State education officials have been blocked by a judge from taking nearly $5.9 million away from charter schools.

In an order released Monday, Maricopa County Superior Court Judge Dean Fink said the state Department of Education may not demand refunds from charter schools which the state said had been given more state aid than they should have received.

Fink acknowledged the position of education agency that schools should not get money to which they were not entitled. He said that, on some level, it makes sense for the state to be able to get back the excess, no matter how long it takes.

But Fink said it would be unfair to take money from schools years later.

“Under the department's interpretation, the effect of a shortfall is felt not by those pupils who benefited from the original excess funding, by a new cohort who received no benefit yet much now suffer the detriment,” Fink wrote.

Fairness aside, Fink also said the move would be illegal. He said the way the money was first distributed followed the formula in statute. And that makes the Department of Education powerless to later reinterpret the law.

The fight stems from 2000 voter-approved Proposition 301 which hiked the state sales tax by six-tenths of a cent, with some of that to give more money to public schools for teacher pay which would be divided up on a per-pupil basis. That includes charter schools.

Beginning in 2006, the recession caused the amount of revenue flowing into that “classroom site fund” to be less than legislative budget staffers projected. Then, two years ago, lawmakers altered the formula to essentially make up for the difference.

For two years the Department of Education distributed the money on the number of students currently attending a school. Stacey Morley, the education department's director of policy development and government affairs, said the money actually should have been divided up based on the number of students who were in each school at the time the shortages occurred.

Morley said schools which are much larger now than they were last decade, when they were shorted, got far more money in reimbursement than they should have received. In fact, she said, there are some charter schools getting reimbursement on current enrollment that were not even in existence during the lean years and therefore were not shorted at all.

Fink, however, said the original payments were made in accordance with the law, and the Department of Education cannot now seek refunds.

The regular public schools which were overpaid have not made an issue of it.

Chuck Essigs, lobbyists for the Arizona Association of School Business Officials, said most realize this was a legitimate error on the state's part. Anyway, he said, the amounts involved — some overpayments and some underpayments — probably are not as consequential to those schools.

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