Texas Insider Report: AUSTIN Texas Texas Attorney General Greg Abbott today filed a legal challenge against the U.S. Department of Education in an effort to secure $830 million in federal education funds for Texas schools teachers & students related to the Lloyd Doggett Amendment that singles out Texas by subjecting the State to onerous standards different from those Congress placed on the other 49 states.
Todays legal action follows the Department of Educations recent decision to deny Texas application for Education Jobs Funds and weeks of negotiations with federal education officials.
The States Petition for Review explains that the Department of Education misapplied federal law when it construed an amendment by Austin Congressman Lloyd Doggett in a manner that unconstitutionally discriminates against the State of Texas.
The Doggett Amendment singled out Texas by subjecting the State to onerous standards that were different from the standards Congress placed on the other 49 states. Every state application for funding under the normal standards has been granted while Texas application under the heightened Texas-only standard was denied.
The Petition for Review with the U.S. Court of Appeals for the 5th Circuit was filed today by Attorney General Abbott and names the State of Texas as well as a unanimous list of Texas statewide-ranking elected officials as petitioners:
- Governor Rick Perry
Lieutenant Governor David Dewhurst- Speaker of the House Joe Straus
- Education Commissioner Robert Scott
grants to hire new teachers and retain existing teachers by submitting applications to the U.S. Department of Education. In order to be eligible for Education Jobs funding all states applications must include an assurance" that they will maintain existing education spending levels during the current fiscal year.
Under an amendment by Congressman Doggett Texas was singled out for disparate treatment and required to provide a special assurance" that its education spending would continue at existing levels throughout not only the current fiscal year but also the following two fiscal years 2012 and 2013. The Doggett amendment also forces Texas and only Texas to distribute the funds through a federal funding formula which is established by federal officials in Washington D.C. rather than through the state formula created by state education officials.
On Sept. 3 the Texas Education Agency submitted Texas application to the Department of Education in an effort to obtain the States $830 million allocation. Texas application included the required assurance that education spending will be maintained at current levels through 2011 like all other states but it further assured that existing spending levels would continue through 2012 and 2013 in order to satisfy the Texas-only requirements imposed by Congressman Doggett.
The application also included language clarifying that the States assurances were applicable to the extent such assurances did not conflict with the powers conveyed and limitations imposed" by the Texas Constitution on the Governors power.
Language explaining that the Governors assurance did not violate the Texas Constitution was necessary because of constitutional provisions that limit his authority over the budget-making process and prohibit allocating state money beyond the current two-year budget cycle. Under Article 16 Section 6 of the Texas Constitution allocating state dollars is a legislative act and is therefore a function for the Texas Legislature not the Governor.
The same provision of the Constitution also prohibits allocating state dollars for more than a two-year period the biennium during which the Legislature that enacted the budget remains in office. This concept is not novel. Similar prohibitions limit governors across the country but other governors were not required to comply with the heightened Texas-only standard.
Congressman Doggetts Texas-only assurances fall outside the current two-year budget cycle so the Texas Legislature that will write the 2012-2013 state budgets has not yet been elected. Thus while the Governor can and did make assurances about the current 2011 budget the Texas Constitution limits his legal authority to make the future assurances required by the Doggett Amendment.
Nonetheless the required assurance was made subject only to any limitations imposed by the Texas Constitution. Making such an assurance would appear to satisfy the Texas-only requirements as described by Congressman Doggett on August 5: All Governor Perry has to do is affirm he will not single out cutting public education dollars using federal dollars. All were doing is trying to add some assurances." Governor Perry satisfied that standard.
Despite the assurances contained in Texas application to the Department of Education the States $830 million education funding grant was denied on Sept. 8. Since then state officials have attempted to negotiate with 
the Department of Education in an effort to obtain Education Jobs Fund dollars for Texas schools. But the States efforts to secure its $830 million allocation have been unsuccessful.
Attorney General Abbott added:
The Secretary of Education has acknowledged that public schools urgently need these Education Jobs Fund dollars. Yet schools teachers and children in Texas and only Texas are still awaiting their $830 million allocation because of Lloyd Doggetts misguided attempt to discriminate against his own state. Children in other states are benefiting from that funding while Texas children are being left behind because of Congressional discrimination."
Federal officials have cautioned that because of the Doggett Amendment the Department of Education will not be able to approve Texas application until after the not-yet-elected 82nd Legislature passes the 2012-2013 budget this summer a delay that runs counter to U.S. Education Secretary Arne Duncans Sept. 3 statement acknowledging There is a huge sense of urgency to get these funds out the door." Thus while the Secretary says that schools urgently need these funds he has interpreted the Doggett Amendment to require that Texas schools and Texas schools alone wait until the end of the school year for their federal dollars. With $830 million in funding for Texas schools already denied and at best denied until the end of the 2010-2011 school year Attorney General Abbott took legal action to secure those dollars for Texas students and filed a legal challenge in the U.S. Court of Appeals for the Fifth Circuit. The States petition challenges the Departments decision to deny Texas application and explains that the application should have been granted because the Doggett Amendment must be intrepreted to avoid
constitutional problems and absurd results. To the extent the Governor had legal authority to do so he made the required assurances to the Deparment of Education which should have satisfied the Doggett Amendments requirements.
Because Texas application included all the assurances that could be legally provided it should have been granted and the State should have received its $830 million allocation of Education Jobs Funds.
But if the Doggett Amendment is interpreted in a manner that denies Texas its allocation of Education Jobs Funds then the amendment is unconstitutional because it exceeds Congress authority under the Spending Clause and unconstitutionally singles out the State for discriminatory treatment.
The petition filed today simply notifies the Fifth Circuit about Texas legal challenge to the Department of Educations decision and begins the judicial review process. Later in that process the State will fully present its legal arguments to the court but unlike an ordinary complaint filed in district court todays petition to the Fifth Circuit is not required to fully elicit the law and facts supporting Texas case.
While the judicial review process is ongoing federal law prohibits the Department of Education from taking any action on the basis of its denial of Texas application which means it cannot divert Texas allocation of Education Jobs Funds to other states.
Some have expressed concern that a reading of H.R. 1586 could authorize the Department of Education to begin diverting Texas allocation as early as September 24 2010. Thus in an abundance of caution the Attorney General filed todays legal challenge in advance of that date.
The petition filed in federal court today ensures that $830 million in education funds allocated to Texas schools teachers and students cannot be legally diverted to other states while the legal challenge is ongoing.
