Court fight likely over deseg levy in TUSD
Arizona Daily Star
Jan. 2, 20
09

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Tens of millions at stake in constitutional argument

By Rhonda Bodfield

Tucson, Arizona | Published: http://www.azstarnet.com/sn/education/274160

The Tucson Unified School District will likely end up in court over the constitutionality of the tens of millions of dollars it receives every year in desegregation funding.

The Goldwater Institute, a conservative think tank based in Phoenix, has teamed with the Arizona Tax Research Association, a pro-taxpayer organization, to try to get a legal remedy for what their political efforts so far have failed to do: gut the ability of 19 Arizona school districts to levy extra taxes to help balance schools racially.

Clint Bolick, the Goldwater Institute's director of constitutional litigation, said he plans to file the suit within the next few weeks, charging that it's illegal for the districts to levy essentially unlimited property taxes for an unlimited time without voter approval.

TUSD and Phoenix Union are the only two of the 19 operating under an official court decree. The others have administrative agreements with the U.S. Department of Education.

The fight now is over a law change more than two decades old.

At the time that TUSD settled a class-action lawsuit filed by Hispanic and black parents in 1978, the district, like all others, was subject to statutory spending limits.

Initially, the federal government agreed to provide emergency aid to help the district establish magnet schools, which were designed with "extras" such as special programs, reading specialists, additional money for supplies and more teachers to attract students from neighborhoods across the city to create a more racially integrated district.

As federal funding dried up, the state Legislature for the 1986-87 budget year permitted the district to raise its property-tax levy above the statutory limit to continue desegregation.

Three decades later, the district is still in the process of getting out from under the order, which a judge conditionally lifted over the summer. However, when that happens, the district won't lose its desegregation levy.

But Bolick says lawmakers have no authority to override the spending caps laid out in the Arizona Constitution. He also contends the practice violates the voting rights of citizens in those districts because the levy is not put up to a vote the way other budget overrides are.

"If these are important programs, then the districts should make their case to the voters and seek voter approval for these programs, just like every other school district in this state," Bolick said.

So much time has passed now, Bolick argued, that the original purpose of the desegregation funding has been muddled. "The justification certainly diminishes as the original civil-rights violations recede into the distance," he said. "This has turned into a longtime gravy train."

TUSD spokeswoman Chyrl Hill Lander said the district cannot comment on a lawsuit still in its draft stages.

Kevin McCarthy, president of the tax association, said the system sets up an inherent imbalance by giving the districts with the desegregation levies a funding advantage over others.

In the case of TUSD, he said, the district is getting 23 percent more funding than it would otherwise be entitled to collect.

At nearly $64 million in fiscal 2009, TUSD the state's second-largest district has a higher desegregation levy than any other district in the state, followed by Phoenix Union at nearly $56 million.

But because the state caps how much homeowners must pay, it is currently subsidizing the desegregation districts to the tune of about $33 million total.

That means regardless of what happens in the legal arena, desegregation funding might again end up in the political spotlight as the state struggles to close a deficit of $1.2 billion deficit this fiscal year, as well as an even larger one predicted for next year.

Lawmakers for years have attempted to reform desegregation expenses.

In 2004, the Legislature capped desegregation expenditures to allow increases only for enrollment and inflation growth.

The next year, lawmakers passed a bill that would have saved an estimated $1 million in state general-fund expenditures by capping districts at their '05 funding levels.

Gov. Janet Napolitano vetoed the bill because it failed to adjust for student growth or the need for additional transportation expenses. "We should not be passing laws that will lead to more litigation against the state and its school districts," wrote Napolitano, who is now handing over the office keys to Republican Secretary of State Jan Brewer.

Political observers say even in a tough budget year, however, politicians are going to be cautious about doing anything that looks as if they're cutting school budgets.

Steve Courter, head of the Tucson Education Association, the local teachers union, said he can't imagine that the case will be successful.

"Some of the best things about TUSD are funded by those desegregation dollars," he said, adding that the magnet schools, for example, provide opportunities and programs that otherwise wouldn't be available.

"Even those who make political hay out of hating TUSD understand that rhetoric is one thing, but you can't just obliterate the second-largest district in the state. Anyone could look at their own personal budget and see what would happen if 20 percent disappeared overnight."

But former state Sen. Jeff Hill, a Tucson Republican who served from 1979 until 1991 and who has agreed to serve as a plaintiff against TUSD, said the desegregation levy contributes to the area's high property-tax rate, which cuts into the ability to recruit businesses. The district, he contends, "is bureaucracy-happy," and he thinks it should be forced to look more closely at its expenditures.

"I'm willing to go to bat for the taxpayers in Pima County," he said.

● Contact reporter Rhonda Bodfield at 806-7754 or at rbodfield@azstarnet.com.