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.

If nothing else, Johnson said challengers can’t ask Contes to invalidate the school funding formula because there’s no evidence they actually made a funding request of the School Facilities Board which is in charge of doling out money,

Mary O’Grady

But attorney 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.

Surrounded by school officials and taxpayers, attorney Tim Hogan details May 1 the elements of a lawsuit charging the state is not living up to its constitutional obligations to properly fund school construction and repairs. (Capitol Media Services photo by Howard Fischer

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.”

And there’s something else. O’Grady said even if the School Facilities Board agrees more money is needed for construction and maintenance — and even if lawmakers were to give them those dollars — that solves only part of the problem.

“The School Facilities Board distributes no funding at all for ‘soft capital’ needs such as school buses, technology and textbooks,” she wrote.

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.”