By Howard Fischer
Capitol Media Services
PHOENIX -- State lawmakers are violating their constitutional requirements to adequately fund public schools so that students can learn, Maricopa County Superior Court Judge Dewain Fox has ruled.
In a 114-page decision released Wednesday, Fox said many schools lack the resources to do everything from provide adequate equipment to keep buildings in repair. He cited a laundry list of unmet needs including in some cases buildings that are unsafe because of cracks and other deficiencies.
And Fox said the state has failed to provide funds for legally required improvements, including keeping students safe from shooters invading schools.
The judge acknowledged that some districts do have the resources through local taxes to meet at least some of their needs.
But he said that is irrelevant as the Arizona Constitution requires the Legislature to establish and fund a "general and uniform public school system.'' Instead, what lawmakers have established is a system where schools which don't have the same tax base essentially need to beg to get a share of the limited -- and he said inadequate -- funds that are set aside each year.
The bottom line, Fox said, is he will be issuing a permanent injunction requiring lawmakers to come up with the funds to meet their obligations.
Less clear is how quickly that can occur -- and in what form.
House Speaker Steve Montenegro promised Wednesday to take the new ruling to a higher court. That is not surprising as GOP leaders have argued since the case was first filed in 2017.
Attorneys for the Legislature have contended there is no constitutional requirement for the state to fund some of the expenses that challengers said are needed to maintain an adequate school system. And they also questioned whether any court has the power to tell lawmakers what should be in the minimum guidelines -- what the state is expected to fund.
"Such matters invade the exclusive power of the Legislature, are non-justiciable, and therefore do not create a viable claim over which the court may assume jurisdiction,'' wrote William Richards.
Fox, with the new ruling, acknowledged he has no right to second-guess decisions by the Legislature on how best to fund public education. What judges do have, he said, is the power to determine whether those policy decisions are constitutional.
"After carefully and thoroughly reviewing the record and considering the parties' arguments, the court concludes that the current public school capital finance system does not meet the constitutional minimum standards established by the Arizona Supreme Court,'' Fox wrote. And in his 114-page ruling, he detailed exactly where lawmakers have fallen short, detailing leaking roofs, schools without needed security, not enough computers and even unreliable buses.
The vow of an appeal disappointed Danny Adelman. He's the director of the Arizona Center for Law in the Public Interest which filed the original lawsuit.
"The Legislature and the governor can fix this ... without going through long, expensive appeals,'' he said. "They just have to have the will to do that.''
But there's also the question that, even assuming Fox's ruling is upheld, how does he force lawmakers to come up with the needed dollars.
Even Adelman acknowledges that a court cannot order state lawmakers to raise taxes. But there are ways to ensure compliance.
Consider what happened decades ago when the Supreme Court found the school finance system unconstitutional.
At that time, the justices gave lawmakers 60 days to bring the school finance system into compliance with what the constitution requires. More to the point, the justices told lawmakers unless they come up with an acceptable plan, they would block the state treasurer from distributing funds to schools, effectively shutting them down.
"That got the Legislature's attention,'' Adelman said, saying that could once again be the hammer to force lawmakers to act.
What it ultimately needs to come down to, he said, is for legislators to recognize the difference between the things they would like to do and those that are constitutionally required of them.
"The Legislature decided it wanted to spend almost $1 billion on vouchers,'' Adelman said, state dollars that allow students to attend private or parochial schools or are given to parents for home schooling.
"Well, that's a 'want-to,' '' he said. "But there are other things they have to do under the constitution. And adequately funding our public schools is in the 'have-to' category.''
As to what it will cost, that's another question.
Adelman said that the evidence presented shows the state shorted schools by between $6 billion and $7 billion by the time of the court ruling. Those dollars, he said, should be made up to help schools buy and fix all the things that they could not afford despite the legal requirements.
The financial situation is not getting better, Fox said, with lawmakers failing to fund even current request for necessary items. And the judge said all the blame can't be laid entirely at the feet of the Republican-controlled Legislature.
Fox said that at the beginning of the last budget year the School Facilities District which is responsible for funding construction and repairs estimated that it needed more than $587 million meet all the identified needs. Yet the Department of Administration, which reports to Gov. Katie Hobbs, requested less than $222 million.
"And the governor's budget proposal provided for Building Renewal grant funding of less than $200 million,'' the judge wrote.
And that's just a piece of the puzzle.
Adelman said the constitution requires more than just construction and repair of buildings. And he said the Legislature clearly understood that after prior Supreme Court rulings, directing creation of a list of "the minimum things needed to have a quality education.''
What that includes is the technology that should be available, meeting transportation needs and even adequate cooling and heating.
"So when they don't provide sufficient funding to do even what the state said 'This is what is required to enable children to meet minimum academic standards,' then, by definition, you're not giving kids what they need to have a good education,'' Adelman said.
And that, he said, doesn't even consider that the state-set standards really haven't been kept up to date.
Consider security.
"A lot has changed about school districts' need for adequate security since Sandy Hook,'' Adelman said, the mass shooting at the elementary school in Newton, Conn. that killed 20 young children and six adult staffers. He said while state officials studied those needs, they never put the recommendations in the guidelines.
Fox took notice. He said schools have been denied money to rekey doors to lock from the inside, installing security fencing around schools, installing features to funnel campus visitors to the office, and placing bulletproof film on large windows.
"So what that meant was, mostly only schools that have sufficient local wealth could implement those things,'' Adelman said. "And the other schools couldn't.''
That goes to another flaw Fox found with the system: Disparities between "rich'' school districts that have a property tax base large enough to raise money for new buildings, repairs and other items, and those that do not -- all of which runs afoul of that requirement for a general and uniform school system.
For example, he said, the bonding capacity of Tempe Union High School District has a bonding capacity 3.5 times greater than the Yuma Union High School District. And that means it costs richer districts less money in tax hikes to raise a dollar than the poorer districts.
Aside from the inability of these poorer districts to fund new schools and repairs when the state does not, Fox said the system has shown problems in other ways.
In Tucson Unified School District, the judge said, the amount of capital funds it gets is not sufficient to maintain its current bus fleet without breakdowns and failed air conditioning. He said the district instead is stuck spending "more and more money to replace part after part'' on vehicles that are past their useful life.
Of note is that what is considered "capital'' funding -- what the state is supposed to provide -- extends to other things like technology and computers.
Fox said the state updated its technology standard in 2023 to say there should be one computer for each student. Only thing is, he said, no funding was provided to districts to implement the change.
The new ruling is filled with examples of how students are being short-changed -- and how the decisions by lawmakers not to properly fund repairs was short-sighted.
Consider, he said, even state officials in charge of providing funding acknowledged that keeping school roofs in good condition is cheaper than what happens after they start leaking, including exposed mold and asbestos.
And then there is the impact on education.
Fox mentioned the Elfrida Elementary School where the testimony was that the roof leaks when it rains.
"The leaks disrupt the learning environment because students stop what they are doing to position trash cans to collect the dripping water,'' the ruling states.
The Bowie school district, he said, needs three new roofs on its schools.
In one case, a leak at the A.R. Spikes High School has caused significant damage to the auditorium's interior ceiling and wall, with the cost of replacement now at $1.25 million.
And at the Bruce Brown Gym, rain poured through the roof onto the bleachers, damaging the ceiling and cracking the brick wall. Estimated replacement cost is $1.98 million.
In a prepared response, Christian Slater, press aide to the governor, said his boss has secured more than $1 billion in the last three years to update and build school facilities. But Slater also is acknowledging the ongoing problem, saying that the governor's office "is reviewing the judge’s ruling and considering paths forward to address longstanding issues in facility funding.''
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