Attorneys for the state schools chief are defending the decision by lawmakers to provide more per-pupil aid to traditional public schools than charter schools.

Assistant Attorney General Kevin Ray, leading the effort, asked the Court of Appeals on Wednesday to rebuff a demand by charter schools for an extra $1,100 a year for each student. The charter schools contend the disparity is unconstitutional.

Ray, representing School Superintendent John Huppenthal and the Legislature, did not dispute the funding disparity, but he told the judges in legal filings that the difference is justified because public schools have to live with restrictions that do not apply to charter schools.

If the appellate court does not agree, that would force lawmakers to boost aid to them by $135 million a year, and those dollars might have to be taken from other programs.

Charter schools are public schools under Arizona law, eligible for state aid, designed to provide an alternative to traditional district-based public schools. But rather than being a level of government, they can be operated by private and even for-profit organizations.

Cory Langhofer, representing the charter schools, said the fact remains that they are public schools. He said that makes any funding differences improper and illegal.

But the outcome of the legal dispute could turn on whether the appellate judges believe the differences in how the two systems operate justify the funding disparity.

Potentially the most significant, public schools have to serve every student in the neighborhood who wants to attend and offer every grade. There is no option to turn away those who live in the district.

“Charter schools, however, may decide how many students they want to accommodate, and then limit enrollment in accordance with that capacity,” Ray wrote.

“They can limit their offering to a single grade,” he continued. “They can offer a specialized curriculum with an emphasis on a specific learning philosophy or style, emphasize particular subject areas such as mathematics, science, fine arts, performance arts or foreign language, or offer instruction to a single gender.”

And that's just part of it.

Ray said school districts can hire only individuals with teaching certificates and have to follow certain legal procedures in employing and firing them.

He also pointed out that charter schools actually own their facilities, even if they used tax dollars to purchase them. More to the point, the owners can dispose of the property as they want and pocket the proceeds.

“Even if a charter school's charter is revoked or it goes out of business, the charter school keeps its property,” Ray wrote.

He also pointed out that school districts are effectively permanent.

“They can't just close up shop and go out of business,” Ray wrote. “Charter schools, on the other hand, can and do, close, with some frequency,” he continued.

He said 111 charter schools actually shut down over a five-year period.

Langhofer said this isn't simply a question of state aid. He said traditional schools can supplement their funds with voter-approved bonds and budget overrides. That, Langhofer said, is repaid by all taxpayers in the district, even if they send their children to a charter school instead.

But Ray said charter schools have access to funds not available to traditional public schools: Low-interest loans through industrial development authorities and federal grants. In the latter case, Ray said the U.S. Department of Education has awarded more than $52 million to Arizona charter schools.

He also took a slap at challengers, saying they “barely mentioned that Arizona law allows them up to $200,000 from Arizona taxpayers for start-up costs and costs associated with renovating or remodeling structures.”

Langhofer lost the first round last year when Maricopa County Superior Court Judge Richard Gama said he found nothing legally wrong with the disparity. “Because charter and district schools are different, the Legislature may fund them differently,” the judge wrote.

Langhofer contends Gama used the wrong legal standard to justify the disparity.

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