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State wants negative factor lawsuit tossed

Attorney General John Suthers has formally asked for dismissal of the lawsuit challenging the “negative factor” used by the legislature to set annual K-12 funding.

“Amendment 23 expressly requires the public school finance formula’s statewide base per pupil funding amount to at least keep pace annually with the rate of inflation. By its plain terms, Amendment 23 does not extend to overall state education funding as plaintiffs claim,” Suthers wrote in a motion to dismiss that was filed in Denver District Court this week. (See full motion here.)

The lawsuit, Dwyer v. State, was filed June 27 by a group of school districts and parents who claim the negative factor is unconstitutional. (See this Chalkbeat Colorado story about the suit.)

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 continued to struggle with the overall state budget. The legal reasoning behind the negative factor is that A23 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. The theoretical funding shortfall created by the negative factor is just under $1 billion.

The plaintiffs argue A23 should be applied to all school spending, but the state’s motion to dismiss emphatically disagrees.

“Amendment 23 does not refer to any other portion of the finance formula. It refers to the statewide base per pupil funding … leaving no question whatsoever that component of the finance formula — and that component only — must at least keep pace annually with the rate of inflation,” the motion reads.

The filing also makes standard motion-to-dismiss arguments about the plantiffs not having proper legal standing to sue or stating a proper claim for relief.

Plantiffs’ lawyers said they will oppose the motion and have until Sept. 29 to file a reply.