Judge sets deadline for Arizona to fix its school funding system

But he's not going to tell them how to fix it.

Instead, Maricopa County Superior Court Dewain Fox said it is up to lawmakers and the governor to come up with a system that complies with a requirement in the Arizona Constitution that all schools have what meets the "minimum requirements'' to ensure that students have what they need to learn, including equipment and well-kept buildings.

But it also means that it is the obligation of the state — and not individual school districts — to provide the dollars to make it happen.

And if Arizona's elected leaders don't make it happen by early November, the judge said he will bar the state from maintaining a funding system that does not meet both the requirements for adequate facilities as well as other capital needs like computers. And what that means is if the state doesn't come up with a constitutionally accepted plan, Fox could simply block the state treasurer from distributing any state funds at all to any schools — something that would effectively shut them down.

The odds of schools being shuttered in November based on the new ruling are slim, and an appeal is expected.

"I think we need to get more clarity on the extent to which the judge can declare things,'' said Senate Majority Leader John Kavanagh. And the Fountain Hills Republican said there's a constitutional issue.

"If we don't have the money, can a judge actually suddenly take over our budget and defund other things?'' he asked.

Fox has already acknowledged he has no right to second-guess decisions by the Legislature on how best to fund public education.

But what courts do have, he said, is the power to determine whether those policy decisions are constitutional. Fox said courts have the power — and are constitutionally obligated — to bar lawmakers from funding an unconstitutional system.

The possibility of an appeal disappointed Marisol Garcia, president of the Arizona Education Association, which is one of the groups that filed suit in 2017.

"For nearly a decade, Arizona educators and district leaders have fought in court to hold state lawmakers accountable for properly funding our schools,'' she said in a prepared statement. "If lawmakers appeal the ruling, they will delay critical funding and force districts to divert more money away from classrooms just to keep aging buildings in working order.''

The new order should come as no surprise to anyone.

It comes decades after the Arizona Supreme Court issued a similar ruling declaring the funding at that time — one that depended solely on each district's ability to raise money — violated that requirement for the state to fund a "general and uniform'' school system and to ensure that all students had what they need to learn.

The legislature eventually enacted some fixes, including setting aside money for each school to use for repairs and construction, as well as spelling out the equipment needs. But those additional dollars largely disappeared as lawmakers said they needed the cash for other priorities.

That led to a new lawsuit in 2017.

In August, Fox issued a 114-page ruling that many schools lack the resources to do everything from provide adequate equipment for students to learn to keep their school buildings in repair.

He cited a laundry list of unmet needs, including, in some cases, buildings that are physically unsafe. And the judge said that the decisions made by lawmakers to not properly fund repairs were short-sighted.

Consider, Fox said, that even state officials in charge of providing funding acknowledged that keeping school roofs in good condition is cheaper than what happens after they start leaking, including exposed mold and asbestos.

Hobbs on Friday said she was aware of the judge's August ruling but had not seen the order setting the deadline to fix the problems.

"But I have worked diligently to try to address the underfunding of our school facilities,'' she told Capitol Media Services, including working with lawmakers to put more money into K-12 education.

But Fox, in his August ruling, said that the governor is not blameless.

The judge said that in planning for the 2024-25 school year, the School Facilities District, the state agency which is responsible for funding construction and repairs, estimated that it needed more than $587 million to meet all the identified needs of all the schools. Yet the Department of Administration, which reports to Hobbs, requested less than $222 million.

"And the governor's budget proposal provided for Building Renewal grant funding of less than $200 million,'' Fox wrote.

That lack of adequate funding, the judge said in his August ruling, has had an effect.

Fox mentioned the Elfrida Elementary School, where there was testimony that the roof leaks when it rains.

"The leaks disrupt the learning environment because students stop what they are doing to position trash cans to collect the dripping water,'' the judge said.

The Bowie school district, he said, needs three new roofs on its schools.

In one case, a leak at the A.R. Spikes High School has caused significant damage to the auditorium's interior ceiling and wall, with the cost of replacement now at $1.25 million.

And at the Bruce Brown Gym, rain poured through the roof onto the bleachers, damaging the ceiling and cracking the brick wall. The estimated replacement cost is $1.98 million.

But it's not just about construction and repairs.

One of the things the Supreme Court ruled in the 1990s is that the state is constitutionally obligated to ensure that students not only have a safe physical environment in which they can learn but also have the equipment they need. And that list is supposed to be kept up to date.

Fox, in his ruling, noted, for example, that the state updated its technology standard in 2023 to say there should be one computer for each student. Only thing is, he said, no funding was provided to districts to actually purchase the items.

Danny Adelman of the Arizona Center for Law in the Public Interest, who represented the districts and education groups that sued, said that's critical.

"When they don't provide sufficient funding to do even what the state said 'This is what is required to enable children to meet minimum academic standards,' then, by definition, you're not giving kids what they need to have a good education.''

Adelman said even the standards themselves haven't always been updated, things like school security.

He said state officials studied the issue in the wake of the 2012 mass shooting at the Sandy Hook Elementary School in Newton, Conn. But recommendations were never put in place.

Fox, in his ruling, took notice. He said schools have been denied money to re-key doors to lock from the inside, installing security fencing around schools, installing features to funnel campus visitors to the office and placing bulletproof film on large windows.

"So what that meant was, mostly only schools that have sufficient local wealth could implement those things,'' Adelman said. "And the other schools couldn't.''

Not every school district has been equally affected.

The judge noted that there are "rich'' districts have that have a property tax base large enough to raise money, often through bonding, for new buildings, repairs and other items. But other districts, he said, do not. And all of that Fox said, runs afoul of that requirement for a general and uniform school system.

For example, he said, Tempe Union High School District has a bonding capacity 3.5 times greater than the Yuma Union High School District. And that means it costs residents in richer districts less money in tax hikes to raise a dollar than the poorer districts.

Aside from the inability of these poorer districts to fund new schools and repairs when the state does not, Fox ruled that the system has other problems.

In Tucson Unified School District, the judge said, the amount of capital funds it gets is not sufficient to maintain its current bus fleet without breakdowns and failed air conditioning. He said the district instead is stuck spending "more and more money to replace part after part'' on vehicles that are past their useful life.

That still leaves the question of how lawmakers eventually come into compliance if their appeals are rejected.

Hobbs said one option is to reinstate what voters approved in 2015 when they agreed to let the state withdraw more funds from a special education trust account to use on current expenses.

That authorization expired last year. And it would take another public vote to once again allow additional dollars — perhaps more than $300 million a year — to be put into K-12 education.

But a vote on that renewal has been sidelined by demands by some GOP lawmakers that all the dollars go only to teacher salaries.

Geneva Fuentes, communications director for the Arizona Education Association, has her own idea of where cash is available.

"They're spending a billion dollars a year on an unaccountable voucher program,'' she said, referring to Empowerment Scholarship Accounts that allow parents to get state dollars -- currently around $7,400 a year -- to send their children to private or parochial schools or home school them. "That might be a good place to start.''

But efforts by Hobbs and Democrats to scale back the program have proven non-starters with Republican lawmakers, who said parents are entitled to choose the best education options for their children and get the money to pay for them.

Aside from declaring the current funding system illegal, Fox also ordered the state to pay more than $6.7 million in legal fees to the challengers.