The Lawyer Who transformed Texas Schools

As a first-year Yale Law School student, Mark Trachtenberg took a seminar called “Education, Equity and the Law.” The professor asked students to write a paper detailing one state’s school finance litigation. A Houston native, Trachtenberg chose Texas. He found the state’s long history of educational litigation fascinating. He and another Texan, classmate Steven Farr, co-authored a 120-page whopper that lassoed law school awards and was published by the prestigious Yale Law & Policy Review after the two authors graduated.

Once the paper was in print, Trachtenberg figured that would be the end of his involvement in school finance litigation. Back home in Houston, he clerked for a federal judge for about a year and handled trial and transactional law for about a year and a half, until he discovered appellate law was his passion. He joined the appellate group in Haynes and Boone’s Houston office.

“My very first week with Haynes and Boone, I flew up to the Dallas office for orientation and had lunch with Chip Orr,” Trachtenberg says. “After lunch, Chip went back to a conference room where some lawyers were crafting the original petition for a case called West Orange-Cove C.I.S.D. v. Neeley that successfully challenged the constitutionality of the Texas school finance system. My paper was being used as a resource. Chip saw my name on it and said, ‘Wait a second. I just had lunch with that guy.’”

Now a plaintiff’s lawyer with The Mulligan Law Firm in Dallas, Orr says, “It was one of those ‘small world’ moments, when I realized that we had just hired a guy who already had done the heavy lifting on school finance litigation. I had a feeling that Mark was in for a big surprise, that what he expected when he joined Haynes and Boone was probably quite different than what was about to happen.”

Indeed: George Bramblett Jr., senior partner at Haynes and Boone, heard about Trachtenberg’s background and put him on the case.

“Mark was a tremendous asset. It was very good fortune for us that we had somebody with that kind of history and, more than that, an interest in school finance. You just don’t find people like that. It was serendipity,” Bramblett says.

In April 2001 the firm filed the lawsuit. The case evolved into a four-and-a-half-year wrangle that included two successful trips to the Supreme Court of Texas and a five-week bench trial.

“I ended up getting a lot of responsibility very quickly. I was a little nervous because George was the senior guy and I didn’t want to mess up,” Trachtenberg says.

As he had predicted in his paper, the main vehicle to challenge the school finance system was the Texas constitution’s prohibition of a state property tax. “There can be local property taxes to finance education, but local school districts must have discretion in setting their tax rates,” Trachtenberg says.

“At the time the lawsuit was filed, state law did not allow districts to tax at a rate higher than $1.50 per $100 of valuation. They could not tax much lower than this rate without compromising their ability to provide a constitutionally adequate education. As a result, districts had no meaningful discretion in setting their tax rates. It was a de facto state property tax and was unconstitutional,” he says.

Winning the case was a bit tougher than writing the law school paper. Trachtenberg says the case was dismissed early on by a district court judge who may have been tweaking the young lawyer’s ego by citing Trachtenberg’s paper in the dismissal order.

In 2003, however, Trachtenberg was instrumental in helping Nina Cortell, partner at Haynes and Boone, persuade the Supreme Court of Texas to reinstate the case.

“Nina Cortell is one of the best lawyers in Texas,” he says, adding that she handled the argument while he took the lead in preparing the briefs.

“Being in front of the Texas Supreme Court was an intense, pressure-packed experience,” Trachtenberg says. “We had to test our arguments against nine of the brightest legal minds in the state, knowing that failure would result in a huge setback for public education in Texas. The experience was both exhilarating and exhausting.”

“Mark’s depth of knowledge about the intricacies of school finance, combined with his tremendous skills as an advocate, was critical to our success in the school finance litigation. There was simply no one better to represent the interests of the school districts,” Cortell says.

After the case was remanded to trial court in May 2003, the Haynes and Boone team of Bramblett and Trachtenberg, along with outside co-counsel J. David Thompson III and Philip D. Fraissinet, built a coalition of plaintiffs that included property-poor and property-rich districts from urban, rural and suburban areas. 

“We had to build a case that could win before a liberal trial judge and a conservative Supreme Court. We were very strategic in not making this case a battle between rich and poor. We argued that the overall level of funding was inadequate for all districts,” Trachtenberg says.

Following a five-week trial, Travis County District Judge John Dietz decided for the plaintiffs. In what Trachtenberg calls “a blistering 120-page opinion,” Dietz found the state’s school financing system unconstitutional.

Trachtenberg immediately called his co-author Steven Farr to share the news.

Farr says, “I was thrilled. All that work we put into researching these issues together in law school was actually influencing litigants and judges. And I was especially excited for Mark. How often is it that someone’s passion, expertise and career come together so elegantly? Here is a guy who deeply believes in the power of education and sees the injustice of our systems’ inequity, and he’s actually doing something about it.”

Farr is now a vice president with Teach for America and author of Teaching As Leadership: The Highly Effective Teacher’s Guide to Closing the Achievement Gap.

“I held out hope that Judge Dietz’s strong critique of the school finance system could prompt the legislature to act, but strongly suspected it would take a victory in the Supreme Court of Texas before the legislature would bestow any meaningful relief upon districts,” Trachtenberg says.

The Supreme Court of Texas affirmed Dietz’s ruling in November 2005 and gave the legislature until June 1, 2006, to remedy the constitutional deficiencies in the system, he says.

“The legislature met in special session and passed HB1 and HB3 in May 2006, which effectively created a new state source of revenue—a business activity tax—and used some of this revenue to buy down districts’ property tax rates below $1.50 to create additional capacity in the system. The bills also passed a teacher pay raise and added money for schools at the high school level,” he says.

Trachtenberg estimates the new legislation resulted in a $2 billion infusion into the state’s school finance system and created additional capacity for districts to raise revenue in the short term.

“Since May 2006, no lawsuits have been filed, and the basic structure remains in place. But the next school finance suit is a matter of when, not if, and many districts are again facing difficult funding cuts. The business activity tax has not raised as much revenue as projected, and the legislature was able to make the math work during the last budget cycle only through the use of federal stimulus funds. Those funds won’t be there during the next cycle,” Trachtenberg says.

A Bellaire resident, Trachtenberg is married to his high school sweetheart, Stefanie. They have two children, Jacob, 8, and Ava, 4. Recently, Trachtenberg became board-certified in civil appellate law by the Texas Board of Legal Specialization.

Was his participation in the Neeley school finance case mere coincidence or destiny? Trachtenberg replies, “Maybe a little bit of both, with some luck mixed in.”