                                IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


     D. JEFFREY and LYNDA CRAVEN; TRACY BRAATZ; STEVEN
      GEORGE DANNER; JOANNE HOPMEYER; MARY FOLEY
            and CYNTHIA ZAK-SLETTE, Plaintiffs/Appellants,

                                   v.

 JOHN HUPPENTHAL, Superintendent of Public Instruction; STATE OF
    ARIZONA and ARIZONA STATE BOARD OF EDUCATION,
                    Defendants/Appellees,

 CREIGHTON ELEMENTARY SCHOOL DISTRICT NO. 14; ARIZONA
      SCHOOL BOARDS ASSOCIATION, Intervenors/Appellees.


                         No. 1 CA-CV 13-0485
                            FILED 11-18-14


          Appeal from the Superior Court in Maricopa County
                         No. CV2009-029436
               The Honorable J. Richard Gama, Judge

                              AFFIRMED


                              COUNSEL

Brownstein, Hyatt, Farber, Schreck, LLP, Phoenix
By Kory A. Langhofer, Chase A. Bales
Counsel for Plaintiffs/Appellants

Arizona Attorney General’s Office, Phoenix
By Kevin D. Ray, Leslie Kyman Cooper, Jordan T. Ellel
Counsel for Defendants/Appellees
                  CRAVEN et al. v. HUPPENTHAL et al.
                        Opinion of the Court

Peters, Cannata & Moody, PLC, Phoenix
By Donald M. Peters
Counsel for Intervenors/Appellees


                                OPINION

Presiding Judge Margaret H. Downie delivered the opinion of the Court, in
which Judge Andrew W. Gould and Judge Samuel A. Thumma joined.


D O W N I E, Judge:

¶1             Appellants are parents of children who attend charter schools
in Arizona. They contend the statutory framework for financing charter
schools violates the equal protection and general and uniform clauses of the
state constitution. For the following reasons, we affirm the superior court’s
grant of summary judgment against Appellants.

                FACTS AND PROCEDURAL HISTORY

¶2             Appellants sued the Superintendent of Public Instruction, the
State Board of Education, and the State of Arizona, seeking injunctive relief
as well as a judicial declaration that Arizona’s statutory funding scheme for
charter schools is unconstitutional because it results in “gross disparities
between public charter schools and other district public schools.”1 The
Arizona School Boards Association and Creighton Elementary School
District No. 14 intervened as defendants. According to Appellants, the
alleged disparities arise because Arizona statutes make funding sources
available to district schools that are unavailable to charter schools.
Appellants further allege that, were charter schools “to receive funding that
is substantially equal to their friends and neighbors who attend district
public schools, their public charter schools would be able to provide
additional services that would enrich their students’ educational experience
and enhance their educational opportunities.”

¶3            On cross-motions for summary judgment, the superior court
ruled that a rational basis exists for funding charter and district schools
differently and dismissed Appellants’ equal protection challenge. In
dismissing claims predicated on the general and uniform clause of the


1     District public schools, or “district schools,” are non-charter public
schools for a given geographical region.


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                   CRAVEN et al. v. HUPPENTHAL et al.
                         Opinion of the Court

Arizona Constitution, the superior court concluded no substantial disparity
exists because Appellants concede their children’s charter school
educations are adequate and because “charter and [public] schools are
different, [so] the Legislature may fund them differently.”

¶4           Appellants timely appealed. We have jurisdiction pursuant
to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and
-2101(A)(1).

                                DISCUSSION

   I.      Standard of Review

¶5            On appeal from a grant of summary judgment, we review de
novo the superior court’s application of the law. Salt River Pima-Maricopa
Indian Cmty. Sch. v. State, 200 Ariz. 108, 110-11, ¶ 7, 23 P.3d 103, 105-06 (App.
2001). We also review de novo matters of constitutional and statutory
interpretation. Roosevelt Elementary Sch. Dist. No. 66 v. State, 205 Ariz. 584,
589, ¶ 24, 74 P.3d 258, 263 (App. 2003) (“Roosevelt II”). We will affirm a
grant of summary judgment if the superior court was correct for any reason.
City of Tempe v. Outdoor Sys., Inc., 201 Ariz. 106, 111, ¶ 14, 32 P.3d 31, 36
(App. 2001).

¶6             The parties argue at length about the proper standard of
review, with Appellants contending the statutory financing scheme is
subject to strict scrutiny and Appellees arguing the more deferential
rational basis standard applies. As we explain infra, it is unnecessary to
decide this issue. Based on Appellants’ own allegations and admissions, as
a matter of law, they lack an actionable claim under either the general and
uniform clause or the equal protection clause. See, e.g., Salt River Pima-
Maricopa Indian Cmty. Sch., 200 Ariz. at 112, ¶ 13, 23 P.3d at 107 (deeming it
unnecessary to decide whether strict scrutiny or rational basis standard
applied to charter school funding challenge when, as a matter of law,
statutes did not infringe on challengers’ rights).

   II.     Background Regarding Charter Schools and District Schools

¶7            In 1994, the Arizona Legislature enacted laws governing the
creation and maintenance of charter schools. See A.R.S. §§ 15-181 to -189;
H.B. 2002, 41st Leg., 9th Spec. Sess., §§ 1-2 (Ariz. 1994). By statutory
definition, charter schools are public schools. A.R.S. § 15-101(4). Charter
schools are intended to offer “additional academic choices for parents and
pupils” and to “serve as alternatives to traditional public schools.” A.R.S.
§ 15-181(A).


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                     CRAVEN et al. v. HUPPENTHAL et al.
                           Opinion of the Court

¶8            District schools and charter schools are regulated differently.
As Appellants concede, charter schools “are freed from some of the
administrative regulations imposed on district public schools.” See, e.g.,
A.R.S. §§ 15-183(E)(3) (charter school curriculum may emphasize “a specific
learning philosophy or style or certain subject areas.”), -183(E)(5)
(exempting charter schools from statutes and rules governing district
schools, including those regarding teacher hiring, management, and firing),
-184(B) (charter schools give enrollment preference to siblings of existing
students), -184(G) (charter schools may limit admission to students in a
given age group or grade level), -184(H) (charter schools may enroll
students of a single gender).

¶9             In addition to being regulated differently, charter and district
schools are funded differently. They receive the same base support level
funding. See A.R.S. §§ 15-185(B)(4), -901(B)(2), -943. But district schools
receive state funding for constructing school facilities, while charter schools
do not. A.R.S. § 15-2041. District schools may receive additional funding
through budget overrides and bonds, whereas charter schools lack that
option. A.R.S. § 15-185(B)(6), -481, -491(A)(3). Charter schools, however,
receive additional funding known as “equalization assistance” on a per-
student basis. A.R.S. § 15-185(B)(4). Charter schools may also accept grants
and gifts to supplement state funding. A.R.S. § 15-185(D). Additionally,
charter schools owned by nonprofit organizations may receive funds
obtained through issuance of educational facility bonds by Industrial
Development Authorities. See A.R.S. §§ 35-701(8)(a)(xii), -721. Charter
schools are also entitled to proceeds from a stimulus fund for start-up costs
and costs associated with renovating or remodeling buildings and
structures. A.R.S. § 15-188.

   III.      General and Uniform Clause

¶10            The general and uniform clause of the Arizona Constitution
states, in relevant part:

          The legislature shall enact such laws as shall provide for the
          establishment and maintenance of a general and uniform
          public school system, which system shall include: 1.
          Kindergarten schools. 2. Common schools. 3. High schools. 4.
          Normal schools. 5. Industrial schools. 6. Universities . . . .

Ariz. Const. art. XI, § 1.A.

¶11           The general and uniform requirement “applies only to the
state’s constitutional obligation to fund a public school system that is


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                   CRAVEN et al. v. HUPPENTHAL et al.
                         Opinion of the Court

adequate.” Hull v. Albrecht, 190 Ariz. 520, 524, 950 P.2d 1141, 1145 (1997).
Appellants here admit that their children are receiving adequate educations
at their respective charter schools. Indeed, various Appellants testified that
their children receive “quality academics,” “an exceptional education” that
“meets or exceeds all state standards,” and a “happy, productive learning
environment” with no academic concerns.

¶12            Appellants urge us to disregard the statement in Hull that the
general and uniform clause mandates only that the state “fund a public
school system that is adequate,” id., and to instead rely on language from a
footnote in Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 179 Ariz. 233, 877
P.2d 806 (1994) (“Roosevelt I”), with which only two justices agreed.2 The
Roosevelt I footnote suggests that adequacy of education does not defeat a
claim under the general and uniform clause. Id. at 241 n.7, 877 P.2d at 814
n.7.

¶13           We are constrained by decisions of the Arizona Supreme
Court and may not overrule, modify, or disregard them. State v. Sullivan,
205 Ariz. 285, 288, ¶ 15, 69 P.3d 1006, 1009 (App. 2003). The most recent
interpretation of the general and uniform clause in the relevant context is
Hull – a decision joined in by four of five justices. Moreover, Hull is
consistent with other appellate pronouncements that the legislature’s duty
is to fund a public school education that is adequate. See, e.g., Roosevelt I,
179 Ariz. at 246, 877 P.2d at 819 (“The [general and uniform] clause was
intended to guarantee not the unattainable result – equal education – but
an equal opportunity for each child to obtain the basic, minimum education
that the state would prescribe for public school students.”) (Feldman, J.,
concurring) (original emphasis); Shofstall v. Hollins, 110 Ariz. 88, 90, 515 P.2d
590, 592 (1973) (“The [Arizona] constitution, by its provisions, assures to
every child a basic education.”); Roosevelt II, 205 Ariz. at 263-65, ¶¶ 26, 32,
74 P.3d at 589-91 (general and uniform clause requires state to fund public
school system that is adequate).

¶14          Because Appellants admit their children are receiving
adequate, free public educations, the superior court properly dismissed




2       Roosevelt I was decided by a plurality of the court. Although Justice
Feldman concurred in the result, he could “not go so far as to conclude that
even if every child in the state were receiving an ‘adequate education, gross
facility disparities’ resulting from a state-imposed financing scheme ‘would
violate the uniformity clause.’” Roosevelt I, 179 Ariz. at 249, 877 P.2d at 822.


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                    CRAVEN et al. v. HUPPENTHAL et al.
                          Opinion of the Court

their claims based on the general and uniform clause of the state
constitution.

   IV.      Equal Protection

¶15            The equal protection clause of the Arizona Constitution
provides:

         No law shall be enacted granting to any citizen, class of
         citizens, or corporation other than municipal, privileges or
         immunities which, upon the same terms, shall not equally
         belong to all citizens or corporations.

Ariz. Const. art. II, § 13.

¶16            Equal protection guarantees are satisfied “if all persons in a
class are treated alike.” Ariz. State Tax Comm’n v. Frank Harmonson Co. Metal
Prods., 63 Ariz. 452, 459, 163 P.2d 667, 670 (1945); see also Salt River Pima-
Maricopa Indian Comty. Sch., 200 Ariz. at 111, ¶ 9, 23 P.3d at 106 (equal
protection requires state to “afford equal treatment to persons similarly
situated”). The equal protection clause does not prohibit all inequality of
treatment, “but only require[s] that all persons in a given class be treated
equally.” Shelby Sch. v. Ariz. State Bd. of Educ., 192 Ariz. 156, 169, ¶ 65, 962
P.2d 230, 243 (App. 1998).

¶17             The threshold question is whether Appellants’ children have
been treated unequally when compared to other members of their class. See
Aegis of Ariz., L.L.C. v. Town of Marana, 206 Ariz. 557, 570, ¶ 54, 81 P.3d 1016,
1029 (App. 2003) (party asserting equal protection violation must first
demonstrate treatment different from others in similarly situated class).
Unless that question is answered affirmatively, it is unnecessary to decide
whether disparate treatment in this context would be subject to strict
scrutiny or rational basis review.

¶18            Appellants allege that “Arizona’s public district school
students and its public charter school students are similarly situated
members of a single class -- Arizona public school students.” Appellants,
though, have not demonstrated unequal treatment in comparison to other
members of this “single class.” Appellants concede their children’s
attendance at charter schools is “completely voluntary and optional” and
that they may enroll in district schools at any time. Appellants do not allege
their district schools are inadequate, such that choosing a charter school
was necessary to ensure an adequate education for their children. In sum,
Appellants have failed to satisfy the threshold requirement of establishing


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                  CRAVEN et al. v. HUPPENTHAL et al.
                        Opinion of the Court

they have been treated differently from other members of their class, all of
whom may choose to attend district schools or charter schools, among other
options.3

¶19          Other courts have rejected similar equal protection challenges
asserted by charter school students. In J.D. ex rel. Scipio-Derrick v. Davy, 2
A.3d 387, 397-98 (N.J. Super. Ct. App. Div. 2010), the court stated:

       In assessing a state equal protection claim, we must first
       identify the nature of the affected right. That right is to
       receive a thorough and efficient education. Unlike the
       students involved in the Robinson [v. Cahill, 303 A.2d 273 (N.J.
       1973), reh’g granted, 351 A.2d 713 (N.J. 1975)] and Abbott [v.
       Burke, 495 A.2d 376 (N.J. 1985)] cases, who, by virtue of their
       residence, were required to attend specific public schools in
       their district, plaintiffs’ enrollment in their charter schools is
       completely voluntary. They can withdraw at any time and
       enroll in the traditional public schools in Newark which are
       receiving the full funding which they seek for their charter
       schools.

       ....

       The voluntariness of the program vitiates any asserted
       deprivation of a right to receive an education at a school that
       is fully funded to the same extent as other Newark public
       schools when charter school students have the unabridged


3      Appellants conceded in the superior court that “public charter schools
and public district schools are not similarly situated.” They stress that this
litigation is “about the treatment of public charter school students and
public district school students,” making distinctions between the two types
of schools “entirely irrelevant” (original emphasis). But in both the charter
and district school context, it is the schools that receive funding, not the
students. In this respect, Appellants’ children are once again treated the
same as their district school counterparts. Counsel further clarified at oral
argument before the superior court that Appellants “aren’t here claiming
that there is a fundamental right to education funding,” but are instead
pressing their constitutional right to an education. As discussed supra,
Appellants’ children have not been deprived of their constitutional right to
an adequate education.




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                 CRAVEN et al. v. HUPPENTHAL et al.
                       Opinion of the Court

      option of attending one of those traditional public schools in
      their district.

¶20            We agree with the New Jersey court’s analysis, which applies
with equal force to the relevant provisions of the Arizona Constitution.
Appellants’ children have available to them the same rights and privileges
as other members of their class. At any time, they may choose to attend
district schools that receive the funding they deem more desirable. As pled
by Appellants, their children have not been treated unequally as a matter
of law. Because Appellants have not established the requisite disparate
treatment, we need not decide whether proven inequality would trigger
strict scrutiny or rational basis review.

                             CONCLUSION

¶21          We affirm the superior court’s grant of summary judgment to
Appellees. We deny Appellants’ request for attorneys’ fees and costs
because they have not prevailed. We award Appellees their taxable costs
on appeal upon compliance with ARCAP 21.




                                  :jt

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