Carrollton-Farmers Branch Independent School District v. Edgewood Independent School District

CORNYN, Justice,

concurring and dissenting.

Each time this court has held Texas’ system of public school finance unconstitutional we have prospectively enjoined the payment of state funds used to finance the system. The reason we have eschewed an immediate effect of our ruling, in favor of prospective relief, has been a desire to ameliorate any unduly disruptive impact of our ruling on our school children. Today, the court holds that the CED tax enacted by Senate Bill 351 is unconstitutional, a decision which I join. Furthermore, in an effort to alleviate the harm to school children *525 whose schools would be closed were it not for the revenue produced by that tax, we hold that 1991-92 taxes are nevertheless still due. I agree that a proper balancing of the equities compels this result too.

But the court veers from the straight and narrow path of judicial propriety and into a constitutional ditch by, in effect, telling taxpayers that an unconstitutional CED tax must be endured for an additional tax cycle because this is an election year. The court apparently believes that citizen opposition to the available legislative alternatives to Senate Bill 351 will be too irresistible to permit the type of fundamental reforms which this court has repeatedly held are indispensable to an efficient system of public education. However, this simply is not an equitable or legal basis for the court to refuse to perform its clear duty. Political pressures, the reason for delaying the effect of today’s judgment for two tax cycles, do not rise to the same level in equity as the potential disruption of the school system which is the reason for the correct holding that the 1991-92 taxes are still due.

Moreover, the purported justification the court offers for delaying the effect of today’s ruling an additional year simply cannot withstand scrutiny. Even if one assumes that the purported justification is valid, the court can offer taxpayers no reassurance that similar political pressures will not likewise be present in the next general session of the legislature. There is something fundamentally wrong with the court’s logic when it can so dramatically and decisively strike down one constitutional violation, as we have done in Edgewood I (Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex.1989)) and Edgewood II ( 804 S.W.2d 491 (Tex.1991)), only to abide another constitutional violation for two years because of political expediency. Furthermore, the court itself unnecessarily contributes to the delay, and resulting confusion, in establishing a constitutional school system by its two-year postponement of the effect of its judgment. Does the court really expect the legislature to react in advance of any deadline we might set? Experience should tell us that any such expectation is unwarranted. The wound that the court self-inflicts today will be slow to heal. The court’s disparate treatment of two different violations of the same constitution is a starkly unacceptable abdication of its constitutional responsibility. We either have a constitution which is the fundamental law of our state or we do not. Out of due regard for the rule of law, the constitution must be enforced or it must be amended — the law simply cannot be ignored or its enforcement delayed for reasons of expediency. For these reasons, although I join in the court’s judgment and opinion in all other respects, I dissent from section VI, C of the court’s opinion and decline to join in that portion of the judgment that delays the effect of today’s decision until 1993.

I.

Moreover, I believe that the exigencies of this case, particularly the likelihood that the constitutionality of our public school finance system will remain in doubt and unsettled for at least two more years, warrants a description of some of the key attributes of the kind of school finance system that would pass constitutional muster. In failing to describe those attributes, the court practically insures that public school finance litigation will remain unresolved anytime in the foreseeable future. Since this state-court litigation began in 1984, equitable funding for our public schools has dominated our three opinions and the ensuing legislative debate. Only in passing has the quality of the public education system in Texas been addressed. Yet our system of public education languishes in mediocrity with no improvement in sight. If educational achievement, by constitutional means, is not the solitary goal of our system of public education, there is a different battle being waged in the name of public education from that which has been generally argued and popularly assumed. See n. 8, infra. Equitable funding can only be one means to that end. An “efficient” education requires more than elimination of gross disparities in funding; it requires the inculcation of an *526 essential level of learning by which each child in Texas is enabled to live a full and productive life in an increasingly complex world. There comes a time when patience to permit the legislative process to run its course ceases to be a virtue. I am convinced that the extraordinary nature of these proceedings demands that the court discard its collective mask of inscrutability and describe the basic elements of an efficient system of public education in Texas. I am convinced that we do not serve the school children of our state well by merely reversing this case and, in effect telling the legislature to “try, try again,” without guidance. Otherwise, given the history of school funding in Texas, recounted in all-too-painful detail in JUSTICE GONZALEZ’S opinion, the constitutional requirements of the public school system in Texas are certain to be litigated for years to come. 1 Surely, no one can contend that interminable litigation serves the best interests of our school children. Nor does it solve the fundamental defects in our schools. Many, far too many, of our children are educationally crippled by illiteracy due to the lack of a basic education when they exit the public school system. I am concerned that we will ultimately conclude, like New Jersey’s Supreme Court did after 17 years of litigation, that we have not laid these issues to rest. See Robinson v. Cahill, 62 N.J. 478 , 514, 303 A.2d 273 (1973), cert. denied sub nom., Dickey v. Robinson, 414 U.S. 976 , 94 S.Ct. 292 , 38 L.Ed.2d 219 (1973); Abbott v. Burke, 119 N.J. 287 , 575 A.2d 359, 404 (1990). Or, finally, in the words of one of the judges below, we may begin

to wonder if [w]e ha[ve] been assigned to some judicial purgatory where [w]e must hear the same case over and over.

Edgewood III, slip op. at 36.

The fact that this court has never given more than a hint of the substantive level of education our constitution requires 2 has not been met with universal aplomb. 3 As a consequence,

[g]iven the passions, entrenched bureaucracies, scarcity of resources, and conflicting interests, informed political horsetrading and not rational models have and will continue to carry the day in education finance.

Yudof, School Finance Reform at 597.

In the rough and tumble of another attempt to resolve this crisis, it is fundamentally important that the legislature be mindful of all of the elements of the efficiency standard we announced in Edge-wood I. That standard deals with more than money, it mandates educational results. Otherwise, we may end up like Connecticut, for example, where after years of “legally successful” school finance litigation which increased the state's financial support to public schools by 35%, student performance has not significantly improved. Liebman, Implementing Brown in the Nineties: Political Reconstruction, Liberal Recollection, and bitigatively En *527 forced, Legislative Reform, 76 VA.L.REV. 349, 392-93, n. 144 (1990). Or, we may ultimately conclude, like New Jersey, which spends more per student than any other state except Alaska, that: “[B]eyond doubt ... money alone has not worked.” 4 Abbott v. Burke, 119 N.J. 287 , 575 A.2d 359, 404 (1990). Accordingly, in addition to its anticipated efforts to address financial aspects of educational efficiency the Legislature should forthrightly embrace the equally difficult issue of how the educational dollar in Texas is spent. A focus on results is required by this court’s opinions in Edge-wood I and Edgewood II and requires the legislature to articulate the requirements of an efficient school system in terms of educational results, not just in terms of funding. Although the legislature currently requires testing of student competence in reading, writing, social studies, science and mathematics, overall performance of Texas’ school children on these tests has been despairingly poor.

Texas does not start with a blank slate. Other states have struggled, successfully, with similar constitutional mandates for “efficient” schools. The example of other states points to the need for the legislature to clearly define, and then fund, a minimally adequate education for all Texas school children. This means that for those districts which cannot do so based on local tax effort, the state must provide sufficient means. For those students and schools who are not getting a minimally adequate education because they speak English as a second language, because of learning disabilities — for whatever reason — the state must fund remedial instruction and programs, triggered by substandard performance, to bring them up to the legislatively articulated standard. Only then will the Texas public school system be constitutionally efficient.

II.

In Edgewood II, in an opinion denying plaintiff-intervenors’ motion for rehearing, we wrote:

[Plaintiff-intervenors] position raises the question of whether the Legislature may constitutionally authorize school districts to generate and spend local taxes to enrich or supplement an efficient system (footnote omitted). [T]he Constitution does permit such enrichment, without equalization....

Edgewood II, 804 S.W.2d at 499 . In other words, we implied — but did not expressly state — that the Constitution does not require equalization of funds between students across the state. This means that the educational system in Texas is not constitutionally required to have equal funding per student. Further, implicit in the concept of an efficient school system is the idea that the output of the system should meet certain minimum standards — it should provide a minimally “adequate” education. Billy D. Walker, Intent of the Framers in the Education Provisions of the Texas Constitution of 1876, 10 REV. OF LITIG. 625, 661, n. 289-290 (1991) (hereinafter, Intent of the Framers). This was directly addressed in Edgewood I, when a unanimous court held:

[e]fficient conveys the meaning of effective or productive of results and connotes the use of resources so as to produce results with little waste. 5

777 S.W.2d at 395 .

This is precisely the approach taken by the Supreme Court of Kentucky, for example, in requiring that “[e]ach child, every child, in this Commonwealth must be provided with equal opportunity to have an adequate education.” Rose v. Council for Better Educ., 790 S.W.2d 186, 211 (Ky. *528 1989). But the state’s obligation to provide an adequate education does not seek equalization of school funds as its primary goal. Once a uniform, basic education is provided by the school system, equalization of funding is not necessary. As the Kentucky court noted:

In no way does this constitutional requirement act as a limitation on the General Assembly’s power to create local school entities and to grant to those entities the authority to supplement the state system.... [I]t may empower them to enact local revenue initiatives to supplement the uniform, equal educational effort that the General Assembly must provide. * * * Such [a] system will guarantee to all children the opportunity for an adequate education, through a state system. To allow local citizens and taxpayers to make supplementary effort in no way reduces or negates the minimum quality of education required in the statewide system.

Id. at 211-12 . 6 Implicit in the Kentucky Supreme Court’s rationale is the preservation of “local control.” Indeed, “local control” by parents translates, at least in part, to “the freedom to devote more money to the education of [their] children.” San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 49 , 93 S.Ct. 1278, 1305 , 36 L.Ed.2d 16 (1972). It is not difficult to discern how “equality of funding” took center stage in this drama. In the trial of Edgewood I, Judge Harley Clark held H.B. 72, the public school finance system then in place, unconstitutional as violative of Texas Constitution, art. I, section 3 (equal rights guarantee); art. I, section 19 (due course of law), and the “efficiency” mandate of art. VII, section 1. On appeal, because this court agreed that the system was unconstitutional under art. VII, section l’s “efficiency clause,” it did not reach the other constitutional arguments. 7 777 S.W.2d at 398 .

In the trial of one of the consolidated causes, Edgewood III, Judge McCown nevertheless appears to have engrafted an equal rights (art. I, section 3) requirement on our Edgewood decisions. For example, Judge McCown wrote that “the constitutional rights of children to ‘a substantially equal opportunity to have access to educational funds’ are so strong that they cannot be thwarted by a local election.” Slip op. at 8-9. I agree with one commentator who has written that “[t]his particular statement hints strongly at equal educational opportunity as a ‘fundamental right,’ an issue studiously avoided by the Texas Supreme Court in Edgewood I and not even mentioned in Edgewood II and Edgewood Ha (majority opinion on Motion for Rehearing).” Billy D. Walker, The District Court and Edgewood III: Promethean Interpretation or Procrustean Bed? at 12 (Oct. 1991) (unpublished monograph, on file with record).

In the trial court’s defense, however, this court in Edgewood I concentrated on the disparity of educational funding in the state rather than educational results. Though that decision was based on the efficiency provision of our constitution, the *529 court did on occasion use equal rights terminology. For example, the court stated:

[i]t is apparent from the historical record that those who drafted and ratified article VII, section 1 never contemplated the possibility that such gross inequalities could exist within an ‘efficient’ system.

Id. (emphasis added). This word choice was unfortunate because the court expressly did not reach the equal rights issue; the court was addressing the 700-1 disparity in revenue available for education when the richest and poorest school districts were compared, ranging in expenditures per student from $2,112 to $19,333. In fact, the trial court, by subtly changing the court’s “efficiency” rationale in Edgewood I, has contributed to the legislative dilemma. By mandating strict equality in funding as the solitary goal of efficiency rather than requiring a system that is productive of results, the trial court has in my opinion skewed our holdings in Edgewood I and II. 8

Fiscal input alone offers no guarantee of a quality education. This is because pure “equality of input” requirements do not require a positive correlation between dollars spent (input) and quality of education realized (output). A school system where so few children demonstrate mastery of basic educational skills cannot be constitutionally efficient, no matter what level of funding is provided. Elimination of gross funding disparities alone will not result in an efficient school system.

The unwelcome constitutional responsibility of attempting once again to enact a constitutional school finance system following rendition of the present judgment presents the legislature with the formidable duty to enact and to fund a school system that meets minimum standards of academic achievement. 9

III.

An efficient school system cannot be achieved through simple control of the inputs to the system (and certainly not through control of funding alone); the outputs of the system must be monitored and measured against a standard and the inputs must then be adjusted to correct any deficiencies.

A.

In Edgewood I the court assumed as true a conclusion that is, in fact, widely disputed by experts when it wrote:

The amount of money spent on a student’s education has a real and meaning *530 ful impact on the educational opportunity offered to that student.

777 S.W.2d at 393 . Significantly, the court offered no citation of authority for this conclusion. On the other hand, most educational experts agree that there is no direct correlation between money and educational achievement. Seventeen years before Edgewood I, the United States Supreme Court referred to an assumed correlation between money and academic achievement as a matter of “considerable dispute among educators and commentators.” San Antonio Independent School District v. Rodriguez, 411 U.S. 1 , 24 n. 56, 43 n. 86, 46-47 n. 101, 98 S.Ct. 1278 ,1291 n. 56, 1302 n. 86, 1303 n. 101 (1972) (“[T]he extent to which the quality of education varies with expenditure per pupil is debated inconclusively by the most thoughtful students of public education”). Significantly, the debate over the unproven assumption that equal money means equal education rages still today, notwithstanding this unfortunate statement in Edgewood I.

For example, one commentator who recently published a survey of 187 educational studies, performed between 1967-1988, in an attempt to correlate expenditures with student achievement flatly concludes: “There is no systematic relationship between school expenditures and student performance.” Eric A. Hanushek, When School Finance “Reform” May Not Be Good Policy, Vol. 28, No. 2 HARV.J. ON LEGIS. 423, 425 (Summer 1991). Indeed, if equal money meant equal education, it would be impossible to explain why some schools, operating on a fraction of the money, consistently out perform other better-funded schools. 10 Even among those experts that harbor hopes that increased money will result in increased academic achievement there are those who concede it does not do so across' the board.

[T]here seems little question that money could count, but within the current organization of schools, it does not do so systematically.

Id. at 439 (emphasis added). However, it seems highly unlikely that judges are more qualified to discover a positive correlation between public school spending and academic achievement than the experts in the field. 11 In fact, to the contrary, student *531 performance as measured by the Scholastic Aptitude Test (SAT) has actually fallen during recent periods of increased school spending in the United States indicating an inverse relationship (illustrated hy the attached Figure 1 extracted from Eric A. Hanushek, When School Finance “Reform” May Not Be Good Policy, 28 HARV.J. ON LEGIS. 423, 427 (1991)). Critically important too is the fact that by concentrating on money alone, the current school finance debate overshadows reforms designed to produce results. And if student performance is not our goal, we are engaged in a perverse exercise that will likely have ramifications uncontemplated and unintended by a majority of the court.

Thus, any correlation between funding and educational results is tenuous at best. 12 So it is with CEDs under S.B. 351 that dutifully turn over funds to independent school districts, governed by independent boards of trustees, who make whatever use of the funds — good or bad or indifferent— as they, in their virtually unlimited discretion, see fit. Unless some way is found to change the districts that would merely squander the additional funds into districts that would use the money effectively, added funds alone are not likely to improve student performance. Moreover, the failure to educate students effectively in basic skills is very costly to society.

If concern for “results” gives way to equality of funding as an end all, our schools will continue to languish in mediocrity, forever, with the consequent loss of human dignity and competitiveness and added burden to our state’s already overloaded social service system.

Functionally illiterate adults make up a disproportionately large percentage of the unemployed, depriving the country of valuable contributions to the gross national product and corresponding tax revenue. Furthermore, functional illiterates who are employed can be dangerous to employers. Disproportionately high percentages of this group commit crimes. Society not only suffers the direct financial, physical, and emotional losses caused by crime, but also pays billions of dollars per year to imprison the criminals. In addition, disproportionately high percentages of illiterate adults need welfare and other forms of government assistance, for which society pays billions of dollars per year.

Ratner, A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills, 63 TEX.L.REV. 777, 784 (1985).

IV.

Setting measurable standards for student achievement is part of a nationwide educational reform effort in response to study after study that concludes that ours is a nation at risk due to the failure to teach at least minimal skills to our nation’s school children. Chambers, Adequate Education for All: A Right, and Achievable Goal, 22 HARV.C.R.-C.L.L.REV. 55, 60 (1987) (hereinafter Chambers, Adequate Education for All). As part of this nationwide effort, several state courts have ventured to describe the contours of the basic minimum adequate education their state constitutions require. See Rose v. Council for Better Educ., 790 S.W.2d 186, *532 212 (Ky.1989); Abbott v. Burke, 119 N.J. 287 , 575 A.2d 359, 374 (1990); 13 Seattle School Dist. No. 1 v. State, 585 P.2d 71, 94 (1978); Pauley v. Kelly, 255 S.E.2d 859, 877 (1979). For example, in Rose v. Council for Better Educ., the Kentucky Supreme Court held that an “efficient” system of education must have as its goal to provide, at minimum, each and every child with at least the following seven capacities:

(i) Sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable students to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.

790 S.W.2d 186, 212 (Ky.1989). But the Kentucky court reiterated that what was required was results not equal expenditure of money.

The court definitions demand substantive rather than financial improvements, they ensure the education of disadvantaged youth by guaranteeing an education, rather than a sum of money, and they leave in the hands of educators and legislators the responsibility for designing a plan that will deliver the required education.

McUsic, 28 HARV.J. ON LEGIS. at 332.

B.

Obviously, a strict results test for efficiency is not a panacea because the court and legislature can disagree on whether the standards are being met. But the proper goals of education, or the results sought to be achieved by a public school education are not new subjects. 14 For instance, the following components have been suggested as the basic requirements of “minimally adequate education” legislation: (1) requirements for minimum curriculum; (2) minimum competency tests; (3) testing requirements that trigger remedial assistance, and (4) programs designed to identify failing schools and to generate plans to improve them. Liebman at 433-34. Indeed, “[wjhile no single nation-wide definition of a legally sufficient education is dis-cernable, the ingredients of such a definition are coalescing.” Chambers, Adequate Education for All at 61. “Achievement levels required for entrance into the military, societally accepted reading and math norms as reflected by newspapers and modes of exchange, and basic competency standards might all be applied to the task of defining adequate education.” 15 Id. at n. 27.

*533 Obviously, if standards are too vague they can and will be circumvented. On the other hand, specific standards have the benefit of certain application. Arkansas, for example, conclusively presumes that schools in which 15% of the students fall below standard on state-mandated tests are failing schools and must participate in a state-mandated school-improvement program. Liebman at 391 n. 140; see also Molly McUsic, The Use of Education Clauses in School Finance Reform Litigation, 28 HAR.J.ON LEGIS. 307, 333 (Summer 1991). Texas, which currently employs similar state-mandated competency testing, has already legislatively mandated minimum literacy standards and the means of assessing performance. However, what is missing is the remediation element of the formula, properly funded, adequate to accomplish that objective in all schools.

One commentator has proffered his answer to the purported justifications for failure to educate — they are false.

Effective education ...is possible. Successful schools do have important characteristics in common. These characteristics are capable of being replicated. And success is affordable. The proof that public schools can educate the vast majority of their students in basic skills is that many have already done so. Enough public schools serving sizable populations of poor and minority students in enough different locations nationwide have successfully taught the vast majority of these students basic skills within existing budgets, and the evidence of common characteristics and replicability is so strong, that the purported justifications for failure are no longer defensible.

Ratner, A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills, 63 TEX.L.REV. 777, 795-96 (1985). Ratner cites the characteristics of successful schools as follows: (1) the principal’s leadership and attention to the quality of instruction; (2) a pervasive and broadly understood instructional focus; (3) an orderly, safe climate conducive to teaching and learning; (4) teacher behaviors that convey the expectation that all students are expect to obtain at least minimum mastery; and (5) the use of measures of pupil achievement as the basis for program evaluation. Id. at 801 (which he refers to as the “new catechism of urban school improvement,” originated by the late Professor Ronald Edmonds of Michigan State University); see also Billy D. Walker, Intent of the Framers at 662-63 (listing generally accepted input-oriented measures of adequacy in education and citing E. CUB-BERLEY, SCHOOL FUNDS AND THEIR APPORTIONMENT 17, 23 (1905)).

V.

The advantages of an efficiency standard that requires results are self-evident:

(1) The remedy puts the money where the problem is, where it is more likely to deal with the disadvantaged child; it does not pour money into a school district for no specific purpose other than to equalize spending. Such a policy will help ensure that spending that is not essential to the schools’ proper mission— enhancing student academic achievement — is far less likely. For example, expenditures on superfluous administrators, or Astroturf, or the like will be minimized. More importantly, a refocusing of resources where the need is greatest will result in increased funding to substandard schools. See e.g., Connecticut to Link Aid, Test Scores, Education Week, May 25, 1988, at 10 (Connecticut plan to distribute aid to school districts based on number of students scoring below the remedial level and on test-score improvement rates). Furthermore, the remedy is not overbroad;

(2) The remedy addresses the reality that education costs differ across districts, especially as the needs of rural and urban schools are considered in a state as im *534 mense and geographically diverse as Texas;

(3) The remedy can be implemented without harming healthy school districts because minimum standards call for a minimum education not interference with all school districts, healthy or not;

(4) The remedy will produce no disruption of “local control” and will allow maximum local creativity as long as results meet standards;

(5) The remedy promotes accountability;

(6) The remedy ties input to output; and

(7)Finally, the remedy leaves the means of accomplishing efficiency to representative departments of state government. It is my profound hope that the public

school finance debate not eclipse the urgent need for schools that actually work. Otherwise, yet another generation of school children will be denied the benefits of their constitutional rights. For the reasons stated, I join the majority opinion in holding Senate Bill 351 unconstitutional, but dissent to that portion of the court’s judgment which stays the judgment beyond the 1991-92 tax year.

*535 [[Image here]]

. Rather we have said, first in Edgewood I: [W]e do not now instruct the legislature as to the specifics of the legislation it should enact. ...

777 S.W.2d at 399 . Similarly, in Edgewood II we reiterated:

víe do not prescribe the means which the Legislature must employ in fulfilling its duty. 804 S.W.2d at 498 .

.We are informed that "the question asked by most legislators [is] ...: How can the basic structure of the educational system be maintained, with minimal changes, while still satisfying the state constitution?" Yudof, School Finance Reform: Don't Worry, Be Happy, 10 REV. OF LITIG. 585, 587 (1991) (hereinafter Yudof, School Finance Reform); see also Parker & Weiss, Litigating Edgewood: Constitutional Standards and Application to Educational Choice, 10 REV. OF LITIG. 599, 600 (1991) ("[T]he court has demanded a legislative solution that passes constitutional muster but has never clearly enunciated the elements of a constitutional system”).

. New Jersey’s Supreme Court ultimately concluded that although the standard set by the legislature for a thorough and efficient system was adequate (the court noted the funding mechanism equalized spending per child in 64% of the districts but nevertheless that gross disparities were eliminated), the monitoring system designed to measure educational results had not realized its lofty objectives. Id. at 370.

. Concern for efficiency in the education article in the Texas Constitution arose from a basic Texan sense of frugality, distrust of opulence, and a fear of government overreaching and excessive spending. Billy D. Walker, Intent of the Framers at 665.

. The Kentucky high court wrote, however: Such local efforts may not be used by the General Assembly as a substitute for providing an adequate, equal and substantially uniform educational system throughout this state. Id. at 212.

. Six states: Kentucky, Montana, New Jersey, Texas, Washington and West Virginia, have invalidated their public school financing systems based on their state constitution’s education article, while rejecting or declining to reach equal protection claims. Abbott v. Burke, 119 N.J. 287 , 575 A.2d 359, 373 (1990).

The state constitutions of Arkansas, Texas, Kentucky, Delaware, Virginia (until 1971) and Illinois (since 1970) require “efficient" public educational systems. States whose constitutions mandate "thorough and efficient” education systems include Ohio, Minnesota, Maryland, Pennsylvania, New Jersey, Illinois (from 1870-1970) and West Virginia. Pauley v. Kelly, 162 W.Va. 672 , 255 S.E.2d 859, 865 (1979). "It appears to make no difference in the outcome [of school finance legal challenges] whether the clause says thorough, efficient, or thorough and efficient.” Thro, The Third Wave: The Impact of the Montana, Kentucky, and Texas Decisions on the Future of Public School Finance Reform Litigation, 19 J.L. & EDUC. 219, 244 n. 134 (1990).

. It has been argued that fundamental rights analysis could be applied to compel increased state government funding of higher education, indigent health care, housing, and abortions. See generally Albert H. Kauffman & Carmen Maria Rumbaut, Applying Edgewood v. Kirby to Analysis of Fundamental Rights Under the Texas Constitution, 22 ST. MARYS L.J. 69 (1990).

. Texas, like Arkansas, New Jersey and New York, for example, already uses minimum competency tests to identify students lacking basic skills and schools in need of improvement (including ‘failing’ schools), to determine students’ needs and eligibility for remedial services and certain dedicated funds. See Title 2, Ch. 21, Subchapter O, TEX.EDUC.CODE; See also Lieb-man, Implementing Brown in the Nineties: Political Reconstruction, Liberal Recollection, and Li-tigatively Enforced Legislative Reform, 76 VA. L.REV. 349, 376 n. 102 (1990). However, there is no state definition of what constitutes a basic or adequate education in Texas; and, because that right has not been clearly articulated as a constitutional right, there is no current legal requirement that such an education be adequately funded. Although the purpose of the Foundation School Program, first enacted in 1949, is to provide "adequate resources to provide each eligible student a basic instructional program and facilities suitable to the student’s educational needs,” under S.B. 351 the Foundation program provides for a basic allotment per school district of only $2,200 for the school year 1991-92. See § 16.002, TEX.EDUC.CODE; Edgewood III, slip op. at 4. "[T]he Foundation School Program does not cover even the cost of meeting the state-mandated minimum [financial] requirements.” Edgewood I, 777 S.W.2d at 392 .

Furthermore, in order to receive Foundation School funds, a school district need only comply with state-mandated standards regarding number of school days, accreditation by the Central Education Agency, student/teacher ratios, composition of professional and paraprofessional personnel and teacher Career Ladder Salary Supplementation. Ch. 16, Subchapter B, TEX. EDUC.CODE. None of the requirements of the current system even purport to address educational outputs on the level of an individual school or student.

. See note 12, infra; see also e.g., Peter M. Flanigan, A School System That Works, The Wall Street Journal, February 12, 1991, at A-12. New York City's public schools, at $6,700 per student, cost approximately twice the amount of the city’s Catholic schools. Although 95% of the students entering high schools run by the Roman Catholic Archdiocese of New York graduate on schedule, the public high schools can only make that claim for about 25% of its students. Moreover, four out of five of the Catholic schools' graduates go on to post-secondary education. In contrast, graduates of New York's public schools frequently read and write far below grade level. Although the Archdiocesan schools were created to integrate Irish, Italian and Polish immigrants, when these groups moved out of the inner city they were replaced primarily by relatively poor black and Hispanic students.

There are many reasons for the cost difference, and one of them is, as defenders of the public school system point out, that Catholic school teachers get smaller salaries than their public counterparts. But another, less often mentioned, is that the public system supports more than 7,000 bureaucrats in its headquarters and Community School Districts; the Catholic system employs fewer than 35 people in its central office.

Id.

. In fact, it is precisely because of the historical difficulty in correlating input to output that some courts have held their school finance systems unconstitutional on inequality of funding alone — in other words, on equal protection grounds, a holding this court did not reach in Edgewood I. See e.g. Yudof, Equal Educational Opportunity, 51 TEX.L.REV. 411, 418 (1973) (describing the problem of correlating educational inputs and outputs at that time as not one of "will not," but "cannot”); J. Coons, W. Clune & S. Sugarman, PRIVATE WEALTH AND PUBLIC EDUCATION (1972) ("[T]he basic lesson to be drawn from the experts at this point is the current inadequacy of social science to delineate with any clarity the relation between cost and quality. We are unwilling to postpone reform while we await the hoped-for refinements in methodology which will settle the issue.”) (cited in Eric A. Hanushek, When School Finance “Reform” May Not Be Good Policy, Vol. 28, No. 2 HARV.J. ON LEGIS. 423, 425 n. 9 (Summer 1991). But see Ratner, A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills, 63 TEX.L.REV. 777, 779 (1985). Ratner argues that more recent educational studies have identified the characteristics of effective schools and allow greater opportunity for controlling successful "inputs.” "Giv *531 en the demonstrated capacity of schools to succeed, public policy no longer provides any justification for excusing their failure." Id.

. For example, for the 1988-89 school year, Petersburg Independent School District in Hale County (410 students) spent $5,085 per student while 100 per cent of its ninth graders passed all three TEAMS tests administered that year. The Fruitvale Independent School District in Van Zandt County (296 students) spent $8,686 per student but only 26 per cent of its ninth graders passed the TEAMS test. The San Elizario Independent School District in El Paso (1,417 students) which ranked last in the state with only 12 per cent of its ninth graders passing, spent $3,437 per student. But the amount spent in that district is $672 higher per student than that spent hy Lindsay Independent School District in Cooke County (417 students) which ranked third in the state with a 97 per cent passage rate. See National Center for Policy Analysis, Report Card on Texas Schools (January 17, 1990); National Center for Policy Analysis, Report Card on Texas Schools (January 17, 1990); accord Texas Education Agency, Department of Research and Development, Snapshot: 1988-89 School District Profiles (March 1990) (Edgewood v. Kirby (Edgewood II), Defendant's Exhibit H.2).

. The New Jersey Supreme Court wrote: "Rather than equality ... our Constitution require[s] a certain level of education....” Id. 575 A.2d at 386 . Significantly, New Jersey was second only to Alaska in per pupil expenditures for 1988-90 and consistently spends one of the highest amounts per pupil in the United States. Id. at 366 .

. One primary goal of public education was embraced by the founders of the Republic of Texas, in their Declaration of Independence from Mexico.

[I]t is an axiom of political science, that unless a people are educated and enlightened, it is idle to expect the continuance of civil liberty, or the capacity for self-government. The Declaration of Independence of the Republic of Texas 519, 520 (Vernon).

.This is not a new concept. For example, in 1859 John Stuart Mill wrote:

It is not a self-evident axiom, that the State should require and compel the education, up to a certain standard, of every human being who is born its citizen?

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The instrument of enforcing the law could be no other than public examinations, extending to all children, and beginning at an early age. *533 * * * Once in every year the examination should be renewed, with a gradually extending range of subjects, so as to make the universal acquisition, and what is more, retention, of a certain minimum of general knowledge virtually compulsory.

J.S. Mill, ON LIBERTY 317-18 (Encyclopedia Britannica ed. 1952).