Horizon, Host: Ted Simons

April 21, 2009


Host: Ted Simons

Arizona Cases in Federal Court

  |   Video
  • ASU Law Professor talks about actions by the U.S. Supreme court on several cases that originated in Arizona, including a challenge to how the state funds education for English language learners. Bender also talks about a recent Ninth Circuit Court of Appeals ruling on Arizona’s private school scholarship tax credit program. Ninth Circuit Decision
Guests:
  • Paul Bender - ASU Law Professor
Category: Law

View Transcript
Ted Simons:
Hello and welcome to "Horizon." I'm Ted Simons. It's a big week for Arizona cases in federal courts. Yesterday, the United States Supreme Court heard a challenge to the way Arizona funds programs for English language learners. And today, the ninth circuit Court of Appeals ruled on Arizona's private school tuition tax credit program. Here to help us sort through it all is A.S.U. law professor, Paul Bender. Always a pleasure.

Paul Bender:
Nice to be here.

Ted Simons:
Let's start with the ninth circuit and the ruling on tax credit programs. You were involved with the case.

Paul Bender:
I argued the case and started the case along with another lawyer named Marvin Cohen and we are challenging the Arizona individual income tax credit program where people can give up to $1,000 and that's used for scholarships and that program was upheld on its face. We're not challenging the program as such. We're challenging the way its run and the reason is that about 75% of the scholarship money goes through school tuition organizations. Taxpayers give their thousand dollars to a school organization. There's about 50 of those. About 75% goes to school tuition organizations run by religious institutions and only give you a scholarship to go to a religious school and our argument is that that's religious discrimination which violates the Establishment Clause of the United States and that's what the ninth circuit held.

Ted Simons:
And the ninth circuit didn't look at the constitutionality. Or did they look at it and say it was okay?

Paul Bender:
No, they held it violated the U.S. to do that.

Ted Simons:
The application, but the programs themselves?

Paul Bender:
No, we didn't attack the program itself and we couldn't because the United States Supreme Court held a few years ago that under the U.S. constitution, a voucher program is constitutional. It's constitutional to give money to poor kids as long as the program is religiously neutral. So this program on its face is religiously neutral. When you read the statute, you wouldn't think there was any religious discrimination. But when it started to operate, almost all of the money -- now it's about 75% -- went to, say, the Catholic school organization. Phoenix is the largest of those. And it will only give you a scholarship to go to a school in the Catholic diocese of Phoenix and that's true of most of the large tuition organizations and it's not treated in a religiously neutral way. If you want a scholarship, you're much better offer if you want to send your kid to a religious school and we argued that violated the establishment clause of the United States constitution and the ninth circuit agreed.

Ted Simons:
The other side was saying still parents are free to apply to and go ahead and receive any scholarship. They still have that freedom. The freedom isn't necessarily there because of the religious standards.

Paul Bender:
Because they can only use the scholarship at a Catholic school, a Lutheran or a Jewish school. Whatever it is. And in giving out the scholarships, they say to the parents, where is your kid going to school? And if the parent says I'll make up my mind later, they say sorry. We'll give that scholarship and it will be earmarked for that school and you can't use it anyplace else.

Ted Simons:
Ok. Let's go to the English language learner case you were involved with.

Paul Bender:
Yes, I was. As a consultant on the Supreme Court part of the case and the Supreme Court heard argument on that yesterday. It was argued by a Washington law firm who did a really good job. And the issue there is whether many, many years ago, a federal district judge in Tucson ordered the state to adequately fund the English language learners programs. He did that pursuant to a federal statute that requires states to fund programs to make sure those whose native language isn't English learn English as soon as possible so they can learn math and science and all of the things that are taught in English, mostly. And held, I think in 2000 that the state was not funding that program. The state did not fund that program. But they have never adequately funded the program and the ninth circuit says it was never adequately funded and so the state is asking to remove that injunction, because they say now they're funding adequately. We look at the thing today and they say that the funding is adequate today. So the issue before the Supreme Court, a main one, is the funding adequate today? Even if it's not, I think there's an argument when the court tells you to do something; you should do it and before you come there and say I've done it, so tell -- relieve me of the obligation. You should have done it or made a good faith effort and the lower courts held they didn't do that.

Ted Simons:
And Ken Starr, one of the litigators presenting the case for the legislature and the officials here in Arizona basically saying that things have improved and so it is better but it sounds like Steven Brayer was saying that doesn't mean that mission's accomplished.

Paul Bender:
Right, I didn't hear the argument but I understand that's the -- several justices said that. Improvement is not enough. It has to be adequate funding and normally you would defer to lower courts' decisions. But the U.S. Supreme Court has been very, very scrupulous about trying to keep -- reign in federal -- rein in federal judges. So I think this is a very close decision which will probably be 5-4 and as usual, depends on Justice Kennedy.

Ted Simons:
Last point. It sounds like Scalia, maybe Roberts as well, wondering why something happening in Nogales has to happen for the rest of the state. They were curious, but that's the state's decision, correct?

Paul Bender:
I think it's the state's decision and the obligation to every child in the state. Not just in Nogales. So I think its right to look at it statewide. And it's a problem especially in these days when money is tight but there's an obligation and it's a constitutional obligation. It's unconstitutional to run a school system that doesn't teach kids something because they can't speak the language and congress decided the remedy is teach them the language and you have to adequately fund it. The issue is whether they are.

Ted Simons:
Another case involves a strip search about a teenager down there.

Paul Bender:
Did you notice how Arizona seems to be involved in --?

Ted Simons:
Everywhere.

Paul Bender:
-- So many. Here's a case where officials in the school, a girl said, was found with some pills she shouldn't have. Really Advil. Said she got them from another girl and first they strip searched the girl who they found the pills on and found them not on her body, they were in her purse and brought the other girl into the office and said, did you give her the pills? And she said no. Looked in the handbag and the nurse and the secretary of the principal took her into a room and told her to take her clothes off. She was down to her underwear and looked inside her underwear and, of course, found nothing. And she sued saying it was quite traumatic. And two issues. One is that constitutional to have that strong an invasion -- she was 13 at the time -- of her privacy on that flimsy of a reason. And it's -- flimsy of a reason. The Supreme Court came up with a doctrine called qualified immunity. Even if a state official violates a person's constitutional rights they're not liable for damages unless the right was clearly established at the time they violated it. So the argument of the defendants in this case is well, maybe we don't think it was unconstitutional, but even if it was, it wasn't clearly established it was. The ninth circuit and I think in a 6-5 opinion, held it's not only unconstitutional, but anyone would have known it's unconstitutional to strip search a 13-year-old.

Ted Simons:
Schools are watching it closely because again, if it's upheld, critics will say that all searches are ok. But to strike it down, a chilling effect of schools trying to do something of stopping drugs on campus.

Paul Bender:
One of the defenses was written by a person named Mike Hawkins but made the point you made. It's hard for school officials to deal with this and if you start putting barriers in the way, then maybe they won't do something they should and children will suffer. But, on the other hand, most people react to a strip search of a 13-year-old girl as a bit of an overreaction.

Ted Simons:
I know the decision came down today. Talk about the case.

Paul Bender:
The Arizona Supreme Court decided it was unconstitutional for the police to search a car after they arrested the driver outside of the car put him in handcuffs, put him in the police cruiser and so he wasn't available to get into the car and then searched the car and they arrested him for driving without a license. What were they looking for? The license? And they found drugs, of course, and the Arizona Supreme Court, I think, 3-2, trying to follow the United States constitution said we think this is unconstitutional. The dissent, written by justice Bales, said maybe they can do this kind of thing. So they agreed with the United States Supreme Court and all of the justices who said this ought to be unconstitutional and so another good day for Arizona.

Ted Simons:
A busy day for Arizona. That's for sure and we thank you for helping shed some light on it. Thanks for joining us, we appreciate it.

Paul Bender:
Nice to be here.

Arizona Education Funding

  |   Video
  • How much does Arizona spend on public education? It depends on how you do the math. Comparisons of how much States spend, per-pupil, on K-12 education often list Arizona at, or near, the bottom. Typically, Arizona is shown to spend around $6,000 per student compared to a national average of more than $9,000, but the Goldwater Institute is reporting that Arizona spends more than $9,500 per student. We’ll take a look at what may account for the differences.
Guests:
  • Chuck Essigs - Arizona School Business Officials
  • Matthew Ladner - The Goldwater Institute
Category: Education

View Transcript
Ted Simons:
How much does Arizona spend on public education? It depends on how you do the math. According to several sources, Arizona is at or near the bottom in national rankings for per pupil funding. Arizona spends about $6,000 per student compared to a national average of more than $9,000. Meanwhile, the Goldwater Institute puts Arizona's K-12 funding at about $9,500 per student. Here to explain the differences are Matthew Ladner, vice president of research for the Goldwater Institute, a conservative think tank. And Chuck Essigs of the Arizona Association of School Business Officials. Thank you both for joining us here on "Horizon."

Chuck Essigs:
Thank you.

Ted Simons:
All right, Matt, how much does Arizona spend per pupil in education and how did you get the number?

Matthew Ladner:
If you look at the superintendent's annual financial report it gives a total revenue from all sources of about $9.2 billion. You divide that by the number of kids. 950,000, you get 950 per -- it's a substantially higher number then gets reported.

Ted Simons:
I want to come back to that in a second. I want to ask you, how much?

Chuck Essigs:
We do spend $9,500 if you add in all of the things that get added in the report. But when you look at the national studies, education week, which is considered the gold standard for reporting, the American legislative exchange council, the N.E.A., all of those studies which look at all states, including Arizona, compares them on an apple to apple and orange to orange; Arizona is $6,200 to $6,500 per pupil for operational expenses. What drives the $9,500 is when you bring in capital expenses and self-insurance accounts and student funds and revenues that schools have but really aren't used on a day-to-day basis.

Ted Simons:
Is there a difference between capital expenditures and revenues and classroom teaching?

Matthew Ladner:
There is, now if you do the same procedure I described to you for charter schools, you look at their total revenue you get a figure $7,800 per pupil and that's the same all-in procedure. Public schools get, you know -- actually get state funding for facilities while charter schools don't. We use the facilities for an educational purpose. If school facilities are going to take funding they ought to count it in their expenditure per pupil.

Ted Simons:
Why not include that?

Chuck Essigs:
If you include that in the expenditures that others are reporting. If you want to take the figure for Arizona, which is still below the national average, if you bring in the capital expenditures we're still going to be 48th or 49th, because their spending is not going to be $9,500 anymore, it's going on an average, $11,000, $12,000, because you're including the capital expenses also.

Ted Simons:
Compare and contrast compared to other states all-in.

Matthew Ladner:
I can't tell you that because I don't know what the other states are doing. To get these figures you have to dig into the guts of the report to get an accurate number. My feeling we've got about $9,700 per kid all-in for district schools. About $7,800 for charter schools. The Goldwater Institute did a survey of private schools and 146 schools across the state; we found an average cost of about $5,500. And spending for pupils in Arizona was $404 per pupil, and adjust for inflation, about $2,800 per pupil. So I don't think it's important to know how much we compare to kids in Alaska, I think the point is --

Ted Simons:
If we're ranked low, you don't think that's important?

Matthew Ladner:
I think it's important to recognize that our schools are getting a substantial amount of money per pupil. $9,800 is a lot more than $7,800. And the point is we need to do the best we can with the resources we have available.

Ted Simons:
Aren't results -- academic results what we're going for here?

Chuck Essigs:
Yes, but what will the additional dollars buy? The only state below us is Utah. We have the second largest class size. 24 students on average. The national average is probably closer to 15. You have to give up something by not having those resources and giving schools more money will make them better, but if they -- won't make them better. What are the five things that Arizona needs to do with extra dollars to really have adequate schools for all children and those included full-day kindergarten and training for teachers and smaller schools and individual tutoring for kids who are struggling. Just bringing in more revenue doesn't make your business more efficient. If you use the money appropriately, it does.

Ted Simons:
Do I infer you believe we spend too much on public education?

Matthew Ladner:
That’s not what I'm interested in. I wouldn't say that even. I'm a graduate of public schools; my own children attend Arizona public schools. I want them to succeed. You look around the country; you look at Florida, which is ranked low on these comparisons of state-to-state. Florida got very serious about education reform in 1998 and ten years later, the nation's report card, fourth grade reading, their free and reduced lunch children are outscoring for all children here in Arizona. Ok? That's not spending a lot. It's also with a difficult demographic profile similar to what we have in Arizona. And they're getting more bang for the buck and that's critical because we have a lot of demands on public dollars in the state. Health care, higher education, transportation, criminal justice. We have a $3 billion deficit. We're not going to spend our way to high-quality schools so we need to focus more on bang for buck.

Ted Simons:
How do you explain the success in Florida?

Chuck Essigs:
First, it’s more per pupil. And I don't have the numbers right now. And I do think one of the things that's important, if we compete with the students all across the country, we want to make sure we have adequate services and businesses and companies move here, they're getting those services. Can we improve? Of course, we can. Lowering class size costs money.

Matthew Ladner:
There's a lot of evidence over the last 40 years that lowering class size is not -- it's an expensive reform that does not deliver results. Florida is 40-something and by having a rigorous attention to bottom line results, you can get them. You can drop your illiteracy rate, but you can't get there if you're not serious about it.

Ted Simons:
Thirty seconds left.

Chuck Essigs:
Anytime it gets over 100 degrees, everybody starts to distort the school spending picture in Arizona. All of the studies show we're 49th out of 50 and we need to do better. And we need adequate resources to do the job for all students.

Ted Simons:
We need to get a final number so we can agree on what we're talking about here. Thanks for joining us here on "Horizon."

Matthew Ladner:
Thank you.

Border Violence Hearing

  |   Video
  • Senator Joe Lieberman and Senator John McCain will be holding a Southern Border Violence conference in Phoenix. The conference will include Governor Jan Brewer, Arizona Attorney General Terry Goddard and others, and will focus on the increasing violence at the U.S-Mexican Border.
Category: Immigration

View Transcript
Ted Simons:
The United States Senate Committee on Homeland Security held a hearing on border violence yesterday at Phoenix city hall. Members of the committee -- senators Joe Lieberman and John McCain were joined by Senator Jon Kyl to hear what state and local officials had to say with problems at the border.

Joe Lieberman:
We're going to focus this morning on very real consequences for communities along the Mexican border associated with activities of the Mexican drug cartels and their nightmarish violence. The cartels have gone to war with each other and with the Mexican government. The Mexican drug cartels are now the number one organized crime threat in the United States. Displacing the Mafia.

Terry Goddard:
Their operations are made up of at least four criminal enterprises and I've got a rudimentary drawing that shows them in drawing style. Drugs and human beings smuggled north and I'd like to show you one item. These are stored value cards. I don't mean to demean Costco, but these cards which we think of as gift certificates have been used to move hundreds of thousands if not millions of dollars across the border. There is no crime to take a million dollars in a card like this and take it across the border. That single regulatory change has been pending for years and I would submit the time is long past that it has to be implemented.

John McCain:
Due to the insecure border and high demand for illegal drugs in the United States, the drug cartels' activities are impacting the security of the United States and particularly Border States like Arizona. I'm sad to say that the city of Phoenix is now the kidnapping capital of the United States and second only to Mexico City for the most kidnappings in any city in the world.

Jack Harris:
Many of the kidnapping victims, as you've heard, are being brought into Phoenix by smugglers known as coyotes and each paying in excess of $1,500 each to be brought into the country. Once here, they take them to drop houses where dozens of smuggled people are kept. Their shoes and clothes often taken so they can't escape. They're beaten and tortured while the loved ones listen on the telephone in horror.

Ned Norris Jr.:
The nation is in the midst of this crisis and our way of life and culture and traditions are changing every day. The cartels developing formal relationships with nation members to drive vehicles loaded with hundreds of pounds of drugs and/or cars loaded with illegal migrants to designated locations off the nation. What they do is a simple process of offering $700 to $5,000 depending on the type of load to a tribal member to either drive the load or store the drugs at their home or a shed.

Octavio Garcia-Von Borstel:
Whether merited or not, the perception alone in Nogales has greatly reduced the amount of business and tourist visitors.

Larry Dever:
Particularly in the rural areas. We're in the southeast corner of Arizona, properties are continually burglarized and the fences are cut and damaged and water sources destroyed and contaminated.

Jack Harris:
We want a secure border but we've got to have immigration reform. There's a big difference between the pictures that you saw -- 50 people who've committed the crime of trying to come into this country to work and provide for their families and the people who are running guns, smuggling their human cargo and smuggling narcotics.

Jan Brewer:
Mr. Chairman, I believe fully if we secure our border, all of the other issues that we're facing in regards to drug trafficking, kidnapping, border spillover, guns going south to the border, if we could get the resources to secure our border, then these other problems would go away.

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