Litigation Backgrounder

Arizona Parents Seek
More School Choice,

Not More School Funding In Lawsuit Intervention

Introduction

In a case with the potential to reshape the landscape of education in the Grand Canyon State and beyond, the Institute for Justice Arizona Chapter announced on March 7, 2002 its filing of a Motion to Intervene in a lawsuit against the State of Arizona.  This case presents two sharply divergent views of education reform.  On one side, seven failing school districts claim they have a right to more money.  On the other side, the Institute for Justice Arizona Chapter argues that at-risk children trapped in failing schools have the right to an education now.

The lawsuit, which was filed in Arizona Superior Court, Maricopa County by the Arizona for Law in the Public Interest, seeks to declare the State’s financing system unconstitutional on behalf of school districts that want more money, ostensibly to educate high percentages of at-risk students.  The Institute for Justice Arizona Chapter seeks to intervene to show that giving failing school districts more money will not cure the school children’s educational deprivations.

The Institute represents low-income parents whose children are at risk of failing in school because their school districts do not provide them with the instruction necessary to have a meaningful opportunity to acquire the basic education guaranteed in the Arizona constitution.  While these children are sentenced to occupy seats in failing school districts, their parents are prohibited from exercising the freedom to direct the education funds designated to educate their children to private schools that have a demonstrated track record of successfully providing the constitutionally required instruction to these at-risk children.

The intervention seeks to obtain for the parents the share of state education funds allotted for their children to pay for the tuition at private schools chosen by parents to help their at-risk children overcome burdens to their achieving the academic standards set by the State of Arizona.  The Institute for Justice Arizona Chapter seeks a voucher remedy for violations of state constitutional guarantees.  The Institute for Justice plans to place on trial the defective school districts that deny at-risk students access to the private schools capable of giving them the help they need to succeed.

The Tragic Status Quo

Seven such school districts have filed a suit in Superior Court in which they admit that they are failing to provide the necessary opportunities to students from low socioeconomic backgrounds. [1]   Each of the districts has a high number of at-risk students.  These seven school districts had the unmitigated gall to sue the state in an effort to get the court to subsidize their failure as a remedy for the deprivation of the constitutional rights of at-risk students to a basic education that the school districts dereliction has caused.  Such a bold petition is much like an automobile manufacturer that sold a lemon to a customer asking the court for more money to build more lemons, rather than the court ordering the common sense remedy of returning the customer’s money, so she can go out into the marketplace and buy a replacement car that works.  The families whom the Institute for Justice represents simply want schools that works.

Tragically, many low-income students in the failing school districts cannot obtain the basic education guaranteed to all the children of Arizona by the state constitution. [2]   Following are the percentages of students in the school districts meeting or exceeding the standards in 2001 set by the Arizona Instrument to Measure Standards (AIMS), a test that measures how well Arizona students are mastering the knowledge and skills mandated at each grade level to progress through school: [3]

		Reading	Math
Creighton Elementary District		34%	60%
Murphy Elementary School District		26%	44%
Crane Elementary District		54%	67%
Pinon Unified District		10%	27%
Globe Unified		46%	66%
Tolleson Union High School		22%	56%
Tolleson Elementary		24%	46%

                                                                                     

The figures demonstrate that the Plaintiff districts are failing to educate too many of their students.

Unlike Arizonans with greater economic resources, low-income families often cannot afford to move to communities with good schools or to send their children to private schools designed to meet the needs of their children.  As a practical matter, their children are often consigned to failing schools that imprison them in a cycle of poverty and despair.

The Intervenors

In its effort to intervene in Crane v. State of Arizona, the Institute for Justice Arizona Chapter represents low-income parents and their children in the derelict school districts.  The rights violated by the State of Arizona’s failure to hold these failing school districts accountable to state law belong to the low-income students represented by the institute, not to the school districts.  The lead plaintiff in the families’ intervention is Maria Canto, who is struggling to provide for five children, two of whom, Jaime and Alex, are trapped in the admittedly failing Murphy School District.  She longs to rescue them by placing them in the same private school that her eldest son, Jose attends.  Jose receives a scholarship to St. Mary’s School and is treated with care and respect and is receiving the education he is guaranteed by the State of Arizona.  Jaime and Alex are trapped in the Murphy School District and seem destined to become additional statistics in the ever-growing tragedy of lost American dreams killed by failed public schools in low-income neighborhoods.

Clarence and Martha Patchin are the parents of Colleen, an eighth grader, who was not receiving her constitutionally entitled instruction in the Creighton School District.  Despite their modest means, they were compelled to rescue their daughter from the failing school and place her in a private school.  The Patchins were forced to undergo considerable expense to save their daughter from the harm caused by the school district’s failure to meet its constitutional mandate.  

The seven failing school districts merely want more money to subsidize their failure.  The rights of children to have an equal opportunity to the basic education guaranteed by the state constitution cannot be vindicated by throwing good money after bad.  The school districts present no empirical data in support of their assertion that the inequities in educational opportunity are caused by a lack of funding.  In fact, it is not a lack of funding that causes the inequities but rather a lack of educational choices for the parents of the at-risk students to direct the allotted funding to the schools best situated to meet their needs.

The United States Supreme Court has unanimously held that the Individuals with Disabilities Act (“IDEA”) entitles students with certain disabilities to school vouchers to pay for the tuition at the schools equipped to assist them in overcoming their disabilities. [4]   Children at risk of not getting a good education in the public schools because of their socioeconomic status should likewise be given the freedom to obtain school vouchers to allow them to attend the private schools that will assist in overcoming the educational challenges confronting them in the quest to achieve the state mandated education standards.  It is the lack of choice inherent in the state’s school funding scheme that is the cause of the inequity for which relief is sought.

More Money is Not the Answer

The seven derelict school districts allege that their failure to provide the children of low socioeconomic status the instruction necessary to provide an equal opportunity to meet the basic educational standards mandated by the State is merely a lack of funding.  The Plaintiffs ignore the demonstrable fact that granting more money to the violating districts is no guarantee that the deprived students will be made whole. 

The folly of this assertion is illustrated by taking note of the disparate results of two schools in the Crane Elementary School District.  The HL Suverkrup Elementary School and the Ronald Reagan Fundamental School are both in the Crane district.  The schools are the same size and educate students of similar socioeconomic status.  HL Suverkrup Elementary schools spends $4,851 per student.  Ronald Reagan School spends a mere $3,474—a difference of 39 percent.  The Ronald Reagan School performs substantially better than HL Suverkrup while spending substantially fewer dollars per student. [5]   Ronald Reagan’s students scored in the 74^th percentile nationally in reading and 84 percent of fifth graders achieved the state-wide reading standards.  The Suverkrup students achieved only the 44^th percentile nationally in reading and only 37 percent of fifth graders met the state reading standard.  The Ronald Reagan School provided much more successful instruction for 39 percent less expenditure per student.  Empirically, money is not the problem.

The proposition that Arizona’s failing schools can merely spend their way into compliance is dubious.  Any exception to the claim that simply pouring on additional money will bring the failing schools into compliance disproves the rule.  Between 1980 and 2000, America increased its federal, state and local funding for schools by more than 72 percent in real dollars.  Yet, academic achievement scores in elementary and secondary schools have, by and large, remained flat. [6]    Per pupil spending has nearly doubled in constant dollars over the past three decades, yet there is little corresponding increase in student achievement. [7]

Researchers Herbert J. Walberg and William J. Fowler, Jr. studied the relationship between per pupil expenditures and success in the classroom in New Jersey.  They found that per pupil spending ratios were not linked to classroom success.  “It is not the level of expenditure that counts in learning,” they reported, “but what teachers do.” [8]

School Choice

Nearly 50 years ago, the United States Supreme Court established the constitutional imperative of equal educational opportunities.  The Arizona Constitution and laws guarantee that every child in the Grand Canyon State shall be provided with not only the federally mandated equal opportunity to an education, but also that the education shall meet a basic standard. [9]   Yet today, thousands of children are trapped in admittedly failing schools.  Since 1994, Arizona school districts have been suing the State for more money.  Arizonans have passed propositions raising taxes to meet the calls of the education professionals.  Yet, the failure and deprivation continues unabated.  Children need their education now.  Allowing parents to direct funding to the successful schools in compliance with the Arizona constitution and the law would provide the real and immediate relief mandated by justice and law.

The seven districts bringing this suit admit that they have failed to meet those required standards for low-income students.  They contend that low-income students are more expensive to educate than middle-class students and students from affluent households.  Yet, the school districts submit no empirical data to support their gratuitous assertion.  Thus, one is left with merely their admission that they are violating the Constitution and the laws of Arizona.  Justice cries out to free the families of these at-risk students to liberate their children from these failing schools, at least until such time as the schools come into compliance with the law.  The students should not be forced to remain in the failing schools one more day.  They should be permitted access to private schools that provide the instruction to which these children are legally entitled.

By contrast, school choice programs in Milwaukee, Cleveland, Florida and elsewhere demonstrate positive results:  not only for children who move to private schools, but also for the school systems as a whole.  In Milwaukee, public school officials concede that school choice has prompted long overdue public school reform and improvement.  In Florida, where students in failing public schools receive scholarships, public school performance and test scores for the poorest performing schools have improved markedly. [10]   Spending more money on failing schools is not the answer absent the accountability of parental choice.

Litigation Strategy

Educational liberty is deeply embedded in our constitutional heritage. [11]   However, in the nearly five decades since Brown v. Board of Education in 1954, the courts have focused on educational equality, rather than liberty or opportunity, as the constitutional touchstone, and have imposed sweeping remedies to achieve racial balance or funding equalization.  IJ’s proposed remedy is designed to achieve the equality of opportunity not through increased funding, but through increased liberty.  Without such liberty, low-income students in Arizona will continue to fall victim to admittedly failing schools.  With such liberty, parents will be granted the power to choose schools their at-risk children will attend and provide them with the basic education guaranteed by the Arizona constitution.

In Roosevelt Elementary School District v. Bishop, the Arizona Supreme Court recognized that education is a fundamental right with respect to equalized funding for facilities, curricula, equipment, supplies and other indicia of equal educational opportunity. [12]   The Plaintiff school districts want more than equal spending, but without accountability.  Until the schools provide such educational quality as is called for in the Arizona constitution and law, additional funding should not be forthcoming.

Litigation Team

Thomas P. Liddy, who recently joined the Institute for Justice Arizona Chapter, leads the litigation effort.  Liddy is the former Deputy Counsel at the Republican National Committee and received his law degree from Fordham Law School in 1992. Clint Bolick, Vice President of the Institute for Justice and the Director of State Chapter Development assists the litigation effort.  Bolick is a veteran public interest litigator who heads a nationwide school choice effort, culminating in a recent landmark case involving the constitutionality of Cleveland’s voucher program before the U.S. Supreme Court in Zelman v. Simmon-Harris. He received his law degree in 1982 from the University of California at Davis.  Timothy D. Keller, a staff attorney at the Institute for Justice Arizona Chapter, who received his law and Arizona State University’s College of Law in 1999, also assists in the case.

Conclusion

The need for positive change is urgent.  Arizona simply cannot afford to sacrifice another generation of low-income children, while increasing investment in education without results.  IJ believes this education test case has great potential to shake up the education establishment in Arizona and lead the way toward greater choice, competition and accountability.

For more information, please contact:

John E. Kramer

Vice President for Communications

Institute for Justice

1717 Pennsylvania Ave., N.W., Suite 200

Arlington, VA  22203

(703) 682-9320

This e-mail address is being protected from spam bots, you need JavaScript enabled to view it