Legal Update: A Focus on Issues
Affecting School Business Officials
Chris Thomas, General Counsel,
Arizona School Boards Association
What We Will Cover
• Arizona in State and Federal Courts
– School Funding: Prop. 301, Charters, Overrides, Career
Ladder, State Trust Lands
– School Operations: Use of School as Church, Pledge of
Allegiance, free speech, Police/CPS Interview of
Students
– Arizona in the USSC: Tuition Tax Credits, Clean
Elections and Employer Sanctions
• Legal Issues: 2011 legislation, ECA tax credits,
medical marijuana
Arizona in State and Federal Courts School Funding (Prop. 301)
• Cave Creek Unified School District, et. al v.
Ducey
– Prop. 301 inflation mandate – FY2011 didn’t
provide mandated increase
• “Or” vs. “and”
– Superior Court: voters merely suggested the
Legislature make appropriations – cannot require
appropriations be made (calls into question all
propositions that use general fund as revenue
source and require annual appropriations from
Legislature)
Arizona in State and Federal Courts School Funding (Prop. 301)
• Cave Creek USD (cont.)
– Case is now before Arizona Court of Appeals, Div. I
• Another attempt to go to the AZ Supreme Court was
rejected
– Legislature also did not fund FY2012
– Remedy may prove difficult even if victory in court
– still need to get the Legislature to affirmatively
do something they don’t want to do; also may be
two years away from final verdict (and then what
happens to lost revenue?)
Arizona in State and Federal Courts School Funding (Prop. 301)
• Reeves v. Barlow
– Arizona Court of Appeals: School districts do not
have authority to pay CSF funds to individuals that
are not certified as teachers
– School districts do have discretion to include
individuals that do possess teaching certificate
– Overrules/contradicts AGO I01-014
– Applies to both base pay and performance pay
– Charters do not fall under ruling since they do not
have to use certified teachers
General and Uniform Clause
• AZ Constitution (Art. 11, Sec. 1): “The legislature shall
enact such laws as shall provide for the establishment
and maintenance of a general and uniform public school
system…”
• Roosevelt v. Bishop (1994): …Units in "general and
uniform" state systems need not be exactly the same,
identical, or equal. Funding mechanisms that provide
sufficient funds to educate children on substantially
equal terms tend to satisfy the general and uniform
requirement. School financing systems which themselves
create gross disparities are not general and uniform.”
Arizona in State and Federal Courts School Funding (Charter Schools)
• Craven v. Huppenthal; Hobday v. Huppenthal
– Is it a violation of General & Uniform clause for
charters to receive different funding than
traditional school districts; is it a violation of G &
U for some districts to have overrides and some
not
• Transportation, overrides, bonds v. additional
assistance
• What about other non-financial regulation?
Arizona in State and Federal Courts School Funding (Career Ladder)
•
Gilbert v. Arizona
– Is it a violation of G & U for some districts to receive Career Ladder monies
and some not?
• 1985: 5-year pilot program began; started with 7 and added 7 at a time to
28 districts; funding mix between local and state; since 1994 no other
districts have been able to join program and state funding has been cut
• allows districts in program to spend 5.5% above their revenue control
limit (and tax local taxpayers for it) to fund the program – FY2012
– Superior Court: If state causes ANY disparity in funding, it’s a violation of G &U
– After initially planning to appeal, state has now moved to dismiss suit
following legislative phase-out to comply
– Phase-out of Career Ladder and OPIP
• Base Level Adjustment
– 4% FY2012
– 3% FY2013
– 2% FY2014
– 1% FY2015
Arizona in State and Federal Courts School Funding (Trust Lands)
• Rumery v. Baier
– Does the state have the authority under the State
Constitution and Enabling Act to fund state land
department operations from sale/lease proceeds
of state trust lands?
• Maricopa Superior Court says NO
• Arizona Court of Appeals will hear case in September
– Earnings from interest of state trust go to support
K-12 education through Classroom Site Fund
– Voter protected in 2002 election
Federal Courts School Operations (Religion)
• Bronx Household of Faith v. New York City Board
of Education
– 2d Cir.: School district could ban use of school for
church services; “had valid, non-viewpoint
discriminatory reasons for barring worship services
even when it allowed certain other religious activities
in its facilities.”
– Important to note that deference was given to school
district to make determination based on nonviewpoint factors
– USSC appeal likely
Federal Courts School Operations (Religion)
• Freedom From Religion Foundation v. U.S.
– USSC has denied review for 1st Cir. Decision
upholding New Hampshire law that requires
students to recite the Pledge of Allegiance with
“under God” reference
• Other cases coming out of CA have died due to
procedural issues
– Educators should never forget the Supreme
Court's 1943 decision in West Virginia State Board
of Education v. Barnette that no individual child is
required to recite the Pledge
Federal Courts School Operations (Free Speech)
• Doe v. Silsbee Independent School District
– Texas cheerleader dismissed from squad after refusing to cheer for male
student accused of sexually assaulting her
– 5th Cir ruled that cheerleader did not have First Amendment right to not cheer
as a silent protest and school officials had discretion to dismiss her
• "In her capacity as a cheerleader, H.S. served as a mouthpiece through
which [the school district] could disseminate speech—namely, support for
its athletic teams," the 5th Circuit panel said. "Insofar as the First
Amendment does not require schools to promote particular student
speech, [the district] had no duty to promote H.S.'s message by allowing
her to cheer or not cheer, as she saw fit. Moreover, this act constituted
substantial interference with the work of the school because, as a
cheerleader, H.S. was at the basketball game for the purpose of cheering,
a position she undertook voluntarily.”
– USSC has denied review
Federal Courts School Operations (Free Speech)
• How far can school districts go in regulating
online, off-campus speech of students?
• Rule: School must show nexus between
students’ off campus activity and substantial
disruption to learning environment to regulate
Federal Courts School Operations (Free Speech)
• Layschock v. Hermitage SD, J.S. v. Blue
Mountain SD
– MySpace parodies of principals
– Layschock: SD agreed there was no disruption;
unanimous decision from 3d Cir.
– J.S.: Student said principal was sex addict and
pedophile, but not all MySpace users could see it;
3d Cir panel split 8-6 in favor of student
• In students’ favor: no evidence anyone believed or took
seriously the information on the page
Federal Courts School Operations (Free Speech)
• Nevada Commission on Ethics v. Carrigan
– Is the act of voting by a public official free speech protected by the First
Amendment?
• USSC: No – unanimous (in central holding of case)
– Court upheld a Nevada ethics law for local officials that requires them to
abstain from voting on matters implicating their own financial interests or
those of a household member, relative, employer, or anyone else with whom
they have a substantial and continuing business relationship. The ethics law
applies to school boards in the state.
– Scalia: the nation has "a history of limiting legislators' ability to participate in
matters in which they have a conflict" and that history "suggests that the First
Amendment has no application to voting by legislators.”
• The law was challenged by Michael A. Carrigan, a member of the Sparks,
Nev., city council who was censured by the state's Commission on Ethics
for voting to approve a casino that had been lobbied for by an influential
political confidant of Carrigan’s.
Federal Courts – School Operations
(CPS/Police Interview of Students)
• Camreta v. Greene
• Do in-school interviews of students by the police and other authorities require
a warrant?
•
The case was prompted by the ordeal of a girl identified in court papers as S.G. In 2003, 9-year-old S.G.
was pulled from her Bend, Ore., classroom, taken to a school office, and interviewed by a state childprotective-services caseworker and a deputy sheriff.
•
The authorities suspected the girl was being sexually abused at home. After lengthy questioning, the girl
told the investigators that she had been touched inappropriately by her father. The girl and her sister were
briefly removed from their home, but criminal charges against the father were later dismissed. The father
accepted a plea agreement over abuse charges involving another child.
•
S.G.'s mother sued not only the investigators who questioned her daughter, but also the Bend-La Pine
school district and the school counselor who had removed the girl from class. The school defendants were
dismissed early in the case. The mother said in court papers that only after two hours of denying any
abuse did S.G. tell the investigators what the girl believed they wanted to hear—that her father had
touched her improperly.
•
The suit led to a 2009 decision by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that S.G.'s
Fourth Amendment rights were violated because she had been seized in the absence of a warrant,
parental consent, or other special circumstances.
Federal Courts – School Operations
(CPS/Police Interview of Students)
• Greene v. Camreta (continued):
• USSC sidestepped issue (7-2): Said case was moot since the young
woman at the center of the case no longer lived in Oregon and
would soon graduate from high school, she no longer faced the
prospect of a warrantless police interview in school
• Kagan: “When subsequent events make it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to
recur, we have no live controversy to review"
• Kagan said the mootness of S.G.'s underlying case in turn has
frustrated the appeal rights of the investigators to challenge the 9th
Circuit's constitutional ruling.
• The majority vacated that part of the 9th Circuit ruling, which is
significant in that it removes, for now, the requirement that
warrants or parental consent are required for in-school interviews.
Federal Courts – School Operations
(CPS/Police Interview of Students)
• J.D.B. v. North Carolina
– 13 year-old a special-education student attending school in
North Carolina, pulled out of his classroom by a uniformed
officer and escorted to a conference room where he faced a
police investigator, the assistant principal and two other school
officials.
– For more than half an hour, the investigator interrogated J.D.B.
about a string of local burglaries. The boy’s legal guardian, his
grandmother, was never contacted, and he was not given a
Miranda warning, which is routinely given by police to criminal
suspects once they are taken into custody.
– USSC (5-4): Broadened use of the Miranda warning for suspects,
extending it to children questioned by police in school.
– Age must be considered in determining whether a suspect is in
custody for purposes of administering Miranda warnings.
Arizona in the USSC – Tax Credits
• Arizona Christian School Tuition Organization
v. Winn
– At issue was 9th Cir. Decision that allowed “as
applied” Establishment Clause challenge to go
forward
• USSC had already dealt with case before on issue
whether a state taxing scheme could be challenged
under the U.S. Constitution
• Arizona Supreme Court (1998): already ruled that tax
credit program was OK under Arizona and U.S.
Constitution
Arizona in the USSC – Tax Credits
• Winn (continued):
– At issue this time: Whether the plaintiffs had standing
to sue as taxpayers under Flast v. Cohen in challenging
a tax credit scheme (as opposed to a direct
government expenditure)
• The general rule for testing the constitutionality of a
government program is that the plaintiff must show direct
particularized injury from the program in order to have
standing to sue; however, there has always been an
exception for governmental programs challenged under the
Establishment Clause (taxpayers need not show actual
injury)
– USSC (5-4): No, the taxpayers lacked standing
Arizona in the USSC – Tax Credits
• Winn (continued):
– Kennedy writing for majority:
• “Like contributions that lead to charitable tax deductions, contributions yielding STO tax
credits are not owed to the State and, in fact, pass directly from tax payers to private
organizations. Respondents’ contrary position assumes that income should be treated as
if it were government property even if it has not come into the tax collector’s hands. That
premise finds no basis in standing jurisprudence.”
– Kagan writing for dissent:
• “Today’s opinion…enables the government to end-run Flast’s guarantee of access to the
Judiciary. From now on, the government need follow just one simple rule— subsidize
through the tax system—to preclude challenges to state funding of religion. And that
result—the effective demise of taxpayer standing—will diminish the Establishment
Clause’s force and meaning.”
• “In the decades since Flast, no court—not one—has differentiated between
appropriations and tax expenditures in deciding whether litigants have standing.”
• “The Court’s opinion thus offers a road- map—more truly, just a one-step instruction—to
any government that wishes to insulate its financing of religious activity from legal
challenge. Structure the funding as a tax expenditure, and Flast will not stand in the way.
No taxpayer will have standing to object. However blatantly the government may violate
the Establishment Clause, taxpayers cannot gain access to the federal courts.”
Arizona in the USSC – Tax Credits
• Winn (continued):
– Court’s opinion did not on it’s face rule that the
tuition tax credit program is constitutional but it
undercut severely any hope of a challenge –
moreover, with the present USSC, it is highly
doubtful the 5-4 majority would rule against the
program on the merits.
Arizona in the USSC – Clean Elections
• Arizona Free Enterprise Club’s Freedom Club PAC v.
Bennett
– Clean Elections: allowed qualified candidates to choose to
forego private fundraising and instead receive an initial
grant and supplemental "fair fight" matching funds from
the state to have an opportunity to campaign and get the
message out depending on what the opposition was
spending.
– The challenge was raised by past and future Arizona
candidates complaining that the matching funds provision
severely burdened their exercise of protected political
speech by punishing them for making, receiving, or
spending campaign contributions.
Arizona in the USSC – Clean Elections
• USSC, Roberts (5-4): “Any increase in speech resulting from the
Arizona law is of one kind and one kind only—that of publicly
financed candidates. The burden imposed on privately financed
candidates and independent expenditure groups reduces their
speech…”
• Dissent, Kagan: “Petitioners are able to convey their ideas without
public financing—and they would prefer the field to themselves, so
that they can speak free from response. To attain that goal, they ask
this Court to prevent Arizona from funding electoral speech—even
though that assistance is offered to every state candidate, on the
same (entirely unobjectionable) basis. And this Court gladly
obliges…If an ordinary citizen, without the hindrance of a law
degree, thought this result an upending of First Amendment values,
he would be correct.”
Arizona in the USSC – Employer
Sanctions
• Chamber of Commerce v. Whiting
– 2006 law that penalizes businesses for hiring workers
who are in the United States illegally
– Question: whether states are preempted from being
involved in immigration matters
– USSC (5-3): Federal immigration law gives states the
authority to impose sanctions on employers who hire
unauthorized workers
• Case centered on business licenses and state’s ability to
regulate them – very difficult to take this opinion as a cue on
how court would rule on SB1070
Legal Issues – 2011 Legislation
• SB1553: Arizona Empowerment Accounts
– Allows parents of disabled students to draw from
state account set up for students going to private
school and using private services
– 90% of base support level
– Parent must sign form promising not to enroll
student in state school
– Another voucher challenge: Cain v. Horne ruled
vouchers unconstitutional under AZ’s Aid Clause
– Lawsuit on the way; program being implemented
Legal Issues – 2011 Legislation
• HB2002: The “ASBA” Bill
– Prohibits school districts from expending funds for
membership in an organization that attempts to
influence the outcome of an election
• Amendment to A.R.S. §15-511
– Also applies to other organizations including
Chambers of Commerce
– ASBA has created 501c4 organization that is not
funded by school district dollars, where there is no
school district membership
Legal Issues – 2011 Legislation
• SB1263:
– Performance Pay – District Superintendents:
– Requires up to 20% of a school district
superintendent’s salary (eliminating language
that required calculation to be compensation
and benefits) to be classified as performance
pay
Legal Issues – 2011 Legislation
 HB2415 (schools; bullying policies)
 Expands those eligible to report from students to also
parents and school district employees
 Requires the district to supply a form and to establish
appropriate disciplinary procedures for employees who fail
to report suspected incidents known to them
 Includes electronic technology and communication on
school equipment and during school hours
 All students must receive a written copy of the rights,
protections, and support services available to bullying
victims at the beginning of each school year and provide
that information to the alleged victims when an incident is
reported.
Legal Issues – 2011 Legislation
• HB2219 (study committee; unification;
consolidation)
• Creates the 16-member Joint Legislative
Study Committee on School District
Unification and Consolidation
Legal Issues – 2011 Legislation
• SB1141 (schools; residency
requirements)
• Requires parents, or persons who have
custody, of a child who will attend a public,
private or charter school to provide
verifiable documentation of Arizona
residency
• Requires school districts and charter
schools to maintain the documentation
Legal Issues – 2011 Legislation
• SB1365 (paycheck deductions; political
purposes)
• For payroll deductions made after October
1, 2011, prohibits a public or private
employer from deducting a payment from
an employee's paycheck for political
purposes unless the employee gives
written or electronic authorization on a
yearly basis
Legal Issues – ECA Tax Credits
•
Arizona Department of Revenue: New “rubric” to determine whether activity is
eligible for tax credit funds
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–
–
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1. Is the activity sponsored by the district/school?
2. Is the activity for enrolled students?
3. Is the activity optional?
4. Is the activity non-credit?
5. Does the activity supplement the district/school’s educational program?
6. Does the district/school charge a fee for participation in the activity?
7. Is the activity fee paid directly to the district/school?
8. Was the fee for this activity adopted by the Governing Board at a public meeting after
notice to all parents of enrolled students?
– 9. Has the Governing Board authorized the principal to waive all or part of the activity fee if it
creates an economic hardship for a student?
•
2
If you answered NO to any of these questions, then the activity is not tax credit
eligible. If you are not certain how to answer any of the above questions, you
should consult the school’s attorney before offering tax credits for the activity.
Legal Issues – Medical Marijuana
• Medical Marijuana Law
– Permits employers to regulate an employee if the employee used,
possessed or was impaired by marijuana at work or during work hours.
• “Impaired” is not defined and consequently, employers have been concerned
about their rights to monitor and control employees who are under the
influence of medical marijuana, especially those who perform work in safetysensitive positions.
• HB2541 defines impairment as “symptoms that a prospective
employee or employee while working may be under the influence
of drugs or alcohol that may decrease or lessen the employee’s
performance of the duties or tasks of the employee’s job position”
and identifies nearly 20 signs and behaviors that indicate
impairment, but also gives employers discretion to identify any sign
that causes the employer to have a reasonable
Legal Issues – Medical Marijuana
• “Safety-Sensitive Position” is defined as “any job designated by an
employer as a safety- sensitive position or any job that includes
tasks or duties that the employer in good faith believes could affect
the safety or health of the employee performing the task or
others.”
• HB 2541 generally identifies safety-sensitive positions to include
jobs where the employee operates a motor vehicle, equipment, or
machinery, works in the residential or commercial premises of a
customer, or prepares or handles food or medicine. It also states
that all occupations regulated under Title 32 of the Arizona Revised
Statutes are safety-sensitive positions; those include over 40
occupations ranging from architects to massage therapists.
• School districts may be able to identify nearly all of their employees
as being in safety sensitive positions.
Questions?
cthomas@azsba.org