AASBO Spring ConferenceLaughlin, NVApril 2, 2010

State Litigation Gilbert v. Arizona –

(Career Ladder) Hobday and Craven

casesGeneral and Uniform

Charter schoolOverrides

Rumery v. Arizona – Use of Trust Land proceeds to fund State Land Dept.

AEA Litigation on HB2011Status of Teacher Due

Process Reform Prop. 301 litigation?

Federal Litigation (9th Circuit & USSC) Winn v. Garriott – STO

as-applied constitutional challenge

Greene v. Camreta – Interview of student in child abuse lawsuit

Nurre v. Whitehead – religious music at graduation

Attorney General Opinions

AZ Constitution (Art. 11, Sec. 1): “The legislature shall enact such laws as shall provide for the establishment and maintenance of a general and uniform public school system…”

Roosevelt v. Bishop (1994): …Units in "general and uniform" state systems need not be exactly the same, identical, or equal. Funding mechanisms that provide sufficient funds to educate children on substantially equal terms tend to satisfy the general and uniform requirement. School financing systems which themselves create gross disparities are not general and uniform.”

Decided 2/11/2010; Maricopa County Superior Court (Judge Dean Fink)

Career Ladder Program Program is a performance-based compensation

plan that provides incentives to teachers ; state requires basic elements be included in the local plan, but each is different; on-going evaluation and professional development required.

1985: 5-year pilot program began; started with 7 and added 7 at a time to 28 districts; funding mix between local and state; since 1994 no other districts have been able to join program and state funding has been cut

Career Ladder: allows districts in program to spend 5.5% above their revenue control limit (and tax local taxpayers for it) to fund the program Districts that are part of program represent 40% of

teachers in state 2006, resulted in $74 million in funding for those districts

for teacher pay Gilbert Unified School District: not part of the

program; worked at Legislature to get Career Ladder program expanded or an alternative teacher performance program with similar funding; no success on legislative front Though program was put on the books for later

implementation and then repealed after economic downturn

Program is unconstitutional and violates the Arizona Constitution’s General and Uniform requirement (Art. 11 § 1); also is a “special law” in violation of AZ Constitution (Art. IV, Pt. 2, §19)

Quoting Hull v. Albrecht: “the general and uniform requirement will not tolerate a state funding mechanism that itself causes disparities between districts”

Judge Fink went further: “Not only substantial disparities, but all disparities violate the uniformity clause if they are caused by the state itself.”

Ordered: state must comply with order – eliminate the disparity by either allowing all districts to join Career Ladder, or by eliminating the program for all – or appeal the case within 45 days or the program will be enjoined from operation.

2/22/10: State Board of Education votes to appeal case; ASBA and several Career Ladder districts supported the appeal.

ASBA Position: “ASBA will seek and support legislation providing all school districts with 5.5 percent in revenue to fund a Career Ladder program, other locally-determined professional development program or other state or federal system that promotes or rewards teacher individual performance, including merit pay.” ASBA Political Agenda, Section VI, Number 2. Strategically: We would like the Career Ladder program

to continue for districts that have it while attempts are made to include all districts; also, we are concerned about attempts that would allow districts to have program simply through a local vote, increasing the property tax; some districts cannot pass such a measure or would have to tax their citizens a much higher rate to pay for such a program.

CRAVEN, ET. AL V. HORNE, ET. AL

HOBDAY, ET. AL. V. HORNE, ET. AL.

The manner in which charter schools are funded vs. regular school district schools

No capital funding, no transportation funding, inability to pass overrides or bonds (charters do get “additional assistance” funding)

The ability of some school districts to pass overrides or bonds results in inequity with those districts that do not have that ability

ASBA has intervened; argued for no violation of G&U

Both cases were argued March 11, 2010 in Maricopa County Superior Court

Trust Lands Management Fund (HB2014) Allows up to 10% of annual proceeds from

each beneficiary’s trust lands Subject to legislative appropriation ($9.7M in

09-10) Arizona Center for Law in the Public Interest

has filed a lawsuit challenging: Constitutionality under Voter Protection Act

provisions (Prop. 105) Violation of Enabling Act

Why do we care about this? Money for schools! (Classroom Site Fund)

Special action to AZ Supreme Court denied; re-filed in Maricopa County Superior Court

Challenged policy-related provisions contained in the state budget including:

Removal of dates for issuance of contract (used to be between March 15 and April 15)

Reduced timelines for correcting inadequate classroom performance when given preliminary notice of such performance (85 days to 60 days)

Changes reduction in force policies for teachers, allowing flexibility in deciding which teachers will be subject to reduction in force and which ones would be recalled

Prohibited seniority from being used in policies on teacher retention

Prohibited contracts allowing for time spent (and paid for by the district) on union activities

Legal Arguments (offered on special action)Not related to Gov’s call for special sessionContained in a bill that covers multiple subjects

not covered by title of actModifies general legislation in an appropriations

measureViolates protections that prohibit contractual

obligationsCertain sections are unconstitutionally vague

ASBA will file amicus in case

Many uncertainties because of law suit and impairment of contracts issues Policies in place are deemed to be part of

contract Whether you can take advantage of new

changes requires fact specific analysis with your attorney What is in contract; what is in policy; what is in

working agreements or regulations

ASBA working hard to re-enact contested provisions to “moot” issues before the court (HB2226)

ASBA conducted survey on how districts were implementing HB2011 98% aware of new law 75% have consulted with their attorney Implementation for this year?

29% Yes; 49% No; 22% Not Sure About half taking advantage of new contract issue

date Dilemma for Spring:

Use old contract issuance dates, write strong contingency language and hope you don’t get sued; or wait until the unknown is known (whenever that is)

Prop. 301 Litigation Last December began legal research for potential law suit to

enforce Prop. 301 inflation funding req’s2% or rate of inflation to base level PLUS other

components of the revenue control limit March letter to Legislature warning about Prop. 301 inflation

funding requirements Knew some cuts would occur – said there would be no suit as

long as done in the proper way to preserve Prop. 301 Coalition created in case necessary to sue Governor championed ASBA position; inflation funding was in

budget in manner we requested 2011 FY Budget: 1.2% inflation factor applied

only to transportation formula; law suit likely

Winn v. Garriott As-applied challenge of Individual Tuition Tax

Credit under First Amendment Establishment Clause; long procedural history; two big wins at 9th Circuit Court of Appeals; USSC to decide whether to take case

Greene v. Camreta 9th Cir. Decision: Sheriff and caseworker

violated student’s 4th amendment rights by interviewing student, at student’s elementary school, about sexual abuse case without a search warrant or parental consent

Nurre v. Whitehead 9th Circuit: School did not violate free speech

rights of students that chose to perform “Ave Maria” at commencement address

USSC to decide whether to take the case

AGO I09-010: Districts that conducted failed budget override

elections in November 2009 can conduct another budget override election in March 2010 under HB 2011, §72

AGO I10-003 The District may provide food, beverages, or

refreshments to staff or parents who assist in governing board-authorized District activities after normal school hours or on weekends only where and to the extent the District is authorized to do so by the laws pertaining to travel and subsistence, gifts, grants (including federal grants), or devises. The District may also include terms regarding the provision of food, beverages, or refreshments in employment contracts with some limitations. Such expenditures must comply with the Gift Clause of the Arizona Constitution.

cthomas@azsba.org

Thanks for all you do for the students in our schools!