Legal Update: A Run-Down of the Latest from the Courts and the World of School Law

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1 Legal Update: A Run-Down of the Latest from the Courts and the World of School Law Chris Thomas, ASBA General Counsel/Director of Legal & Policy Services

2 What We Will Cover State Litigation Federal Litigation Pending State Legislation with Legal Implications Attorney General Opinions and Decline to Review Opinions Issues in the News and School Law

3 State Litigation Cave Creek USD v. Ducey Prop. 301 inflation funding case Where are we? Where do we go from here?

4 Arizona School Funding Litigation: Cave Creek USD v. Ducey Arizona Supreme Court ( ): Unanimously affirmed Court of Appeals decision The Voter Protection Act fundamentally altered the balance of power between the electorate and the legislature. Attorneys fees awarded Case remanded to superior court for entry of declaratory judgment in favor of plaintiffs and to determine scope and form of relief Arizona School Boards Association 4

5 Arizona School Funding Litigation: Cave Creek USD v. Ducey Two Big Issues for Superior Court: What is the base that the Legislature must fund in order to comply with the judgment? Is it the current base or is it the base that it would be if adjustments had been made as required by law? Plaintiffs position: the base must be adjusted for amounts not given in previous budgets Would require increase of over $300M in FY2015 Not funding this amount have exponential effect in future years REMEMBER: Although the sales tax in Prop. 301 will expire in 2021, the inflation adjustment in does not have an expiration date! What about the money that was not funded in FY2011, FY2012, FY2013 and FY2014 budgets? Arizona School Boards Association 5

6 AZ Inflation Funding 1.6% $ Amount $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $4, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, $3, Legislative Base Level Adjusted Base Level Fiscal Year Arizona School Boards Association 6

7 Arizona School Funding Litigation: Cave Creek USD v. Ducey December 2013: Informal settlement proposal by plaintiffs to state 1. No back pay 2. Reset would need to be complied with Legislative response: reset is a non-starter only willing to comply from this point forward using existing base Want credit for gratuitous increases given beyond what was required in previous years

8 Arizona School Funding Litigation: Cave Creek USD v. Ducey July 11, 2014: Judge Katherine Cooper of Maricopa County Superior Court rules: 1. All components of the state funding formula must be adjusted for inflation each year in the manner prescribed by statute (not just the transportation level but also the much more substantial base level). 2. Base levels for fiscal years must be reset to what they would have been if they had been adjusted for inflation. For FY , this base level should be $ (instead of the $3, that has been approved by the Legislature). 3. The revenue control limit for school districts in fiscal years must be corrected with the appropriately adjusted base levels for those years. 4. An evidentiary hearing will be held (that date is to be determined July 18) regarding the inflationary funds not provided in FY (This is the so-called back pay issue for lack of a better term.)

9 Arizona School Funding Litigation: Cave Creek USD v. Ducey : Judge Cooper issues partial judgment in case resetting the base levels for years FY to FY State has appealed to Arizona Court of Appeals October 2014 Evidentiary Hearing on Back Pay Ruling pending

10 Arizona School Funding Litigation: Cave Creek USD v. Ducey January 2015: Judge Cooper urges parties come together to engage in settlement conference Three judge panel: Judges Peter Swann, Kenton Jones and John Gemmill Have met with parties Absolute gag order on state of discussions

11 Arizona School Funding Litigation: Cave Creek USD v. Ducey Things to keep in mind in litigation: Legislature can still direct funds be spent in a particular way Legislature can still cut education funding in other places funding weights, additional assistance, override/bond amounts and election procedures, etc. Districts should adopt wait and see approach

12 Craven v. Douglas Plaintiffs: Arizona s public school finance system violates the equal protection and general and uniform clauses of the Arizona Constitution because charter schools receive less funding per student than district schools.

13 Craven v. Douglas Maricopa County Superior Court (J. Gama): General and Uniform Claim: "Plaintiffs contend that Arizona s public school financing system violates the general and uniform clause because the system itself creates substantial disparities in funding between charter and district schools... The Court disagrees. First, disparate funding must be reviewed in the context of adequacy of education Plaintiffs do not dispute that Arizona s charter schools provide an adequate education. Second, Roosevelt I and its progeny address disparities in funding among the same type of public schools (district schools), not between different types of public schools (charter and district schools) Because charter and district schools are different, the Legislature may fund them differently without running afoul of the general and uniform clause.

14 Craven v. Douglas Maricopa County Superior Court (J. Gama): Equal Protection Claim: Arizona s public school financing system funds charter and district schools differently because they are different... Charter schools are largely exempt from the multitude of statutes and regulations thatgovern district schools The capital needs of charter and district schools are different. Plaintiffs contend that differences are irrelevant because their claim belongs to public school students, not public schools This contention misses the point. Students do not receive funding for education. A rational basis exists for the Legislature s decision to fund charter and district schools differently

15 Craven v. Douglas November 2014: Arizona Court of Appeals affirms Motion to Dismiss Plaintiffs have filed Petition for Review before Arizona Supreme Court ASBA on the side of state and joined in response to petition for review (urging Arizona Supreme Court to not take case)

16 Peoria USD v. McKee Public Records Decision Arizona Court of Appeals: Superior Court improperly assessed the promptness of the District s response as it related to the production of individual documents, rather than in the context of the District s overall response to a multi-pronged request for documents. Reversed judgment and vacated the attorneys fee award.

17 Capital Litigation? Brought by Tim Hogan of Arizona Center for Law in the Public Interest Still on hold while plaintiffs are lined up State has eviscerated Students FIRST

18 Federal Litigation: EEOC v. Abercrombie & Fitch Sales (USSC out of 10 th Cir.) Employer not be liable under Title VII for failing to accommodate an employee or prospective employee s religion unless the employer has actual knowledge of the need for the accommodation; NSBA filed amicus in case

19 Federal Litigation: Acosta v. Huppenthal (9 th Cir) Constitutionality of Arizona s Ethnic Studies ban The law prohibits courses that promote the overthrow of the U.S. government, kindle ethnic resentment, foster ethnic solidarity or treat students as members of a group rather than as individuals. District court in Arizona upheld the law with the exception of the provision making it illegal to design a course for a particular group of students. Plaintiffs argued that the law is too vague, limits the free speech of teachers and students, and discriminates against Mexican-Americans in violation of the Constitution s equal protection clause in the 14th Amendment.

20 Federal Litigation: D.A. v. Meridian Joint School District No. 2 (9 th Cir.) Whether a diagnosis of autism itself is sufficient to qualify a student for special education services under the Individual with Disabilities Education Act (IDEA). District court ruled in favor of the school district, holding that such a diagnosis alone would not make a student eligible under the IDEA for special education services NSBA, along with the state school boards associations for Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington State, and the Washington State School Directors Association, filed an amicus brief

21 Pending State Legislation with Legal Implications SB1435 (Allen) Open Meeting Law doesn t apply unless official action takes place SB1339 (Shooter) Defense to access of public records if request is burdensome or harassing SB1459 (Ward, Miranda) Limits a schools use of restraint and seclusion techniques on pupils and stipulates various reporting requirements for schools. HB2613 (Petersen) Timing of Pro District Communications Around Election

22 Attorney General Opinions Decline to Reviews Student that has graduated under the age of 21 eligible for ADM at JTED (R14-001, R13-022) Board has authority to select Board President more often than at organizational meeting held after an election but should have policy in place to support this action (R14-004) Districts may enter into contracts with salaried employees that provide that the salary be paid in equal pays according to District s pay schedule without violating Arizona Constitution s Gift Clause (R14-006)

23 Attorney General Opinions Decline to Reviews A district may not transport non-iep students from a point in a non-adjacent district that is more than 20 miles from its receiving school even if the district is not seeking reimbursement for mileage -- because A.R.S must be read with other transportation statutes and the Gift Clause of the Constitution which limit the authority to provide such transportation (R14-014) A governing board can determine qualifications for their superintendent that do not include a superintendent s or a supervisor s certificate consistent with A.R.S and any requirement expressed or implied in Arizona Administrative Code which is contrary to this does not have the effect of law (R13-019)

24 Issues in the News and Law Immunization Opt-Outs (et. seq.) provides for exemptions if parents sign statement saying they understand the risks and choose to not immunize You may keep these students away from school if there is an outbreak (A.R.S ); can put employees that are not immunized on leave without pay during outbreak

25 Issues in the News and the Law State Superintendent Authority Over State Board of Education Staff (A.R.S vs ) The state board of education shall (A)(6): Prescribe the duties of its employees if not prescribed by statute The superintendent of public instruction shall: (4): Direct the work of all employees of the board who shall be employees of the department of education. Attorney General Opinion (I85-013) the staff of the Arizona State Board of Education [SBE] work for the State Board.

26 Issues in the News and Law District/Superintendent Lobbying Efforts and A.R.S does not apply to lobbying for legislation EXCEPT: C. An employee of a school district or charter school who is acting as an agent of or working in an official capacity for the school district or charter school may not give pupils written materials to influence the outcome of an election or to advocate support for or opposition to pending or proposed legislation.

27 Questions?

Updated: March 27, 2015

Updated: March 27, 2015 AEA s Education Bill Tracking List Bills that are still moving through the legislative process. Listed numerically by House bills and then by Senate bills. HOUSE BILLS HB2153 tax credits; STOs; preapproval;