AUSTIN – 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 and students.

Today’s legal action follows the Department of Education’s recent decision to deny Texas’ application for Education Jobs Funds and weeks of negotiations with federal education officials. The State’s 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 Fifth Circuit was filed today by Attorney General Abbott and names Governor Rick Perry, Lieutenant Governor David Dewhurst, Speaker of the House Joe Straus, Education Commissioner Robert Scott and the State of Texas as petitioners.

“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,” Attorney General Greg Abbott said. “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.”

Earlier this month, the Department of Education denied Texas’ application for $830 million in federal funding for education because the Department incorrectly claimed the State could not satisfy a Texas-only legal provision authored by Congressman Doggett. Under the so-called Doggett Amendment, which imposes special requirements on Texas – and only Texas – the State is being denied hundreds of millions of dollars in education funding at a time when every other state’s funding application has been approved. Because Congressman

Attorney General Abbott filed a legal action asking a federal court to award Texas its $830 million allocation and strike down the unconstitutionally discriminatory amendment.

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.

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 State’s $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 State’s assurances were applicable to the extent such assurances did not conflict “with the powers conveyed and limitations imposed” by the Texas Constitution on the Governor’s power.

Language explaining that the Governor’s 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 Doggett’s 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 we’re 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 State’s $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 State’s 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 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.”

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 Duncan’s 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 State’s petition challenges the Department’s 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 Amendment’s 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 Education’s 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, today’s 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 today’s 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.