               IN THE SUPREME COURT OF TEXAS
                                        ══════════
                                          No. 14-0776
                                        ══════════

 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

            ══════════════════════════════════════════
                           ON DIRECT APPEAL FROM THE
                     200TH JUDICIAL DISTRICT COURT OF TEXAS
            ══════════════════════════════════════════

       JUSTICE BOYD, joined by JUSTICE LEHRMANN and JUSTICE DEVINE, concurring.

       Our decision in this case will no doubt be a great disappointment to many, and perhaps a

cause for celebration for others. In light of this Court’s extensive and binding precedent, what it

should not be is a surprise to anyone. And what it definitely is not is an expression of personal

opinions on how Texas should fund and operate its public school system. I join the Court’s opinion

and judgment and write this brief concurrence to emphasize why our Constitution and this Court’s

precedent require today’s result.

       The Texas Constitution states:

       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

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        efficient system of public free schools.

TEX. CONST. art. VII, § 1. Over the past twenty-seven years, this Court has repeatedly and

extensively addressed, construed, and applied these words.1 The arguments the parties raised in

those cases required the Court to focus particularly on the phrases “general diffusion of

knowledge,” “suitable provision,” and “efficient system.” But in doing so, the Court has repeatedly

highlighted one phrase that others seem to often overlook:

                             “. . . it shall be the duty of the Legislature . . .”

        These eight powerful words directly affect all of the words surrounding them. More

importantly, they affect this Court by precluding us from judicially mandating the “efficient

system,” “suitable provision,” or “general diffusion of knowledge” we may prefer. And most

importantly, they affect the members of the Legislature by imposing on them a solemn obligation

on which the very “liberties and rights of the people” depend.

        Based on the Constitution’s language, a “general diffusion of knowledge” is the linchpin

for all of the other requirements. Article VII, section 1 makes it “the duty of the Legislature” to

ensure a “general diffusion of knowledge”—no more and no less. TEX. CONST. art. VII, § 1. A

“general diffusion of knowledge” is the mark on the yardstick that indicates whether the

Legislature has made “suitable provision” for an “efficient system” of public schools. See West

Orange–Cove II, 176 S.W.3d at 785–86. The Legislature, and even individual school districts, may



         1
           See Neeley v. W. Orange–Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746 (Tex. 2005) (West Orange–Cove
II); W. Orange–Cove Consol. I.S.D. v. Alanis, 107 S.W.3d 558 (Tex. 2003) (West Orange–Cove I); Edgewood Indep.
Sch. Dist. v. Meno, 917 S.W.2d 717 (Tex. 1995) (Edgewood IV); Carrollton–Farmers Branch Indep. Sch. Dist. v.
Edgewood Indep. Sch. Dist., 826 S.W.2d 489 (Tex. 1992) (Edgewood III); Edgewood Indep. Sch. Dist. v. Kirby, 804
S.W.2d 491 (Tex. 1991) (Edgewood II); Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989) (Edgewood
I).


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choose to tax and spend and provide and require more than a “general diffusion of knowledge”

requires, see West Orange–Cove I, 107 S.W.3d at 581–83; Edgewood IV, 917 S.W.2d at 730 &

n.9, but they cannot choose to do less. A “general diffusion of knowledge” is the constitutional

minimum requirement that is essential to preserving “the liberties and rights of the people.”

       But what is a “general diffusion of knowledge”? The Constitution does not say. Nor does

it say what constitutes “suitable provision” or an “efficient system.” Since it is typically this

Court’s role to construe the Constitution, see, e.g., Harris Cty. Hosp. Dist. v. Tomball Reg’l Hosp.,

283 S.W.3d 838, 842 (Tex. 2009), we could conceivably assign meanings to these terms that would

ensure that Texas has the kind of public school system we think it should have. Conceivably, we

could; but constitutionally, we cannot, because:

                          “. . . it shall be the duty of the Legislature . . .”

       The Court has previously noted that the terms “general diffusion of knowledge,” “suitable

provision,” and “efficient system” are inexact, imprecise, and “import a wide spectrum of

considerations.” West Orange–Cove II, 176 S.W3d at 778; see also Edgewood I, 777 S.W.2d at

394 (“[T]hese are admittedly not precise terms . . . .”). We observed long ago that the meaning of

these “elastic” terms depends “upon the necessities of changing times or conditions.” Mumme v.

Marrs, 40 S.W.2d 31, 36 (Tex. 1931). By using these elastic and imprecise terms and by expressly

placing “the duty” on the Legislature, article VII, section 1 “commits to the Legislature, the most

democratic branch of the government, the authority to determine the broad range of policy issues

involved in providing for public education.” West Orange–Cove II, 176 S.W.3d at 778. The terms

are intentionally imprecise because “the State’s provision for a general diffusion of knowledge




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must reflect changing times, needs, and public expectations.” Edgewood IV, 917 S.W.2d at 732

n.14.

        Because the standards that these terms set can be met only through fiscal and public policy

choices, the Court has held that the Legislature has the primary responsibility to determine what

each of these standards require and how best to meet them:

           “The Legislature is entitled to determine what public education is necessary for
            the constitutionally required ‘general diffusion of knowledge,[’] and then to
            determine the means for providing that education.” West Orange–Cove II, 176
            S.W.3d at 784 (emphasis added).

           “The word ‘suitable,’ used in connection with the word ‘provision’ . . . clearly
            leaves to the [L]egislature 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.” Mumme, 40 S.W.2d at 36 (emphases
            added).

           “The Constitution gives to the Legislature . . . the ‘primary responsibility to
            decide how best to achieve an efficient system.’” Edgewood IV, 917 S.W.2d at
            747 (emphasis added) (quoting Edgewood I, 777 S.W.2d at 399).

In other words, the Constitution allows the Legislature “a large measure of discretion on two

levels”—both to determine what the constitutional terms mean and require, and then to determine

how to best meet those requirements. West Orange–Cove II, 176 S.W.3d at 784. In short, the

Legislature “has broad discretion to make the myriad policy decisions concerning education.”

Edgewood IV, 917 S.W.2d at 730 n.8.

        Despite the Constitution’s express assignment of “the duty” to the Legislature, it does

“provide a standard by which this court must, when called upon to do so, measure the

constitutionality of the legislature’s actions.” Edgewood I, 777 S.W.2d at 394. However, our role

“is limited to ensuring that the constitutional standards are met. We do not prescribe how the

standards should be met.” West Orange–Cove II, 176 S.W.3d at 753. Instead, we must defer to the
                                                      4
Legislature and uphold its policy choices unless those choices are “arbitrary” and “unreasonable.”

As the Court explained long ago,

       Since the Legislature has the mandatory duty to make suitable provision for the
       support and maintenance of an efficient system of public free schools, and has the
       power to pass any law relative thereto, not prohibited by the Constitution, it
       necessarily follows that it has a choice in the selection of methods by which the
       object of the organic law may be effectuated. 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.

Mumme, 40 S.W.2d at 36.

       Under this standard, the Court must defer to the Legislature’s primary role and uphold the

Legislature’s decisions unless they are arbitrary—that is, “taken without reference to guiding rules

or principles”—and unreasonable. West Orange–Cove II, 176 S.W.3d at 784. “If the Legislature’s

choices are informed by guiding rules and principles properly related to public education—that is,

if the choices are not arbitrary—then the system does not violate the constitutional provision.” Id.

at 785. Under our Constitution, the Legislature is free to make whatever changes it determines are

appropriate in light of “changing times, needs, and public expectations.” Edgewood IV, 917

S.W.2d at 732 n.14. It can change the required curriculum; it can replace the TAAS test with the

TAKS test and the TAKS test with the STAAR test; it can change the scores required to “pass”

whatever test it has settled on; it can change the accreditation standards and adjustment factors and

remedial measures; and it can even reduce funding by $4 billion. We may not like what the

Legislature does, but we can only intervene as a Court if the Legislature’s decisions are “arbitrary”

and “unreasonable” in light of its “duty” to ensure a “general diffusion of knowledge.”




                                                     5
       The Legislature has never expressly defined or described a “general diffusion of

knowledge.” Instead, it has only implicitly set that bar by statutorily describing the system it has

chosen to establish, support, and maintain. The Court has thus looked to the statutes the Legislature

has enacted for guidance. In Edgewood IV, for example, the Court concluded that, in Chapter 35

of the Texas Education Code, “the Legislature defines the contours of its constitutional duty to

provide a ‘general diffusion of knowledge’ by articulating seven public education goals.”

Edgewood IV, 917 S.W.2d at 728. And more recently, the Court equated a “general diffusion of

knowledge” with an “accredited education” because the Legislature requires school districts to

provide the latter as the means to achieve the former. West Orange–Cove I, 107 S.W.3d at 581.

Consistent with the Legislature’s statutory scheme, the system “need not operate perfectly; it is

adequate if districts are reasonably able to provide their students the access and opportunity” the

system is designed to provide. West Orange–Cove II, 176 S.W.3d at 787.

       The Court has not previously concluded, and does not conclude today, that the

Legislature’s decisions in the school-finance arena have been wise or desirable. All the Court

concludes today is that they have not been so arbitrary and unreasonable as to fall below the

minimum constitutional standards. The Court’s sole job—indeed, its constitutionally limited

authority—is to answer that question. Whether we believe the state should spend more or less on

public education is irrelevant to the task before us. Whether we think the state should raise or lower

accreditation standards, increase or decrease class sizes, or require more or less testing, is

immaterial to the decision the Constitution and our precedent permit us to make today. We may

have our personal views on those issues, but when it comes to making those kinds of choices,

                          “. . . it shall be the duty of the Legislature . . .”


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       Deciding to provide a “better” system, and how much “better” that system should be,

requires a balancing of costs and benefits that the Constitution leaves solely to the Legislature. Our

sole authority is to determine whether the Legislature’s decisions have been arbitrary and

unreasonable, and for the reasons the Court explains, I agree they have not. For those who are

disappointed, their remedy “lies in the Legislature and thus in the privilege and duty that all Texans

have to elect the legislators who will implement the policy choices they desire.” Ante at ___.




                                                      _____________________
                                                      Jeffrey S. Boyd
                                                      Justice

       Opinion delivered:




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