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Education Not a Fundamental Right, Appeals Court Says in Decision Upholding Texas State-Aid System

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Property-poor Texas school districts challenging the state's school-finance system will appeal a three-judge panel's finding that the funding method does not violate the Texas constitution.

In a 2-to-1 opinion handed down Dec. 14, the state's Third District Court of Appeals reversed Judge Harley Clark's April 1987 ruling that students in school districts with low per-pupil expenditures were being denied an "efficient" education as mandated by the constitution.

Judge Clark, in a ruling that set an unusually stringent definition of financial equity, had ordered the legislature to develop a new funding system by September 1989.

The appeals court found that education is not a "fundamental right" in Texas, and that the state's reliance on property taxes to raise school revenues is "rationally related to effectuating local control of education."

In addition, wrote Justices Bob Shannon and Marilyn Aboussie, deciding whether a particular funding scheme is "efficient" or not under the state's constitutional language "is essentially a political question not suitable for judicial review."

In a dissenting opinion, Justice Bob Gammage concluded that the current system is unconstitutional because it "denies fully one-third of its students a substantially equal educational opportunity to attain even the basic minimum required standards."

Last week, the appeals court panel denied rehearing motions by attorney Al Kauffman, a lawyer for the 12 districts that filed the suit in 1984, and attorneys representing more than 50 school districts that have intervened.

Craig Foster, executive director of Equity Center, a research and information source for the property-poor districts, said an appeal will be filed within 30 days to the state Supreme Court.

Texas lawmakers and officials, meanwhile, announced that although the state won the appellate round of the case, they would urge the adoption of a finance-reform measure this year, a move expected to be politically contentious.

Two panels appointed separately by the governor and legislative leaders recently issued detailed recommendations for changing the system.

Although Attorney General Jim Mattox believes that the existing system is constitutional "and could be defended" on strictly legal grounds, according to a spokesman, Ron Ducek, he also has concluded that it "should be changed and cannot be defended on other grounds as being fair and equitable to students."

Commissioner of Education William N. Kirby has also called on legislators to change the formula to ensure equity and fairness.

Gov. William P. Clements Jr. also has urged the legislature to take steps to improve the quality of edu8cation in the state. At the same time, however, he has indicated he will continue to press for a constitutional amendment that would remove the school-finance issue from judicial purview.

The appeals panel's majority opinion relied heavily on the U.S. Supreme Court's landmark 1973 ruling in San Antonio Independent School District v. Rodriguez, an earlier suit challenging the legality of Texas's school-aid system. In that case, the High Court found that education was not a fundamental right protected under the federal Constitution.

Applying a line of reasoning similar to that in Rodriguez, Justices Shannon and Aboussie concluded "that education, although vital, does not arise to the same level as the right to engage in freedom of speech or to exercise religion free of governmental interference, both rights which have long been recognized as fundamental and entitled to protection under both the federal and state constitutions."

In his dissent, Justice Gammage argued that the majority's reliance on Rodriguez was incorrect because the case before them was brought under state and not federal law.

The Texas constitution, he noted, "explicitly recognizes that education is indispensable to the meaningful exercise of other fundamental liberties and rights and mandates the legislature to make suitable provision for an efficient education system."

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