ROBERT ROBB

Robb: 3 ways to resolve Arizona's education lawsuit

Robert Robb
opinion columnist
the precise amount the Legislature owes for an inflation adjustment remains unsettled legally.

Critics of the Arizona Legislature on education funding aren’t playing fair.

They repeat endlessly, and mindlessly, that the Legislature is ignoring a judicial order to pay the schools more. But there is no final judicial order requiring the Legislature to pay a penny more.

In 2000, voters approved Proposition 301, enacting an increase in the sales tax earmarked for education. Included was a requirement that the Legislature increase a component of the K-12 finance formula, called the base level, for inflation. The base level is a per-pupil amount that is then adjusted for various factors.

BOTH SIDES HAVE A RIGHT TO APPEAL

The state Supreme Court has held that the Legislature cannot ignore that requirement. It remanded the case to Superior Court.

There is now a legal dispute between the Legislature and the schools about how to calculate the inflation adjustment.

In some years, the Legislature increased the base level by more than inflation. The Legislature contends that inflation should be calculated from the fiscal year 2001 base level. That would yield an additional $74 million this year, which the Legislature has appropriated.

The schools contend that the inflation adjustment should be calculated year to year. So, if the Legislature increased the base level by more than inflation in any year, that becomes a new base and the extra increase is, in effect, compounded over time. That would generate an additional $336 million, or $262 million more than the Legislature appropriated.

A Superior Court judge sided with the schools. The Legislature appealed. That appeal is pending.

So, the precise amount the Legislature owes for an inflation adjustment remains unsettled legally. And, far from ignoring what the state Supreme Court said, the Legislature appropriated what it concedes it owes under that decision.

The few critics willing to acknowledge the true legal status demand that the Legislature drop its appeal and just pay what the Superior Court judge decided.

Well, the first Superior Court judge to consider the matter decided the Legislature didn’t owe a cent, not even the $74 million it has now appropriated. This was based on the legal view that the voters, acting in their legislative capacity, couldn’t bind subsequent Legislatures acting in their legislative capacity.

The schools appealed that decision. And the schools won on appeal.

So, when the schools lose at the Superior Court level, it’s OK for them to appeal. But when the Legislature loses at the Superior Court level, it should forgo an appeal?

There’s a technical legal term for this: hypocrisy.

LAWMAKERS HAVE NOTHING TO IGNORE

So far, there is no legal decision that the Legislature is ignoring. There is the possibility that, at some point, there will be a final court order involving a sum that could, as a practical matter, only be met with a tax increase. The Legislature might well refuse to enact one or appropriate the sum ordered. And then we would have a constitutional crisis.

But that day is still a ways off. And if the rhetoric could cool, and cooler heads prevail, there’s no reason it needs to be approached, much less reached.

After settlement discussions failed, Senate President Andy Biggs and House Speaker David Gowan floated a plan to get more money to the schools. Critics reflexively derided it.

Part of the plan, however, included appropriating an additional $100 million from the state’s general fund. That would reduce the amount in dispute to $162 million. In any reasonable universe, that’s progress.

I believe the opportunity is ripe for a grand political compromise consisting of the following components.

AVOID THE MESS AND TRY THIS COMPROMISE

First, the lawsuit is suspended, not settled. Neither side gives up its legal position.

Second, the Legislature appropriates from the general fund for this year and next an amount near what the schools believe is owed. State surpluses could accommodate this.

Third, Gov. Doug Ducey’s state land proposal, which would generate approximately what the schools claim is owed, takes over for the five years after that.

That would get the schools what they believe they are owed past the expiration of Prop. 301 in 2021, at which point all bets are off anyway. And without putting the state’s general fund at risk.

There’s a reasonable way out of this.

Reach Robb at robert.robb@arizonarepublic.com