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Victory for Lobato plaintiffs

Updated Dec. 10 – Plaintiffs in and supporters of the Lobato v. State lawsuit savored a moment of celebration Saturday morning, gathering on the steps of the Colorado Springs District 11 headquarters to meet with reporters and urge the legislature to act on school funding reform.

Front and center at the event was the Lobato family from the San Luis Valley, the plaintiffs who gave their name to the case.“What a great opportunity for the people of Colorado, what a great opportunity for the legislature to step up and fund schools,” said Anthony Lobato, a rancher in Center.

Daughter Taylor, now a student at the University of Denver, joked that “the ruling is a little late for me” but said she hopes the judge’s ruling in favor of the plaintiffs will lead to a better funding system and “ensure no more students fall through the cracks.”

Mother Denise and daughter Alexa also were in the front row at the news conference, along with Center Superintendent George Welsh.

Kathleen Gebhardt, lead attorney for the plaintiffs, said, “We call on the governor and the attorney general not to appeal” the ruling. But she has acknowledged that an appeal is likely and said she expects it could be a year before the Colorado Supreme Court decides the case.

Text of Friday story follows

A Denver District Court judge has ruled in favor of the plaintiffs in the Lobato v. State school funding lawsuit, finding the state’s spending formula for K-12 schools does not meet constitutional requirements for a “thorough and uniform” school system.

The next step for the case is expected to be review by the Colorado Supreme Court.

“We think it’s a great day for the children of Colorado,” said a jubilant Kathleen Gebhardt, one of the plaintiff’s attorneys, who was giving a presentation on the lawsuit at the Colorado Association of School Boards convention when she got the news. “We’re calling on the legislature to step up immediately and fix the problem.”

Mike Saccone, spokesman for Attorney General John Suthers, said, “We are going to consult with the governor in the coming days on this decision. However, if you read the opinion, the judge clearly invited an appeal and, at this point, an appeal is likely. The attorney general is disappointed in the ruling but not surprised. It was clearly very tempting for the judge to wade into what is a public policy debate.”

“We will carefully review the ruling and consult with the Attorney General’s office in the coming days. The state will almost certainly appeal this decision,” said Eric Brown, spokesman for Gov. John Hickenlooper.

The lawsuit did not ask Denver District Judge Sheila Rappaport to order the state to pay up or provide a specific amount. Instead, it asked the court to decide whether the state school finance system fails to meet constitutional requirements and if the legislature should be ordered to come up with a new one.

The heart of Rappaport’s ruling, starting on page 182 of the decision, reads:

“The Court finds that the Colorado public school finance system is unconstitutional. Evidence establishes that the finance system must be revised to assure that funding is rationally related to the actual costs of providing a thorough and uniform system of public education. It is also apparent that increased funding will be required. These are appropriately legislative and executive functions.”

Rappaport ordered that the state stop implementing and enforcing “any and all laws and regulations that fail to establish, maintain, and fund a thorough and uniform system of free public schools,” including the current school finance act.

She also ordered the state “to design, enact, fund, and implement a system of public school finance that provides and assures that adequate, necessary, and sufficient funds are available in a manner rationally related to accomplish the purposes of the Education Clause and the Local Control Clause” of the state constitution.

But – and this is a big but – Rappaport stayed those orders “until final action by the Colorado Supreme Court upon appeal of the Court’s decision.

“While this stay is in place and until further action by the Supreme Court or this Court, the present financing formula and funding may remain in effect.”

“What’s really important, this will not be a judicial takeover of the education system,” Gebhardt said. “This is just telling the legislature – time to do your job.”

It was difficult to hear Gebhardt at times because of the celebration in the background at the CASB convention at the Broadmoor Hotel in Colorado Springs. The celebrations continued into the evening.

Rumors that a ruling was imminent began circulating at the end of the week. The case, which was originally filed in June 2005, wrapped up Sept. 2 after five weeks of testimony before Rappaport.

Studies done for the plaintiffs estimate that “full funding” of Colorado schools could cost $2 to $4 billion more a year than the state spends now. Such increases would wreck the state budget and decimate other programs say Hickenlooper, a defendant, and Suthers, who oversaw the state’s defense.

The two took the unusual step of calling a news conference on the eve of the trial to warn of the serious effects of a ruling for the plaintiffs.

Hickenlooper spoke to the CASB convention Friday morning, before the ruling was released, and said he believes a solution to the state’s financial constraints has to come from the grassroots (see story).

Colorado is in a difficult position because the legislature is unable to raise taxes to meet any future court order about school funding. (The Taxpayer’s Bill of Rights requires all tax increases be approved by voters.) That’s why Hickenlooper argues that a court-ordered hike in school funding would force cuts in other programs.

That possible fiscal squeeze wasn’t part of the Lobato trial last summer. Rappaport ruled that the trial was to focus solely on whether the school funding system meets the educational sections of the constitution.

Given the time involved in a supreme court appeal, the 2012 legislative session may not have to take any action on Lobato. But the issue is expected to hang over legislative discussion. Hickenlooper has proposed another cut in school spending for 2012-13 – $89 million – and that figure could go higher if lawmakers don’t agree to other parts of the governor’s budget plan.

Lobato is a lawsuit about “adequacy,” or whether the state’s school finance system is adequate and is appropriately designed to support the kind of education required in the state constitution, which mandates a “the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.”

The large group of plaintiffs who brought the suit argued that the current finance system is underfunded and allocates money in an “irrational and arbitrary” way that violates the “thorough and uniform” standard. Lawyers for the plaintiffs argued during trial that education requirements passed by the legislature, including recent reforms like the Colorado Achievement Plan for Kids and the educator effectiveness law, provide a detailed definition of what thorough and uniform means.

Further, they claimed the system doesn’t provide constitutionally adequate education to disabled, poor and minority students or to English language learners and doesn’t provide enough funding to meet state requirements for instruction and student achievement. Plaintiffs also claimed the current system violates constitutionally guaranteed local control of schools because it doesn’t give school districts enough money to fully exercise that control.

The main group of plaintiffs includes parents and school districts around the state. A second group of plaintiffs, represented by lawyers from the Mexican American Legal Defense and Education Fund, joined the case later. Those plaintiffs, parents of students in several low-income districts, attacked the school finance system on grounds related to services for poor students and English language learners.

David Hinojosa, lead attorney for the MALDEF plaintiffs, said, “The court’s courageous decision is the first step in fixing a broken educational system that disproportionately harms at-risk and ELL students. We hope the General Assembly will see this as a wake-up call and live up to its responsibility under the Colorado Constitution by fully and fairly funding educational opportunity for all school children, including Colorado’s most vulnerable.”

The Colorado Supreme Court framed the Lobato issues in an Oct. 19, 2009, ruling that directed the case be heard in district court. (At that time the high court ruled that the issue could be heard by the courts. The attorney general had argued that school finance was an issue for the legislative and executive branches, not the judicial branch.)

“To be successful, they [plaintiffs] must prove that the state’s current public school financing system is not rationally related to the General Assembly’s constitutional mandate to provide a ‘thorough and uniform’ system of public education. … The trial court must give substantial deference to the legislature’s fiscal and policy judgments. It may appropriately rely on the legislature’s own pronouncements concerning the meaning of a ‘thorough and uniform’ system of education. If the trial court finds the current system of public finance irrational and thus unconstitutional, then that court must permit the legislature a reasonable period of time to change the funding system so as to bring the system in compliance with the Colorado Constitution.”

While the ultimate outcome of the Lobato case could have serious implications in Colorado, such education adequacy suits are nothing new and have cropped up in many states. The question of whether court-ordered funding increases improve educational quality was a major point of dispute between dueling expert witnesses during the trial, with voluminous evidence introduced about the effects of court ruling in other states.

Plaintiffs react

“I know we were real optimistic, and I was optimistic,” Anthony Lobato, the lead plaintiff, told Education News Colorado’s partner 9News. “But until the ruling actually came down, I had no idea.

“I don’t know what to say. I almost feel numb. It’s beyond emotion right now. I think when it starts to sink in it’s just going to be fantastic,” he said.

Lobato, a Center rancher with deep roots in the San Luis Valley, and his wife filed the suit on behalf of their daughters, one who’s still in high school and one who’s now at the University of Denver.

“I’m on a big high,” said George Welsh, Center superintendent and an active figure in the lawsuit. “I felt that we were going to win the case, [but] I’m thrilled.”

Welsh said he notified the Lobatos by phone, calling that “the thrill of a lifetime.”

He said the news was brought to the convention session on the case when Mary Wickersham, a staff member at the Colorado Children’s Campaign, came into the room and whispered to Gebhardt. “Her eyes got real big,” Welsh said.

“We just broke out cheering, and we went crazy.”

The organizing forces behind the suit were Children’s Voices, a Boulder public-interest law firm, and CASB, which helped recruit numerous school districts to sign on as plaintiffs and/or to donate money toward legal costs.

Jane Urschel, deputy executive director of CASB, said, “This opinion affirms” the group’s beliefs about school finance. “At the same time we fully understand that we don’t have any money, and we all have a lot of work to do.”

Several smaller rural districts are among the plaintiffs, along with the Jefferson County, Littleton and Aurora districts in the metro area. The ruling came just as Jeffco announced that a study committee had proposed $70 million in additional cuts over the next two years for the state’s largest district.

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