often without the same life experiences and frame of reference as more affluent students.

Poor children may never have been more than a few blocks away from home, never had access to

computers or visited a museum. Their families, often lacking the means to provide academic support

and stability, are struggling to provide their children with reliable nutrition, health care, housing, and

transportation and, as a result, may move often. Once in school, low-income children are frequently

without the opportunity, means, or transportation for extracurricular activities, after-school tutoring,

summer school, or other enrichment activities. As the Court concedes, there are conflicting studies

on whether family characteristics like socioeconomic status or parental education matter more to


          7
            D IV ISIO N OF R ESEARCH & A N ALY SIS , T EX . E D UC . A GEN CY , E N RO LLM EN T IN T EXAS P U BLIC S CHO O LS 2014-15
(2016) (Doc. No. GE16 601 09), available as a PDF file through links on the agency’s Enrollment Trends webpage, at
http://tea.texas.gov/acctres/enroll_index.html.

          8
              Id. at ix–x.

          9
            Id. at 10, 20; D IV IS IO N O F R ESEARCH & A N ALY SIS , T EXAS E D U C . A GEN CY , E N RO LLM EN T IN T EXAS P U BLIC
S CH O O LS 2013-14 at ix, 15, 20 (2014) (Doc. No. GE15 601 03), available as a PDF file at
http://tea.texas.gov/acctres/enroll_index.html; see also Steve Suitts, A New Majority Research Bulletin: Low Income
Students Now a Majority in the Nation’s Public Schools, S O U TH ERN E DU CATIO N F O U N DATIO N (2015), available as a PDF
file at http://www.southerneducation.org/Our-Strategies/Research-and-Publications/New-Majority-Diverse-Majority-
Report-Series/A-New-Majority-2015-Update-Low-Income-Students-Now.

                                                                 4
student success than expenditures.10 The mandate to the Legislature, however, comes not from those

studies or from the courts. The mandate comes from the Constitution, from framers who presumably

anticipated the need to educate children who would not otherwise be able to participate meaningfully

in the State’s affairs.

        To capitalize on the progress that has been achieved to date and to guard against fallow, the

Legislature must continue to be strategic and flexible in its approach to supporting economically

disadvantaged students. The process will take time, ingenuity, and refinement as more information

becomes available, but the economic future of this great state lies in the hands of our children, and

educating them must be our first priority. While perfection is neither attainable nor constitutionally

required, our Legislature can and should continue to strive for a better system for all Texas students.



                                                  II

        As the Court observes, the Legislature has implemented a variety of methods to address the

systemic needs of economically disadvantaged students. The Legislature has provided an additional

per-student allotment for economically disadvantaged students, computed by multiplying these

students’ average daily attendance by a factor of .2. Lately, legislative solutions have centered on

controversial new testing and reporting requirements. Charter schools, a once-popular suggestion

for innovation, remain an experiment in progress, and in this litigation, charter schools are among

those claiming that more money is necessary to provide an adequate system. Consolidation of school



        10
             Ante at 50.

                                                   5
districts, on the other hand, seems to be an unpopular idea, but a few school districts have

consolidated since this Court last noted the inefficiency created by a “multitude” of small school

districts.11

        The Legislature has also employed targeted grant programs to fund full-day prekindergarten.

In a report to the Legislature, former Commissioner of Education Robert Scott recommended full

funding for prekindergarten “early start” grants, describing it as a “critical” program that supports

student progress from prekindergarten through the twelfth grade. Economically disadvantaged

students may lag as much as eighteen months behind their peers when they enter kindergarten, but

this gap can be cut in half with an effective prekindergarten program. In 2011, however, the

Legislature eliminated grant funding in its entirety, cutting what at one time had been some $200

million per biennium in targeted grants for full-day prekindergarten. Some funding was restored in

2013, but the amount—$30 million per biennium—was only 15% of the pre-2011 level. Districts

with a high level of need, but few financial resources, remain hampered in their ability to serve their

disadvantaged students. Edgewood ISD presents a case in point: more than 90% of its students are

economically disadvantaged, and the District lacks the $1.2 million necessary to serve the children

on its prekindergarten waitlist. These children remain at risk of falling further and further behind.

                                                         III

        While there has been progress over the last twenty years, the need for more is apparent. A

number of measures show a continuing gap between economically disadvantaged students and



        11
             Neeley, 176 S.W .3d at 757; Edgewood Indep. Sch. Dist. v. Kirby, 804 S.W .2d 491, 497 (Tex. 1991).

                                                          6
students overall, including the four-year graduation statistics cited, in part, by the Court. Four-year

graduation and dropout statistics track students who started together in the same ninth-grade cohort

over four years to determine what percentage of those students graduate, drop out, or continue in

school.12 Four-year dropout rates, by definition, do not include students who dropped out before

ninth grade.13 As the Court notes, Texas had an overall four-year graduation rate of 88% in 2013;

the corresponding dropout rate was 6.6%. In other words, 21,634 of twelfth-grade students who

started ninth grade together, four years earlier, dropped out in 2013.14                               For economically

disadvantaged students, the four-year graduation rate was lower, at 85.2%, while the dropout rate

was higher, at 8.5%.15 Thus, a disproportionate share of the students who dropped out, after failing

to graduate in 2013, were poor. Economically disadvantaged students continued to lag behind in

2014, with four-year graduation and dropout rates remaining roughly the same.16



         12
           D IV ISIO N O F R ESEARCH & A N ALYSIS , T EX . E DUC . A GENCY , S ECONDARY S CHOOL C OM PLETIO N AN D D RO PO U TS
INT EXAS P U BLIC S CH OO LS 2012-13 at x (2014) (Doc. No. GE14 601 07) (“C O M PLETIO N AND D RO POUTS 2012-13”),
available as a PDF file from the agency’s Completion, Graduation, and Dropouts webpage at http://tea.texas.gov/-
acctres/dropcomp_index.html#reports.

         13
           Dropouts are also counted annually. Of the 2,189,442 students who attended seventh through twelfth grades
during the 2012–2013 school year, 31,509 students dropped out of the ninth through twelfth grades, and another 3,187
students dropped out of the seventh and eighth grades. Id. at xiv.

         14
             Grade 9 Longitudinal Graduation and Dropout Rates, Texas Public Schools, Class of 2013, T EX . E D U C .
A GEN CY , https://rptsvr1.tea.texas.gov/acctres/completion/2013/state.html; see also C OM PLETION AND D ROPOUTS 2012-13
at xii.

         15
           Grade 9 Longitudinal Graduation and Dropout Rates by Race/Ethnicity and Gender, Texas Public Schools,
Class of 2013, T EX . E DU C . A GENCY , https://rptsvr1.tea.texas.gov/acctres/completion/2013/state_demo.html. Another
5.4% of economically disadvantaged students continued in school and another .9% received a GED. Id.

         16
           Compare Grade 9 Four-Year Longitudinal Graduation and Dropout Rates, Texas Public Schools, Class of
2014, T EX . E D U C . A GEN CY , https://rptsvr1.tea.texas.gov/acctres/completion/2014/state_4yr.html, with Grade 9
Four-Year Longitudinal Graduation and Dropout Rates, by Race/Ethnicity, Economic Status, and Gender, Texas Public
Schools, Class of 2014, T EX . E DUC . A GENCY , https://rptsvr1.tea.texas.gov/acctres/completion/2014/state_demo_4yr.html.

                                                              7
         In any event, graduation is only half the battle. Graduation in itself means little if it is not

a meaningful hallmark for achievement. The State’s current measure of achievement—STAAR test

results—shows an ongoing achievement gap between students overall and economically

disadvantaged students. In 2013, 71% of all fourth graders met the first “phase-in” STAAR level

for reading proficiency, but only 63% of economically disadvantaged fourth graders fared as well.17

In 2014, the corresponding numbers were 73% and 65%; in 2015, they were 71% and 62%.18

Reading test results for other grades show similar performance divides. Annual “Report Cards” also

show a disparity in the percentage of students who could meet what will be the “final” proficiency

levels, once STAAR testing is fully “phased-in.” In 2013, 34% of all students, for all subjects, could

meet these “final” proficiency standards; only 25% of economically disadvantaged students could.19

In 2014, the divide is 39% to 28%; in 2015, 38% to 27%.20 The performance gap between all

students and students who are economically disadvantaged persists, even as economically

disadvantaged students grow to be a larger and larger percentage of the total student population.

         A more pressing concern is the risk that performance gains achieved over the last decade are

eroding. The Court notes, as a high point among otherwise lackluster NAEP test results, that average




        17
            The “2012-13 Federal Report Card” can be found on the TEA’s website, at https://rptsvr1.tea.texas.gov/-
perfreport/frc/2013/srch.html.

        18
           The “2014-15 Federal Report Card” can be found through the TEA’s website at https://rptsvr1.tea.texas.gov/-
perfreport/frc/2015/srch.html.

         19
              See 2012-13 Federal Report Card.

         20
              See 2014-15 Federal Report Card.

                                                          8
mathematics scores for all Texas eighth graders rose from 281 to 290 between 2005 to 2011.21 That

2011 high point, however, was not repeated in succeeding years.22                                   Average eighth-grade

mathematics scores dropped to 288 in 2013 and to 284 in 2015. The NAEP comparison tool, in fact,

shows no significant gain in average mathematics results for Texas eighth graders from 2005 to

2015.23        Average mathematics scores for economically disadvantaged eighth graders also

dropped—from 281 in 2011, to 279 in 2013, to 274 in 2015; on the bright side, the 2015 score still

represents a ten-point gain over the average score from 2003. NAEP reading test results for eighth

graders are more stable—if only because there have been no significant recent gains to lose.24

          What may be far more interesting about the NAEP data is that it shows a much wider

achievement disparity between students who are poor and those who are not. For mathematics

scores, the gap between non-disadvantaged and disadvantaged eighth graders was 23 points in 2011,

and 22 points in 2015, but scores dropped for both groups. The gap in reading scores—less stellar



          21
            Ante at 63. The National Assessment of Educational Progress (NAEP) is a congressionally-mandated project
administered by the National Center for Education Statistics (NCES), with the Department of Education and the Institute
of Education Sciences. Reading and mathematics test results for fourth and eighth graders, as well as various tools for
viewing a state’s profile, intra-state score changes, and standing relative to other states, are available for 2015 and several
earlier years at http://www.nationsreportcard.gov/.

          22
            The NCES provides a “State Profiles” online tool that can be used to generate a state’s test result history
dating back to 1990, available at http://nces.ed.gov/nationsreportcard/states/. An interactive “State Comparison” tool
can be used to generate tables, by year, grade, and test subject, to obtain more data about scores across several categories
of students. See N AT ’L C TR . FO R E DU C . S TATISTIC S , NAEP S TATE C O M PARISO N S , http://nces.ed.gov/nationsreportcard/-
statecomparisons.

          23
           The “State Score Changes” comparison tool on the Nation’s Report Card webpage can be used to compare
fourth- and eighth-grade mathematics and reading scores from 2015 to results from past years ranging back to 1990.

          24
            See 2015 Mathematics and Reading Assessments; Reading; State Score Changes; State Score Change Map,
T H E N ATIO N ’S R EPO RT C ARD , an interactive tool available at http://www.nationsreportcard.gov/reading_math_2015/-
#reading/state/scores?grade=8. The tool provides a link to toggle between fourth- and eighth-grade results.

                                                                9
all around—was 21 points in 2011 and 20 points in 2015.25

         If we chose to grade Texas in comparison to other states, we could definitely say Texas is not

the worst. In 2015, Texas placed 7th on math scores for economically disadvantaged eighth

graders—significantly better than 26 states and the District of Columbia. On reading scores for this

group, however, Texas placed 37th—significantly better than only four states and the District of

Columbia. On results for all students in 2015, Texas ranked 23rd on math scores (significantly better

than 19 states and DC) and 39th on reading scores (significantly better than only four states and DC).

It may be enough, for now, but we should aspire to more than being solidly in the middle.




        25
           A table showing this data for each year, subject, and grade can be generated with the NCES comparison tool
available at http://nces.ed.gov/nationsreportcard/statecomparisons.

                                                         10
                                                IV

       Constitutionality is a minimum standard—a guarantee—not a cap on our expectations or our

potential. Eleven years after our last school finance case, it still “remains to be seen whether the

system’s predicted drift toward constitutional inadequacy will be avoided by legislative reaction to

widespread calls for change.”26 At the beginning of the day and in the end, only the Legislature can

develop and implement new solutions, new efficiencies, and new ideas for funding public-school

education. Our citizens must bear the consequences of those decisions, and I, for one, remain

hopeful that more progress is yet to come.




                                              Eva M. Guzman
                                              Justice

Opinion issued: May 13, 2016




       26
            Neeley, 176 S.W .3d at 790.

                                                11
