Roosevelt Elementary School District Number 66 v. Bishop

MOELLER, Vice Chief Justice,

dissenting.

We should “not declare an act of the legislature unconstitutional unless we are satis*251fied beyond a reasonable doubt that the act is in conflict with the federal or state constitutions.” Chevron Chem. Co. v. Superior Court, 131 Ariz. 431,438, 641 P.2d 1275,1282 (1982). The “burden of establishing that a statute is unconstitutional rests on the party challenging its validity.” Hall v. A.N.R. Freight System, Inc., 149 Ariz. 130, 133, 717 P.2d 434, 437 (1986). In my view, plaintiffs have not shown Arizona’s public school financing scheme to be unconstitutional under either of the two theories they advance. Therefore, I respectfully dissent.

I. Overview

Justice Martone’s plurality opinion is based on article 11, section 1, which specifies that the legislature “shall enact such laws as shall provide for the establishment and maintenance of a general and uniform public school system.” Although the opinion does not define what constitutes a “general and uniform” public school system, it holds that the present system is unconstitutional because there are substantial capital facility disparities between and among public school districts. Maj. op. at 242-243, 877 P.2d at 815-16. Such a system, the opinion asserts, is not “general and uniform.” Id. at 243, 877 P.2d at 816.

Chief Justice Feldman, in his special concurrence, agrees with the plurality that the present system is unconstitutional because it is not “general and uniform.” However, he disagrees with the plurality that “general and uniform” requires facilities within the public school system to be substantially uniform. Concurrence at 248-249, 877 P.2d at 821-22. Instead, he finds the present system unconstitutional because it allegedly fails to provide all children with the facilities necessary to achieve an adequate (i.e., a “basic, minimum”) education. Concurrence at 246, 877 P.2d at 819. The Chief Justice would also find the capital funding system unconstitutional on state equal protection grounds. Concurrence at 245, 877 P.2d at 818.

I agree with Chief Justice Feldman that the “general and uniform” clause does not require all districts to have substantially comparable facilities and equipment as impliedly and necessarily required by the plurality. However, I also agree with the plurality that the third constitutional theory advanced by the Chief Justice goes beyond the scope of the pleadings in this case. See Maj. op. at 241 n. 7, 877 P.2d at 814 n. 7. The plaintiffs neither pled nor proved that the present school system fails to provide children an “adequate” education. Indeed, they expressly disclaimed reliance on any such theory.1 Because I believe the Chief Justice addresses an issue not properly before the court, I confine my comments in section II on the uniformity issue mostly to the plurality’s analysis. I address Chief Justice Feldman’s equal protection analysis in section III.

II. The “General and Uniform” Clause

I cannot subscribe to the plurality’s analysis of the “general and uniform” clause for several reasons. First, the plurality holds the present financing scheme unconstitutional because it is asserted that the scheme itself is the cause of substantial capital facility disparities between and among the various school districts. This holding is troublesome *252and I am concerned about what it means when taken to its logical conclusion. It is true now—as it has been historically—that individual school districts are expected to provide much of the funding for capital facilities, and that much of this funding must be raised through bonded indebtedness by the individual districts. It is also true, as the plurality points out, that a district’s ability to approve and issue bonds under today’s financing scheme is significantly affected by the property value and taxpayer willingness of the particular district. Maj. op. at 237, 877 P.2d at 810. In finding the current financing scheme to be the cause of today’s disparities among districts, however, the plurality focuses only on the first of these two factors—property value. It does not consider the fact that disparities may as well be attributed to individual districts choosing not to indebt themselves sufficiently to provide the facilities the plurality now deems constitutionally necessary. The record in this case merely shows that some districts, for whatever reason, have not raised the funds, not that any districts have in fact been prevented from raising the funds.

Absent a clear showing by plaintiffs that the present school financing scheme is itself the cause of today’s capital facility disparities, the plurality’s declaration of unconstitutionality loses the very premise upon which it is said to be based. That the present scheme may make it politically or economically difficult for some districts to raise as much money as others is certainly something our legislature has considered in the past—and may appropriately consider in the future—but those political or economic considerations do not render the financing scheme unconstitutional.

I also believe the plurality’s reasoning is inherently inconsistent. The plurality requires the state to now devise a new funding scheme that will provide children of all districts with substantially comparable educational facilities, yet it permits—indeed it purports to encourage—individual school districts to provide additional facilities above and beyond those to be provided by the new state system. Maj. op. at 242, 877 P.2d at 815. The plurality explains that disparities do not run afoul of the “general and uniform” clause as long as they are not the “results” of the state’s chosen financing scheme. Id. This analysis begs the question: would not any disparity be the result of the state’s chosen financing scheme? If the state scheme, no matter how benign, “permits” facility disparities, the disparities are the “result” of the financing scheme. I fail to grasp the plurality’s distinction between disparities caused by the state’s financing scheme, which the plurality says are not permitted, and disparities caused by school districts, which the plurality says are permitted. The two are interrelated; in both instances the disparities come about by reason of the differences in school districts. Whether the present state scheme “causes” disparities or some future scheme “permits” disparities, the disparities are the “result” of the scheme.

Notwithstanding the plurality’s disclaimer, I believe that its holding will inevitably mean that any funding system is unconstitutional as long as we have school districts and property taxes, unless each school district is substantially comparable in fund raising ability and unless the state constantly redefines districts to maintain their fund-raising capacity status quo. The educational provisions of our constitution, enacted with Ml knowledge that Arizona had both school districts and property taxes, do not command such a result.

Nor do I agree that the “general and uniform” clause means that the state financing scheme must ensure that all schools have substantially comparable facilities and equipment, as impliedly and necessarily required by the plurality. This court has previously observed, albeit in dicta, that Arizona’s legislative scheme does indeed provide a “general and uniform” system. Shofstall v. Hollins, 110 Ariz. 88, 90, 515 P.2d 590, 592. More importantly, since territorial pre-constitution days, Arizona has left it up to individual school districts to raise funds for capital facilities. Those individual districts have always responded differently, exercising what has forever been perceived as a cherished right of local control. Unless and until it is shown that the present capital financing scheme deprives our state’s children of a basic edu*253cation, no question of unconstitutionality is presented. As we have previously noted, plaintiffs have not alleged, nor have they tried to prove, that the present system has deprived anyone of a basic education. See supra n. 1. There is no violation of the “general and uniform” clause.

I am concerned that, carried to its logical conclusion, the plurality’s analysis requires the state to ensure equality of financing for our public schools. Simply equalizing the capital funding between and among school districts, however, will not provide equal educational opportunities, nor will it solve the pervasive problems inherent in our present public school system. Countless studies bear this out. See, e.g., Richard J. Stark, Education Reform: Judicial Interpretation of State Constitutions’Education Finance Provisions—Adequacy vs. Equality, 1991 Ann. Surv.Am.L. 609 (1992). To be sure, there is some correlation between the amount of money spent and the quality of education; but there are myriad other factors at work as well. Equitable arguments for greater equalization are indeed appealing, but they should appropriately be addressed to our legislature where they have met with some degree of success in the past.

Lastly, on the uniformity point, I fear that today’s plurality opinion will eviscerate effective local control of our public schools. I find it ironic, therefore, that both the plurality opinion and the special concurrence pay homage to the historical significance of local control. Maj. op. at 242, 877 P.2d at 815 and concurrence at 244-245, 877 P.2d at 817-818. If the state is constitutionally mandated to ensure equalized funding to our public schools to assure the uniformity of their facilities, the state necessarily must effectively control the expenditure of those funds. The state cannot leave it up to local districts to decide how to spend the funds it doles out because the districts might respond in diverse ways (as they have in the past), creating, once again—at least in the view of the plurality and the special concurrence—an unconstitutional non-uniform system. Under the plurality’s approach, local control in the past has contributed to today’s declaration of unconstitutionality—some districts have been willing to tax themselves to incur bonded indebtedness and some have not. If local control has led, at least in part, to the inequalities that now make today’s system unconstitutional, I fail to see how the plurality can accept and encourage its continued meaningful role under a future, supposedly constitutional scheme.

I simply disagree with the plurality and the special concurrence which urge that centralized state financing may peacefully coexist with meaningful local control. Local control and centralized funding are mutually exclusive, a truism shown time after time in present governmental affairs. All experience indicates that control follows the dollars. The plurality properly concedes the importance of local control in our schools and correctly acknowledges that the state system will suffer if such control is lost. Yet, enforcement of the plurality opinion will inevitably diminish local control. The framers of the Arizona constitution never intended such an anomalous result.

III. Equal Protection

Chief Justice Feldman, in his special concurrence, argues that the financing scheme should also be declared unconstitutional on state equal protection grounds. I disagree, for two reasons.

First, I agree with Justice Martone that a court should not reach a general constitutional provision if a specific constitutional provision is dispositive. Maj. op. at 238, 877 P.2d at 811. Although I disagree with their analy-ses, a majority of the court has concluded that the specific “general and uniform” education clause of our constitution is disposi-tive. Thus, there is no need to reach the state equal protection issue. Indeed, there are persuasive jurisprudential grounds for not doing so.

But if we were to reach the issue, plaintiffs have not shown that the present school financing scheme violates the state equal protection clause. This precise issue was settled by this court in 1973. In Shofstall, this court, in a unanimous opinion, held that our school financing scheme did not violate the equal protection clause of our state constitution. 110 Ariz. at 90, 515 P.2d at 592. We still have the same constitution. We still *254have school districts and property taxes. Indeed, we have a much more “general and uniform” public school system today considering the various equalization statutes passed by the legislature since 1973. With the exception of greater equalization, the only thing that has changed since the Shofstall decision in 1973 is the personnel of this court. That is an insufficient reason to change a constitutional ruling. State v. Salazar, 173 Ariz. 399, 416-17, 844 P.2d 566, 583-84 (1992) (citing State v. Crowder, 155 Ariz. 477,483, 747 P.2d 1176, 1182 (1987) (Moeller, J., concurring in part and dissenting in part)). Both of the other opinions in this case make much of certain selected language of Shofstall, yet they ignore its express holding. The plaintiffs have not shown how today’s system violates the equal protection clause of our constitution.

IV. Conclusion

I dissent not because the school system in Arizona is perfect. I dissent because it is not unconstitutional. Questions concerning the fine tuning of the financing schemes should appropriately be addressed to the legislature. The system is a complex one and, while a majority of the court believes it is unconstitutional, it is short on specifics. From reading the plurality opinion, I cannot tell which specific statutes are considered unconstitutional and which may survive. No guidance or timetable is provided to the legislative and executive branches as to how and by when this perceived unconstitutionality should be corrected. If I were in the executive or legislative branch of government and charged with the responsibility of fixing the allegedly broken system, I would have no idea where to begin. I hope the legislative and executive branches are more prescient than I. As for me, I heed the cautionary language of the United States Supreme Court:

The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States, and we do no violence to the values of federalism and separation of powers by staying our hand. We hardly need add that this Court’s action today is not to be viewed as placing its judicial imprimatur on the status quo. The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative thinking as to public education, its methods, and its funding is necessary to assure both a higher level of quality and greater uniformity of opportunity. These matters merit the continued attention of the scholars who already have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.

San Antonio School District, 411 U.S. 1, 58-59, 93 S.Ct. 1278, 1309-10 (1973). Like the United States Supreme Court, I believe the legislature is better suited to address and solve the substantial and pervasive problems in today’s public school system. I respectfully dissent.

CORCORAN, J., concurs in Vice Chief Justice MOELLER’S dissent.

. See, e.g., Appellant's Opening Brief at 27 ("the equal protection clause is not addressed to minimal sufficiency but rather to ... unjustifiable inequality.”); at 30-31 (“a public school system that is 'general and uniform’ is one in which any randomly selected slice of the system closely resembles any other slice.”); see also Appellant’s Reply Brief at 6, 11, and 14.

I disagree with Chief Justice Feldman’s conclusion that the plaintiffs raised and argued the theory he now espouses, i.e., that the school financing system is unconstitutional because it fails to provide the facilities necessary for students to achieve a "basic, minimum” education. Quite simply, the plaintiffs argued throughout that the system is unconstitutional because—and solely because—it produces massive disparities in capital facilities between and among school districts. Indeed, in their reply brief, the plaintiffs reject the Chief Justice’s theory: "In contrast to the concrete factors associated with educational opportunity [i.e., size and condition of facilities, availability of equipment, etc], educational success or achievement does not present a manageable standard for the courts.” Appellant’s Reply Brief at 14.

The record does not show that students in some districts are being denied an "adequate education,” however that term is defined. This is telling. Plaintiffs obviously decided not to present their case on that ground.