Attorney for state tells judge school funding is ‘political question’

Several hundred teachers, parents and students gathered outside the Senate and House chambers March 5 , 2017 to protest proposed cuts to public schools and state universities. (Photo by Rachel Leingang/Arizona Capitol Times.)

An attorney for the state told a judge Friday he has no legal right to hear a complaint that the Legislature is not providing enough funds for schools.

“This is a political question,” Brett Johnson told Maricopa County Superior Court Judge Daniel Martin.

More to the point, Johnson said the process is working, citing the proposal made just three days earlier by Gov. Doug Ducey to put more money into school funding.

Johnson said the governor and the Legislature are working “very diligently” to resolve these issues, adding the “experts” in this area should be given the opportunity to deal with the question rather than having it decided by the courts.

“There is a solution on the table,” Johnson said.

In fact, Johnson has a backup plan already in place should Martin refuse to throw out the lawsuit filed by several school districts, education groups and taxpayers: He wants the judge to put the case on the back burner until lawmakers get a chance to address the governor’s proposal.

On Tuesday, Ducey unveiled a five-step program designed to restore what is known as “district additional assistance.” This generally covers things like textbooks, computers and even buses.

Ducey also offered to have the state borrow $88 million to construct five new schools: three in Chandler, and one each in Tolleson Union and Queen Creek school districts. And he proposed to more than double, to $51.8 million, the amount of money available for building repairs.

But Mary O’Grady, who represents the plaintiffs, said what Ducey offered is just a proposal, with no guarantee that the Republican-controlled Legislature will accede to the governor’s requests.

Beyond that, she told Martin, her clients sued because the problem is deeper than just the dollars that Ducey has offered.

She said prior Arizona Supreme Court rulings have made it clear it is the responsibility of the state to fund all school construction and keep all the buildings in repair. And at one point the Legislature had, in fact, set up and funded a system to do that.

What has happened, O’Grady said, is the state has not provided all the dollars necessary. The Legislature then altered the standards the School Facilities Board uses to determine if funds really are needed, a change that allowed the state to save money.

“They’re not permitted to fund a new school until it’s overcrowded,” she said.

That, in turn, can force some districts to put the burden on local taxpayers to build new schools. And O’Grady said that puts the state in violation of constitutional requirements and the prior court rulings that the state have a system to fund the schools’ needs.

“The system is broken,” she said. And that, O’Grady said, requires Martin to rule that the state is not meeting its constitutional requirements and to order lawmakers to fix it.

That’s precisely what happened in 1994, when the Arizona Supreme Court voided the system which made each school district responsible for its own schools and repairs. The justices said that created wide disparities among districts, with those with a large tax base able to build stadiums while others without local wealth unable to keep the bathrooms in repair.

Lawmakers eventually created the School Facilities Board and provided a steady source of dollars to meet the needs.

All that changed during the Great Recession, with lawmakers revamping the system to save money. It finally got to the point, O’Grady said, where schools told not to even bother applying to the board for funds.

The result was the lawsuit filed last year asking Martin to, in essence, repeat the orders from the prior Supreme Court rulings and order the state to provide adequate funds.

Ducey’s offer did have one concrete result: Two of the plaintiffs pulled out of the lawsuit, though the others have remained.

One side issue is how broad the state’s obligation is.

In filing suit, the school districts also are complaining that they don’t have money for textbooks, computers and even to replace aging school buses.

But Bill Richards, who represents Senate President Steve Yarbrough and House Speaker J.D. Mesnard, said there is no constitutional requirement for the state to fund these items. And he said the question of what should be the minimum guidelines for these items is within the “exclusive discretion of the Legislature.”

“Not everyone’s going to agree on those,” he said. “That’s what happens with policy decisions.”

Martin gave no indication when he will rule.