Chris Thomas, General Counsel

Arizona School Boards Association

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.”

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 will be argued March 11, 2010 in Maricopa County Superior Court

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

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implementation and then repealed after economic downturn

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.”

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.

Special action to AZ Supreme Court deniedChallenged 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

Legal Arguments (offered on special action)Not related to Gov’s call for special sessionContained in a bill that covers multiple subjects not

covered by title of actModifies general legislation in an appropriations

measureViolates protections that prohibit contractual

obligationsCertain sections are unconstitutionally vague

AEA has re-filed case in Superior Court; hearing date scheduled for 5/5/2010

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” procedural issues before the court (HB2226)

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)

cthomas@azsba.org