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Lobato 9/2: A long chapter closes

Five weeks of testimony and uncounted documents got summed up in less than three hours of lawyers’ speeches Friday as the Lobato v. State trial wound up.

The next phase of the case is in the hands of Denver District Judge Sheila Rappaport, who will decide on the issue of 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 end of the trial marks one more step in the lawsuit’s long odyssey, which began with filing in 2005. Since then the case has been through another Denver judge, the Colorado Court of Appeals and the Colorado Supreme Court.

The closing statements by four lawyers capped a trial that has combined mountains of information, emotion, boredom, occasional tension between lawyers, confident witnesses and stressed witnesses and even Skype video testimony.

The case “is about a failing system that is unconstitutional,” said plaintiffs’ lawyer Kenzo Kawanabe in closing. Defense lawyer Jonathan Fero countered that the plaintiffs are seeking an “education utopia” that isn’t required by the constitution.

What they said

Kenzo KawanabeLawyer for plaintiff parents and school districts

Using PowerPoint slides, Kawanabe talked through the plaintiffs’ key points, including that the finance system “has no rational basis” and doesn’t meet the constitution’s requirement that the legislature establish a “thorough and uniform” system. He also argued that the system violates another constitutional section that guarantees local control of schools because districts have to use local funds to cover basic costs that should be covered by the state.

Kawanabe recapped some of the witness testimony about budget cuts and student achievement challenges, praising the superintendents who were brave enough “to describe a failing Colorado education system.

“They know what works” to improve student achievement, he said. “They don’t have the resources, they don’t have the funds to apply what works.”

He said state witnesses “ignore their failures.”

Turning to the cost of recent education reforms, a key part of the plaintiffs’ case, Kawanabe reminded the judge, “These are requirement, they are not aspirations” and that the state has provided little money to fund them.

Closing, Kawanabe said he case “is for the sake of our children, this is for the sake of our constitutional democracy, this is for the sake of our state.”

David HinojosaLawyer for a second group of parents in four districts

Hinojosa, a lawyer with the Mexican American Legal Defense and Education Fund, represents families in four low-income districts, Greeley, Mapleton, Rocky Ford and Sheridan.

“This case is about lost opportunities” for low-income children and English language learners, he said. In addition to supporting the plaintiffs’ main constitutional claims, the MALDEF case also has focused on the inadequacy of funding for programs that help poor, ELL and special needs students.

“They can achieve if provided appropriate education opportunities,” he said.

Hinojosa argued that the legislature already has defined “thorough and uniform” by passing the Colorado Achievement Plan for Kids, with its new standards and tests; the 2009 accountability system, which rates districts and schools based primarily on test scores, and the 2010 educator effectiveness law, which ties teacher evaluations partly to student test score growth.

State witnesses argue education reforms mean “there’s a light at the end of the tunnel,” Hinojosa said. “Unfortunately that’s the light of a train coming in the opposite direction.”

Jonathan FeroAssistant attorney general representing the state

Fero, wearing his signature bow tie, made the shortest closing, taking a bit less than half of his allotted hour. Speaking smoothly from notes, he didn’t use visual aids.

The plaintiffs “haven’t got as much as they want from the legislature and the voters so they’ve come to your courtroom.” He argued, “neither group of plaintiffs have met this burden” of proving that the school finance system has no rational relationship to the constitutional requirements.

“What plaintiffs and plaintiff-intevenors really want is an education utopia” and believe an education system can’t be rational unless it solves social problems.

“This utopia – the constitution just doesn’t require it.”

He argued that educational successes and failures aren’t the result of state funding but of district choices.

“Colorado has gotten a lot of bang for its buck,” he said, closing by saying to Rappaport, “We ask you not to second guess the legislature.”

Kathleen GebhardtLawyer for first group of plaintiffs

Gebhardt, a moving force behind lawsuit since before it was filed, tag-teamed rebuttal arguments with Kawanabe and spoke last.

“This is not a case about a child playing one parent off another,” she said, referring to the defense argument about plaintiffs asking the courts for what the legislature didn’t give.

“This is a case about the constitutional rights of Colorado’s 800,000 school children.”

She argued, “The state misstates the law. … The pertinent issue is whether there is a rational relationship between the funding system set up by the legislature and the [education] requirements imposed by the legislature.

“These standards are not optional. … Districts have to comply, and there are consequences for failing to comply.”

She continued that Colorado has a system “that ratchets up the standards, ratchets up the expectations and diminishes the resources.”

Gebhardt concluded her closing by showing a fast-motion version of a video compiled by Stefan Walsh, a Center High School graduate. The video shows conditions in various districts around the state. (See this story for more information about the video and a player to view it.)

Cleanup testimony

Sen. Keith King, R-Colorado Springs
Sen. Keith King, R-Colorado Springs

Friday morning saw testimony by Sen. Keith King, R-Colorado Springs, the last witness for the state.

King defended the process by which the legislature considers the school finance bill every year and said, “That’s why I think the General Assembly is the one that ought to do the school finance act,” not the courts.

“The system is not perfect [but] I think the General Assembly has come together and worked very diligently … to provide a good system of schools for our kids.”

The plaintiffs also called a succession of witnesses to rebut various assertions by state witnesses. All had testified before except former House Speaker Andrew Romanoff, D-Denver.

Asked if he thought state schools were thorough and uniform, Romanoff said, “I do have an opinion. … My opinion is that we have not met our constitutional obligation. … It’s difficult to reach any other conclusion.”

Highlights of the last day

TONE: There was a last-day-of-school air in the courtroom after things wrapped up, with lawyers, assistants, plaintiffs, families and friends clustered in groups chatting and smiling in relief at the end of the long trial.

QUOTE: “They call me the amendment king.” – Sen. Keith King, referring to the 85 education bills and “hundreds” of amendments he’s proposed during his career in both the House and Senate. (True story – people at the Capitol do call him the “Amendment King.”)

MANEUVERING: King kept tripping over the ban on talking about the TABOR Amendment and other state spending (explanation here). Plaintiff’s lawyers had to keep reminding him. “I’ll try to be good,” he said.

DOCUMENTS: If you want some historical insight into how the current school finance system got started, read the report of the 1993 legislative study committee that studied school finance and whose work led to the current law. Refresh your memory on what was said during the trial with the stories in our Lobato archive.

SEEN: Except for the participants, the courtroom has been pretty empty for most days of the trial. The excruciatingly uncomfortable wooden pews were mostly filled Friday, primarily with some plaintiffs, friends and relatives of lawyers and a scattering of education types.

WHAT’S NEXT: Lawyers in the case have 45 days to submit what are called proposed findings of fact and conclusions of law – essentially the ruling they’d like the judge to issue. The judge, or course, isn’t bound by those and doesn’t have a deadline for ruling.

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