Prop. 123 Deemed Unconstitutional

Capitol Media Services reports that yesterday, a Federal judge ruled Governor Ducey’s funding scheme, that became Proposition 123, is unconstitutional. Judge Neil Wake “said the federal Enabling Act that made Arizona (and New Mexico) a state in 1912 and gave it lands to hold in trust for schools allows the state to use only the interest off the money earned. The idea, Wake explained, was to preserve the body of the trust – and the future interest it would earn – for future generations.” Wake deemed that Prop. 123, the solution to settle the lawsuit filed in 2010, does not comply with that law.

“Nowhere in the history does anyone request or suggest that Congress give unfettered discretion to either state or that it was abdicating its oversight obligations under either state’s Enabling Act,” he wrote.

Ducey’s attorney however, said there is a provision in recent federal legislation that authorizes future payments from the trust that help fund the school finance formula, but also ratifies the $344 million in payments already made. The Governor’s press aide, Daniel Scarpinato, said, “We’re not terribly worried”.

The federal government originally gave Arizona about 10 million acres, of which 9.2 million remain. About $4.8 billion currently exists in the trust from sales and leases of the land. At pre-Prop. 123 withdrawal levels, the fund was estimate to grow to about $9 billion by 2025. Post Prop. 123, the account is projected to grow to only $6.2 billion.

“The schools’ current incentive to get extra money for their current needs is at odds with the interests of future Arizona students,” the judge said. “Congress’s conscious plan to vest all citizens with property rights in the trust was necessary to uphold the trust against collusive violations.”

Even though it was passed by voters in 2016, Prop. 123 was very controversial from the beginning with AZ Treasurer Jeff DeWitt warning Governor Ducey that the radical change to use of the state trust lands could only be made by amending the Enabling Act. Education advocacy organizations such as the Arizona School Boards Association and the Arizona Education Association, agreed to the settlement in order to avoid more years of litigation and get critical money to the schools sooner rather than later.

Prop. 123 has helped our starving schools with $491.5 million more received FY 2018 versus 2015. With this funding, districts hired 1,791 more full-time teacher equivalents during that time and increased the average teacher salary by $2,044. All in all, districts put 90% of Prop. 123 funds into paying and hiring teachers, with the other 10% used to comply with the new minimum wage increase, help fund building maintenance and renewal (cut by the Legislature nearly $2.4 billion since 2009), and give raises to employees in instructional and teacher support (who had also experienced salary freezes.)

I’m sure there will be much more to come on this issue. Two things though, are for certain. First, the AZ Legislature’s raiding of district funding caused this problem in the first place, leaving Arizona K–12 per pupil funding with the highest cuts in the nation from 2008 to 2014. Secondly, if the Prop. 123 funding is taken away, Arizona citizens MUST demand that Governor Ducey and his Legislature find new revenue for our district schools. Even with Prop. 123, our teachers are the lowest paid in the Nation, and our schools have almost $1 billion less in annual funding that prior to the recession. The situation is dire, and the legislation recently forwarded to Governor Ducey for signature to extend the Prop. 301 sales tax at current levels doesn’t do anything to fix it.

It is time for real leadership. If it doesn’t come from our Governor and Legislature, it MUST come from the voters in August and November.

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The Bucks Stop Here

The latest talking point about education funding coming out of GOP leadership at the AZ Legislature is that “teacher raises are the responsibility of school districts, not the state.” Senate Education Committee Chair Sylvia Allen, recently said this as week as that districts “did not use Prop 123 monies to give teacher raises” and then that “some did and some didn’t.” And, she made the point that districts also used the funds to give administrators raises.

Well, technically, she is not wrong. School district governing boards are responsible for approving the budgets for their districts, or rather, how those budgets are sliced and diced. Some districts used more of the Prop 123 monies than others to give teachers raises. And, yes, some administrators were also given raises, but keep in mind that these “administrators” aren’t necessarily just district superintendents and principals. The administration line item also includes business managers, clerical and other staff who perform accounting, payroll, purchasing, warehousing, printing, human resources and administrative technology services. And, even if some districts gave raises to superintendents and principals so what? Truth is, the state has a shortage of these personnel as well.

Toward the end of 2016, the Arizona School Boards Association asked 83 districts across the state how they used their Prop 123 funds for FY2016 and how they budgeted for them to be used for FY2017. The survey showed that a majority of the school districts spent the 2016 funds on teacher or staff raises. For 2017, 75 percent was budgeted toward compensation increases. Some districts were forced to also use the funds to restore cut classes and programs, purchase classroom resources and technology, replace out-of-date textbooks, make overdue facility repairs, and replace old buses.

Let’s face it, Prop 123 provided very little “new” funding to school districts, it really was just 70% of that which was already owed. It did not provide sufficient monies to make up for increasing general operating costs and severe funding cuts made by the state – $4.56 billion since 2009. These cuts included $2 billion to capital funding (including technology, textbooks, desks, building repair and maintenance and school bus purchases) and $1.5 billion for full-day kindergarten (which many districts still provide out-of-hide because it is critical to student achievement.) The Legislature also currently funds just 20% of what the law requires them to for building of new schools and major school repairs via the School Facilities Board. That’s why public education plaintiffs have filed another lawsuit (the first suit over this same issue was in 1994) to force compliance with the state’s obligation to “adequately fund the capital needs of public schools under a 1998 court ruling.” In fact, Arizona is one of only a handful of states still cutting today, even in a steadily improving economy. Because of these cuts, district governing boards have been faced with very tough decisions about which holes to plug first and as the ones closest to the ground, they are the right ones to make it.

But, it is totally disingenuous of Senator Allen to intimate that school boards “chose” to not give their teachers sufficient raises. First of all, the vast majority of districts did give teachers significant raises (my very small district for example, gave 7%.) Secondly, forced to deal with the highest cuts in per pupil funding in the nation, Arizona school districts are not even remotely close to the “self-actualization” level on Maslow’s Hierarchy of Needs, but just barely at the safety and security level. District leaders are faced with daily decisions about how best to just keep students safe in light of deteriorating facilities and aged buses.

Allen and her legislative cronies can deflect all they want, but the state constitution is clear, “The LEGISLATURE shall enact such laws as shall provide for the establishment and maintenance of a general and uniform public school system…” STATE lawmakers, not school district governing boards, are responsible for ensuring adequate funding for the “maintenance of a general and uniform public school system.” District governing boards may have responsibility for slicing up the pizza pie they are served, but just like a personal pan pizza won’t serve a family of four, state education funding that has been cut 23.3% since 2009, just doesn’t provide enough to go around. And, with the 0.6% state sales tax funding from Prop 301 set to expire in 2021 (not to mention the Prop 123 monies disappearing in 2025), it is only going to get worse. If only Senator Allen would remember and act on the saying: politicians think of the next election, leaders think of the next generation. And just in case she didn’t quite understand the nuance, President Truman’s famous saying appropriate here is “the buck stops here”, not “the bucks stop here.”

123: Show Me The Money!

Since the passage of Proposition 123, I’ve heard people ask where the money went. Did it really go to raise the salaries of Arizona’s teachers?

An August 2016 survey on Prop. 123 funding conducted by the Arizona School Boards Association and the Arizona Association of School Business Officials had 83 school districts (representing over half of Arizona’s students) respond. The survey largely reinforced the narrative that adequate compensation to attract and retain teachers towers as the top priority statewide. Most of the districts concentrated their Prop. 123 funding in teacher and staff bonuses for FY2016, and a full 74% of districts budgeted the additional FY2017 funds for the same.

Survey responses from across the state (21% urban, 24% suburban, 53% rural and 2% remote) affirmed the varied needs of our district schools and for locally elected governance. In some cases, the funding priorities were supplies, textbooks, technology and school building maintenance and repair, all of which support the learning environment.

The need to buy essential supplies and services with the funds should surprise no one. After all, the Arizona Legislature has cut more than $2 billion in district funding since FY2009. In addition to impacting the ability to fund the needs listed above, the cuts eliminated state funding for full-day kindergarten and ninth grade career and technical education students. Let’s not forget Prop. 123 provided no new funding to help offset these cuts. Rather, only 70% of what the voters had already mandated and the courts adjudicated. It was better than nothing, but after years of hollowing out district resources, the funding was rapidly absorbed by the many pressing needs districts had long deferred.

One clear example of those pressing needs is the severe teacher shortage facing Arizona. A recent survey of 130 school districts and charter schools conducted by the Arizona School Personnel Administrators Association found almost 8,200 teacher openings for the 2016-2017 school year. By August 28, 2016, 47% of these remained vacant or were filled by individuals not meeting standard teacher requirements.

With fewer college students pursuing a teaching career and a wave of teachers soon eligible for retirement, this problem is only going to get worse and is proof positive that Prop. 123 was not the solution, just a step in the right direction. Almost three-fourths of Arizona’s registered voters agree, stating in a recent Arizona Republic/Morrison Institute/Cronkite News poll they believe the state is spending “too little” on K-12 education.

Yes, Prop. 123 was a critical infusion of funding allowing districts some ability to more appropriately compensate our teachers and support other critical needs. Let’s be real, though. It didn’t even move Arizona out of our 48th place for per pupil funding which would have required double the funding from Prop. 123. That’s why Support Our Schools AZ and the Arizona Parent Network support funding for our district schools that ensures equity (regardless of ZIP code) and stability (critical to continuity of staffing and programming, which enables more effective operations.) State-provided funding and other support should respect that choice.

Our district educators have done more and more with less and less for many years, and ultimately, our students are the ones who suffer the lack of certified teachers in their classroom, higher class sizes, narrowed curricula, outdated technology and rundown facilities. It is incumbent upon each of us to remember those students when we vote today. The bottom line is if we want different results, we need to elect different candidates — pro-public (district) education candidates!

Bubblegum Only Holds For So Long

The Arizona Republic reported this morning that two Glendale Elementary School District (GESD) schools would be closed for up to five weeks for structural deficiencies uncovered during a weatherization project. Inspections by architects and structural engineers found “varying degrees of damage to outside walls in every building on campus” said Jim Cummings, spokesman for Glendale Elementary.

What Glendale is experiencing, though, is just a peek at what is to come statewide. One of the GESD schools, after all, was built in the 1920s. Likewise, the majority of Yuma Elementary School District facilities are over 50 years old. In my district, Oracle Elementary, most of our facilities are over 40 years old and one was built in 1938. These are just a few examples of our aging district infrastructure in the Arizona.

In 1998, the National Center for Education Statistics reported the median age of schools in the West as 39 years, with 25 percent of the schools built before 1950. Admittedly, this report is old and, doesn’t hone in on Arizona, but current Arizona data just isn’t available. Thing is, it should be.
In 1994, the Arizona Supreme Court declared the state’s systems of school capital finance unconstitutional because it failed to conform to the state constitution’s “general and uniform” clause. “The system relied on the secondary property tax, driven by the property wealth of a school district, and general obligation bonding.” Under a court order to develop a constitutional system of school capital finance, then Governor Hull signed legislation to create Students FIRST (Fair and Immediate Resources for Students Today.) Late in 1999, the State Facilities Board (SFB) “adopted Building Adequacy Guidelines that now serve as the minimum standards for existing and new school facilities in Arizona.”

 Part of the new Students FIRST law established a deficiencies correction fund to help correct deficiencies in existing school facilities. The SFB was charged with adopting rules setting minimum adequacy guidelines for school facilities, assessing the facilities against those guidelines, and providing funds to get the buildings up to snuff. The SFB finished a statewide assessment of all 1,210 schools and 1,410 building sites, including fix cost, in April 2001. Over $740 million in 5,963 “hard construction” deficiency projects were identified including 904 roofs and 233 fire-alarm systems. By law, the existing deficiencies were supposed to be fixed by June 30, 2004.

The law also established a building renewal fund to maintain the adequacy of existing facilities and a new school facilities fund to construct new schools to meet minimum adequacy guidelines. The entire program was to be funded by appropriations from the State General Fund versus property taxes to level the playing field, but this change also made it easy for the Legislature to repurpose the funds. In fact, the only year the building-renewal fund was fully funded was in 2001, and from 2008 to 2012; school districts only got two cents of every dollar they should have received. To make matters worse, the state stopped providing dedicated funding for preventative maintenance. The repealed Building Renewal statute allowed school districts to use eight percent of their building renewal formula amounts for routine preventative maintenance but no more. And as if it makes everything better, the SFB strategic plan states that they “have expanded the preventative maintenance training and inspections to ‘counterbalance the lack of funding.'” I don’t know about you, but this sounds pretty ludicrous to me. First, you take away the funding for building renewal, then you train the districts on how to do preventative maintenance (with no funding mind you), and then you inspect whether the maintenance was done even though no funding was provided to do it. Right…makes perfect sense.

The failure of the Legislature to meet its obligations, has led Tim Hogan, executive director of The Arizona Center for Law in the Public Interest (ACLPI), to file a suit. Déjà vu since Hogan is the lawyer who filed the suit in the 90s. Yes, that suit. The one that resulted in “legislators agree[ing] to spend $1.3 billion to bring every school in the state up to a minimum standard, to create a formula to fund school renovations, and to pay for it out of the state’s general fund rather than out of local property taxes.” Glendale Elementary School District has already signed on to join Hogan’s new effort to force compliance. According to Jim Cummings, “the district voted to become a plaintiff in the lawsuit because the legislature eliminated all capital funding and GESD couldn’t raise enough through bonds to meet its capital needs.” Since the legislature eliminated capital funding, GESD has lost $18.7 million despite increasing enrollment. In 2015, Hogan said, “In each of the last two years, the amount appropriated has been about $16 million, far short of the $500 million needed by Arizona school districts.” He went on to say “The state has totally reneged on the commitment that it made to the Supreme Court at the time Students FIRST was presented for approval.”

Let’s be clear. The $3.5B that Prop. 123 will deliver over 10 years to Arizona’s district schools is money that was already due them (actually only 70 percent) per voter mandate and court order. It was funding designed to allow Prop. 301 funding (for facilities, teacher compensation, school performance measurement, statewide database and more) to keep up with inflation. It was not new funding. Yes, it is true that Prop. 123 funding came without strings attached. The majority of districts, though, used it to increase their teachers’ salaries, a more immediate need given the critical shortage of teachers in our state and the looming retirement of many of those who are currently teaching.

It is clear that our district schools are ever-increasingly being forced into making “the lesser of all evils” choices to keep the doors open, teachers retained, and students enrolled and well-educated. Our state legislature is playing games with the future of the one-plus million children that attend Arizona’s district schools. Please remember this when you cast your vote either before or on November 8th. If you want better for Arizona’s children, you MUST vote for candidates who share that vision and have the political will to deliver it. Anything else is just noise.

Open letter to those opposed to Prop. 123

Cross-posted by Christine Marsh, Arizona’s 2016 Teacher of the Year:

To all of the folks who are voting “No” on Prop. 123,

In case people don’t read to the end (but read to the end), if you are voting against Prop. 123, contact your legislators and the governor and tell them why. If Prop. 123 fails, the false narrative from our legislators and the governor will likely be something along the lines of this: “SEE?! We knew that the public didn’t care about public education. And this proves it.”

As a teacher in the trenches, I have to wonder where the public has been for the past six years. Education—students, teachers, parents, support staff—has been left to languish in the bottom of the nation for many years. We have the worst funding in the entire nation, and we’re over $3000 per student per year below the national average (we’re about $15,000 below the states that fund their public education the best/highest).

We also have the lowest administrative costs in the nation, the highest class sizes in the nation, and we’re in the bottom four states for what we pay teachers.

We already have a teacher shortage, and with roughly 30% of our state’s teachers retiring in the next five year, we’re reaching crisis proportions. In many districts, it’s already a crisis.

As a teacher, I feel abandoned by the public. You can say, “I didn’t cause this. I’ve voted for education-friendly people.” But that doesn’t change the fact that the majority of the voting public has continued to elect legislators and other politicians who simply do not care about public education.

Now, when we have a bit of light (meaning—yes—money) coming our way, the public that has essentially abandoned us for the past many years wants to extinguish it by killing Prop. 123.

You do realize that we’re in this mess because of the way Arizonans voted (or apathetically skipped voting) in 2014, right?

You also realize that the plaintiffs (representing the schools) have been fighting for this money since 2010, right? Where were you then? Why didn’t you vocalize your support?

You hopefully also realize that as much as we want to, we can’t force the legislature to pay. And, apparently, we can’t throw them in jail for their refusal to pay, either (although, I wish we could). It’s ironic that we can throw “deadbeat dads” in jail, but not deadbeat legislators and that Ducey is going after deadbeat dads.

If you vote this down, what’s your plan? The fact is that we have a legislative majority that doesn’t value public education, so the chances of them paying are slim to none. You can’t claim that they “should” pay and that the money exists without raiding the trust land, because what “should” happen doesn’t matter. The facts matter, and the fact is that they won’t pay. They’ve already proven that they won’t. So if Prop. 123 doesn’t pass, we won’t see the money for many years, if ever. (Remember “Flores Vs. Arizona”? It took over 20 years to settle that case).

So if you vote this down, do you have a plan?

Are you going to as aggressively fight to elect new legislators as you are fighting to defeat Prop. 123?

Or are you going to kill this one chance at light and abandon public schools again? Again??

Please, have a plan if you kill this.

Because with this particular legislature, we won’t be seeing any other funds any time soon.