2013 leg workshop legal update

QUALITY LEADERSHIP AND ADVOCACY FOR CHILDREN IN PUBLIC SCHOOLS

Copyright © 2012 Arizona School Boards Association | Private and Confidential | www.azsba.org

Legal Update Chris Thomas, ASBA General

Counsel Tom Pickrell, Mesa Public Schools

General Counsel

What We Will Cover

•  Arizona School Funding Litigation •  Cave Creek USD et. al. v. Ducey (Prop. 301 inflation)

•  School Vouchers and Privatization •  Niehaus v. Huppenthal (Education Empowerment Accounts)

•  Charter School Funding •  Craven v. Huppenthal •  Movement to “charter-ize” district schools

•  Special Education •  SPED certification for substitutes?; IDEA violation of conducting an

IEP or MET meeting without the parent •  U.S. Supreme Court 2013-14 Term •  Other Legal Issues

•  15-511 changes, procurement bid threshold, teacher dismissal appeals, student speech

Arizona School Boards Association | www.azsba.org 2

Arizona School Funding Litigation: Cave Creek USD v. Ducey

•  Challenge to FY2010-11 FY budget in which the Legislature failed to fund inflation in the manner required by Prop. 301 (an inflation factor applied to base level plus other components of revenue control limit); $55 million difference in two approaches of calculating mandate in FY2011 •  State’s position: Appropriations are inherently a legislative

prerogative and the people cannot compel the Legislature to spend money from General Fund

•  Plaintiff’s position: The people are sovereign. The people, through the initiative/referendum process can direct the Legislature to spend money on issues that they believe in and the Legislature are bound to follow



•  Plaintiffs lost at trial court (Judge Ken Mangum); •  Plaintiffs then won unanimous decision out of

Arizona Court of Appeals Div. I (1-15-13) •  Prop. 301 is a referendum covered under the provisions of

the Voter Protection Amendment to the Arizona Constitution (passed in 1998)

•  The people, through the initiative or referendum process, have the power to bind the Legislature’s future exercise of its power and discretion

•  Legislature is legally-bound to fund inflationary adjustments to all components of the Revenue Control Limit, including base level adjustments and adjustments to the transportation formula



•  Arizona Supreme Court (9-26-13): •  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 further proceedings consistent with opinion



•  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 15-901.01 does not have an expiration date!

•  What about the money that was not funded in FY2011, FY2012, FY2013 budgets?


School Vouchers and Privatization: Niehaus v. Huppenthal

•  2011 legislation creating education empowerment accounts for students on IEP or Section 504 plan (expanded in 2012 session)

•  Allows parents to pay for tuition in private school or rehabilitation services or tutoring; •  must agree not to enroll in public school; •  account is set up with 90% of base level support for

student in empowerment account; •  disbursements made from account to provider •  Schools maintain choice of denying students; do not have

to follow state accountability system •  Students leave behind protections of federal law (IDEA,

504)



•  Arizona Constitution, Art. IX, Sec. 10: •  “No tax shall be laid or appropriation of public money made

in aid of any church, or private or sectarian school, or any public service corporation.”

•  Cain v. Horne (2009): •  “For all intents and purposes, the voucher programs do

precisely what the Aid Clause prohibits. These programs transfer state funds directly from the state treasury to private schools. That the checks or warrants first pass through the hands of parents is immaterial; once a pupil has been accepted into a qualified school under either program, the parents or guardians have no choice; they must endorse the check or warrant to the qualified school.”



•  Coalition of education groups, including ASBA, have challenged education empowerment accounts: •  number of options, though increased, are still limited; •  must waive constitutional right – attending a public

school – in order to receive benefit; •  cannot do in a less direct manner what you cannot do

directly; •  no appreciable difference between this program and

the one invalidated in Cain v. Horne. •  NSBA has filed amicus curiae brief in case.



•  Superior Court Judge Maria del Mar Verdin denial of motion for preliminary injunction: •  “The Court does not find that disbursement of

scholarships under S.B.1533 violates the “Aid clause”. Unlike the voucher program in Cain, under the S.B. 1533 program, an account is created for the student where the parent can choose to fund various educational services and programs from more than one entity. The exercise of parental choice among education options makes the program constitutional.”



•  Arizona Court of Appeals (10-1-13) •  Affirmed Superior Court decision •  “The specified object of the ESA is the beneficiary families,

not private or sectarian schools. Parents can use the funds deposited in the empowerment account to customize an education that meets their children’s unique educational needs. Depending on how the parents choose to educate their children, this may or may not include paying tuition at a private school.”

•  Court agreed that method of disbursement and range of options distinguished ESA’s from vouchers invalidated in Cain v. Horne.



•  Plaintiffs appealing to Arizona Supreme Court, where all parties knew it would be decided

•  Expect final opinion by late Spring/early Summer •  Meanwhile, Goldwater Institute moving forward

with expansion of program at Legislature and marketing program to other states that have state constitutional clauses that prohibit aid going to public schools.


Charter School Funding: Craven v. Huppenthal

•  Litigation brought by charter schools alleging overall funding disparity between charter schools and school district schools violates Arizona Constitution General and Uniform Clause •  ASBA intervened in case on side of the state. •  Motion for summary judgment granted in Maricopa County

Superior Court in April 2013. •  Judgment entered for the reasons stated in ASBA’s motion,

i.e., General and Uniform Clause of Arizona Constitution cannot be used in comparing school districts to charter schools because they are, and were designed to be, different types of education institutions.

•  Plaintiffs have appealed the case



$3,200.00 $3,225.00 $3,250.00 $3,275.00 $3,300.00 $3,325.00 $3,350.00 $3,375.00 $3,400.00 $3,425.00 $3,450.00 $3,475.00 $3,500.00 $3,525.00 $3,550.00 $3,575.00 $3,600.00 $3,625.00 $3,650.00 $3,675.00 $3,700.00 $3,725.00 $3,750.00 $3,775.00 $3,800.00 $3,825.00 $3,850.00 $3,875.00 $3,900.00 $3,925.00 $3,950.00 $3,975.00 $4,000.00 $4,025.00 $4,050.00 $4,075.00 $4,100.00 $4,125.00 $4,150.00 $4,175.00 $4,200.00 $4,225.00 $4,250.00 $4,275.00 $4,300.00 $4,325.00 $4,350.00 $4,375.00 $4,400.00 $4,425.00 $4,450.00 $4,475.00 $4,500.00 $4,525.00 $4,550.00 $4,575.00 $4,600.00

$ Am

ount

Fiscal Year

AZ Infla(on Funding 1.6%

Legisla@ve Base Level

Adjusted Base Level

Movement to “charter-ize” district schools

•  Many districts throughout state have moved to convert some of their schools to charters

•  Financial considerations significant •  Loss of capital funding by districts •  Increase in additional assistance to charters •  Financial impact to state general fund

•  Questions about whether districts could serve as both charter operator and charter holder •  Ability to contract with itself •  Clear authority in statute

•  Momentum appears to have slowed •  Question of whether independent governance is required


Special Education: SPED Certification Req’d of Substitute Teachers?

•  Letter of Findings in Tempe Union case by ADE where ADE found district violated rights of student because long-term substitute teacher did not possess special education certification •  No allegation that student was not getting FAPE

•  ADE is stating that Letter of Findings do not constitute widespread policy change and only apply to specific case

•  Problem: Letter of Findings are used to train administrators on what SPED rules are

•  ADE stating that they will be working on rule change to begin in December and have final adoption in January


Special Education: IDEA violation for conducting IEP meeting w/o parent?

•  Doug C. v. State of Hawaii Department of Education (9th Cir. 2013) •  District repeatedly rescheduled IEP meeting after no-

shows/cancellations by parent. •  IEP meeting needed to meet annual review deadline. •  Parent did not attend IEP meeting. IEP team held meeting

without Parent. •  Ninth Circuit: IDEA violated by District. •  Odd Result: Continuing with out of date IEP is lesser evil

than creating new IEP without parent. •  Going Forward: What are Districts to do when parents

neglect or willfully refuse to attend IEP meetings?


U.S. Supreme Court New Term

•  Cert. Denied •  Burlison v. Springfield Public Schools – sniffing dog searches

of purses, backpacks (8th Cir. Upheld SD) •  Kentucky v. N.C. – KYSC ruled student’s statements to

assistant principal about giving prescription pills to other students had to be suppressed because student was not given Miranda warning (questioning was in presence of SRO)

•  A.M. v. Taconic Hills Central School District – middle school graduation speech where religious message involved; district officials censored as being too religious (2nd Cir upheld SD)

•  Hardwick v. Heyward – SD barred students from wearing clothing involving Confederate flags and symbols (4th Cir. Upheld SD)


Other Legal Issues

•  School District Resources and Elections (15-511) •  HB2156 from 2013 •  "Influencing the outcomes of elections" means supporting or

opposing… in any manner that is not impartial or neutral.”

•  Procurement bid threshold •  HB2599 from 2013 •  Bid threshold above $100K; 3 written quotes for $100K to

$50K and 3 oral quotes for below $50K to $10K and no competitive bidding below $10K


Other Legal Issues

•  Teacher Dismissal Appeals •  Is there a right of appeal if Superior Court makes an error in

standard of review? •  Anderson case:

•  Peoria USD v. McClennen, McKee •  ASBA has filed amicus in support of Peoria USD

•  Student Speech •  Discipline of students for off-campus misuse of social media

•  Wynar v. Douglas County School District •  9th Circuit case that defers to school officials judgment over whether

disruption to learning environment has been created •  Counter protest of ethnic pride event

•  Dariano v. MHUSD •  9th Cir. Heard arguments on case where school officials required

students wearing American flag t-shirt to turn t-shirt inside/out on Cinco de Mayo


Questions?


THANK YOU

Copyright © 2012 Arizona School Boards Association | Private and Confidential | www.azsba.org

Documents

2013 leg workshop legal update