ARIZONA COURT OF APPEALS DIVISION ONE OPENING BRIEF OF APPELLANTS

Transcription

1 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, and Defendants/Appellees, Court of Appeals Division One No. 1 CA-CV Maricopa County Superior Court No. CV 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 klanghofer@bhfs.com Chase Bales cbales@bhfs.com One East Washington Street, Suite 2400 Phoenix, Arizona Telephone: (602) Facsimile: (602) Attorneys for Plaintiffs/Appellants

2 TABLE OF CONTENTS i Page I. 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 The Superior Court Rejects the Parents Claim Under the Equal Protection Clause The Superior Court Also Rejects the Parents Claim Under the General and Uniform Clause... 7 II. 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 III. STATEMENT OF ISSUES FOR REVIEW IV. STANDARD OF REVIEW ON APPEAL V. ARGUMENT a. The Superior Court Committed Prejudicial Error by Applying Rational Basis Review Rather Than Strict Scrutiny... 12

3 TABLE OF CONTENTS (continued) Page i. The Right to Education Is Among the Fundamental Rights Guaranteed by the Arizona constitution ii. Standards of Review Generally iii. Strict Scrutiny Applies to the Parents Equal Protection Clause Claim iv. Shoftstall v. Hollins Does Not Require Rational Basis Review in This Case v. The Error Was Prejudicial b. The Funding Scheme Fails Under Even Rational Basis Review c. The Superior Court Erred in Finding No Violation of the General and Uniform Clause i. The Framers of the Arizona Constitution Understood the General and Uniform Clause to Require Substantially Equal Per Pupil Funding ii. Because the Funding Scheme Creates Substantial Funding Disparities, It Violates Established General and Uniform Clause Doctrine iii. The General and Uniform Clause Requires General[ity] and Uniform[ity] Across All Public Schools, Not Just Across Charter Schools iv. The Adequacy of a Charter School Education Is Irrelevant, Much Less Dispositive VI. CONCLUSION ii

4 TABLE OF AUTHORITIES Cases Anderson v. State, 135 Ariz. 578, 663 P.2d 570 (App. 1983) Ariz. Citizens Clean Elections Comm n v. Brain, P.3d, 672 Ariz. Adv. Rep. 25 (App. 2013) Ariz. Downs v. Ariz. Horsemen s Found., 130 Ariz. 550, 637 P.2d 1053 (1981) 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 (2011) Arizona Together v. Brewer, 214 Ariz. 118, 149 P.3d 742 (2007)... 30, 31 Brown v. Bd. of Educ., 347 U.S. 483 (1954) 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) Church v. Rawson Drug & Sundry Co., 173 Ariz. 342, 842 P.2d 1355 (App. 1992) City of Phoenix v. Fine, 4 Ariz. App. 303, 420 P.2d 26 (1966) Clark v. Putnam Cnty., 293 F.3d 1261 (11th Cir. 2002) E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997) Evenstad v. State, 178 Ariz. 578, 875 P.2d 811 (App. 1993) Goodyear Farms v. City of Avondale, 148 Ariz. 216, 714 P.2d 386 (1986)... 16, 17 iii

5 Governale v. Lieberman, 226 Ariz. 443, 250 P.3d 220 (App. 2011) Horton v. Meskill, 376 A.2d 359 (Conn. 1977) Hughes v. Creighton, 165 Ariz. 265, 798 P.2d 403 (App. 1990) Hull v. Albrecht, 190 Ariz. 520, 950 P.2d 1141 (1997) Hull v. Albrecht, 192 Ariz. 34, 960 P.2d 634 (1998) 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) Mills v. Rogers, 457 U.S. 291 (1982) Opinion of the Justices, 624 So.2d 107 (Ala. 1993) Parker ex rel. Parker v. Ariz. Interscholastic Ass n, 204 Ariz. 42, 59 P.3d 806 (App. 2002) 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) Rasmussen by Mitchell v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987) Robinson v. Hotham, 11 Ariz. 165, 118 P.3d 1129 (App. 2005) Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 179 Ariz. 233, 877 P.2d 806 (1994)... passim iv

6 Ruiz v. Hull, 191 Ariz. 441, 957 P.2d 984 (1998) 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) State v. Butrick, 113 Ariz. 563, 558 P.2d 908 (1976) State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995) State v. Hausner, 230 Ariz. 60, 280 P.3d 604 (2012) State v. Millanes, 180 Ariz. 418, 885 P.2d 106 (App. 1994) State v. Riggs, 189 Ariz. 327, 942 P.2d 1159 (1997) Vigil v. Herman, 102 Ariz. 31, 424 P.2d 159 (1967) Washakie Cnty. Sch. Dist. No. 1 v. Herschler, 606 P.2d 310 (Wyo. 1980)... 20, 36 Statutes A.R.S (A)(1)... 1 A.R.S A.R.S (20)... 2 A.R.S (21)... 2 v

7 A.R.S (4)...1, 8 A.R.S A.R.S (A)... 5, 8, 35, 37 A.R.S (B)(4) A.R.S (B)(5), (6)... 9 A.R.S A.R.S A.R.S A.R.S A.R.S A.R.S (C)... 9 A.R.S A.R.S A.R.S A.R.S A.R.S A.R.S A.R.S Colo. Rev. Stat (1908) Compiled Laws of N.M (1897) Lord s Or. Laws 3971 (1910) Rem. & Bal. Code 4563 (Wash. 1910) S.D. Compiled Laws, Education 49 (1909) Wyo. Compiled Stat (1910) Other Authorities John D. Leshy, The Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, (1988) Rules Ariz. R. Civ. Proc. 12(b)(6)... 4 vi

8 Ariz. R. of Civ. App. P. 9(a)... 1 Arizona Uniform System of Financial Records Fund Code F Arizona Uniform System of Financial Records Fund Code F Constitutional Provisions Ariz. Const. art. II, , 15 Ariz. Const. art. XI, Colo. Const. art. IX, Idaho Const. art. IX, N.M. Const. art. XII, Or. Const. art. VIII, S.D. Const. art. VIII, Wash. Const. art. IX, Wyo. Const. art. VII, Session Laws 1912 Ariz. Sess. Laws Idaho S.B. 158, 10th Sess. (1909) vii

9 I. STATEMENT OF THE CASE. a. Appellate Court Jurisdiction. The Superior Court entered final judgment on June 11, 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 Zak- Slette, 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, 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 (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 (4) ( Charter school means a public school established by contract with a district governing board, the state board of 1

10 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). 2 District schools are the non-charter public schools for a given geographical region. See A.R.S (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 (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

11 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 The remedies sought by the Parents included a 3

12 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

13 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 (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, 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

14 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

15 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, IR 157, 158,

16 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 (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 (4), which defines a charter school as a public school ); see also A.R.S (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 and 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

17 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 (B)(5), (6). District schools, meanwhile, are permitted to levy taxes and issue school district bonds, see, e.g., A.R.S , , , , and are also the beneficiaries of other state funding that is unavailable to charter school students. See id , et seq. For example, district school students, but not charter school students, may receive state funding for unrestricted capital outlay (A.R.S (C)), soft capital outlay (A.R.S ), school facilities (A.R.S ), adjacent ways (A.R.S ), 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 , -482, -809, -910, -918, - 949, and -2051). IR 117 and 118 at 33 and 35; id. at Exh. B, 9 and 11. 9

18 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 Stated otherwise, district school students received approximately fourteen percent more in state educational funding than charter school students in fiscal years 2010 and 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

19 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 (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

20 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

21 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, , 798 P.2d 403, (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, (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, , 663 P.2d 570, (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

22 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

23 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, , 56 P.3d 28, (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 Under means-scrutiny analysis, which establishes an intermediate 4 level of scrutiny, a court may uphold a discriminatory law only if it 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

24 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

25 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

26 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

27 to justify classifications premised on district wealth which burdened the fundamental interest in education. Id. at 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, (Wyo. 19

28 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, 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

29 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

30 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, (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 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, 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 Shofstall, 110 Ariz. at 89, 515 P.2d at

31 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 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

32 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 , 877 P.2d at

33 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 (2011) (state lacked compelling state interest in equalizing electoral funding); 25

34 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 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

35 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 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

36 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