Legal Update

1. Legal Update AASBO Spring Conference Laughlin, NV April 2, 2010

2. What We Will Cover • State Litigation • Gilbert v. Arizona – (Career Ladder) • Hobday and Craven cases • General and Uniform • Charter school • Overrides • Rumery v. Arizona – Use of Trust Land proceeds to fund State Land Dept. • AEA Litigation on HB2011 • Status 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

3. General and Uniform: Does It mean “The Same?” • 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.”

4. Gilbert v. Arizona • 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

5. Gilbert v. Arizona • 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funding; no success on legislative front • Though program was put on the books for later implementation and then repealed after economic downturn

6. Gilbert v. Arizona • 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.”

7. Gilbert v. Arizona • 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.

8. Gilbert v. Arizona • 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.

9. Craven and Hobday Cases-- Charter Schools and District Schools 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

10. Rumery v. Arizona • 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)

11. AEA Litigation on HB2011 • 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

12. AEA Litigation on HB2011 • Legal Arguments (offered on special action) • Not related to Gov’s call for special session • Contained in a bill that covers multiple subjects not covered by title of act • Modifies general legislation in an appropriations measure • Violates protections that prohibit contractual obligations • Certain sections are unconstitutionally vague • ASBA will file amicus in case

13. Update on HB2011 Implementation • 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)

14. Update on HB2011 Implementation • 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)

15. Prop. 301 Litigation? • Prop. 301 Litigation • Last December began legal research for potential law suit to enforce Prop. 301 inflation funding req’s • 2% 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

16. Federal Litigation • 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

17. Federal Litigation • 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

18. Attorney General Opinions • 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.

19. Contact Information • cthomas@azsba.org • Thanks for all you do for the students in our schools!