Interview with Tim Hogan, AZ Plaintiff Attorney

Q: How much progress has the state of Arizona made in providing adequate educational facilities to students in property-poor districts since the state Supreme Court's ruling in Roosevelt Elementary School District No. 66 v. Bishop fifteen years ago? What has been the impact of years of litigation? Has it been a success?

A: We won litigation in 1994 and new statutes became effective in 1998. The new law required the state to bring all school facilities in the state up-to-date. Where the state has fallen short is in providing on-going funding for the program, especially now in light of the massive budget deficits. Even before the budget deficits, however, the state stopped making a real effort to fund all the facility needs. The building renewal formula has only been fully funded once since 1998. The new school fund did pretty well until last year and this year when they imposed a moratorium on funding for new schools because of the deficit. It’s a mixed result. They spent over $2 billion on the program, but if they don’t do something soon we’ll be in the same position as before, with school districts relying on their local tax base.

Q: What motivates you to continue your legal advocacy work despite so much political opposition and frustrating legal developments? What is the relationship between your many legal initiatives and legislative/administrative advocacy?

A: We don’t have a comprehensive advocacy model; we focus on litigation. Our administrative advocacy is limited to representing school interests in front of our utilities commission in order to make renewable energy and energy efficiency measures more affordable and accessible to schools. We continue to work with numerous school districts in connection with our litigation. We have pretty much eliminated legislative advocacy as an inefficient use of our resources.

Q: How do you see the Horne v. Flores case, which was recently remanded by the U.S. Supreme Court, proceeding in the lower court? What are the implications of the Supreme Court's decision, particularly Justice Alito's statement that "increased funding alone does not improve student achievement"?

A: We’re moving away from an emphasis on funding funding. I don’t see any way under that decision to do much about funding. We’re focusing on programmatic violations on remand. We’re challenging the state’s program, including models requiring 4 hours of daily English language development and the method of identifying English Language Learners (ELL), and the proficiency test. A funding lawsuit would have to be pursued in state court, but we’re focused on the remand issues right now.

Q: Several families have launched Foley v. Horne, a suit against the state of Arizona regarding the state's system for funding charter schools. Do you think their equal protection and uniform education claims are valid? How does this case relate to the Roosevelt precedent?

A: I don’t think they’re going to get anywhere on the theories articulated in the complaint. They’re advocating an equity theory that has been rejected by the courts. The fact that school districts spend different amounts of money isn’t actionable. The charter schools initially made it clear that they did not want to be included in the facilities funding program established by Roosevelt. I don’t see how a court is going to hold that charter schools are entitled to the same exact funding as district schools without being subject to the same regulations. But more fundamentally, the idea that the Arizona constitution requires equity is not correct. It requires adequacy, and the complaint does not claim that any charter school student is not receiving an adequate education. In fact, the plaintiffs tout the success of charter schools.

Q: The plaintiffs in Hobday v. Horne, the companion case to Foley, make a more traditional argument on behalf of property-poor districts. What are the merits/prospects of this case, on your view?

A: Ultimately, the tax levy claim might have merit, but I don’t know what proof they’ve got. As education faces cuts, there’s an argument to be made that these overrides are necessary to provide an education. But fundamentally, you’re going to have to claim that levels of state funding or local funding cannot provide an adequate education. The Supreme Court explicitly approved of the notion of getting local voters to provide more than what the state provides in order to exceed the baseline minimum standards. I think it’s a tough case, and they approved that way back in 1994 case in Roosevelt. Essentially, they have to claim that the state is not providing an adequate education. The fact that a local district can’t get a bond issue or override to pass isn’t good enough.