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School finance lawsuit arguments focus on meaning of “base” funding

Plaintiffs in Colorado’s latest school finance lawsuit have fired back at Attorney General John Suthers, arguing that his motion to dismiss their lawsuit is wrong and that the state’s “efforts to avoid judicial inquiry into their devastating interpretation of Amendment 23 should be rejected.”

A group of parents, school districts and advocacy groups filed suit in late June, arguing that the “negative factor” used by the legislature to set the amount of annual K-12 funding is a violation of Amendment 23, the constitutional provision that requires annual increases in school funding. (See story on lawsuit.)

In a brief filed in August, Attorney General John Suthers asked that the suit be dismissed, arguing that A23 clearly applies only to “base” K-12 funding, not to the additional funds districts receive to compensate for their size, number of at-risk students and other factors.

The funding shortfall created by the negative factor, used since 2010, is just under $1 billion. Suthers also argued that the plaintiffs don’t have proper legal standing to file the suit. (See story on the state’s motion.)

The plaintiffs’ answer, filed Monday in Denver District Court, argues that use of the negative factor “cuts statewide base per pupil funding” by any definition of that term and that “Defendants’ interpretation of Amendment 23 contradicts both the text of the amendment and the overwhelming evidence of voter intent. Plaintiffs have alleged and will show that Amendment 23’s requirement of annual increases in ‘statewide base per pupil funding’ was intended to prevent the legislature from doing exactly what it has done via the negative factor: slashing per pupil funding across the state.”

The state’s motion to dismiss and the plaintiffs’ answer are standard opening gambits in lawsuits of this kind. Even if a district judge grants the state’s motion, that won’t be the end of the suit as the plaintiffs would appeal that ruling to the Colorado Court of Appeals.

The suit, Dwyer v. State, asks that the negative factor section be stricken from the state’s school funding law and that the legislature be barred from reinstating the factor in another form. The suit does not ask that lost funding be restored.

The plaintiffs’ answer brief is below. See the original lawsuit here, and the read the attorney general’s motion here.