The Mayes Effect

GOP lawmakers shouldn't reject the possibility of a settlement in the district school funding case out of hand. Instead, the focus should be on parity for charter schools.

One of the major consequences of the transition in the attorney general’s office from Republican Mark Brnovich to Democrat Kris Mayes has already occurred. And I’m not referring to abortion.

In 2017, some school districts and education organizations filed a lawsuit claiming that the state was underfunding the capital needs of district schools, principally major repairs and maintenance projects for existing facilities. 

Brnovich was contesting the lawsuit comprehensively, including arguing that the adequacy of the funding wasn’t something for judges to decide. 

Mayes has reversed that and some other positions Brnovich was taking on behalf of the state in the lawsuit. And she has asked, and was granted, a delay in the trial, to pursue a settlement in the case.

That’s not entirely objectionable. Given the healthy condition of state finances, and what is already being spent on what is known in budget wonk circles as building renewal, there is a decent prospect of a reasonable settlement.

However, the move raises two fundamental questions: Who should decide what the state’s position is in cases such as this? And what role, if any, should judges play in deciding how much taxpayer money should go to support K-12 schools?

First, some background and context.

Since statehood, the state constitution has contained a provision stating that “(t)he legislature shall enact such laws as shall provide for the establishment and maintenance of a general and uniform public school system….”

And since statehood until the 1990s, that system included meeting the major capital needs of the district schools through locally approved property tax assessments.

In the 90s, the Arizona Supreme Court found that disparities in property tax bases rendered a system that was not general and uniform. And the court ultimately opined that the only way to make the system uniform was for the state to establish minimal building standards and ensure that all district schools had the funding to meet those standards.

For major repairs and maintenance projects, a building renewal funding formula was concocted. But from the get go, the formula was recognized as flawed and excessive. Even Janet Napolitano, at a time when state finances were flush, declined to fully fund the formula.

After the housing-bubble recession, the legislature provided no funding for building renewal for several years. When funding was resumed, the program was changed from a formula to a grant program. District schools wanting state funds for major repairs or maintenance projects apply for it.

At the time the lawsuit was filed, the appropriation for building renewal grants was just $32 million a year. Today, it’s up to $200 million.

One of the fundamental precepts of the separation of powers is that the power of the purse rests with the legislature. Not with the attorney general, nor with the governor acting unilaterally. Nor with judges for that matter. 

There are hundreds of millions of dollars of taxpayer money in play in this lawsuit. What taxpayers are going to pay for the upkeep of district schools should be decided in the legislature, not in a settlement conference between the AG and the plaintiffs, with the outcome blessed by a judge and the bill handed to the legislature for payment.

There is the precedent from the 1990s. But much has changed since then. Charter schools were just getting started in the 1990s. Today, they educate roughly a fifth of all public school students in the state.

The physical facilities of the charter schools differ wildly, from full-scale campuses to storefront startups. The charters don’t get capital funding from the state and aren’t included in the building renewal funding. 

Last session, universal vouchers were approved for students attending private schools. Again, the physical plant of private schools differ widely.

Today, it’s difficult to maintain that state-dictated cookie-cutter school facilities are a necessary component of a general and uniform school system. The system is general and uniform in the sense that all students have the same options and choices regarding an education environment that best serves their needs and interests. 

I don’t think the current state Supreme Court would have ever adopted as prescriptive an intrusion into the capital funding of district schools as the 1990s court did. The current justices have shown a willingness to overturn precedent. If this case were to reach them, they might find that the legislature has greater leeway than the straitjacket imposed by the 1990s court. 

But, then again, they might not. Litigation is a risk that serves the interest of neither schools nor taxpayers.

Gov. Katie Hobbs says that her budget will propose a substantial increase in capital funding for district schools. Republican lawmakers should not reject it nor the possibility of a settlement out of hand. 

Instead, the GOP focus should be on parity for charter schools. A large infusion of capital funding for district schools would exacerbate the funding disadvantage charters already face.

The lodestar shouldn’t be equality in physical facilities, but equality in per-pupil funding irrespective of the school attended.    

Reach Robb at robtrobb@gmail.com.