ARIZONA COURT OF APPEALS
DIVISION ONE
D. JEFFREY AND LYNDA CRAVEN; TRACY
BRAATZ; STEVEN GEORGE DANNER;
JOANNE HOPMEYER; MARY FOLEY; and
CYNTHIA ZAK-SLETTE,
Plaintiffs/Appellants,
vs.
JOHN HUPPENTHAL, Superintendent of Public
Instruction; STATE OF ARIZONA BOARD OF
EDUCATION; and STATE OF ARIZONA,
Court of Appeals
Division One
No. 1 CA-CV 13-0485
Maricopa County
Superior Court
No. CV2009-029436
Defendants/Appellees,
and
CREIGHTON ELEMENTARY SCHOOL
DISTRICT NO. 14; and ARIZONA SCHOOL
BOARDS ASSOCIATION,
Intervenors/Appellees.
OPENING BRIEF OF APPELLANTS
BROWNSTEIN HYATT FARBER
SCHRECK, LLP
Kory A. Langhofer – 24722
[email protected]
Chase Bales – 30099
[email protected]
One East Washington Street, Suite 2400
Phoenix, Arizona 85004
Telephone: (602) 382-4040
Facsimile: (602) 382-4020
Attorneys for Plaintiffs/Appellants
TABLE OF CONTENTS
Page
I.
II.
STATEMENT OF THE CASE ......................................................................1
a.
Appellate Court Jurisdiction.................................................................1
b.
Nature of the Case ................................................................................1
c.
Course of Proceedings and Disposition Below ....................................3
i.
The Superior Court Held That the Parents Have
Stated Claims for Relief Under the Equal
Protection and General and Uniform Clauses of the
Arizona Constitution ..................................................................3
ii.
The Superior Court Clarifies the Legal Framework
Applicable to the Parents’ Claims..............................................4
iii.
The Superior Court Enters Summary Judgment in
Favor of the Government and Intervenors .................................5
1.
The Superior Court Rejects the Parents’
Claim Under the Equal Protection Clause .......................6
2.
The Superior Court Also Rejects the
Parents’ Claim Under the General and
Uniform Clause ................................................................7
STATEMENT OF RELEVANT FACTS .......................................................8
a.
Under Arizona Law, Charter Schools Are Public School
Alternatives to District Schools............................................................8
b.
Arizona’s Charter School Students Have Fewer Sources
of Funding than Arizona’s District School Students ...........................9
c.
Arizona’s Charter School Students Receive Significantly
Less Funding on a Per Pupil Basis than District School
Students ..............................................................................................10
III.
STATEMENT OF ISSUES FOR REVIEW.................................................11
IV.
STANDARD OF REVIEW ON APPEAL ...................................................12
V.
ARGUMENT ................................................................................................12
a.
The Superior Court Committed Prejudicial Error by
Applying Rational Basis Review Rather Than Strict
Scrutiny ..............................................................................................12
i
TABLE OF CONTENTS
(continued)
Page
VI.
i.
The Right to Education Is Among the
“Fundamental Rights” Guaranteed by the Arizona
constitution ...............................................................................12
ii.
Standards of Review Generally ...............................................15
iii.
Strict Scrutiny Applies to the Parents’ Equal
Protection Clause Claim ..........................................................17
iv.
Shoftstall v. Hollins Does Not Require Rational
Basis Review in This Case .......................................................21
v.
The Error Was Prejudicial .......................................................24
b.
The Funding Scheme Fails Under Even Rational Basis
Review ................................................................................................27
c.
The Superior Court Erred in Finding No Violation of the
General and Uniform Clause ..............................................................28
i.
The Framers of the Arizona Constitution
Understood the General and Uniform Clause to
Require Substantially Equal Per Pupil Funding ......................28
ii.
Because the Funding Scheme Creates Substantial
Funding Disparities, It Violates Established
General and Uniform Clause Doctrine ....................................33
iii.
The General and Uniform Clause Requires
“General[ity]” and “Uniform[ity]” Across All
Public Schools, Not Just Across Charter Schools ...................34
iv.
The Adequacy of a Charter School Education Is
Irrelevant, Much Less Dispositive ...........................................35
CONCLUSION.............................................................................................38
ii
TABLE OF AUTHORITIES
Cases
Anderson v. State,
135 Ariz. 578, 663 P.2d 570 (App. 1983)...........................................................13
Ariz. Citizens Clean Elections Comm’n v. Brain,
___ P.3d ___, 672 Ariz. Adv. Rep. 25 (App. 2013) ............................................28
Ariz. Downs v. Ariz. Horsemen’s Found.,
130 Ariz. 550, 637 P.2d 1053 (1981)...................................................................17
Ariz. Farmworkers Union v. Agric. Emp’t Relations Bd.,
148 Ariz. 47, 712 P.2d 960 (App. 1985) ................................................. 12, 14, 15
Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett,
131 S. Ct. 2806 (2011) .........................................................................................25
Arizona Together v. Brewer,
214 Ariz. 118, 149 P.3d 742 (2007).............................................................. 30, 31
Brown v. Bd. of Educ.,
347 U.S. 483 (1954) .............................................................................................13
Campbell Cnty. Sch. Dist. v. State,
907 P.2d 1238 (Wyo. 1995) .................................................................... 20, 26, 36
Carpio v. Tucson High Sch. Dist. No. 1,
111 Ariz. 127, 524 P.2d 948 (1974).....................................................................13
Church v. Rawson Drug & Sundry Co.,
173 Ariz. 342, 842 P.2d 1355 (App. 1992)..........................................................16
City of Phoenix v. Fine,
4 Ariz. App. 303, 420 P.2d 26 (1966) ..................................................................14
Clark v. Putnam Cnty.,
293 F.3d 1261 (11th Cir. 2002) ...........................................................................26
E.B. v. Verniero,
119 F.3d 1077 (3d Cir. 1997)...............................................................................13
Evenstad v. State,
178 Ariz. 578, 875 P.2d 811 (App. 1993)............................................................17
Goodyear Farms v. City of Avondale,
148 Ariz. 216, 714 P.2d 386 (1986).............................................................. 16, 17
iii
Governale v. Lieberman,
226 Ariz. 443, 250 P.3d 220 (App. 2011)............................................................17
Horton v. Meskill,
376 A.2d 359 (Conn. 1977) .................................................................................19
Hughes v. Creighton,
165 Ariz. 265, 798 P.2d 403 (App. 1990)............................................................13
Hull v. Albrecht,
190 Ariz. 520, 950 P.2d 1141 (1997)...................................................................33
Hull v. Albrecht,
192 Ariz. 34, 960 P.2d 634 (1998).......................................................................34
Kenyon v. Hammer,
142 Ariz. 69, 688 P.2d 961 (1984)............................................................... passim
Kotterman v. Killian,
193 Ariz. 273, 972 P.2d 606 (1999).......................................................................8
Lerma v. Keck,
186 Ariz. 228, 921 P.2d 28 (App. 1996)....................................................... 17, 25
Martin v. Reinstein,
195 Ariz. 293, 987 P.2d 779 (App. 1999)............................................................25
Mills v. Rogers,
457 U.S. 291 (1982) .............................................................................................13
Opinion of the Justices,
624 So.2d 107 (Ala. 1993) ...................................................................................20
Parker ex rel. Parker v. Ariz. Interscholastic Ass’n,
204 Ariz. 42, 59 P.3d 806 (App. 2002) ................................................................23
Pauley v. Kelly,
255 S.E.2d 859 (W. Va. 1979) ...................................................................... 13, 21
Progressive Specialty Ins. Co. v. Farmers Ins. Co. of Ariz.,
143 Ariz 547, 694 P.2d 835 (App. 1985) .............................................................22
Rasmussen by Mitchell v. Fleming,
154 Ariz. 207, 741 P.2d 674 (1987).....................................................................14
Robinson v. Hotham,
11 Ariz. 165, 118 P.3d 1129 (App. 2005)............................................................12
Roosevelt Elementary Sch. Dist. No. 66 v. Bishop,
179 Ariz. 233, 877 P.2d 806 (1994)............................................................. passim
iv
Ruiz v. Hull,
191 Ariz. 441, 957 P.2d 984 (1998).....................................................................25
Salt River Pima-Maricopa Indian Cmty. Sch. v. State,
200 Ariz. 108, 23 P.3d 103 (App. 2001) ......................................................... 8, 35
San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1, (1973) ......................................................................................... 12, 13
Serrano v. Priest,
557 P.2d 929 (Cal. 1976) .............................................................................. 18, 19
Shofstall v. Hollins,
110 Ariz. 88, 515 P.2d 590 (1973)............................................................... passim
Simat Corp. v. Ariz. Health Care Cost Containment Sys.,
203 Ariz. 454, 56 P.3d 28 (2002).................................................................. 15, 17
Standhardt v. Superior Court,
206 Ariz. 276, 77 P.3d 451 (App. 2003) ..............................................................12
State v. Butrick,
113 Ariz. 563, 558 P.2d 908 (1976).....................................................................14
State v. Gulbrandson,
184 Ariz. 46, 906 P.2d 579 (1995).......................................................................14
State v. Hausner,
230 Ariz. 60, 280 P.3d 604 (2012).......................................................................12
State v. Millanes,
180 Ariz. 418, 885 P.2d 106 (App. 1994)............................................................14
State v. Riggs,
189 Ariz. 327, 942 P.2d 1159 (1997)...................................................................14
Vigil v. Herman,
102 Ariz. 31, 424 P.2d 159 (1967).......................................................................22
Washakie Cnty. Sch. Dist. No. 1 v. Herschler,
606 P.2d 310 (Wyo. 1980) ............................................................................ 20, 36
Statutes
A.R.S. § 12-2101(A)(1) .............................................................................................1
A.R.S. § 15-101..........................................................................................................9
A.R.S. § 15-101(20) ...................................................................................................2
A.R.S. § 15-101(21) ...................................................................................................2
v
A.R.S. § 15-101(4) .................................................................................................1, 8
A.R.S. § 15-1023........................................................................................................9
A.R.S. § 15-181(A) ................................................................................... 5, 8, 35, 37
A.R.S. § 15-185(B)(4)..............................................................................................11
A.R.S. § 15-185(B)(5), (6) .........................................................................................9
A.R.S. § 15-2051........................................................................................................9
A.R.S. § 15-481..........................................................................................................9
A.R.S. § 15-482..........................................................................................................9
A.R.S. § 15-491..........................................................................................................9
A.R.S. § 15-809..........................................................................................................9
A.R.S. § 15-903(C) ....................................................................................................9
A.R.S. § 15-910..........................................................................................................9
A.R.S. § 15-918..........................................................................................................9
A.R.S. § 15-949..........................................................................................................9
A.R.S. § 15-962..........................................................................................................9
A.R.S. § 15-992..........................................................................................................9
A.R.S. § 15-995..........................................................................................................9
A.R.S. § 15-2041........................................................................................................9
Colo. Rev. Stat. § 5890 (1908) ................................................................................30
Compiled Laws of N.M. § 1517 (1897)...................................................................31
Lord’s Or. Laws § 3971 (1910) ...............................................................................31
Rem. & Bal. Code § 4563 (Wash. 1910) .................................................................31
S.D. Compiled Laws, Education § 49 (1909) ..........................................................31
Wyo. Compiled Stat. § 1997 (1910) ........................................................................31
Other Authorities
John D. Leshy, The Making of the Arizona Constitution,
20 Ariz. St. L.J. 1, 98-99 (1988) ..........................................................................29
Rules
Ariz. R. Civ. Proc. 12(b)(6) .......................................................................................4
vi
Ariz. R. of Civ. App. P. 9(a) ......................................................................................1
Arizona Uniform System of Financial Records Fund Code F001.............................9
Arizona Uniform System of Financial Records Fund Code F700.............................9
Constitutional Provisions
Ariz. Const. art. II, § 13 ...................................................................................... 2, 15
Ariz. Const. art. XI, § 1 ..............................................................................................2
Colo. Const. art. IX, § 2 ...........................................................................................29
Idaho Const. art. IX, § 1 ...........................................................................................29
N.M. Const. art. XII, § 1 ..........................................................................................29
Or. Const. art. VIII, § 3 ............................................................................................29
S.D. Const. art. VIII, § 1 ..........................................................................................29
Wash. Const. art. IX, § 2 ..........................................................................................30
Wyo. Const. art. VII, § 1 ..........................................................................................30
Session Laws
1912 Ariz. Sess. Laws 406-07 .................................................................................32
Idaho S.B. 158, 10th Sess. (1909)............................................................................30
vii
I.
STATEMENT OF THE CASE.
a.
Appellate Court Jurisdiction.
The Superior Court entered final judgment on June 11, 2013. See Index of
Record (“IR”) 157 and 158. Plaintiffs/Appellants D. Jeffrey and Lynda Craven,
individually and on behalf of their minor children Olivia and Genevieve Craven;
Tracy Braatz, individually and on behalf of her minor children Andrew and
Morgan Braatz; Steven George Danner and Joanne Hopmeyer, individually and on
behalf of their minor children Rachel and Eric Danner; Mary Foley, individually
and on behalf of her minor children Dillan and Kaleigh Foley; and Cynthia ZakSlette, individually and on behalf of her minor children Janae and Morgan Slette,
(collectively the “Parents”) filed their notice of appeal on July 10, 2013 and posted
their cost bond on appeal on July 16, 2013. IR 161 and 162. The notice of appeal
was timely under Arizona Rule of Civil Appellate Procedure 9(a). This Court has
jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
b.
Nature of the Case.
This appeal challenges Arizona’s statutory scheme for financing public
school education to the extent it discriminates against students attending public
charter schools (“charter schools”),1 and thereby significantly burdens their
fundamental right to education guaranteed by the Arizona constitution.
1
See A.R.S. § 15-101(4) (“‘Charter school’ means a public school
established by contract with a district governing board, the state board of
1
The state’s disparate financing scheme for public district schools (“district
schools”)2 violates both Article II, Section 13 of the Arizona constitution (the
“Equal Protection Clause”) and Article XI, Section 1 of the Arizona constitution
(the “General and Uniform Clause”) by underfunding and disadvantaging charter
school students.
The Superior Court rejected the Parents’ legal claims in the first instance—
but because of legal errors in the record, the Parents respectfully submit that this
Court must reverse the judgment below and declare unconstitutional the
Government’s disparate funding scheme or, alternatively, vacate the judgment
below and remand for further proceedings.
education, the state board for charter schools, a university under the jurisdiction of
the Arizona board of regents, a community college district with enrollment of more
than fifteen thousand full-time equivalent students or a group of community
college districts with a combined enrollment of more than fifteen thousand fulltime equivalent students pursuant to article 8 of this chapter to provide learning
that will improve pupil achievement”) (emphasis added).
District schools are the non-charter public schools for a given geographical
region. See A.R.S. § 15-101(20) (“‘School’ means any public institution
established for the purposes of offering instruction to pupils in programs for
preschool children with disabilities, kindergarten programs or any combination of
grades one through twelve”) (emphasis added); id. § 15-101(21) (“‘School district’
means a political subdivision of this state with geographic boundaries organized
for the purpose of the administration, support and maintenance of the public
schools or an accommodation school”) (emphasis added).
2
2
c.
Course of Proceedings and Disposition Below.
i.
The Superior Court Held That the Parents Have Stated
Claims for Relief Under the Equal Protection and General
and Uniform Clauses of the Arizona Constitution.
On September 15, 2009, the Parents commenced this action, on behalf of
themselves and their children enrolled in charter schools, by filing their complaint
against the State of Arizona, the State Superintendent of Public Instruction, and the
State Board of Education (collectively, the “Government”) in the Maricopa County
Superior Court. IR 1. The Arizona School Boards Association and the Creighton
Elementary School District No. 14 of Maricopa County (the “Intervenors”)
subsequently intervened as defendants. IR 24.
The gravamen of the Parents’ complaint was that Arizona’s statutory scheme
for financing public school education violates both the Equal Protection Clause and
the General and Uniform Clause of the Arizona constitution. IR 1. The Parents
asserted that the state public school financing scheme deprives students attending
charter schools of: (1) equal educational opportunities and benefits that are
available to students enrolled in district schools; and (2) a general and uniform
public education.
See IR 1.
The consequences of the substantial funding
disparities alleged by the Parents include inferior facilities, insufficient
extracurricular activities, and inadequate supplies, instructional materials, and
equipment. See id. at 13-17. The remedies sought by the Parents included a
3
judicial declaration that the state’s public school financing scheme is
unconstitutional and injunctive relief forbidding the state from failing to provide
substantially equal funding for charter school students. See id. at 20.
In reviewing the motions to dismiss filed by the Government and the
Intervenors, the Superior Court found that the Parents had stated claims for relief
under both the Equal Protection Clause and the General and Uniform Clause, and
accordingly denied the motions to dismiss the Parents’ complaint pursuant to Rule
12(b)(6), because they “defin[ed] a similarly situated class, unequal treatment, and
a grossly discriminatory public school finance system as it relates to district public
school pupils and children who attend public charter schools.” IR 42 at 6. In
denying the Government and Intervenors’ motion to dismiss, the Superior Court
suggested that the disparate funding should eventually be subject to strict scrutiny.
See id.
ii.
The Superior Court Clarifies the Legal Framework
Applicable to the Parents’ Claims.
After the case was reassigned to a new judge, the Parents moved for partial
summary judgment “to establish the legal framework” for resolving the claims. IR
64 at 2-3. The Superior Court agreed with the Parents that charter school students
are public school students under Arizona law and that education is a fundamental
right under the Arizona constitution, but disagreed that the alleged infringement of
4
the fundamental right to education was subject to strict scrutiny. IR 98. The
Superior Court reasoned:
Arizona public charter school students are public school
students. A.R.S. § 15-181(A). The Arizona constitution establishes a
basic education as a fundamental right of children between the ages of
six and twenty-one. Shofstall v. Hollins, 110 Ariz. 88, 90, 515 P.2d
590, 592 (1973). With regard to the level of scrutiny applied to an
educational financing scheme, Shofstall continues to be good law.
A school financing system which meets the educational
mandates of our constitution, i.e., uniform, free, available to all
persons aged six to twenty-one, and open a minimum of six months
per year, need otherwise be only rational, reasonable and neither
discriminatory nor capricious.
A school financing system which has a rational and reasonable
basis and which meets the educational mandate of our constitution
should, unless otherwise discriminatory or capricious, be upheld.
See id. at 2. On this basis, the Superior Court granted in part and denied in part the
Parents’ motion on October 31, 2011. See id.
iii.
The Superior Court Enters Summary Judgment in Favor of
the Government and Intervenors.
Eighteen months later, on April 22, 2013, after briefing and oral argument
on cross-motions for summary judgment, the Superior Court entered judgment in
favor of the Government and the Intervenors. IR 152, 157, 158. In doing so, the
Superior Court found that Arizona’s public school financing scheme violated
neither the Equal Protection Clause nor the General and Uniform Clause. See id.
5
1.
The Superior Court Rejects the Parents’ Claim Under
the Equal Protection Clause.
Citing Shofstall, 110 Ariz. at 88, 515 P.2d at 590, the Superior Court
reiterated its earlier conclusion that “[a] challenge to a school financing system is
subject to a rational basis scrutiny.” IR 152 at 2. The Superior Court therefore
framed the question presented by the Parents’ equal protection claim as “whether
the disparate per student funding between charter and district schools serves a
legitimate state interest and whether the disparity rationally furthers that interest.”
Id.
The Superior Court determined that it could answer this question by
considering “the Legislature’s actual purpose or any hypothetical basis on which it
could have acted” in funding charter and district schools. See id.
The use of this deferential standard led the Superior Court to hold that the
Legislature’s decision to fund charter and district schools differently did not violate
the Equal Protection Clause. See id. Observing that charter schools are largely
exempt from the statutes and regulations that govern district schools and that
charter and district schools have different capital requirements, the Superior Court
concluded that “Arizona’s public school financing system funds charter and district
schools differently because they are different.”
See id.
The Superior Court
rejected the Parents’ contention that such differences are irrelevant because their
claim belongs to public school students rather than to public schools. See id.
Again citing Shofstall, the Superior Court declared that disparate funding does not
6
equate to unequal education.
See id.
The Superior Court concluded that
Shofstall’s suggestion that the rational basis test was inapplicable when a school
financing system was “otherwise discriminatory or capricious” did not salvage the
Parents’ claim, concluding that the Arizona Supreme Court was referring to
“discriminatory on some basis other than that alleged.” See id. (emphasis supplied
by court).
2.
The Superior Court Also Rejects the Parents’ Claim
Under the General and Uniform Clause.
The Superior Court held that Arizona’s public school financing system did
not violate the General and Uniform Clause for two reasons. IR 152 at 3. First,
the Superior Court determined that “disparate funding must be reviewed in the
context of adequacy of education,” and found that Plaintiffs did not dispute that
charter schools provide an adequate education. See id. Second, the Superior Court
concluded that the Legislature may fund charter and district schools differently
“without running afoul of the general and uniform clause” because they are
“different.” See id.
This appeal followed the entry of final judgment in favor of the Government
and Intervenors on June 11, 2013. IR 157, 158, 161.
7
II.
STATEMENT OF RELEVANT FACTS.
a.
Under Arizona Law, Charter Schools Are Public School
Alternatives to District Schools.
In 1994, the Arizona Legislature authorized the creation of charter schools to
provide parents and pupils with additional academic alternatives to traditional
public schools. See A.R.S. § 15-181(A); Salt River Pima-Maricopa Indian Cmty.
Sch. v. State, 200 Ariz. 108, 110, 23 P.3d 103, 105 (App. 2001). By statutory
definition, charter schools are public schools. See supra note 1 (quoting A.R.S. §
15-101(4), which defines a “charter school” as “a public school”); see also A.R.S.
§ 15-181(A) (“[c]harter schools are public schools”); Kotterman v. Killian, 193
Ariz. 273, 278, 972 P.2d 606, 611 (1999) (citing the establishment of charter
schools among the Legislature’s recent efforts to expand “the options available in
public education”). During the 2009-10 and 2010-11 school years, more than 10
percent of all public school students attended charter schools. IR 117 and 118 at
Exh. B (Exhs. 4 and 5 thereto); see also IR 1 at 8.
Because charter schools are public schools, it is axiomatic that (1) charter
school students are public school students under Arizona law; and (2) charter
school students and district school students are both members of the class of
Arizona public school students.
8
b.
Arizona’s Charter School Students Have Fewer Sources of
Funding than Arizona’s District School Students.
Under Arizona law, charter school students have significantly fewer sources
of educational funding available to them than district school students. The state
general fund is the primary source of financial support for the education of charter
school students, and charter schools may not charge tuition to Arizona residents,
levy taxes, or issue school district bonds. IR 1 at 11; IR 117 and 118 at ¶ 3; A.R.S.
§ 15-185(B)(5), (6).
District schools, meanwhile, are permitted to levy taxes and issue school
district bonds, see, e.g., A.R.S. §§ 15-481, 15-491, 15-992, 15-1023, and are also
the beneficiaries of other state funding that is unavailable to charter school
students. See id. § 15-101, et seq. For example, district school students, but not
charter school students, may receive state funding for unrestricted capital outlay
(A.R.S. § 15-903(C)), soft capital outlay (A.R.S. § 15-962), school facilities
(A.R.S § 15-2041), adjacent ways (A.R.S. § 15-995), debt service (Arizona
Uniform System of Financial Records Fund Code F700), other maintenance and
operations (Arizona Uniform System of Financial Records Fund Code F001), and a
variety of other sources (inclusive of A.R.S. §§ 15-481, -482, -809, -910, -918, 949, and -2051). IR 117 and 118 at ¶¶ 33 and 35; id. at Exh. B, ¶¶ 9 and 11.
9
c.
Arizona’s Charter School Students Receive Significantly Less
Funding on a Per Pupil Basis than District School Students.
The disparate school funding laws for charter schools and district schools
give rise to significant financial disadvantages for charter schools and the students
attending them. In fiscal years 2010 and 2011, Arizona’s funding scheme created a
total per pupil disparity in their favor of $1,209 and $1,142, respectively. IR 117
and 118 at ¶¶ 32 and 34; id. at Exh. B, ¶¶ 8 and 10. Based on the number of
students enrolled in charter and district schools, this disparity resulted in charter
school students receiving $129,327,220 and $135,781,516 less in state educational
funding than an equal number of district school students for fiscal years 2010 and
2011, respectively. See id. at ¶¶ 36-37. Stated otherwise, district school students
received approximately fourteen percent more in state educational funding than
charter school students in fiscal years 2010 and 2011. See id. at Exh. B (Exh. 4
and 5 thereto); see also id. at Exh. B (Exh. 3 thereto, at 23 (“The finding of a
disparity is consistent throughout the population of public school district students
and public charter school students.” (emphasis omitted)).
The inequality in
funding is directly attributable to the facts that (1) unlike district schools, charter
schools lack local taxing authority and (2) revenue is available to district school
students from sources that are not accessible to charter school students. See id. at
Exh. B (Exh. 3 thereto, at 31-37).
10
The Government’s public school financing scheme is therefore inherently
unequal and discriminates against charter school students. See id. at Exh. B (Exh.
3 thereto, at 1) (concluding that “[t]here is a meaningful disparity in funding –
public school district students receive more funding on a per pupil basis than
public charter school students” and “[t]he disparity is related to the statutory public
school funding mechanism”). This inequality and discrimination appears to be
inconsistent with the purpose of A.R.S. § 15-185(B)(4), which codifies the
Legislature’s intent that charter schools receive equal funding with district schools
and provides for “equalization assistance” to charter schools.
III.
STATEMENT OF ISSUES FOR REVIEW.
1.
In applying the Equal Protection Clause to a law burdening the
fundamental right to education, did the Superior Court commit
prejudicial error by applying rational basis review rather than strict
scrutiny?
2.
Under rational basis review, does Arizona’s disparate funding scheme
violate the Equal Protection Clause because it is “discriminatory”?
3.
Does the Government’s policy violate the General and Uniform
Clause by creating substantial disparities in the funding for charter
school students and the funding for district school students?
11
IV.
STANDARD OF REVIEW ON APPEAL.
The Court reviews constitutional issues de novo. See State v. Hausner, 230
Ariz. 60, 82, 280 P.3d 604, 626 (2012); see also Robinson v. Hotham, 211 Ariz.
165, 168, 118 P.3d 1129, 1132 (App. 2005) (providing for de novo review of the
interpretation of constitutional rights). Because each of the issues presented for
review on appeal is constitutional in nature, the de novo standard applies to all
such issues.
V.
ARGUMENT.
a.
The Superior Court Committed Prejudicial Error by Applying
Rational Basis Review Rather Than Strict Scrutiny.
i.
The Right to Education Is Among the “Fundamental
Rights” Guaranteed by the Arizona constitution.
Federal and state courts have a very lengthy record of safeguarding
“fundamental rights.” See Ariz. Farmworkers Union v. Agric. Emp’t Relations Bd.,
148 Ariz. 47, 50, 712 P.2d 960, 963 (App. 1985). A right is “fundamental” when it
is “explicitly or implicitly guaranteed by the constitution.”
See Kenyon v.
Hammer, 142 Ariz. 69, 83, 688 P.2d 961, 975 (1984) (quoting San Antonio Indep.
Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973)); see also Standhardt v. Superior
Court, 206 Ariz. 276, 281, 77 P.3d 451, 456 (App. 2003) (fundamental rights are
rights that are “firmly entrenched in our state’s history and tradition and implicit in
the concept of ordered liberty that may be, or may not be, shared with the rest of
the country”). Given their nature, government infringement of fundamental rights
12
“may be justified only by the most important of state interests.” See E.B. v.
Verniero, 119 F.3d 1077, 1103 n.24 (3d Cir. 1997) (internal quotations omitted).
It is well-settled that education is a fundamental right under the Arizona
constitution.3 See Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 179 Ariz.
233, 238, 877 P.2d 806, 811 (1994); Carpio v. Tucson High Sch. Dist. No. 1, 111
Ariz. 127, 130, 524 P.2d 948, 951 (1974); see also Shofstall, 110 Ariz. at 90, 515
P.2d at 592 (“We hold that the constitution does establish education as a
fundamental right of pupils between the ages of six and twenty-one years . . . .”).
As such, the right to education stands among some of the most sacred and
vigorously protected rights arising under the Arizona constitution, including:
• the right of a parent to the control and custody of his or her child, see
Hughes v. Creighton, 165 Ariz. 265, 267-68, 798 P.2d 403, 405-06
(App. 1990);
3
The United States Supreme Court has held that education is not a
fundamental right under the federal constitution. See San Antonio Indep. Sch. Dist.
v. Rodriguez, 411 U.S. 1, 35-40 (1979); see also id. at 33 (“the key to discovering
whether education is ‘fundamental’ . . . lies in assessing whether there is a right to
education explicitly or implicitly guaranteed by the Constitution”). But cf. Brown
v. Bd. of Educ., 347 U.S. 483, 493 (1954) (concluding that education, “where the
state has undertaken to provide it, is a right which must be made available to all on
equal terms”). Our state constitution nevertheless may afford broader rights than
mandated by federal law. See Mills v. Rogers, 457 U.S. 291, 300 (1982); Anderson
v. State, 135 Ariz. 578, 582-83, 663 P.2d 570, 574-75 (App. 1983); see also Pauley
v. Kelly, 255 S.E.2d 859, 864 (W. Va. 1979) (“[A] state is not constrained by the
federal constitutional standard, but must examine its own constitution to determine
its education responsibilities . . . .”).
13
• the right to refuse medical treatment, see Rasmussen by Mitchell v.
Fleming, 154 Ariz. 207, 215, 741 P.2d 674, 682 (1987);
• the right to recover damages for bodily injury, see Kenyon, 142 Ariz.
at 83, 688 P.2d at 975;
• the right of an accused to a trial by jury, see State v. Butrick, 113 Ariz.
563, 565, 558 P.2d 908, 910 (1976); and
• the prohibition against double jeopardy, see State v. Millanes, 180
Ariz. 418, 421, 885 P.2d 106, 109 (App. 1994).
These rights are in addition to others that have been recognized as fundamental
under the United States Constitution, such as the right to freedom of speech and
press, see City of Phoenix v. Fine, 4 Ariz. App. 303, 306, 420 P.2d 26, 29 (1966);
the right of a criminal defendant to testify, see State v. Gulbrandson, 184 Ariz. 46,
64, 906 P.2d 579, 597 (1995); the right to confront accusers, see State v. Riggs, 189
Ariz. 327, 331, 942 P.2d 1159, 1163 (1997); and the rights to vote, interstate travel,
freedom of association, and privacy, see Ariz. Farmworkers Union, 148 Ariz. at
50, 712 P.2d at 963.
The right to education arising under the Arizona constitution fits within the
highest, most protected category of civil rights.
14
ii.
Standards of Review Generally.
When a party claims that a law violates the Equal Protection Clause of the
Arizona constitution,4 a court must as a preliminary matter determine the
appropriate standard of review. See Ariz. Farmworkers Union, 148 Ariz. at 50,
712 P.2d at 963. The three tests available for this purpose, commonly referred to
as “strict scrutiny,” “intermediate scrutiny” (also known as “means-scrutiny
analysis”), and “rational basis review,” are distinguished by their level of deference
to the Legislature. See Kenyon, 142 Ariz. at 78, 688 P.2d at 970.
• Under strict scrutiny, the most stringent of the tests, a court may
uphold a discriminatory law “only if it serves a compelling state
interest and is narrowly tailored and necessary to achieve that
interest.” See Simat Corp. v. Ariz. Health Care Cost Containment
Sys., 203 Ariz. 454, 458-59, 56 P.3d 28, 32-33 (2002). This test
applies when a law either burdens a suspect classification or burdens
a fundamental right. See Kenyon, 142 Ariz. at 78-79, 688 P.2d at
970-71.
• Under means-scrutiny analysis, which establishes an intermediate
level of scrutiny, a court may uphold a discriminatory law only if it
4
Article II, Section 13, of the Arizona constitution provides: “No law shall be
enacted granting to any citizen, class of citizens, or corporation other than
municipal, privileges or immunities which, upon the same terms, shall not equally
belong to all citizens or corporations.”
15
finds “the state’s interest to be ‘important’ and the means adopted to
serve that interest to be ‘reasonable, not arbitrary’ and ‘having a fair
and substantial relation to the object of the legislation’ so that all
persons in similar circumstances ‘shall be treated alike.’” See id. at
78, 688 P.2d at 970. The Court relies on this test when a law burdens
a limited set of classifications, such as those based on gender and
illegitimacy of birth. See id.; see also Church v. Rawson Drug &
Sundry Co., 173 Ariz. 342, 349, 842 P.2d 1355, 1362 (App. 1992).
• Under rational basis review, which grants the Legislature the “greatest
leeway,” a court may uphold a discriminatory law as long as it “can
find some legitimate state interest to be served by the legislation” and
“the facts permit the court to conclude that the legislative
classification rationally furthers the state’s legitimate interest.” See
Kenyon, 142 Ariz. at 78, 688 P.2d at 970.
An equal protection
violation results under this test “only if the classification rests on
grounds wholly irrelevant to the achievement of the state’s objective.”
See id.; see also Goodyear Farms v. City of Avondale, 148 Ariz. 216,
222, 714 P.2d 386, 392 (1986) (“[i]n applying the rational basis test,
the equal protection clause will not be violated if any set of facts can
be reasonably perceived to sustain the classification”).
16
iii.
Strict Scrutiny Applies to the Parents’ Equal Protection
Clause Claim.
The Superior Court erred by applying rational basis review to the Parents’
claim that Arizona’s public school financing scheme violates the Equal Protection
Clause by unduly burdening the fundamental right to education.
When reviewing a law under the Equal Protection Clause, a court must apply
strict scrutiny if the challenged law either burdens a suspect class or burdens a
fundamental right. See Governale v. Lieberman, 226 Ariz. 443, 448, 250 P.3d 220,
225 (App. 2011). In other words, when a fundamental right has been burdened, a
court has no discretion in determining the standard of review; “strict scrutiny
analysis must be applied.”5
See Kenyon, 142 Ariz. at 79, 688 P.2d at 971
(emphasis added).
5
It is well-settled that Arizona courts must strictly scrutinize laws that affect
fundamental rights. See, e.g., Simat Corp., 203 Ariz. at 458, 56 P.3d at 32
(“[w]hen the right in question is fundamental, our constitution requires that a strict
scrutiny analysis be applied”); Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz.
550, 555, 637 P.2d 1053, 1058 (1981) (“[i]f the substance of the challenged statute
is aimed at limiting a fundamental right, we apply a test of strict scrutiny and will
uphold the statute only if it is necessary to promote a compelling state interest”);
Lerma v. Keck, 186 Ariz. 228, 232, 921 P.2d 28, 32 (App. 1996) (“[s]trict scrutiny
applies when the legislation impinges upon a fundamental right or discriminates
based upon a suspect classification”); Evenstad v. State, 178 Ariz. 578, 586, 875
P.2d 811, 819 (App. 1993) (“on an equal protection challenge to legislation
affecting fundamental rights, courts must apply a ‘strict scrutiny’ test”); Goodyear
Farms, 148 Ariz. at 219, 714 P.2d at 389 (“where the legislation infringes on a
fundamental right, a classification will be upheld only if it is necessary to promote
a compelling state interest”).
17
In this case, however, the Superior Court never considered the nature of the
right at issue, but rather summarily concluded that the rational basis test applied.
Had the Superior Court undertaken this essential inquiry into the fundamental
nature of the right at issue, it would have been compelled to eschew rational basis
review because the Legislature has burdened a fundamental right – i.e., the right to
education. See supra Section V(a)(i).
Other states that recognize education as a “fundamental” right have
consistently applied strict scrutiny and invalidated state public school financing
schemes unduly burdening the right to education. Examples include the following:
• The California Supreme Court has recognized that education is a
“fundamental
interest,”
that
discrimination
in
educational
opportunities on the basis of district wealth involves a “suspect
classification,” and that a state public school financing system which
establishes and perpetuates a classification based on district wealth
warrants strict scrutiny because it affects the fundamental interest in
education. See Serrano v. Priest, 557 P.2d 929, 951 (Cal. 1976).
Invoking these principles, the court held that California’s public
school financing system violated the equal protection clause of the
state constitution because no compelling state interest had been shown
18
to justify classifications premised on district wealth which burdened
the fundamental interest in education. Id. at 957-58.
• The Connecticut Supreme Court has determined under its state
constitution that “the right to education is so basic and fundamental
that any infringement of that right must be strictly scrutinized.” See
Horton v. Meskill, 376 A.2d 359, 373, 375 (Conn. 1977). Based on
this standard, the court held that Connecticut’s system of financing
public elementary and secondary education, which ensured that “more
educational dollars will be allotted to children who live in propertyrich towns than to children who live in property-poor towns”
regardless of the educational needs of children, “cannot pass the test
of ‘strict judicial scrutiny’ as to its constitutionality.” See id. at 374.
• The Wyoming Supreme Court has recognized that the right to a
quality education is a “fundamental right” under its state constitution,
that “the strict scrutiny test applies to legislative action which affects a
child’s right to a proper education,” and that it “will review any
legislative school financing reform with strict scrutiny to determine
whether the evil of financial disparity, from whatever unjustifiable
cause, has been exorcized from the Wyoming educational system.”
See Campbell Cnty. Sch. Dist. v. State, 907 P.2d 1238, 1266-67 (Wyo.
19
1995). In doing so, the court rejected the notion that educational
funding was somehow distinct from the fundamental right to
education, and decreed that the entire state public school financing
system must be reviewed under strict scrutiny:
‘Nothing in the Education Clause of our constitution suggests
that the fundamental right to an education applies only to the
education itself, not to the money needed to fund that
education. Education does not occur in a vacuum; it is achieved
as the result of public expenditures. Any system which
provides greater expenditures for some children over others
should undergo the most exacting scrutiny.’
See id. at 1267 (emphasis added); see also Washakie Cnty. Sch. Dist.
No. 1 v. Herschler, 606 P.2d 310, 335 (Wyo. 1980) (“We are not
attempting to isolate any particular statute as unconstitutional because
it denies equal protection but we examine the entire system from
organization of school districts through tax bases and levies and
distribution of foundation funds, all of which have a bearing upon the
disparity which exists.”). Finding that it could not survive this level
of scrutiny, the court declared Wyoming’s public school financing
system unconstitutional. See id. at 1244, 1267-80.
See also Opinion of the Justices, 624 So.2d 107, 159 (Ala. 1993) (“Because
education is a fundamental right under the Alabama constitution, the stark
inequities in educational opportunity offered schoolchildren in this state must be
20
justified under strict scrutiny by a compelling state interest to pass constitutional
muster.”); Pauley, 255 S.E.2d at 878 (recognizing that education is a “fundamental
right” under the state constitution and that, based on state equal protection
guarantees, “any discriminatory classification found in the educational financing
system cannot stand unless the [Government] can demonstrate some compelling
[Government]. interest to justify the unequal classification”).
iv.
Shoftstall v. Hollins Does Not Require Rational Basis
Review in This Case.
In concluding that rational basis review was appropriate, the Superior Court
relied on the Arizona Supreme Court’s 1973 opinion in Shofstall, 110 Ariz. at 88,
515 P.2d at 590. IR 152 at 2. For two reasons, that decision does not control here.
At issue in Shofstall was a claim by taxpayers and students in the Roosevelt
School District that Arizona’s public school financing scheme was discriminatory,
and therefore in violation of the equal protection clauses of the federal and state
constitutions, because the wealth disparity in school districts resulted in unequal
education for students and an unequal burden on taxpayers in poorer districts. See
Shofstall, 110 Ariz. at 89, 515 P.2d at 591.
Procedurally, the case was almost unique. Although the Legislature had
repealed the disputed statutory provisions effective July 1, 1974, the Court saw
21
“merit” in discussing the plaintiffs’ contentions.6 See id. The Shoftstall decision
was therefore essentially an advisory opinion, in contravention of the court’s
“customary practice” of judicial restraint in such circumstances, because the matter
had been rendered moot by legislative developments. See Vigil v. Herman, 102
Ariz. 31, 36-37, 424 P.2d 159, 164-65 (1967); see also Progressive Specialty Ins.
Co. v. Farmers Ins. Co. of Ariz., 143 Ariz 547, 548, 694 P.2d 835, 836 (App. 1985)
(“It is not an appellate court’s function to declare principles of law which cannot
have any practical effect in settling the rights of litigants.”).
Substantively, while the Shofstall Court recognized that students between
the ages of six and twenty-one have a fundamental right to education under the
Arizona constitution, it adopted a rational basis test for reviewing equal protection
challenges to the state’s public school financing scheme. See Shofstall, 110 Ariz.
at 90-91, 515 P.2d at 592-93. Under this test, “[a] school financing system which
has a rational and reasonable basis and meets the educational mandate of our
constitution should, unless otherwise discriminatory or capricious, be upheld.”
6
The Court observed: “The Arizona Legislature, in Laws 1973, ch. 182, sec.
13, effective July 1, 1974, repealed the financing provisions for common and high
schools. The effect of this legislative action is to reduce the need for us to meet
specific and detailed contentions of defects in the current school financing system,
as any court plan could not be effectuated prior to the fiscal year beginning July 1,
1974. The judgment of the trial court indicates that it was not to take effect until
the close of the second session of the 31st Legislature in 1974.” Shofstall, 110
Ariz. at 89, 515 P.2d at 591.
22
See id. (emphasis added). Because of the “peculiar posture” of the case, however,
the Court left to the trial court “the determination of what portions of this litigation
are moot.” See id. at 91, 515 P.2d at 593.
When the Arizona Supreme Court revisited the issue of public school
financing two decades later in Roosevelt Elementary School District No. 66 v.
Bishop, it appropriately questioned Shofstall’s use of a rational basis test to decide
an equal protection claim implicating a fundamental right. See 179 Ariz. at 238,
877 P.2d at 811. The Court explained:
We agree with the districts that Shofstall is not dispositive. We do not
understand how the rational basis test can be used when a
fundamental right has been implicated. They seem to us to be
mutually exclusive. If education is a fundamental right, the
compelling state interest test (strict scrutiny) ought to apply. . . .7
See id. (emphasis added); see also Parker ex rel. Parker v. Ariz. Interscholastic
Ass’n, 204 Ariz. 42, 46, 59 P.3d 806, 810 (App. 2002) (noting that Roosevelt
recognized the “inconsistency” between Shofstall’s application of a rational basis
test to a law affecting a fundamental right). Although the Court nevertheless did
not expressly overrule or limit Shofstall’s equal protection analysis at that time
because it opted to decide the appeal under the education provisions of Article XI
7
In a special concurrence, Chief Justice Feldman also criticized Shofstall’s
use of the rational basis test given that a fundamental right was at issue. See
Roosevelt, 179 Ariz. at 245, 877 P.2d at 818. Thus, even though Roosevelt was a
plurality opinion, a majority of the Arizona Supreme Court agreed that Shofstall’s
use of the rational basis test was erroneous.
23
of the Arizona constitution, it clearly and unmistakably condemned Shoftstall’s use
of a rational basis test to review equal protection claims challenging public school
financing laws that affect the fundamental right to education.8
In light of its advisory nature and its subsequent, well-reasoned disapproval
in the Roosevelt opinions, the rational basis test adopted by Shoftstall no longer
controls.
v.
The Error Was Prejudicial.
The Superior Court’s application of rational basis review improperly placed
the burden on the Parents to prove the unconstitutionality of Arizona’s public
school financing scheme under a standard that is highly deferential to the
8
It is noteworthy that, in Roosevelt, the Arizona Supreme Court likewise
questioned Shofstall’s analysis of the General and Uniform Clause. The Court’s
observations in that regard further call into doubt Shofstall’s continued viability:
Shofstall acknowledged that art. XI, § 1 requires a general
and uniform public school system, but then defined uniformity
by reference to compliance with other sections of article XI. . . .
Shofstall also defined uniformity by reference to statutes which
set up a framework for required courses, teacher qualification
and the like.
But Shofstall’s reference to other sections of article XI
renders most of § 1 meaningless and redundant. If § 1 has
independent significance, and it must, how does compliance
with § 6 satisfy § 1? And how can the substantive content of
the meaning of the constitution (general and uniform) be
defined by reference to statutes?
Our reading of the
constitution, the enabling act and the proceedings of the
constitutional convention leads us to the conclusion that
“general and uniform” means far more than framework.
See Roosevelt, 179 Ariz. at 240-41, 877 P.2d at 813-14.
24
Legislature. Under rational basis review, a law is presumed constitutional, and its
opponent may rebut this presumption only through “‘a clear showing of
arbitrariness or irrationality.’” See Lerma, 186 Ariz. at 232, 921 P.2d at 32.
The burden, instead, should have been imposed on the Government to prove
the scheme’s constitutionality under a standard where no such deference exists.
Under a strict scrutiny analysis, the “presumption of constitutionality of laws
vanishes” and the proponent of the law bears the burden to establish that it is
narrowly tailored to further a compelling state interest. See Martin v. Reinstein,
195 Ariz. 293, 309, 987 P.2d 779, 795 (App. 1999); see also Ruiz v. Hull, 191
Ariz. 441, 457, 957 P.2d 984, 1000 (1998).
In this case, the Government and Intervenors were never required to identify
a “compelling” state interest that is advanced by financially disadvantaging charter
school students. If the Superior Court had required as much from the Government
and the Intervenors, they would have failed to meet their burden because the
interests they assert as justification for the disparate funding scheme (e.g., different
requirements regarding capacity, enrollment, hiring and managing teachers, and
facilities, IR 119 at 6-10) simply do not rise to the level of “compelling” state
interests. Cf. Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct.
2806 (2011) (state lacked compelling state interest in equalizing electoral funding);
25
Clark v. Putnam Cnty., 293 F.3d 1261 (11th Cir. 2002) (state lacked compelling
state interest in redistricting plan that served to remedy past racial discrimination).
Additionally, the Government and Intervenors were never required to
explain why, even if some funding disparities are necessary to offset additional
regulatory burdens and costs in district schools, the Arizona funding scheme is
“narrowly tailored and necessary” to achieve the state’s compelling interest. If the
Superior Court had held the Government and the Intervenors to this standard, they
would have failed. The evidence would have shown that the funding disparities
between charter and district schools is, in fact, far greater than necessary to offset
the district schools marginal difference in operating costs. See IR 1 at 13-17.
If the Superior Court had applied the proper standard, the Parents would
have prevailed on their Equal Protection Clause claim. Cf. Campbell Cnty., 907
P.2d at 1266 (“Since the district court [erroneously] ruled the rational basis test
applied, the challengers could not prevail. However, under strict scrutiny the
defenders would lose since clearly they had not come forward with cost
justifications to the extent required. . . . Had the district court applied a strict
scrutiny standard, defenders would have failed in their burden of proof.”).
26
b.
The Funding Scheme Fails Under Even Rational Basis Review.
Even Shofstall, which applied rational basis review, prohibits school funding
schemes that are “discriminatory or capricious.” See 110 Ariz. at 90-91, 515 P.2d
at 592-93.
In this case, the Government’s financing scheme indisputably limits the
sources of funding available to charter school students as compared to district
school students, and ultimately causes charter school students to receive
substantially less per-pupil funding. See supra Section II(b).
This is not an
instance in which a neutral and non-discriminatory rule has unequal effects;
rather, this is an instance in which unequal levels of funding arise from an
entirely different set of rules applicable to a disfavored class.
Under the
Government’s school funding laws, district students categorically have access to
more money and more funding streams, while charter students have less money
and fewer sources of funding.
There are different rules for different public
schools.
Because the Government’s funding scheme categorically “discriminat[es]”
against charter school students as compared to their peers in district schools, the
Government’s public school financing scheme violates even the forgiving Shofstall
standard; the fact of discrimination between public school students, each of whom
has an equal right to public education, renders the scheme unconstitutional.
27
Thus, even if rational basis review is properly applied to the Parents’ claim
under the Equal Protection Clause, Shofstall requires judgment to be entered for
the Parents and against the Government and the Intervenors.
c.
The Superior Court Erred in Finding No Violation of the General
and Uniform Clause.
The General and Uniform Clause directs the Legislature to “enact such laws
as shall provide for the establishment and maintenance of a general and uniform
public school system.” The original meaning and doctrine surrounding this clause
are inconsistent with the Government’s disparate funding policy.
i.
The Framers of the Arizona Constitution Understood the
General and Uniform Clause to Require Substantially
Equal Per Pupil Funding.
Before addressing the doctrinal issues under the General and Uniform
Clause, it is instructive to consider the original meaning of the General and
Uniform Clause at the State Founding.9 The Parents’ position that the General and
Uniform Clause mandates substantially equal per pupil funding for all public
9
Although the Parents did not specifically raise this argument before the trial
court, the interpretation of the General and Uniform Clause was, and continues to
be, one of the central issues in this case. Thus, because the Parents’ originalist
argument is necessarily related to the interpretation of the General and Uniform
Clause, this Court may and should address it. See Ariz. Citizens Clean Elections
Comm’n v. Brain, ___ P.3d ___, 672 Ariz. Adv. Rep. 25, ¶ 15 (App. 2013)
(considering a statutory interpretation argument even though it was not raised in
the trial court because the meaning of the statute was “the central issue in [the]
case”).
28
school students is consistent with the meaning the State Founders ascribed to that
clause at the time it was ratified and made effective.
Drafted in 1910, Arizona’s constitution is, in large part, an amalgamation of
constitutional provisions borrowed from other state constitutions and modified to
suit Arizona’s unique needs and challenges. The General and Uniform Clause is
no exception; when drafting that clause, the framers relied heavily on similar
constitutional provisions pertaining to education from several other states,
including Colorado, Idaho, New Mexico, Oregon, South Dakota, Washington and
Wyoming (the “Model States”). See generally John D. Leshy, The Making of the
Arizona Constitution, 20 Ariz. St. L.J. 1, 98-99 (1988). Each of the Model States’
constitutions provides for a uniform system of public education.10
10
See Colo. const. art. IX, § 2 (“The general assembly shall, as soon as
practicable, provide for the establishment and maintenance of a thorough and
uniform system of free public schools throughout the state, wherein all residents of
the state, between the ages of six and twenty-one years, may be educated
gratuitously.”); Idaho const. art. IX, § 1 (“The stability of a republican form of
government depending mainly upon the intelligence of the people, it shall be the
duty of the legislature of Idaho, to establish and maintain a general, uniform and
thorough system of public, free common schools.); N.M. const. art. XII, § 1 (“A
uniform system of free public schools sufficient for the education of, and open to,
all the children of school age in the state shall be established and maintained.”);
Or. const. art. VIII, § 3 (“The Legislative Assembly shall provide by law for the
establishment of a uniform, and general system of Common schools.”); S.D. const.
art. VIII, § 1 (“The stability of a republican form of government depending on the
morality and intelligence of the people, it shall be the duty of the Legislature to
establish and maintain a general and uniform system of public schools wherein
tuition shall be without charge, and equally open to all; and to adopt all suitable
means to secure to the people the advantages and opportunities of education.”);
29
Importantly, Arizona case law requires courts to “impute to the framers of
the Arizona Constitution the contemporaneous understanding of, and judicial
construction given to, the provision they adopted” from other states. Arizona
Together v. Brewer, 214 Ariz. 118, 125-26, 149 P.3d 742, 749-50 (2007). In other
words, we look to the Model States’ pre-1910 interpretations of their own
education funding clauses to learn the original meaning of the General and
Uniform Clause in the Arizona constitution.
A review of pre-1910 authorities from the Model States reveals a simple and
widely held understanding of the original meaning of the General and Uniform
Clause. When Arizona ratified its constitution, every single one of the Model
States, without exception, had enacted statutes requiring the appropriation of
public school funds in proportion to the number of school-age children in each
district.11 In other words, the statutes in the Model States that implemented the
Wash. const. art. IX, § 2 (The legislature shall provide for a general and uniform
system of public schools.”); Wyo. const. art. VII, § 1 (“The legislature shall
provide for the establishment and maintenance of a complete and uniform system
of public instruction, embracing free elementary schools of every needed kind and
grade, a university with such technical and professional departments as the public
good may require and the means of the state allow, and such other institutions as
may be necessary.”).
11
See Colo. Rev. Stat. § 5890 (1908) (“The county superintendent shall
apportion the fund aforesaid among the districts entitled to the same, according to
the number of persons of school age, as shown by the census list and reports of the
several districts for the school year immediately preceding . . . .”); Idaho S.B. 158,
10th Sess. (1909) (“The remaining balance of the whole amount he shall apportion
30
constitutional provisions that eventually served as the template for Arizona’s
General and Uniform Clause, apportioned public school funding in a manner that
ensured each public school student would receive a substantially equal amount of
funding. And under Arizona Together, by ratifying the General and Uniform
Clause as part of the Arizona constitution, the State Founders approved and
adopted the meaning that the Model States had previously ascribed to the templates
that the Arizona constitutional convention used when drafting the General and
Uniform Clause.
Shortly after the State Founding, Arizona’s First Legislature confirmed the
Model States’ understanding of the constitutional provision. When implementing
per capita among the several districts in proportion to the number of children in
each district, as shown by the last report of the census marshal of each district.”);
Compiled Laws of N.M. § 1517 (1897) (mandating that “the board of education
shall at the semi-annual meetings, apportion the territorial school fund to the
various counties in proportion to the number of school children residing therein,
over five and under twenty-one years of age . . .”); Lord’s Or. Laws § 3971 (1910)
(“The balance of the county school funds thereafter remaining in the treasury . . .
shall be apportioned among the several districts . . . in proportion to the total
‘number of children resident in each district between the ages of four and twenty
years.”); S.D. Compiled Laws, Education § 49 (1909) (“The county superintendent
shall on the tenth day of January and July in each year apportion the money in the
county treasury . . . in proportion to the number of children of school age residing
therein.”); Rem. & Bal. Code § 4563 (Wash. 1910) (“For the purpose of the
apportionment the superintendent of public instruction shall base his calculations
upon the days’ attendance as shown by the several county superintendents’ last
annual reports filed in his office.”); Wyo. Compiled Stat. § 1997 (1910) (requiring
the county superintendent of schools “to apportion the same to each school district
in his county pro rata according to the number of children of school age in such
district as set forth and shown by the enumeration thereof . . .”).
31
the General and Uniform Clause for the first time, by passing the first education
funding bill in the state, the First Legislature did not establish a two-tiered funding
system favoring students at some schools and disfavoring students at others.
Rather, Arizona’s first education funding bill mandated substantially equal perpupil funding statewide based on student counts; the County School
Superintendents were required to make annual apportionments to each district of
no less than $30 per capita based on the average daily attendance, subject to a base
requirement that no district be apportioned less than $1,000. See 1912 Ariz. Sess.
Laws 406-07.
The historical evidence demonstrates that, when the General and Uniform
Clause was adopted, it was understood both in Arizona and in each of the Model
States to mean exactly what it says: The public school funding system must be
“general and uniform,” not divided into factions or tiers of schools or
discriminatory against disfavored students. Because the Government’s current
policy mandates unequal per-pupil funding to different types of public schools, it is
inconsistent with the simple principle ratified and approved by Arizona voters at
the State Founding.
32
ii.
Because the Funding Scheme Creates Substantial Funding
Disparities, It Violates Established General and Uniform
Clause Doctrine.
In addition to the historical evidence, settled case law confirms that the
Government’s disparate funding scheme violates the General and Uniform Clause.
Although it is unnecessary for all the components of any “general and
uniform” public school system to be “exactly the same, identical, or equal,” public
school financing schemes that create “substantial” or “gross disparities are not
general and uniform.” See Roosevelt, 179 Ariz. at 241-42, 877 P.2d at 814-15. As
a result, “[o]nce a standard is set, the legislature must choose a funding mechanism
that does not cause disparities and that ensures that no school in Arizona falls
below the standard.” See Hull v. Albrecht, 190 Ariz. 520, 524, 950 P.2d 1141,
1146 (1997). While local governments and public school districts are free to offer
students “an educational system that is even better than the general and uniform
system created by the state,” the statewide system must provide an “adequate
education” and not cause “substantial disparities.” See Roosevelt, 179 Ariz. at
241-42, 246, 877 P.2d at 814-15. Thus, it is “not the existence of disparities
between or among districts that results in a constitutional violation,” but rather
“whether those disparities are the result of the financing scheme the state chooses.”
Id. at 242, 877 P.2d at 815.
33
In this case, there are “substantial disparities” in funding for district schools
versus charter schools, and those disparities are directly caused by Arizona’s
unequal funding scheme. IR 117 and 118 at ¶¶ 32-37; id. at Exh. B. If the court
had received evidence under the correct legal standard, the evidence would have
shown that the disparities have resulted in, among other things, inferior facilities,
insufficient extracurricular activities, and inadequate supplies, instructional
materials, and equipment at charter schools. See IR 1 at 13-17.
Because the state’s public school financing system, taken as a whole,
directly creates “substantial disparities,” it does not comply with the General and
Uniform Clause and cannot stand as a matter of law. See Roosevelt, 179 Ariz. at
242, 877 P.2d at 816; Hull v. Albrecht, 192 Ariz. 34, 37, 960 P.2d 634, 636 (1998).
iii.
The General and Uniform Clause Requires “General[ity]”
and “Uniform[ity]” Across All Public Schools, Not Just
Across Charter Schools.
In rejecting the Parents’ claim under the General and Uniform Clause, the
Superior Court concluded that the provision prohibits funding disparities among
the same type of public schools (i.e., district schools) but not among different types
of public schools (i.e., charter vs. district schools). IR 152 at 3.
In splitting Arizona schools into two unequal but internally uniform systems,
the Superior Court created a distinction between charter schools and district
schools that simply is not contemplated by the Arizona constitution.
34
See id.
District and charter schools may have different characteristics, as may schools in
different districts or even within the same district, but they are all still public
schools, see A.R.S. § 15-181(A)—and on its face, the General and Uniform Clause
requires a “uniform” approach to public education in Arizona rather than the twotiered system envisaged by the Superior Court. Charter schools cannot be true
public school alternatives to district schools, and the public educational system
would not be “uniform,” unless all their funding levels are subject to comparison
and can be made equal and uniform. See A.R.S. § 15-181(A); Salt River, 200 Ariz.
at 110, 23 P.3d at 105.
iv.
The Adequacy of a Charter School Education Is Irrelevant,
Much Less Dispositive.
In reviewing the Parents’ claims, the Superior Court incorrectly concluded
that no violation of the General and Uniform Clause occurred in this case because
the Parents do not dispute that charter school students receive an adequate
education despite their significant funding disadvantages. IR 152 at 3.
The Arizona Supreme Court rejected such an approach in Roosevelt, where
it recognized that a substantial disparity in school facilities violates the General
and Uniform Clause without regard to allegations or proof of inadequacy of
education:
Although it seems intuitive that there is a relationship between the
adequacy of education and the adequacy of capital facilities, the
districts chose not to plead or prove such a relationship. The state
35
claimed that this omission was fatal to the districts’ case, but the
districts argued that such a relationship, although intuitive, was not
relevant to or essential to their claim.
We agree with the districts. Even if every student in every district
were getting an adequate education, gross facility disparities caused
by the state’s chosen financing scheme would violate the uniformity
clause. Satisfaction of the substantive education requirement does
not necessarily satisfy the uniformity requirement, just as
satisfaction of the uniformity requirement does not necessarily
satisfy the substantive education requirement.
179 Ariz. at 242 n.7, 877 P.2d at 815 (emphasis added). For this reason, the
substantial funding disparity created by the state’s public school financing scheme
in this case has resulted in a violation of the General and Uniform Clause
irrespective of the adequacy of a charter school education.
Even if adequacy alone is the relevant inquiry (which, for the avoidance of
doubt, it is not), parent opinions regarding the adequacy of their charter school
children’s education are not particularly informative or material to the legal issues.
A significant funding disparity, as exists here, necessarily has an adverse effect on
education, as one court has aptly observed:
It is nothing more than an illusion to believe that the extensive
disparity in financial resources does not relate directly to quality of
education.
It is our view that until equality of financing is achieved, there is no
practicable method of achieving equality of quality.
See Washakie Cnty., 606 P.2d at 334; see also Campbell Cnty., 907 P.2d at 1265
(“Washakie did not require the challengers to prove harm to the quality of
36
education”). This adverse effect is noteworthy because Arizona’s charter schools
have a statutory mandate to “improve pupil achievement.” See A.R.S. § 15181(A).
Nonetheless, parents enroll their children in charter schools because they
seek innovative alternatives to a traditional public school education. See A.R.S. §
15-181(A).
Many of these parents undoubtedly strive to overcome the
consequences of the funding disparities created by the state’s public school
financing scheme because they support the unique education offered at charter
schools. The academic achievement levels attained by charter school students
because of their individual and familial talents, commitment, and other factors may
also mask the disadvantages they experience in the educational process as a result
of underfunding. Whether a charter school parent expresses satisfaction with his or
her child’s education therefore is not an accurate measure of the adequacy of that
education from a constitutional standpoint; if a student starts his or her educational
process from a disadvantaged place such as an underfunded charter school, the
student’s rights to equal treatment and a general and uniform school system are
undeniably violated notwithstanding the parents’ satisfaction or the outcome of the
student’s educational process.
37
VI.
CONCLUSION.
For the foregoing reasons, the Parents respectfully request that the Court
either (a) reverse the judgment below and declare that Arizona’s disparate funding
for charter and district schools violates the Equal Protection Clause and the
General and Uniform Clause or, alternatively, (b) vacate the judgment below and
remand for further proceedings under the correct legal standards.
For the avoidance of doubt, the Parents are not asking this Court to rewrite
the state’s public education funding scheme or to manage how public school
education is funded, but rather to direct the Legislature to bring Arizona’s public
school funding statutes into compliance with the Arizona constitution by no longer
discriminating against charter school students. See, e.g., Roosevelt, 179 Ariz. at
243, 877 P.2d at 816.
Dated this 22nd day of November, 2013.
BROWNSTEIN HYATT FARBER
SCHRECK, LLP
By:/s/ Kory A. Langhofer
Kory A. Langhofer – 24722
[email protected]
Chase Bales – 30099
[email protected]
One East Washington Street, Suite 2400
Phoenix, Arizona 85004
Telephone: (602) 382-4040
Facsimile: (602) 382-4020
Attorneys for Plaintiffs/Appellants
38
CERTIFICATE OF COMPLIANCE
Pursuant to ARCAP 14, I certify that the attached brief:
X
Uses proportionately spaced type of 14 points or more, is double-spaced
using a roman font, and does not exceed 14,000 words (for opening and
answering briefs) or 7,000 words (for reply briefs).
Uses monospaced type of no more than 10.5 characters per inch and does
not exceed 40 pages (for opening and answering briefs) or 20 pages (for
reply briefs).
November 22, 2013
Date
/s/ Kory A. Langhofer
Kory A. Langhofer
39
CERTIFICATE OF SERVICE
The original of the Opening Brief of Appellants was electronically filed with the:
Clerk, Arizona Court of Appeals
Division One
1501 West Washington Street
Phoenix, Arizona 85007
Two copies of the Opening Brief of Appellants were served by depositing it in the
United States mail, postage prepaid to:
John Huppenthal,
State of Arizona and
Arizona State Board of Education
c/o ARIZONA ATTORNEY GENERAL’S OFFICE
Kevin D. Ray, Assistant Attorney General
Leslie Kyman Cooper, Assistant Attorney General
Jordan Ellel, Assistant Attorney General
1275 West Washington Street
Phoenix, Arizona 85007-2926
Telephone: (602) 542-8328
Facsimile: (602) 364-0700
[email protected]
[email protected]
[email protected]
Creighton Elementary School Dist. No. 14 and
Arizona School Boards Association
c/o LASOTA & PETERS PLC
Donald M. Peters
3030 North Third Street, Suite 905
Phoenix, Arizona 85012
Telephone: (602) 248-2900
Facsimile: (602) 248-2999
[email protected]
40
DATED this 22nd day of November, 2013.
BROWNSTEIN HYATT FARBER
SCHRECK, LLP
By:/s/ Kory A. Langhofer
Kory A. Langhofer
Chase Bales
One East Washington Street, Suite 2400
Phoenix, Arizona 85004
Attorneys for Plaintiffs-Appellants
41