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State wins key decision in charter suit

Music teacher Diane Legge instructs her eighth grade students at Arizona School for the Arts, a nonprofit charter school near Third Street and McDowell in Phoenix. (Photo by Josh Coddington/Arizona Capitol Times)

A lawsuit to decide the constitutionality of Arizona’s funding system for K-12 education is headed to trial, but attorneys defending the state believe they can convince a judge to dismiss the case before then.

Charter school students filed the suit in 2009, asking the court to declare that the system violates the state Constitution and order an end to a funding disparity between charter students and traditional public school students, estimated at $1,500 per pupil.

Judge Richard Gama of Maricopa County Superior Court ruled in the state’s favor Nov. 7 on the issue of which legal test he should use in determining the constitutionality of the funding system.

Gama, who will decide the case himself rather than putting the decision in the hands of a jury, rejected the charter schools’ argument that when it goes to trial the constitutionality of the funding system should be tested under the most rigorous of standards, or under “strict scrutiny.” That standard, which requires the court to presume the government policy at issue infringes upon a fundamental right and the government must prove it has a compelling interest for having the policy, would provide the greatest chance for the funding system to be declared unconstitutional.

Gama decided that case law requires “rational basis” as the standard of scrutiny for testing the constitutionality of a school financing system, which will require the charter students to prove the system is discriminatory and the state to prove it has a rational basis for the discrimination.

“With a rational basis test, it’s definitely an easier standard for the state to pass rather than strict scrutiny,” said Assistant Attorney General Lori Davis, who is representing Superintendent of Public Instruction John Huppenthal in the matter.

Andre Merrett, the attorney representing the charter students, said the ruling is an anomaly because no court has ever decided that rational basis is the standard when a fundamental right is at issue. A fundamental right is one that isn’t written in the Constitution, but has a direct origin from it.

“When you’re talking about somebody’s fundamental right that the government is infringing upon, you don’t want to allow the government to do so by just having a rational explanation for doing it,” Merrett said. “Instead there has to be some compelling governmental interest that can only be achieved by infringing on a fundamental right.”

For that reason, Merrett said, he is confident about the chances of success on appeal.

Davis said she doesn’t believe the case will even get to trial. The state plans on filing more motions asking for a judgment before trial.

“The law is very clear right now with the holdings (rulings) that have already come down,” Davis said. “The Supreme Court and the Court of Appeals view the rational basis standard as appropriate for examining school funding and don’t think that analysis is going to change because we’re looking at a charter school.”

In Arizona, there are 508 charter schools and 124,205 pupils, according to the Arizona Charter Schools Association. Charter students make up about 12 percent of the entire public school enrollment in the state.

The charter school students want an end to the current funding system because they assert it puts them at a massive disadvantage in funding, leaving them with substandard buildings and equipment for learning.

The Arizona School Boards Association, which has been allowed to join in opposition to the lawsuit, has argued that any additional funding for the charter schools will come at the expense of the traditional public school students.

Traditional schools have costs imposed on them from a host of regulatory requirements that charter schools don’t have, such as the personnel process involved in hiring certified teachers. Charter school teachers don’t have to be certified, the School Boards Association’s general counsel, Chris Thomas, has said in previous interviews.

Thomas said traditional schools also have many financial reports and other kinds of reports they have to file with the Arizona Board of Education that aren’t required of charter schools.

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