So Sue Me
When Jane Hull became governor last September, she quickly announced that she did not intend to have state policies decided in court.
"I try not to comment on what was done before," she says in her middle-school principal's voice. "My attitude is that we don't do well in court, usually, and we're better off if we get things settled ourselves. I think we can solve our problems without going to court."
Until now, the state's motto could have been, "so sue me," with state departments tangled in long-running lawsuits over mental health and schools and prisons and clean air. The state's legal modus operandi in those lawsuits has been to stonewall in court, blab to the media about the injustices of the court system, and then appeal to the next highest court and then the next, even if it meant going all the way to the U.S. Supreme Court.
Increasingly, this is how governing gets done--or not done. The government hems and haws and sighs and stalls until it gets sued. And then it stalls some more. It's not an especially efficient method of governing, but it's certainly a good way for politicians to stretch the boundaries of laws they don't like.
Last week New Times reported on federal bureaucrats who don't follow the law even after they get sued and the court orders them to do so ("Government by Litigation," part 1, December 11). State lawmakers can follow the same lawless paths, ignoring state and federal laws and defying the judges who try to make them knuckle under, a trend borne out by Arizona's long-running fight over school finance.
In July 1994, the Arizona State Supreme Court ruled that the state's means of financing school buildings was unconstitutional because of the vast disparities in the abilities of rich and poor school districts to raise capital.
The only reason the inequities were looked at is that the state got sued. In 1991, Tim Hogan of the Arizona Center for Law in the Public Interest filed suit on behalf of about 40 disgruntled school districts. Hogan's case bounced through the lower courts until the Supreme Court made its ruling.
That should have been the end of the matter. In a sense, it nearly was, when the Legislature stopped to consider what would happen if it just refused to accept the court's ruling.
In theory, legislators are elected to represent the people, and they take an oath to uphold the state constitution. They're also supposed to obey the courts, which are supposed to be an integral part of "checks and balances," as we all read in our high school civics textbooks.
But that doesn't always happen in Arizona, where free-market fundamentalist lawmakers have been able to get their own way through belligerence and intimidation, fueled by one-size-fits-all dogma bought from Washington, D.C., think tanks and swallowed whole. The think tanks churn out carefully spun sound bites justifying charter schools and vouchers and utility deregulation, protesting federal regulations and warbling especially about judges who usurp their lawmaking function.
In Arizona, Governor J. Fife Symington III was the ayatollah of this fundamentalist movement against the courts.
"It's very chic these days to defy a judge," says Lisa Graham Keegan, the state superintendent of public instruction, who tangled with Symington over school funding and is tangling still with Symington's holdout allies in the state Senate.
"There's some public opinion out there that because of the liberal nature of the judiciary, that flouting them is perceived to be politically popular," she says.
As is flouting the federal government.
Symington was a victim of political fashion.
In his 1995 State of the State address, he shrilly proclaimed, "Our voice will be heard on the subject of federal judges pre-empting executive authority in state prisons. If a fight is what they want, a fight is what they will get."
He'd jumped into a running battle between the federal courts and the Arizona Department of Corrections in a number of lawsuits concerning prisoner rights, and obstructed the process sufficiently to get a judge to consider charging him with contempt.
Chuck Coughlin, a former Symington aide, says, "I think he actually looked forward to it. I think he actually wanted to be held in contempt."
According to the state Attorney General's Office, those cases cost the state at least $2.4 million in expenses and attorneys' fees paid to the plaintiffs, not to mention nearly 5,900 staff attorneys' hours.
In that same 1995 State of the State address, Symington also took on the Clean Air Act.
He ranted about fireplace restrictions and auto-emissions tests and EPA interference. In fact, the EPA had to be sued more than a dozen times to force it to lean on the state and come up with antidotes to the brown cloud that hovers over the Valley. Symington's logic was like a Zen koan: We will take no steps to clean the air and it will clean itself. Or perhaps if you don't like the air here, then make a market choice and move elsewhere--which is what he said about school finance: People made market choices and chose to live in poor school districts.
Such blathering is a recipe for anarchy and lawlessness. The court orders in question came from lawsuits asking the government to follow the law. What do the laws mean if they are so easily dismissed with political platitudes?
"Politicians love to pass lots of laws," says Tim Hogan of the Arizona Center for Law in the Public Interest. "It makes them look good for their constituents. And then they either don't enforce them or don't provide the resources for enforcement.
"Why do people have a problem with forcing our government to follow the rules that it sets for itself, whether it's in the constitution or whether it's in air-quality laws which they pass and then create a toothless agency to make sure they don't get enforced? Now, if the elected officials want to own up to that and get rid of the Clean Air Act, okay, fine. If you can get the American people to support that, that's the law. It ain't the law right now," Hogan continues.
Some laws have been changed--to make it harder to sue the state or its business "clients." Arizona legislators rewrote the state's environmental laws to make it impossible to sue polluters and difficult to sue the Department of Environmental Quality to make it enforce those laws.
Sometimes in the new world vision, however, the Legislature only sees what it wants to see. This past summer, the Arizona Center for Law in the Public Interest engineered a court ruling to force the State Land Department to reevaluate its grazing policies. At the same time, the state auditor general issued a report reiterating the judge's concerns that the state was giving away land. In a stormy hearing, the legislative committee that oversees natural resources just plain refused to accept the auditor's conclusions.
"It's thumbing their nose at the court more than flouting the law," says Senator Mary Hartley, a Democrat from Phoenix. "But I would say there has been a consistent pattern by the majority leadership, particularly in the Senate, to quite easily disregard the will of the voter and especially the will of the court."
What the voters really want is not even taken into account.
"There's a disconnect between public opinion and what the Legislature wants to do, and it's growing every day," echoes Arizona State University political-science professor David Berman. "I think these guys are pretty insulated. I really don't think they have to worry about facing the voters. In most cases, they can get reelected without too much trouble. They're free to go along on an ideological route, or they think they really are the law themselves and they don't have to go with the voters. I think what they represent is free enterprise and private interests to keep the government away from them."
Regarding the Supreme Court's stand on school finance, Lisa Graham Keegan adds, "The justices interpret the constitution on behalf of the people, not on behalf of the Legislature."
Thirty-six states have suffered constitutional challenges to the way they fund public schools since 1968. Some emerged from the courts unscathed and constitutional, some actually took the court's advice and made changes. New Jersey has been in court since 1973.
"There are all those lawsuits because they're merited," says Lisa Graham Keegan. "The way we fund children in the public schools is wholly inequitable, and it has been for some time."
The Arizona system first came under scrutiny in 1973, but a judge ruled then that it was constitutional.
Tim Hogan filed the most recent suit in 1991, representing 40 to 45 school districts, and using the Roosevelt District as lead plaintiff. The Superior Court followed the precedent set in the 1973 ruling, and so Hogan appealed to the state Supreme Court. Its decision came down in 1994.
The Arizona constitution vaguely demands that the state ensure a "general and uniform public school system," and what that means is open to legal interpretation. In the years since that document was written, 227 local school districts have sprouted up around growing populations. Here's how they pay for themselves:
School "maintenance and operations," known in the business as M&O, are funded directly by the state government at a set rate per pupil, whether they attend school in Scottsdale or Sacaton.
But the repair and building of the facilities is paid for by an individual district's ability to get voters to pass bonds, essentially borrowing money against the value of real estate in the district, and then paying it back through property taxes imposed on homeowners and businesses.
Which is fine for districts in good neighborhoods, or, better yet, districts that have power plants in them. For example, records show that in 1990, the Ruth Fisher Elementary School District, which is home to the Palo Verde nuclear power plant, boasted an assessed valuation per pupil of $5.8 million, while the San Carlos school district in Gila County had an assessed valuation per pupil of just $749. And so some school districts had domed football stadiums and computers for every student, while others had broken toilets.
Furthermore, the amount of property taxes paid varied just as widely. Homeowners in the Roosevelt school district in central Phoenix were paying $4.37 per $100 of assessed valuation, while those in the Ruth Fisher district paid just 11 cents per $100.
Based on those facts, the Arizona Supreme Court ruled in favor of Hogan's school districts. The Legislature didn't want to hear it.
"What are they going to do to us?" former Senate president John Greene said, and, "The court has gone too far."
Or the court did its job.
"I'm willing to admit there was room for legitimate debate as to what the constitutional provision meant concerning a general and uniform school system," says Hogan. "But when the Supreme Court ruled and said that this system isn't constitutional, well, you're supposed to do something about it in a meaningful way. That comment from the president of the Senate, who is a lawyer, says it all for me.
"It used to be," Hogan comments, "when the court said this is the law, you need to follow it; people who disagreed would swallow hard and follow the law."
The Legislature commissioned a report that inventoried school-building needs. That 1995 document showed that 39 percent of the schools had severe problems, nearly $1.4 billion worth. A follow-up by the Department of Education a year later estimated that it would cost $48 million to $62 million just to respond to the most critical needs.
After a flurry of halfhearted solutions--none of them comprehensible to the layperson--the Legislature offered $30 million. In March 1996, it passed a bill to create a School Capital Equity Fund that would get an annual shot of $30 million from the State Land Schools Trust to be distributed as determined by an appointed board. The only problem was that even if the board chose to spend the whole wad at once, which is unlikely, it would be like making a $3 payment on a $140 bill.
The Center for Law in the Public Interest took the plan back to court, where Superior Court Judge Rebecca Albrecht agreed that it did not satisfy the constitution. Furthermore, she imposed a deadline on the Legislature. If a constitutional plan were not approved by June 30, 1998, Albrecht would cut off all funding to all schools.
Governor Symington, his blood rising, immediately ran to the Supreme Court. The Legislature pumped an extra one-time dose of $70 million into the School Capital Equity Fund to make its plan look serious. But the Supreme Court was not impressed and upheld Albrecht's ruling.
The deadline still stands. On June 30 of next year, the money stops, the schools shut down. Lisa Graham Keegan refers to it as "endless summer."
In March 1997, Symington and Senator Marc Spitzer came up with a new plan they called "Assistance to Build Classrooms," or ABC. ABC supposedly would bring down but not eliminate the disparity ratio among schools by using a complex formula. It would also add another $32 million that would be doled out on a per-pupil basis to the neediest schools. As a dig at the court, its sponsors installed a "poison pill" clause, saying that if the judge found ABC to be unconstitutional, then the School Capital Equity Fund would be abolished as well.
"The ABC plan was very creative in that it finally did start the process of providing state assistance to districts with low debt capacities," says Thomas Pickrell of the Arizona School Boards Association. He feels that ABC was a creative step in the right direction in compensating poor districts. "But where it reaches the point of being borderline bad faith is the amount of money that was put into it."
The need was still in the $1.4 billion range, and here was $32 million to be spread among 220-some school districts. Considering that each new school could cost $4 million to $7 million to build, the money would not go far.
"I don't think [ABC] was a valid attempt, especially with the poison pill of doing away with the capital facilities board," says Mary Hartley. "No, I do not believe for one second that that was a serious attempt at satisfying the court. I think they knew all along it wasn't going to go. The poison pill was definitely a snub at the court. I don't think it can be interpreted any other way."
Judge Albrecht apparently agreed, because she knocked it down as well.
Senator Marc Spitzer told the press that Albrecht was ignorant. Symington went back to the Supreme Court, and, on October 24, the high court agreed with Judge Albrecht, stating in a one-page ruling that ABC was unconstitutional.
"They had to know the Supreme Court wasn't going to accept it," says Hogan. And he wondered what lawyers the legislators had consulted with other than themselves. (Spitzer is, in fact, an attorney.) "These guys have no use for lawyers unless they're defending them in criminal trials," Hogan quips.
Spitzer replies snidely in kind: "Just because the Legislature doesn't pass a bill that Hogan likes doesn't mean that people don't care about the issue or aren't trying to solve the problem. . . . He phrases everything in terms of, 'If you don't do what I want, you're a fascist beast.'"
Senate President Brenda Burns would not respond to New Times' inquiries. Instead, her flack, Mark Swenson, said all we needed to know was summed up in a press release (which ironically recommended contacting Swenson for further information) that Burns had co-authored with House Speaker Jeff Groscost, Spitzer and other Republican heavyweights.
"Our number one priority will continue to be improving the academic performance of our schools," said the press release. "The education of our children and the learning that goes on in the classroom is far more important than the details of how bricks and mortar are financed in this state."
As a final ironic touch, Spitzer filed an amicus brief with the Supreme Court before its October decision on Albrecht's ruling, asking that "the Court should be specific in any criticism of the current statutes while not advocating any particular alternative solution."
Don't tell us what to do, in other words, or else we'll complain that the courts are making laws again.
Meanwhile, all parties are waiting for the court's detailed reasoning on why it found ABC unconstitutional, and none of them will move forward until that ruling is filed, hoping they can somehow tinker with ABC and not have to go back to the drawing board.
Endless summer looms closer.
In the federal influence-peddling arena, it is distressing but logical that some sleazy legislator would get paid to sidestep the law. Special-interest constituents make campaign contributions to a congressman who then runs interference for them. That makes sense.
But at the state level, the scofflaws seem instead fueled by high-test ideology that says, "Cut taxes, don't tell us what to do, and let the free market take care of everything."
Especially when it comes to education. The Senate obstructionists quibble over money while a $593 million surplus sits in the state's general fund. The state is not broke.
This fight is about ideology.
"Under the Symington regime, I believe there was a concerted effort to erode the foundation of public education as we know it in this state," says Senator Hartley. "And that was done by putting education on a starvation diet. This was supported by the leadership, by Senator [Tom] Patterson, by then-senator Greene, then-senator Carol Springer. It was a concerted effort to put forth an agenda to allow a market atmosphere to create competition in education, and that would solve all problems."
Charter schools, the logic says, will give parents choices about what kind of education their children should receive, and if a particular school is bad, then it will go out of business. And similarly, if parents can receive vouchers from the state, essentially their child's share of the education bankroll that can be used to send the kid to private school, then the public schools will either have to become competitive or wither away like any other business.
Jeffry Flake, free-market guru for the Goldwater Institute, wrote in a recent editorial, ". . . economic laws that apply to public education that are as irrefutable as the laws of physics. In other words, if we want our public schools to improve, we must subject them to the same market forces that govern the broader economy."
Earlier this year, like a latter-day Marie Antoinette, Symington told a radio audience that if people lived in poor school districts, it was their own fault.
"It's a free market," he said. "They don't have to go there and live there. Nobody's forcing anybody to move into that district."
That thoughtless "let them eat cake" remark could only be made by a zealot. Despite the acres of newsprint that this and other papers have devoted to depicting Symington as an evil genius, he was not thinking up this stuff himself.
The free-market dogma is fueled by a number of free-market think tanks that collect like-minded legislators and whip them into a political frenzy. One of them, the American Legislative Exchange Council, known as ALEC, is extremely popular among Arizona Republicans. Fife and Newt Gingrich used to rub shoulders at ALEC's annual conferences.
On a recent afternoon, Democratic Senator Mary Hartley scrolled through ALEC's Web site, her mouth dropping open as she recognized model legislation which seemed oh-so-similar to that proposed by her colleagues on the Senate floor.
"I used to watch Rush Limbaugh at night to know what was going to be said on the floor here the next day," she says.
Now she can read ALEC's Web site to see what will hit the floor in the next legislative session.
Language of the 21st Century is another free-market primer, a thick manual published by the Luntz Research Companies (whose owner, Frank Luntz, coined the phrase "Contract With America") to help politicians spin their agendas.
In the education chapter of the book, under the heading "Sentences that work particularly well," is this justification for sending children to private school:
"Parents should have the right to send their children to the school of their choice. After all, it's their money. It's their children. It's their future."
"If you tell voters you are going to abolish the federal Department of Education and take its money and power and send it back to the states, towns and parents, about a third of the electorate will support you. However, if you first say education is a local issue and then talk about taking money and power and giving it to the states, towns and parents by abolishing the Department of Education, you will have a majority behind you."
"The problem for many parents is that they cannot afford private school, and they are envious of those who can. The jealousy of public school parents and graduates toward private schools is often evident, and it will occasionally boil over into resentment."
". . . tell your constituents that you are pro-child rather than anti-public school."
Nothing in the primers and the think tanks says anything about capital finance for education, however.
Thomas Pickrell of the Arizona School Board Association provides some interpretation: "If you have a Legislature that's interested in vouchers, vouchers are just a way of privatizing. Any kind of legislator that's interested in vouchers is not going to be particularly interested in a school finance system that is focused on fixing public schools. It's going to be focused on getting dollars to students and allowing students to take those dollars and move off to private schools."
Bricks and mortar don't matter, and Symington himself said so.
And Marc Spitzer swears that even school districts below the average ability to float bonds would rather see state money go into classrooms than into capital improvements.
But Mary Hartley remembers from her years as a school-board member that parents, in fact, do care. Hartley the board member once asked parents if the school district could cut costs by rigging a school with swamp coolers instead of air-conditioning units. One angry parent told Hartley that she could barely keep her child still to study for 20 minutes in the swelter of her swamp-cooled home; how did she expect him to spend six hours at a desk in a hot classroom?
"In eight years as a school-board member and three years here in the Senate, I never had a parent come up to me and say, 'I want a tax credit.' I never had the average parent say, 'That's okay, don't fix my school,'" Hartley says.
"People perceive education as imperative, as improvement to their child's future, and they need and want better facilities."
The City of Phoenix bears no fiscal responsibility for the public schools, but worries about their quality as they affect crime and quality of life--and the willingness of corporations to relocate here. In his State of the City address last February, Mayor Skip Rimsza called for community forums bringing teachers and parents and businesspeople and elected officials together to brainstorm. But he couched it in business terms.
"And after you've got us all in the same room, shut the door and don't open it until we have demonstrated our collective leadership and reached an agreement on how we can make our children the best-educated and most desirable employees in the world," he said.
New Times observed one of the preliminary forum meetings through a one-way mirror last fall. Seated around a table were a student, a grandma, a couple of businesspeople, a teacher and Phoenix city councilwoman Frances Emma Barwood.
In the very first minutes of the discussion, the facilitator asked what the panelists felt were the biggest problems facing education, and the responses immediately came back with money and inequity between schools in good and bad neighborhoods. There was no mention of vouchers, and the only reason that charter schools came up is because one of the panelists owned a charter school and would start her sentences with, "Well, at my school . . ."
This unrehearsed session further illustrated the disconnect between the Legislature's educational concerns and the people's. A poll conducted by O'Neil Associates in March found that, regardless of age or political preferences or area of residences, 87 percent of Valley residents favored equal funding by student.
Dr. Michael O'Neil, the poll's director, said in a press release, "These preferences stand in stark contrast to the Legislature's cool reception to equal-funding proposals.
"In twenty years of polling on public issues, I cannot recall ever having seen such a total discontinuity between the will of the people and the course the Legislature is pursuing."
State Superintendent of Public Instruction Lisa Graham Keegan saw eye to eye with Symington on the subject of charters and vouchers, but they split company over the school finance debate.
"As Fife explained to me one day," she recalls, "'Lisa, you're not worrying about our people.'
"That's the primer: 'Our People.' Republicans live in wealthy districts. Their taxes will go up, poor people's will come down, you will lose your next election."
That reasoning extends to the Legislature's leadership, Keegan thinks.
Her voice rises to describe: "A reactionary ideology against equality, an unwillingness to accept that it matters enormously that in a public system, people have equal access. There isn't any question that we're providing privileged access to public education: cheaper taxes and higher support. The facts aren't in dispute.
"The question is: Who's willing to look at that?"
When it comes to creating workable, constitutionally sound legislation, the dogma devolves into shouting and finger-pointing. The Democrats accuse Keegan and Spitzer of being conservative Republican shills. In fact, Keegan and Spitzer accuse each other of being right-wing ideologues; they lob insults at the school finance standstill as in a three-man handball match.
"I don't think there's a whole lot of empathy there with what's going on," says Keegan. "I don't think they've been to Superior or Gadsden [near Yuma], seen schools where this is going on. It's too easy to say that Spitzer's from the Madison District, but it's true. He's from one of the wealthiest school districts in the state, where taxes can be fairly moderate and you get a high return."
Keegan has proposed shifting capital funding from the local districts to the state and paying for it by instituting a three-quarter-cent sales tax. But the very word "tax" strikes fear in the heart of Senate Republicans and "keeps Brenda awake at night," as Keegan puts it, referring to Brenda Burns, the Senate president.
"It isn't, as Marc says, the largest tax increase in the history of Western civilization," Keegan continues, "it's a shift from property to sales tax. The [property taxes] go away, and Marc knows it."
But in the current ideological climate, the political mantra is to lower taxes.
"There have been Republican [Senate] members that have actually sat there and said that they believe that they are there for the purposes of returning every tax dollar to the taxpayers that they possibly can and to build more prisons," says Mary Hartley.
Keegan continues: "If you create a sales tax, it's state-imposed, and they don't want any part of that. They know there are huge inequities, but they don't want any part of that. 'It's the local school board--ack!--what are you going to do? It's your problem, your responsibility.' And in fact, that's not constitutionally true. It's the state's responsibility. They have to set up something that is inherently equal, and then the inequalities can come from local effort."
Spitzer is not convinced.
"The Keegan plan misallocates resources," he says. "If you really get to the heart of what she's trying to do, the right-wing think tanks do not like school districts and they view the school districts as barriers to choice. The Keegan plan would have the practical effect of destroying the school districts."
Furthermore, he says, it panders to big business, which would love to see property taxes phased out. An April 1997 report on education funding by Greater Phoenix Leadership, an alliance of utilities and industries, says as much.
Governor Jane Hull remains sphinxlike, silent on what she feels should be done.
"Let's look at getting from the Supreme Court their reasons why they don't like [the ABC] plan," she says simply.
With Republicans sparring, the compromise may come from an unexpected source: the Democrats. Senator Hartley has co-sponsored another plan with a cute acronym, the BEST plan, for "Build Excellent Schools Today."
The BEST plan establishes a baseline of wealth as measured by bonding capacity. School districts below the line would receive additional funding to bring them up to the median, and rich school districts would have caps placed on how much they could spend. But the districts would maintain the local control so important to the Republicans.
Spitzer told New Times that he's willing to look at it seriously.
"There might be a couple of minor problems with it," says Tim Hogan, but he believes that it meets the constitutional requirements.
However, if he hadn't sued in the first place, nothing would be getting done.
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