Texas AG has more problems with feds

Jessica M. Karmasek Sep. 23, 2010, 12:47pm


AUSTIN, Texas (Legal Newsline) - Texas Attorney General Greg Abbott on Thursday 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 and students.

The attorney general's action follows the education department's recent decision to deny the state's application for Education Jobs Funds and weeks of negotiations with federal education officials.

Abbott is getting used to challenging the federal government's authority. He recently sued the feds over:

-A ban on offshore drilling;

-Their decision to reject a regulatory program put in place by Texas after it submitted it to the Environmental Protection Agency 14 years; and

-Their disapproval of a permits plan Texas uses to control harmful emissions in the state.

The state's petition for review in the education issue explains that the education department misapplied federal law when it construed an amendment by Austin Congressman Lloyd Doggett in a matter that "unconstitutionally discriminates against the state of Texas."

Abbott's office said 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.

The attorney general said every state application for funding under the normal standards has been granted, while Texas' application under the heightened "Texas-only" standard was denied.

"With $830 million in funding for Texas schools tied up by Congressional discrimination, we are taking legal action to secure Education Jobs Funds for Texas children," Abbott said in a statement.

"The Doggett Amendment singles out Texas for discriminatory treatment and requires Texas to make assurances that were not required of any other state. But worse, when Texas tried to satisfy the heightened standard, the state's application was rejected and Texas schoolchildren were denied hundreds of millions of dollars in education funding."

In August, the U.S. Congress passed H.R. 1586, which established the $10 billion Education Jobs Fund. Under that federal law, states can seek federal 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.

Abbott said under the Doggett Amendment, Texas was "singled out" 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 amendment, the attorney general said, also forces Texas -- and only Texas -- to distribute the funds through a federal funding formula rather than through the state formula created by state education officials.

On Sept. 3, the Texas Education Agency submitted the state's application to the education department for the $830 million allocation, and the required assurances were made -- subject only to any limitations imposed by the state's Constitution.

Despite those assurances, the state's application for the funding grant was denied on Sept. 8. Since then, state officials have tried to negotiate with the education department, unsuccessfully.

"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 Doggett's 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," Abbott said.

The petition was filed with the U.S. Court of Appeals for the Fifth Circuit by Abbott and names Gov. Rick Perry, Lt. Gov. David Dewhurst, Speaker of the House Joe Straus, Education Commissioner Robert Scott and the state of Texas as petitioners.

Abbott's petition simply notifies the Fifth Circuit about Texas' legal challenge to the Department of Education's decision and begins the judicial review process. Later in that process, the state will fully present its legal arguments to the court. Unlike an ordinary complaint filed in district court, Abbott's petition to the Fifth Circuit is not required to fully elicit the law and facts supporting Texas' case.

The petition ensures, the attorney general's office said, that the $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.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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