Our lawless TeaPublican legislature seeks to avoid accountabiity for failing to adequately fund the capital needs of school districts


I posted about the latest school funding lawsuit against our lawless TeaPublican legislature and governor back in April. The other show drops: Lawsuit against our lawless Tea-Publican legislature for unconstitutionally underfunding capital needs of school districts.

This case is back in the news this week. Our lawless TeaPublican legislature and governor are asking the court to dismiss this lawsuit, arguing that the plaintiffs have no standing to sue to hold them accountable for their unconstitutional underfunding of the capital needs of Arizona school districts.

The Arizona Capitol Times reports State asks judge to dismiss legal challenge to school finance scheme:

Saying challengers have no right to sue, lawyers for the state want a judge to throw out a challenge to the state’s school funding scheme.

In legal papers filed in Maricopa County Superior Court, attorney Brett Johnson does not directly address the contention by education officials, taxpayers and others that the lack of cash from the governor and Legislature has left schools with hundreds of millions of dollars of unmet construction, maintenance and equipment needs.

Instead, Johnson is telling Judge Connie Contes she has no authority to decide if the state is providing enough money. He said whatever they decide to provide in cash is a “political question” beyond the powers of the courts.

“Whether and how much money can be paid out of the state treasury is clearly committed by our constitution to those acting in a legislative capacity,” he wrote.

This “political question” doctrine defense is complete bullshit. The present lawsuit arises out of a prior lawsuit, and alleges that the state of Arizona is in violation of its previous settlement agreement in the long-running school capital funding case of Roosevelt Elem. School Dist. No. 66  v. Bishop (No. CV-93-0168 1994), in which the Arizona Supreme Court held that the statutory financing scheme for public education violated the Arizona Constitution, Article XI, § 1.

Mary O’Grady, who represents those who sued earlier this year, said that the Arizona Supreme Court ruled as far back as 1994 that the capital funding scheme in place at that time violated the requirements of the Arizona Constitution for the state to provide a “general and uniform” school system. The high court reaffirmed that in two subsequent decisions.

More to the point, she said, the justices concluded that courts did have the authority to make that decision.

O’Grady also disputes that the challengers have to first be denied the funding by the School Facilities before they can ask Contes to intercede. Anyway, she said, it’s not like that would do any good, pointing out that the board has no authority to actually appropriate needed cash.

“It simply distributes the funds the Legislature has given it,” O’Grady wrote, an amount that fell “far below” what’s needed. In fact, the total appropriation this year was less than $16 million, compared with the approximately $300 million a year that challengers say is needed.

Attorney Tim Hogan, who also represents those who sued, put it another way.

“The School Facilities Board does not have the power or authority to deal with the shortcomings of the school finance system,” he said.

What that means, Hogan said, is that anything the board does means nothing unless the Legislature and governor actually put more money into the system, something he charges they have so far refused to do. And he said their refusal to act does not excuse state officials from meeting what the Arizona Supreme Court has previously ruled is the state’s obligation to ensure “minimally adequate facilities in all of Arizona’s schools.”

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The filings come as state officials hope to avoid yet another court ruling finding that they are not meeting their constitutional obligations and must pony up more cash.

In filing suit earlier this year, challengers charge the state has failed to provide the money needed to ensure that public school buildings meet minimum standards for everything from having enough classrooms to providing money for equipment. The result, they contend, is school boards are left with an unacceptable choice: divert money from other needs or allow the inadequate standards to persist.

There is a legal basis for the argument: There are three separate Arizona Supreme Court rulings dating as far back as 1994 that spell out the state’s responsibility for adequate funding of buildings and facilities.

Lawmakers eventually approved the Students FIRST program — short for Fair and Immediate Resources for Students Today — which was supposed to ensure that new schools were built when needed and existing ones were kept in repair. That included a one-time $1.3 billion expenditure to get buildings up to state standards with an additional $200 million earmarked for things like textbooks and buses. But O’Grady said state lawmakers and the governor have ignored the prior Supreme Court rulings and effectively “dismantled” Students FIRST.

“As a result, today’s capital funding system is similar to, and perhaps worse than, the system declared unconstitutional,” she said.

Johnson, in seeking to get the lawsuit dismissed, is arguing to Contes that the prior Supreme Court rulings merely required the state to establish minimum adequate standards. He contends there is nothing requiring that those guidelines to be updated.

O’Grady, however, said that argument is undermined by the constitutional language that requires the Legislature to both establish and maintain a general and uniform school system.

“The state fails to ‘maintain’ an adequate school system if it allows its standards (and the associated funding) to become obsolete,” O’Grady wrote. She said that’s like pretending that buses manufactured in 1978 are constitutionally adequate “or that students can be educated for jobs in a modern economy with one computer for every eight students.”

For some history on the legal basis for state funding of public education and the history of litigation against state legislatures for refusing to adequately fund public education, see this somewhat dated article, STATE ROLE IN EDUCATION FINANCE:

In the 1973 case San Antonio School District v. Rodriguez, the U.S. Supreme Court ruled that education “is not among the rights afforded explicit protection under our Federal Constitution,” but that “no other state function is so uniformly recognized as an essential element of our society’s well-being.” Rodriguez effectively removed the constitutional burden for providing public education away from the federal government and placed it squarely on the states. Since Rodriguez, state high courts in all but seven states have ruled with varying outcomes on whether their state systems were “equitably” or “adequately” providing public education as required by their respective state constitutional provisions.

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Post Rodriguez, an estimated 45 states have undergone legal challenges to their school finance systems. Click here to access an online spreadsheet containing information on over 160 cases addressing federal and state constitutional challenges to statewide school finance systems.

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Every state constitution contains a clause that requires the state maintain a system of free public education. Legal scholarship identifies four categories of education clauses in state constitutions that impose a duty on legislatures to provide for public schools. The categories range from I to IV, from weakest to strongest, in terms of the strength of the fiduciary duty imposed on the state, particularly the state legislature, to provide public education. Additional legal scholarship has found no correlation between the language of these clauses and litigation outcomes.

Arizona is a “category I” state, Ariz. Const. art. XI, § 1, the weakest category.