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Denver court rejects state’s request to toss negative factor lawsuit

A Denver District Court judge today rejected the state’s request to toss a lawsuit that challenges the state’s “negative factor.”

The lawsuit, Dwyer v. State, was filed June 27 by a group of school districts and parents who claim the negative factor is unconstitutional. The negative factor is a tool used by the legislature to attempt to both balance its budget and maintain constitutionally-required funding for education.

Attorney General John Suthers formally asked for dismissal of the lawsuit in August. In his request, he claimed, in part, the plaintiffs didn’t have standing.

Denver District Court Judge Herbert Stern disagreed.

“Parents allege that they and their children are harmed by the reduced funding apportioned to schools in … As taxpayers, parents have a legally protected interest in determining whether the government’s implementation … violates Amendment 23,” Stern wrote in his decision. “Thus, they have standing.”

At issue is interpretation of Amendment 23, the 2000 constitutional provision that requires annual K-12 spending increases based on inflation.

In 2010 the legislature created the negative factor to control school spending as lawmakers struggled with the overall state budget during the Great Recession. The legal reasoning behind the negative factor is that Amendment 23 applies only to base per-student funding, not to additional funds districts receive to compensate for size, number of at-risk students, and other factors.

Estimates suggest the state is short-changing school districts by about $900 million.

The plaintiffs argue the negative factor cut into the base of education funding, but the state’s motion to dismiss emphatically disagreed.

Correction: an earlier version of this article incorrectly identified the position of the plaintiffs in Dwyer v. State.

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