Arizona
Costing Out | Useful
Resources
Historical
Background
School Facilities Funding In 1991, represented
by the Arizona
Center for Law in the Public Interest (ACLPI), over
40 low-wealth school districts filed an "equity"
suit, claiming that the capital funding portion of the
state education finance system violated the uniformity
requirements of the state constitution's education clause.
In 1994, the Arizona Supreme Court agreed, in Roosevelt
Elementary School District No. 66 v. Bishop. The
court relied on the state's requirements for course-work
and its student competency standards
to conclude that the financing scheme did not enable
all districts to provide the facilities and equipment
necessary to give their students the opportunity to
meet those state standards.
In 1998, to meet the court's requirements for a constitutional
system, the legislature and governor moved responsibility
for funding school construction and other capital items
away from local districts to the state and phased out
those local property taxes used to support capital expenditures.
The new law created a School
Facilities Board to administer the system and included
technology, transportation, facilities, and equipment.
The Board oversees three separate Funds for:
New Schools
Building
Renewal, and
Deficiency
Correction.
Plaintiffs returned to court to challenge the state's
alleged under-funding of the Building Renewal Fund,
which is the only source of funds for major repairs
and improvements for low-wealth districts. In 2002,
the lower
court ordered the legislature to restore
$90 million to the fund, but on appeal the state
supreme court held that plaintiffs must show that the
under funding resulted in facilities that are below
standards.
Flores ELL Case
In Flores v. Arizona, which has been litigated
in federal court since 1992, plaintiffs claim that the
state is failing to adequately fund programs for English
language learners (ELLs). In 2000, the district court
found that state funding of ELL programs was “arbitrary
and capricious” and ordered that the level of
state funding for ELL programs bear a rational relationship
to the cost of those programs. The parties reached agreement
on a Stipulation in 2002, and the court ordered a costing-out
study. In January 2004, plaintiffs filed a Motion for
Contempt due to the alleged failure of the state to
comply.
In January 2005, after numerous delays by the state,
the Flores court ordered additional ELL funding. Failure
to comply led to a December 2005 order and daily fines
that mounted to $21 million before the state enacted
additional funding in early March 2006. Moreover, the
court enjoined the state from requiring ELL students
to pass the state exit exam in order to get a diploma.
In August 2006, the Ninth Circuit Court of Appeals,
in Flores v. Rzeslawski, vacated the 2005 district
court judgment and remanded the case so the district
court could hold “an evidentiary hearing and ma[k]e
findings of fact regarding whether changed circumstances
required modification of the [January 2000] court order
or otherwise ha[ve] a bearing on the appropriate remedy.”
In March 2007 Judge Raner Collins of the U.S. District
Court for the District of Arizona ruled that Arizona
is still illegally under-funding programs directed towards
English learners, that it is in violation of multiple
federal laws, and that $600 million of federal education
funding that Arizona receives may be in jeopardy.
The ruling invalidated HB 2064, the funding formula
passed by the Arizona legislature in response to the
court’s earlier decision. HB 2064, which would
raise the amount of funding directed for ELL programs
from $365 to $444 per pupil, Judge Collins ruled, is
insufficient to meet the needs of ELL students. The
formula, he noted, provides significantly less than
was recommended by a court-ordered cost
study completed in 2005.
According to the federal Equal Educational Opportunities
Act (EEOA), under which the court struck down HB 2064,
states are required to ensure that all students, regardless
of native language, have the opportunity for “equal
participation” in public education. The insufficient
funding, Judge Collins, ruled, violates this federal
law.
Judge Collins also ruled HB 2064 illegal for other
reasons. First, it mandates that schools can only receive
the additional funding for a student for two years.
The record in the case showed that many ELL students
take longer – often four or five years –
to become proficient in English. In addition, the bill
stipulates that districts are required to use a portion
of their Title I, Title II, and Title III federal funds
to pay for ELL services before they get state aid. All
of these federal funds are given under the condition
that they will “supplement not supplant”
state monies; accordingly, this requirement is illegal
and jeopardizes the $600 million in federal funding
that Arizona receives, the court ruled.
Judge Collins ordered the State to comply with the
2000 order by the end of the 2007 legislative session,
but the legislature failed to do so. On October 11,
2007, Judge Collins issued a contempt order, giving
the legislature until March 4, 2008 to bring ELL funding
into compliance. If the legislature misses the deadline,
Judge Collins will impose sanctions. Meanwhile, the
State appealed Judge Collins’ order to the Ninth
Circuit Court of Appeals.
On February 22, 2008, the Ninth Circuit affirmed the
district court judgment in favor of plaintiffs. The
court found that the No Child Left Behind Act (NCLB)
did not relieve states of the obligation to adhere to
the mandates of the EEOA. According to the court, this
means that even if Arizona could show that its schools
are making “adequate yearly progress” toward
improving overall academic achievement, individual students
still have the right to bring civil rights claims under
the EEOA. Describing the distinction between the two
federal laws at issue, the court wrote, “The EEOA's
concerns…lie fundamentally with the current rights
of individual students, while NCLB seeks gradually to
improve their schools.” The court went on to explain
the ramifications of a decision in favor of the State:
“[Its] view, if adopted, would effectively repeal
the EEOA by replacing its equality-based framework with
the gradual remedial framework of NCLB.” Based
on the foregoing, the court held that “it is not
inequitable to continue to require compliance”
with the district court order.
In September 2008, the defendants petitioned the U.S.
Supreme Court to review the 9th U.S. Circuit Court of
Appeals’ holding that the state was not meeting
its legal obligation to English-language learners.
On November 3, 2008, the District Court began further
hearings on compliance issues.
On June 25, 2009, in
a 5-4 decision, the United States Supreme Court sent
back for further hearings an Arizona English language
learner funding case that has been pending in the federal
courts for the past nine years. In Horne
v. Flores, the high court majority reversed
a decision of U.S. Court of Appeals for the Ninth Circuit
that had upheld a district court order finding the state
in contempt for failing to follow the court’s
previous orders to “establish a funding system
that rationally related funding available to the actual
costs of all elements of ELL instruction.” The
dissenters would have upheld the lower court orders
without any further hearings.
Crane Elementary School “At-risk Students”
Case
In April 2007, the Arizona Supreme Court refused to
hear plaintiffs’ appeal from an intermediate Court
of Appeals’ ruling that granted the state’s
motion for summary judgment, in Crane Elementary
v. State. The Crane Elementary plaintiffs
had alleged that the state’s education finance
system violated the state constitution because it did
not provide the opportunity for an adequate education
to the state’s “at-risk” students.
The intermediate appellate court disagreed with the
trial court’s opinion that the case presented
a non-justiciable issue but, nonetheless, a majority
of the court granted summary judgment to the defendants
on the merits. The appellate majority held that the
state had no responsibility to address the barriers
to learning faced by Arizona’s “at-risk”
students and denied plaintiffs the chance to show otherwise
in a trial.
Espinoza v. Arizona
A class of low income, racial and ethnic minority students
and English Language Learners filed a complaint in 2006
which challenged, on equal protection grounds, the state’s
requirements that students must pass the Arizona Instrument
to Measure Standards ( “AIMS”) test in order
to graduate from an Arizona high school. Plaintiffs
claim that education is a fundamental interest under
the State Constitution and there is no compelling state
interest in this high stakes testing requirement. The
Plaintiffs also claim that severe inequities in the
state’s educational finance system deprive the
members of the plaintiff class of an opportunity to
receive a quality education that would prepare them
to pass the exams.
In September 2008, the Court dismissed Espinoza
v. Arizona stating that there was insufficient
evidence and that the plaintiffs had presented no causal
connection between the pass/fail statistics on the AIMS
test and specific districts.
Costing-Out
In 2001, the Arizona Department
of Education issued a "cost
study" that merely compiled the estimated spending
on ELL programs in a representative sample of school
districts. The study was informative, but inconclusive.
The legislature initiated another ELL
cost study, released in February 2005, which indicated
that at least several hundred dollars more per ELL student
is needed. That same month, Allan Odden, Lawrence Picus,
and Associates also released “Lead
With Five: Five Investments to Improve Arizona Public
Education” in which they determined the cost
of an adequate education in the state and recommended
five major improvements for its school system.
Useful Resources
Molly A. Hunter, Building
on Judicial Intervention: The Redesign of School Facilities Funding in Arizona
(Campaign for Fiscal Equity, Inc. September 2003). For information regarding
other states with facilities/capital funding cases, see Alaska,
Colorado, Idaho,
Louisiana, and New
Mexico.
Last updated: January, 2009
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