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A legal take on Lobato's future

Richard B. Collins is a member of the University of Colorado Law School and teaches a course called Colorado Government.

Lobato v. State hit the headlines when the Denver District Court held all the state’s school funding laws to be unconstitutional. The lawsuit claims that Colorado’s public school funding system violates the state constitution’s requirement that the General Assembly establish and maintain “a thorough and uniform system of free public schools.” This extraordinarily broad claim engages most of the major issues of constitutional jurisprudence, so our seminar is extensive.

We first consider separation of powers. The U. S. Supreme Court finds some legal claims to be beyond the courts’ powers, or “nonjusticiable,” because the Constitution commits them to final determination by Congress or the President. Opinions of the Colorado Supreme Court have said that this is a doctrine of our state Constitution, but the Court has never found an occasion to find any claim to be nonjusticiable. Lobato was a near miss.

In 2006 the Denver District Court held its claims to be committed to final resolution by the General Assembly, and the Colorado Court of Appeals affirmed in 2008. But in 2009 the Supreme Court reversed in an opinion that came close to deciding that all claims are justiciable in Colorado. However, the court’s vote was 4-3, and two members of the majority have been replaced, so it is difficult to conclude that the issue is finally settled. Whether the decision will be followed as precedent is discussed below in another part of our seminar.

The Supreme Court’s 2009 decision sent the case back to Denver District Court for trial. Plaintiffs made three broad claims. First, the funding system is unequal, and poorer districts lack sufficient resources to provide “thorough and uniform” schooling. Second, school children disadvantaged by poverty, handicap, or language must have greater than equal resources to achieve “thorough and uniform” schooling. Third, the system as a whole is underfunded; all districts need more money to achieve “thorough” schooling. The first claim, inequality between richer and poorer districts, is familiar to constitutional law. The others are relatively novel.

The second constitutional issue for our seminar is what level of deference the courts should give to legislative judgments. The Supreme Court’s 2009 opinion said the question for all claims is whether the state’s school funding system is “rationally related” to the requirement of “a thorough and uniform system of free public schools.” This sounds like the constitutional law standard for highly deferential review that sustains validity of most legislation. The district court’s sweeping decision seems to be based on a much stricter constitutional standard, but rationality is a sufficiently open concept to shelter a broad range of viewpoints. This also will be debated in the coming appeal.

The third question for our seminar is original intent about the meaning of “thorough and uniform” schooling. Should courts seek to apply constitutional language as it was understood by those who composed it and ratified it in 1876, or should constitutional meaning adjust with the times?

The district court’s decision paid some attention to original meaning, but its judgment ordered forms of educational support that have not existed for most of the state’s history. One way this question was addressed was to “rely on the legislature’s own pronouncements to develop the meaning of a ‘thorough and uniform’ system of education.”

Thus much of the court’s opinion was devoted to comparing Colorado schools as they are with modern studies, reports, and standards declaring what they ought to be. The four-justice Lobato Supreme Court majority announced this standard, but it is likely to be contested on appeal.

Our seminar’s fourth question is closely related to the third. To what extent should today’s courts follow past decisions of the Colorado Supreme Court based on the doctrine of precedent?

A 1982 decision, much discussed by the district court, rejected the claim that unequal funding of school districts violated the obligation to provide “thorough and uniform” schooling, and earlier decisions held that the obligation to provide “free” schooling did not extend to books and supplies. On the other side, the Supreme Court’s 2009 decision will be cited as precedent by plaintiffs in the appeal.

Last but far from least, our seminar must confront problems of legal remedy.

This is another important question about the separation of powers. Can the courts order a major increase in, or reallocation of, state revenue?

The district court held that revenue limits in the TABOR and Gallagher amendments should be disregarded in this lawsuit, and that “TABOR was not intended to restrict the growth of government.” It is difficult to see how the court’s injunction can be enforced without some way to increase revenue, so this question is also likely to be a prominent part of the appeal. A related issue is remedy for past harm. The district court did not order damages, so apparently plaintiffs did not ask it to.

The appeal will take at least a year, and the district court’s injunction will not be enforced until the appeal is decided. Our seminar can take time to study the issues.

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