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The Lobato decision: What next?

This commentary was written by Kelly Hupfeld, associate dean at the School of Public Affairs, University of Colorado Denver. The opinions in this post are her own and do not necessarily represent the school or the university.

On Friday, Denver District Court Judge Sheila Rappaport ruled in favor of the plaintiffs in Lobato v. State of Colorado, which asked the court to declare Colorado’s system of funding education unconstitutional. I’ve plowed through the 180-plus pages of the decision, and it’s quite the read (at least for those of us interested in education policy).

Judge Rappaport details the history of Colorado’s recent education reforms, from the establishment of content standards in 1993 through the passage of SB 10-191’s new educator evaluation system, and finds that the state deliberately over time set up a standards-based education system that expects that all students will be prepared to “(1) participate effectively as citizens of Colorado and the United States; (2) engage productively and competitively in the workforce; and (3) be successful lifelong learners.” (p. 10).

She then exhaustively catalogs the various ways in which Colorado has failed to fund its schools and districts in a way that is rationally related to the goals of the system, and concludes:

[T]here is not enough money in the system to permit school districts across the State to properly implement standards-based education and to meet the requirements of state law and regulation. This is true for districts of every description – rural, suburban, urban and those with small or large student populations. There is not one school district that is sufficiently funded. This is an obvious hallmark of an irrational system. (P. 181).

Ouch. The state will obviously appeal this decision, but it’s pretty tightly written. On appeal, her findings of fact can only be overturned if they are “clearly erroneous” – in other words, not simply because another judge might disagree with her. Her findings of law, however, are subject to de novo review.

All but some 20 pages of the opinion concern findings of fact, and the judge does not leave much wiggle room for defendants to claim her factual findings are clearly erroneous. So the state will need to argue that her conclusions of law are simply wrong – that the state’s movement to a standards-based system that expects proficiency for all does not require it to actually fund a standards-based system that results in proficiency for all.

I predict that the judge’s decision will be upheld. The more interesting action will come later, when the state legislature is required to do something it has no legal ability to do — raise taxes to fund education. If the legislature even manages to put a proposed tax increase on the ballot, what happens if the voters reject it – essentially rejecting the requirements of their own constitution? Who gets held in contempt then?

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