4 | 110TH ARIZONA TOWN HALL

10 | 110TH ARIZONA TOWN HALL

K-12 FUNDING BY TYPE

OTHER STATE

FY 2017 EQUILIZATION

STATE FUNDING

EQUILIZATION 69%

FEDERAL FUNDS 14%

OTHER LOCAL FUNDS 12%

PROP. 301 5%

PROPERTY TAX
38.5%	PROP. 301
1.4%

LAND TRUST 3.5%

GENERAL FUND 56.6%

Source: Joint Legislative Budget Committee K-12 Funding Since 2008 (Non-Capital Funding Only) 7/25/16, http://www.azleg.gov/jlbc/non-capitalfundingonly.pdf

Source: Joint Legislative Budget Committee, K-12 Funding Since 2008 (Non-Capital Funding Only) 7/25/16, http://www.azleg.gov/jlbc/non-capitalfundingonly.pdf

WHERE DOES THE FUNDING COME FROM?

For traditional school districts, the equalization formula is funded by two key sources - locally collected property taxes and the state general fund. This system was put in place to “equalize” funding across
the state. Each school district contributes local property taxes based on the wealth of the local district. In addition to these two sources, the State Land Trust Fund and a small portion of Prop. 301 dollars support equalization.

Funding equalization begins with a local property tax. Once a district’s budget is calculated, each public school district is allowed to levy a local property tax known as the qualifying tax rate (QTR). If the amount raised by the QTR is sufficient to cover the school district's budget, the formula stops there. However, in the vast majority of cases, the local property tax can only cover a portion of the budget. The balance is funded by state dollars. In FY 2017, the QTR was $4.1586 per $100 of assessed property valuation. While the QTR is a cap and the actual levied rate is determined by the local school board rate, when calculating the state share, the state assumes the full rate is levied.

In addition to school district property taxes, a state equalization tax rate (SETR) is also assessed on property owners. In FY 2017, the SETR was $0.5010 per $100 of net-assessed value.28 For FY 2017, the QTR and the SETR will raise an estimated $2.4 billion toward the equalization formula, about 38 percent of the total.

Charter schools do not have access to local property taxes, therefore the state general fund provides 100 percent of the charter funding formula.

35 | 110TH ARIZONA TOWN HALL

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EDUCATION AND THE ARIZONA CONSTITUTION, 3 Phoenix L. Rev. 99

3 Phoenix L. Rev. 99

Phoenix Law Review Spring, 2010
EDUCATION AND THE ARIZONA CONSTITUTION

Timothy M. Hogan, Donald M. Peters Kristin Mackina1

Copyright © 2010 Phoenix Law Review; Timothy M. Hogan, Donald M. Peters, Kristin Mackin

I.	Introduction	99

II.	The Enabling Act	99

III.	Article XI of The Arizona Constitution	101

IV.	The “General and Uniform” Clause	102

V.	“As Nearly Free As Possible”	106

VI.	Aid to Private and Religious Schools	108

VII.	Conclusion	111

I. Introduction

The drafters of the Arizona Constitution “believed that an educated citizenry was extraordinarily important to the new state.”1 The constitution established a comprehensive framework for the establishment and maintenance of a public school system in Arizona. This article will provide an overview of the relevant constitutional provisions. It will also address three issues that have received significant attention from the courts: the requirement that the public school system be general and uniform; the requirement that instruction be as nearly free as possible; and the limitations on the State’s ability to assist religious and other private schools.

II. The Enabling Act

The provisions regarding education in the Arizona Constitution need to be considered in light of the Arizona-New Mexico Enabling Act (“Enabling *100 Act”), enacted in 1910, in which the United States Congress set terms for the admission of Arizona and New Mexico to the Union.2 The Enabling Act constitutes part of the fundamental law of Arizona.3 Neither the Arizona Constitution nor any statutes may be in conflict with it.4

The drafters of the Enabling Act demonstrated a significant concern for education. The Act granted 10,790,000 acres of land to the State of Arizona to be held in trust for designated public uses.5 Of that total, approximately 9,180,000 acres were earmarked for purposes related to education, with 8,000,000 acres designated for the support of common schools.6 Congress expected that the lands would be sold and leased, with the proceeds to be used for the benefit of the beneficiaries of the trust.7 The Enabling Act provided detailed instructions for the disposal of such lands.8

The Enabling Act also imposed some specific requirements on the State regarding education. It directed that in Arizona’s

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Constitution, “provisions shall be made for the establishment and maintenance of a system of public schools which shall be open to all the children of said State and free from sectarian control; and that said schools shall always be conducted in English.”9 That requirement could not be changed without the consent of the United States.10 The Enabling Act further directed that
the schools, colleges, and universities provided for in this Act shall forever remain under the exclusive control of the said State, and no part of the proceeds arising from the sale or disposal of any lands granted herein for educational purposes shall be used for the support of any sectarian or denominational school, college, or university.11

The courts have so far had no occasion to apply these provisions in any reported decision.

*101 III. Article XI of The Arizona Constitution

An entire article of the Arizona Constitution, Article XI, is devoted to education.12 In part, Article XI implemented the commands of the Enabling Act.13 Section 1 of Article XI requires the establishment of a public school system.14 It also specifies the kinds of schools that must be part of the system.15 Sections 2 through 5 of Article XI describe how the public school system is to be governed and supervised.16

Section 6 of Article XI provides that state educational institutions are to “be open to students of both sexes.”17 It also provides that instruction is to be “as nearly free as possible,” as discussed in detail hereafter.18

Section 7 of Article XI prohibits “sectarian instruction” in any state educational institution.19 This section also prohibits religious or political tests as a condition of attending or teaching at a state educational institution.20

Sections 8 through 10 of Article XI concern funding for education.21 Sections 8 and 10 provide that income from the trust lands granted to Arizona by the Enabling Act is to be used to support the public school system.22 Section 10 also states:
In addition to such income the Legislature shall make such appropriations, to be met by taxation, as shall insure the proper maintenance of all State educational institutions, and shall make such special appropriations as shall provide for their development and improvement.23
This language has not received significant attention from the courts. Whether appropriations are sufficient to ensure the proper maintenance of educational institutions could be viewed by the courts as a political question that they will not address. Similarly, the instruction that the legislature *102 develop and improve the State’s educational institutions may be found to provide no standard that the courts can enforce. Regardless of the enforceability of these provisions by the courts, however, these provisions constitute part of the Arizona Constitution that legislators take an oath to uphold. These provisions also evince the high priority attached to public education by the drafters of that constitution.

IV. The “General and Uniform” Clause

In 1973, in the case of San Antonio v. Rodriguez, the United States Supreme Court rejected the notion that inequitable or inadequate school finance systems across the United States implicated any rights under the United States Constitution.24 The Court held that wealth was not a suspect classification under the Constitution.25 The Court also held that alleged inequities in a state’s school finance system were not subject to strict scrutiny analysis under the Equal Protection Clause.26 In addition, the Court held that education was not a fundamental right under the Constitution.27 San Antonio v. Rodriguez effectively closed the doors of federal courts to school finance litigation premised on the Constitution.

As a result, plaintiffs turned to their state constitutions for relief. Almost every state’s constitution contains requirements regarding the establishment of a public school system.28 A few state constitutions contain permissive provisions, while only one state’s constitution contains no provisions whatsoever addressing education.29

As discussed above, the Arizona Constitution contains a number of requirements relating to the establishment of the state’s public school system. Article XI, Section 1 of the Arizona Constitution provides that “[t]he Legislature shall enact such laws

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as shall provide for the establishment and maintenance of a general and uniform public school system . . . .”30 This provision has remained unchanged since statehood. It was not until 1973, however, that the Arizona Supreme Court first considered the meaning of this provision.31 In Shofstall v. Hollins, the court *103 was confronted with a challenge from students and taxpayers in the Roosevelt School District.32 The plaintiffs claimed that “the system of financing public schools in Arizona [was] discriminatory because of the disparity of wealth among school districts.”33 They contended that the disparity resulted in unequal education for students and an unequal burden on taxpayers in poorer school districts.34 The plaintiffs further alleged that the school finance system violated the Equal Protection Clauses of the Arizona and United States Constitutions.35

The court rejected the federal Equal Protection claim based upon San Antonio v. Rodriguez, which had been decided by the United States Supreme Court earlier that year.36 In rejecting the Equal Protection claim under the Arizona Constitution, the Shofstall court had occasion to consider the “general and uniform” clause.37 According to the court, the Arizona Constitution requires that there be “a general and uniform public school system” and “a system of schools by which a free school shall be established.”38 The Shofstall court held that the school laws provided for a system that was “statewide and uniform” because the minimum length of the school year was provided in the constitution and the legislature had provided a means of establishing required courses, teacher qualifications, textbooks, and qualifications for non-teaching personnel.39

After analyzing the Equal Protection claim, the court held that the Arizona Constitution “does establish education as a fundamental right of pupils between the age of six and twenty-one years.”40     The “fundamental right” contained in the constitution “assures to every child a basic education.”41 According to the Shofstall court, so long as that “basic education” is provided, a school financing system that meets the educational mandates of the constitution (“uniform, free, available to all persons aged six to twenty-one, and open a minimum of six months per year”) only needs to be “rational, reasonable, and neither discriminatory nor capricious.”42

*104 Twenty-one years later, the courts revisited the issues first addressed in Shofstall.43 The plaintiffs in Roosevelt v. Bishop made claims nearly identical to those asserted in Shofstall.44 The evidence provided by the plaintiffs showed that the quantity and quality of school buildings, facilities, and equipment varied enormously from one school district to another based upon the value of real property within the school district.45 Though the trial court found that there were “gross disparities” that were a direct result of the school finance system, it held that Shofstall precluded a challenge on those grounds.46

The Arizona Supreme Court reversed.47 A plurality of the court determined that a statutory financing scheme for public education that itself causes gross disparities in school facilities violates the “general and uniform” requirement of Article XI, Section 1 of the Arizona Constitution.48 There was no consensus among the plurality to decide the case on Equal Protection grounds.49 Nevertheless, the court determined that Shofstall was not dispositive.50 The court did not understand how the rational-basis test could be used if a fundamental right was implicated in a case.51 The court observed that “[i]f education is a fundamental right, the compelling state interest test (strict scrutiny) ought to apply.”52 The court concluded the Equal Protection discussion by saying that it did not need to resolve the conundrum because, in the court’s view, the general and uniform clause in the Arizona Constitution sufficed to resolve the issues in the case.53

Two of the three justices in the plurality determined that the “general and uniform” requirement means at least two things.54 First, “funding mechanisms that provide sufficient funds to educate children on substantially equal terms tend to satisfy the general and uniform requirement.”55 School financing schemes that cause gross disparities are not general and uniform.56 Second, “as long as the statewide system *105 provides an adequate education and is not itself the cause of substantial disparities, local political subdivisions [like school districts] can go above and beyond the statewide system.”57 There is nothing to “prohibit a school district or a county from deciding for itself that it wants an educational system that is even better than the general and uniform system created by the state.”58

Those two justices also determined that there are two components to a general and uniform system.59 One is a substantive education requirement and the other is a uniformity requirement.60 As a result, they determined that “[e]ven if every student in every district were getting an adequate education, gross facility disparities caused by the state’s chosen financing scheme would violate the uniformity clause.”61

It was on this point that the third justice in the plurality disagreed.62 In his view, the constitution does not require that the state provide sufficient funds to educate children on substantially equal terms.63 Instead, the general and uniform clause was intended not to guarantee equal education, but only an equal opportunity for each child to obtain the basic, minimum education that the

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state prescribes for its public school students.64 It was this view that would inform the court’s later decisions.

The Arizona State Legislature’s subsequent efforts to comply with the Roosevelt decision presented the Arizona Supreme Court with two more opportunities to clarify the meaning of the “general and uniform” clause. Together, the three decisions established a two-prong test for assessing whether a school financing scheme meets the state constitutional requirements. First, “the state must establish minimum adequate facility standards and provide funding to ensure that no district falls below them.”65 Second, “the funding mechanism chosen by the state must not itself cause substantial disparities between [school] districts.”66 Importantly, the court held that “in addition to providing a minimum quality and quantity standard for buildings, a constitutionally adequate system will make available to all *106 districts financing sufficient to provide facilities and equipment necessary and appropriate to enable students to master the educational goals set by the Legislature.”67

Subsequently, the Arizona Court of Appeals rejected a challenge to the legislature’s failure to provide full funding for the building renewal formula.68 That formula was designed to provide school districts with sufficient funds to maintain and renovate school facilities related to academic achievement.69 The court of appeals held that because the plaintiffs challenged the lack of funding for administrative facilities, they had failed to demonstrate that school districts had currently unmet needs related to academic achievement.70 The court of appeals noted, however, that “the legislature’s decision to repeatedly not fully fund the [building renewal formula] to meet the capital needs of public schools well may result in large future expenditures, possibly greater than what the formula requires, to allow students to achieve academic success.”71 The court of appeals determined that was a matter for the legislature to determine, and not the courts.72

V. “As Nearly Free As Possible”

The Arizona Constitution provides that “State educational institutions shall be open to the students of both sexes, and the instruction furnished shall be as nearly free as possible.”73 Few Arizona courts have addressed the requirement that instruction be “as nearly free as possible.” The most recent decision by the Arizona Supreme Court appears to take such issues away from the courts and leave them entirely in the hands of the legislature.74

The first discussion of the “as nearly free as possible” clause came in Board of Regents of University of Arizona v. Sullivan.75 The Arizona Attorney General had refused to approve and certify the issuance of bonds to the University of Arizona.76 One reason cited by the Attorney General for his refusal was that the issuance of the bonds would violate the *107 requirement that instruction be as nearly free as possible.77 The Attorney General asserted that the clause required that school instruction should be entirely free.78 He argued that a schedule of fees that had been adopted by the University of Arizona violated the constitutional provision.79 The Sullivan court rejected the Attorney General’s view, holding that “the language of the [c]onstitution refutes this contention. There is no suggestion that the fees, rentals, etc., are excessive or other than reasonable, or are not as nearly free as possible.”80

Thirty years later, in Arizona Board of Regents v. Harper, students at Arizona State University challenged the residency requirements for in-state tuition as, among other things, violating the “as nearly free as possible” clause.81 The Harper court, citing Sullivan, held that the provision did not require that a college education be entirely free, and observed that the students had not challenged whether the fees or other charges were “excessive, or other than reasonable, or are not as nearly free as possible.”82

In Carpio v. Tucson High School District No. 1 of Pima County, the parent of a minor child claimed that a school district’s failure to provide free textbooks to indigent children violated the Arizona Constitution.83 On appeal from summary judgment in favor of the school district, the Arizona Supreme Court held that the Arizona Constitution did not require that textbooks be furnished to high school students for free. It stated that “proper construction of the Arizona Constitution compels the conclusion that the word ‘free’ was intended to include free instruction and textbooks, and that the words ‘as nearly free as possible’ do not require that either be provided without charge . . . .”84

Most recently, in Kromko v. Arizona Board of Regents, the Arizona Supreme Court held that interpretation of the “as nearly as free as possible” clause was a political question not appropriate for resolution by the courts.85 In Kromko, students at Arizona State University challenged an increase in tuition at the university as violating various sections of the Arizona Constitution, including the “as nearly free as possible” clause.86 The *108 superior court dismissed the action.87 The Arizona Court of Appeals reversed in part, holding “that the students’ complaint stated a claim upon which relief could be granted.”88 The Arizona

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EDUCATION AND THE ARIZONA CONSTITUTION, 3 Phoenix L. Rev. 99

Supreme Court vacated the decision of the Arizona Court of Appeals, holding that the issue presented a political question not suitable for judicial resolution.89 The Kromko court focused on “the second critical prong of the political question test: whether there exist judicially discoverable and manageable standards for determining when tuition is constitutionally excessive.”90 Once again following Sullivan, the Kromko court noted that “as nearly free as possible” does not entitle students to an “entirely free” college education, and that neither case law nor statutes provided a standard by which to measure whether tuition was so high as to be in violation of the “as nearly free as possible” clause.91 The court concluded:
We can conceive of no judicially discoverable and manageable standards—and the students have suggested none—by which we could decide such issues, either individually or in the aggregate. Even assuming, as the students contend, that Article XI, Section 6, requires that tuition be “reasonable” and not “excessive,” there is no North Star to guide a court in making such a determination; at best, we would be substituting our subjective judgment of what is reasonable under all the circumstances for that of the Board and Legislature, the very branches of government to which our Constitution entrusts this decision. The issue of whether tuition is as nearly free as possible is thus a nonjusticiable political question.92

VI. Aid to Private and Religious Schools

In recent years, state courts have given increasing attention to state constitutions when addressing the protection of individual rights.93 This *109 trend has been prompted in part by the fact that the United States Supreme Court has been taking a less expansive view of individual rights.94

Two provisions of the Arizona Constitution, in particular, address the relationship between the state and religion, including religious schools. Article II, Section 12, also called the “Religion Clause,” provides that “[n]o public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.”95 Article IX, Section 10, also called the “Aid Clause,” states that “[n]o tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation.”96

Until 2009, only three cases of any significance had been decided under these appropriations clauses. In Pratt v. Arizona Board of Regents, the court held that the Religion Clause did not prohibit renting Sun Devil Stadium to evangelist Billy Graham for a fair fee.97 The court observed that the occasional use of public facilities for worship services, after hours, had been common when the Arizona Constitution was adopted.98 As long as a fair rental was paid and the use was only occasional, said the court, the practice was not the sort that the Arizona Constitution had intended to prohibit.99

Community Council v. Jordan concerned state reimbursement to the Salvation Army “for the supplying of food, lodging, clothing, cash assistance, transportation, laundry and cleaning” to welfare recipients.100 No religious conditions were attached to the aid.101 The court held that where a religious organization was used as a mere conduit for state aid to the poor, with no religious strings attached to that aid, the appropriation clauses were not violated.102

In Kotterman v. Killian, the state had enacted a law that allowed taxpayers to take a tax credit for donations to school tuition organizations.103 The organizations provided aid to students who attended religious and other *110 private schools.104 The validity of the statute was challenged on various grounds, including the Aid and Religion Clauses.105 A divided court in Kotterman held, over a lengthy and vehement dissent, that tax credits did not constitute public money.106 Since the Aid and Religion Clauses by their terms only apply to uses of public money, Kotterman held that the tax credits at issue did not violate either clause.107

In Pratt, Jordan, and Kotterman, the Aid and Religion Clauses were considered together, for the most part, with no significant discussion of their differences. It does not appear that the differences in the two clauses would have been material in any of those cases. None of the three cases found a violation of either clause. The three cases, therefore, provided some guidance as to what the two clauses did not mean, but they provided little guidance as to what the clauses did mean.

Some of these uncertainties were resolved in 2009 in the court’s decision in Cain v. Horne.108 Cain involved two school-voucher statutes that had been enacted in 2006.109 The statutes appropriated public money to allow disabled students and foster children to attend private or religious schools.110 Parents of qualifying students could apply for a “scholarship” from the State.111 The State would issue a warrant to the parents that had to be restrictively endorsed to a private or religious school.112 Private and religious schools were not required to change any practices in order to accept the warrants.113

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EDUCATION AND THE ARIZONA CONSTITUTION, 3 Phoenix L. Rev. 99

The plaintiffs in Cain relied primarily on the Aid and Religion Clauses.114 The trial court dismissed their complaint.115 The Arizona Court of Appeals reversed, holding that the voucher statutes violated the Aid Clause but not the Religion Clause.116 The Arizona Court of Appeals viewed itself as constrained by Kotterman and Jordan to treat the Religion *111 Clause as virtually indistinguishable from the federal Establishment Clause.117

The Arizona Supreme Court also concluded that the voucher statutes violated the Aid Clause.118 Although Kotterman in particular had engendered some uncertainty as to whether Arizona’s clauses would be construed independently of each other and of the Establishment Clause, the Cain court held that they should be so construed.119 The court observed that, unlike the Federal Constitution, the Arizona Constitution dealt extensively with education and “the framers plainly intended that Arizona have a strong public school system to provide mandatory education.”120 The court observed that the Aid Clause furthered that purpose by prohibiting diversions of funds to private and religious schools.121 The voucher statutes, in the court’s view, did precisely what the Aid Clause prohibited.122

The Cain court found it unnecessary to decide whether the voucher statutes violated the Religion Clause.123 The Cain court then vacated the Arizona Court of Appeals’ opinion.124 The portion of the Court of Appeals’ opinion holding that the Religion Clause was essentially indistinguishable from the Establishment Clause is, therefore, of no precedential value.125 The Arizona Supreme Court’s reasoning in Cain suggests that the Religion Clause should not be assumed to be coextensive with the federal Establishment Clause.126

VII. Conclusion

Education is primarily a concern of state rather than federal law. That fact is evidenced by the extensive provisions concerning education in the Arizona Constitution. In Arizona’s first century of statehood, those *112 provisions have received only a modest amount of attention from the courts. It seems likely that those provisions will receive increased attention from the courts in the coming years.

Footnotes

a1	Timothy M. Hogan is Executive Director of the Arizona Center for Law in the Public Interest in Phoenix. Donald M. Peters and Kristin Mackin are attorneys at LaSota & Peters in Phoenix.

1	Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806, 812 (Ariz. 1994).

2	Act of June 20, 1910, ch. 310, 36 Stat. 557, 568-79.

3	Gladden Farms, Inc. v. State, 633 P.2d 325, 327 (Ariz. 1981).

4	Id.

5	Lassen v. Arizona, 385 U.S. 458, 460 (1967) (summarizing terms of the Enabling Act).

6	Id. at n.2.

7	Id. at 463.

8	Act of June 20, 1910, ch. 310, 36 Stat. 557, 574-75.

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9	Id. at 559.

10	Id. at 571.

11	Id. at 573-74.

12	ARIZ. CONST. art. XI.

13	Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806, 812 (Ariz. 1994). One of the authors of this article was an attorney for the plaintiffs in the Roosevelt case.

14	ARIZ. CONST. art. XI, § 1.

15	Id. § 1(A).

16	Id. §§ 2-5.

17	Id. § 6.

18	Id.

19	Id. § 7.

20	Id.

21	Id. §§ 8-10.

22	Id.

23	Id. § 10, cl. 2.

24	San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).

25	Id. at 28.

26	Id.

27	Id. at 19-20.

28	Regina R. Umpstead, Determining Adequacy: How Courts are Redefining State Responsibility for Educational Finance, Goals, and Accountability, 2007 BYU EDUC. & L.J. 281, 289 n.20.

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EDUCATION AND THE ARIZONA CONSTITUTION, 3 Phoenix L. Rev. 99

29	Id.

30	ARIZ. CONST. art. XI, § 1.

31	Shofstall v. Hollins, 515 P.2d 590 (Ariz. 1973).

32	Id.

33	Id. at 591.

34	Id.

35	Id.

36	Id. at 592-93.

37	Id. at 591-92.

38	Id. at 592 (internal quotations omitted).

39	Id.

40	Id.

41	Id.

42	Id.

43	Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806 (Ariz. 1994).

44	Id.

45	Id. at 808-09.

46	Id. at 808.

47	Id.

48	Id. at 815-16.

49	Id. at 811.

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EDUCATION AND THE ARIZONA CONSTITUTION, 3 Phoenix L. Rev. 99

50	Id.

51	Id.

52	Id.

53	Id.

54	Id. at 814-15.

55	Id.

56	Id.

57	Id.

58	Id. at 815.

59	Id.

60	Id.

61	Id. at 815 n.7.

62	Id. at 819 (Feldman, C.J., specially concurring).

63	Id.

64	Id.

65	Hull v. Albrecht, 960 P.2d 634, 637 (Ariz. 1998) (en banc); Hull v. Albrecht, 950 P.2d 1141, 1145 (Ariz. 1997) (en banc).

66	950 P.2d at 1145; 960 P.2d at 637.

67	950 P.2d at 1145; 960 P.2d at 637.

68	Roosevelt Elementary Sch. Dist. No. 66 v. State, 74 P.3d 258 (Ariz. Ct. App. 2003).

69	Id. at 260.

70	Id. at 267-68.

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71	Id. at 268.

72	Id.

73	ARIZ. CONST. art. XI, § 6.

74	Kromko v. Ariz. Bd. of Regents, 165 P.3d 168 (Ariz. 2007) (en banc).

75	42 P.2d 619 (Ariz. 1935).

76	Id. at 621.

77	Id.

78	Id. at 626.

79	Id.

80	Id. at 626.

81	495 P.2d 453 (Ariz. 1972).

82	Id. at 455 (quoting Bd. of Regents v. Sullivan, 42 P.2d 619, 626 (Ariz. 1935)).

83	524 P.2d 948 (Ariz. 1974).

84	Id. at 949-50.

85	165 P.3d 168 (Ariz. 2007) (en banc).

86	Id. at 169.

87	Id. at 170.

88	Id. at 170 (citing Kromko v. Ariz. Bd. of Regents, 146 P.3d 1016, 1024-25 (Ariz. Ct. App. 2006)).

89	Id. at 172.

90	Id. at 171.

91	Id. at 171-72.

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92	Id. at 172.

93	See generally Ruth J. McGregor, Recent Developments in Arizona State Constitutional Law, 35 ARIZ. ST. L.J. 265 (2003).

94	Id.

95	ARIZ. CONST. art. II, § 12.

96	ARIZ. CONST. art. XI, § 6.

97	520 P.2d 514 (Ariz. 1974) (en banc).

98	Id. at 516.

99	Id. at 517.

100	432 P.2d 460, 463 (Ariz. 1967).

101	Id.

102	Id. at 468.

103	972 P.2d 606 (Ariz. 1999).

104	Id. at 609-12.

105	Id. at 610.

106	Id. at 620-21.

107	Id.

108	202 P.3d 1178 (Ariz. 2009). Two of the authors of this article served as counsel for the plaintiffs.

109	Id. at 1180.

110	Id.

111	Id.

112	Id. at 1180-81.

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113	Id. at 1180.

114	Id. at 1181.

115	Id.

116	Id.

117	Id.

118	Id. at 1185.

119	Id. at 1182-83.

120	Id. at 1183.

121	Id.

122	See id. at 1184 (rejecting a contention that, because the voucher statutes primarily aided students and parents rather than private and religious schools, the statutes did not violate the Aid Clause; observing that such an application of what is sometimes called the “true beneficiary” doctrine would nullify the Aid Clause, since aid to private and religious schools would always benefit parents and students).

123	Id. at 1185 n.4.

124	Id. at 1184.

125	See id.

126	See id. at 1182-83.

3 PHOENLR 99

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