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Lobato case: Whose constitution is it, anyway?

Editor’s note: The following piece was written by Ken DeLay, executive director of the Colorado Association of School Boards.

Students do not show up at the schoolhouse door equally well equipped for success. We know, for example, that young children who grow up in homes where adults regularly read and speak to them by age three have heard 30 million more words and have a vocabulary more than twice as large as children who grow up without those experiences.

There are also differences in intellect and a host of other factors that affect student learning. Colorado’s public schools have been rightly challenged to accept every one of these children, no matter how well equipped to learn, and to launch them into adulthood 12 years later fully prepared for college or career.

Leaving aside the legal analysis and the political jousting, the plaintiffs in the just-concluded Lobato trial are seeking only recognition of the fact that it costs more to educate the child with a vocabulary less than half that of his peers and a life experience of hearing more than 30 million fewer spoken words, and an order requiring the state to create a plan for funding those costs. The plaintiffs’ claims are rooted in an old idea. We get what we pay for.

Of course we cannot leave aside legal analysis or political jousting. The Colorado Supreme Court has already ruled in the Lobato case that the courts, not the legislature, will decide what the state constitution means when it says that the legislature must create and maintain a “thorough and uniform” system of public schools in Colorado. That the courts have “the province and the duty” to say what the law means is also an old idea, one first articulated by the great U.S. Supreme Court Justice Marshall almost 210 years ago.

In its 2009 Lobato opinion, the Colorado Supreme Court also rejected the state’s arguments that other constitutional restrictions on the legislature’s taxing power, such as the Taxpayers Bill of Rights (TABOR), prohibit the courts from requiring additional funding for schools under the “Thorough and Uniform Clause.” The mere possibility of a remedy beyond the means of the current budget, said the court, is not a reason for the courts to shirk their duty to say what the constitution means.

The trial court judge strictly followed the law of this case as set down by the Colorado Supreme Court. And here began the political jousting: the court is stepping improperly on the toes of the legislature by defining what “thorough and uniform” means; the court will overstep its authority if it orders the legislature to find resources which the legislature does not now have; and the oft-repeated contention that there is no connection between additional dollars spent and a quality education.

That last contention is, of course, an issue of fact in the case. There was much testimony from experts and others on both sides of this issue, and the trial court must now decide which side had the better of the evidence. That evidence, not political argument, will decide this issue.

The argument that it is the legislature’s, not the court’s, role to define “thorough and uniform” is puzzling. It has been settled law for more than 200 years that courts, not legislatures, decide what a constitution means. Moreover, in this case, both the Supreme Court and the plaintiffs have relied heavily on legislative requirements already in law that define the level of education Colorado schools must deliver. The plaintiffs are only asking the legislature to fund requirements it has already imposed on school districts.

The claim that the state’s budget is insufficient to pay additional money for public education is an especially troubling and disingenuous argument. It is disingenuous because the plaintiffs do not seek an order directing the state to pay any amount of money to public education. The plaintiffs seek merely a determination that the current funding system is unconstitutional and an order to the legislature to build a constitutional system. Further, if it is necessary for the legislature to find additional funds to build that system, the constitution already provides a way for the legislature to seek those funds.

The argument is also troubling because it suggests that where the restrictions contained in TABOR create an obstacle to other constitutional rights or obligations, those other rights or obligations must give way to TABOR. Boiled down to its essence, the state’s argument is that TABOR has effectively repealed the “Thorough and Uniform Clause,” a provision that has been in our constitution since it was first adopted in the 1870s. The Colorado Supreme Court properly rejected this argument.

In its 2009 decision, the Colorado Supreme Court held that the trial court must determine whether there is a rational connection between the funding system for public schools in Colorado and the mandates placed on our schools to educate every child. This seems altogether an unremarkable proposition.

If our public schools can give the boys and girls of this state a quality education that prepares them for life and career after graduation, it will have given them the one ticket for success which we know always works.

We as a state can and should do no less for our children.

About our First Person series:

First Person is where Chalkbeat features personal essays by educators, students, parents, and others trying to improve public education. Read our submission guidelines here.

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