Who Is In Charge

High court revives Lobato “adequacy” suit

The Colorado Supreme Court Monday ruled 4-3 to overturn a lower court decision in the case of Lobato vs. State of Colorado, opening the way for lengthy judicial deliberations on whether the state’s school finance system is adequately funded.

StockSupCt101909While any final decision likely is years in the future, the high court’s ruling adds an important new dimension to the ongoing debate over school funding, a discussion that has been sharpened by the state’s severe budget challenges.

The Lobato case started in 2005 when large group of parents from eight school districts across the state and 14 school districts in the San Luis Valley sued the state, claiming that Colorado’s school finance system violates the state constitution’s requirement for a “thorough and uniform” public education system.

In March 2006 Denver District Judge Michael Martinez ruled against the plaintiffs, concluding the current system meets the requirements of Amendment 23, isn’t subject to court review and that the school districts didn’t have standing to sue.

A Colorado Court of Appeals panel upheld the district court decision in January 2008.

The high court’s decision Monday overturned all that and sends the case back to district court for trial.

The plaintiffs and education groups were buoyed by the decision.

But, Attorney General John Suthers, defending the state in the case, said, “This decision is not good news for the Colorado taxpayer. The majority opinion suggests the plaintiffs, who are seeking additional tax funding that could potentially involve billions of dollars, might find relief from the courts even though the legislature and the voters have determined current educational funding is adequate.”

According to a statement issued by Children’s Voice, plaintiff Anthony Lobato said, “We have been fighting for far too long for someone to recognize our children’s futures are in jeopardy.  I am extremely relieved and grateful that, after nearly five years in the court system, we will finally have an opportunity to expose the dire financial condition of our schools in this State.”  Children’s Voices is the public-interest law firm that originally brought the lawsuit.

George Welsh, superintendent of Center School District, said,  “We welcome the opportunity to show how the state’s lack of funding for education affects all students, from the lack of early childhood education programs to inadequate preparation for college and the work force.  The state’s lack of funding is preventing us from providing kids with a meaningful 21st century education.”

Two of the lawyers involved in the case, Alexander Halpern and Kathleen Gebhardt, called on “the legislature to act immediately to remedy the problem, thereby avoiding a costly and lengthy trial.”

That would seem unlikely, given the bleak revenue situation and constitutional restrictions facing lawmakers. It’s expected that the 2010 session will have to take an narrow interpretation of Amendment 23, which sets minimum levels of school funding, just to balance the 2010-11 state budget.

In an interview with EdNews, Gebhardt said, “We obviously are pleased with the court’s decision,” adding that the next step would be filing an amended complaint. “We are hoping for a trial within 12 to 18 months, hopefully on the 12 side.”

Others in the education world also were pleased by the ruling.

Ken DeLay, executive director of the Colorado Association of School Boards, said, “I think it’s a good decision and they struck a good balance. … We’ll see how it sorts out.” DeLay commented that it could take four to five years for the case ultimately to be decided. “Hopefully a decision will come between this recession and the next recession.”

“We have long been on the side of the people who say we have a school funding problem in the state of Colorado. This moves that discussion forward,” said Deb Fallin of the Colorado Education Association. “It will be years, but this is another step.”

Several education and other advocacy groups are part of the case as “friends of the court,” including the Colorado Education Association, the Colorado Association of School Boards, the Colorado Association of School Executives, the Colorado League of Charter Schools, the Colorado Lawyers Committee, the Colorado Center on Law and Policy, Great Education Colorado and Padres Unidos. They joined the case in support of the plaintiffs.

Here are some key portions of the high court’s decision:

“The Colorado Supreme Court holds that the plaintiffs may challenge the current state’s public school financing system as violating the Colorado constitutional mandate of the education clause requiring a ‘thorough and uniform’ system of public education,” the decision said. “Following 1982 precedent, the court holds that it is the responsibility of the judiciary to determine whether the plaintiffs prove that the public school finance system is not rationally related to this constitutional mandate.”

The “1982 precedent” was the Lujan case, which successfully challenged the equity of the school finance system. The Lobato case challenges the system’s adequacy.

“The court’s task is not to determine ‘whether a better financing system could be devised,’ … but merely to determine whether the system passes constitutional muster. …

“Accordingly, the plaintiffs must be provided the opportunity to prove their allegations.  To be successful, they must prove that the state’s current public school financing system is not rationally related to the General Assembly’s constitutional mandate to provide a ‘thorough and uniform’ system of public education.  …   If the trial court finds the current system of public finance irrational and thus unconstitutional, then that court must permit the legislature a reasonable period of time to change the funding system so as to bring the system in compliance with the Colorado Constitution.”

The high court also ruled that the existence of Amendment 23 is not a defense against any challenge to the school finance system’s adequacy, because A23 only sets minimum funding levels.

The opinion was written by Justice Michael Bender and supported by Chief Justice Mary Mullarky and justices Gregory Hobbs and Alex Martinez. All were appointed to the court by Democratic former Gov. Roy Romer.

Justice Nancy Rice wrote the dissent, citing various federal and state cases and a different interpretation of the Lujan case to argue that school finance is not a proper area for court jurisdiction. Rice, a Romer appointee, was joined in dissent by justices Nathan Coats and Allison Eid. Those two were appointed by Republican former Gov. Bill Owens.

While “adequacy” might currently be a concept whose definition is in the mind of the beholder, some people have taken a stab at estimating its cost. According to an estimate the Department of Education recently gave to a legislative study panel, funding an “ideal” K-12 education system could cost nearly $9 billion a year, compared to the $6.1 billion currently spent.

Adequacy has been a focus of interest and court action in several other states in recent years. Here’s information on court action around the country, as reported by the National Access Network, a project of Teachers College at Columbia University.

Read the decision here


listening tour

We asked six Colorado school board members what they want from the state’s next governor. Here’s what they said.

Democratic gubernatorial candidates Donna Lynne, Noel Ginsburg and Cary Kennedy at a candidate forum hosted by the Colorado Association of School Boards. (Photo by Nic Garcia)

Late last week, nine candidates for Colorado governor came together to talk education, addressing an annual fall conference of school board members.

Now, we’re giving some of those audience members a chance to speak up.

Before the gubernatorial hopefuls took the stage, Chalkbeat recorded interviews with a half-dozen school board members who represent districts across the state. Our question to them: What are the big education questions you hope the next governor will take on?

Not surprisingly, funding challenges came up time and again.

One school board member asked for a more predictable budget. Another asked for schools to get their fair share of annual increases in new tax dollars. One went so far as to say the next governor would be a chicken if he or she didn’t take on reforming the state’s tax code.

We also heard a desire for leadership on solving teacher shortages, expanding vocational training and rethinking the state’s school accountability system.

Here are the six gubernatorial wishes we heard from Colorado’s school board members:

Reform TABOR to send more money to schools

Wendy Pottorff, Limon Public Schools

Since the Great Recession, Colorado schools have lost hundreds of thousands of dollars. And while the state legislature has tried to close its education funding shortfall, lawmakers haven’t been able to keep up. Getting in the way, Pottorff says, is the state’s Taxpayer Bill of Rights, or TABOR.

Change the conversation about public schools


Paul Reich, Telluride School District

Reich says public schools are under attack under the false premise that they’re failing — and that isn’t helping the state recruit bright young teachers. He said the next governor must change the conversation about schools to make teaching a more desirable profession.

Provide a clear budget forecast

Anne Guettler, Garfield School District

Approving a school district’s budget is one of the many responsibilities of a Colorado school board. That’s a tall challenge when the state’s budget is constantly in flux, Guettler says. She hopes the next governor can help provide a clearer economic forecast for schools.

Rethink school accountability to include students and parents

Greg Piotraschke, Brighton 27J

Colorado schools are subject to annual quality reviews by the state’s education department. And it’s time for the state to rethink what defines a high-quality school, Piotraschke said. He suggested the governor could help rethink everything from how the state uses standardized tests to how to incorporate parents and students into the review process.

Give schools more resources to train the state’s high-tech workforce

Nora Brown, Colorado Springs District 11

In light of Colorado growing tech sector, several gubernatorial candidates have come out in support of more technical training for Colorado students. But that costs money, Brown says. The Colorado Springs school board member said promising better job training for high school students without more resources is empty.

Remember there’s a difference between urban and rural schools

Mark Hillman, Burlington School District

Crafting statewide policy is an onerous task in Colorado, given the diversity of the state’s 178 school districts. Hillman said the next governor must remember that any legislation he or she signs will play out 178 different ways, so they must be careful to not put more undue pressure on the state’s smallest school districts.

Colorado Votes 2018

Five things we learned when Colorado’s gubernatorial candidates got on the same stage to talk about education

Colorado Republicans running for governor addressed some of the state's school board members at a forum hosted by the state's association of school boards. From left are George Brauchler, Steve Barlock, Greg Lopez, Victor Mitchell and Doug Robinson. (Photo by Nic Garcia/Chalkbeat)

Nine Republicans and Democrats hoping to become Colorado’s next governor offered contrasting views Friday of the state’s public schools to an audience of more than 100 local school board members.

Most of the five Republicans told the crowd of locally elected officials — who are charged by the state’s constitution with governing Colorado’s public schools — that their programs were in need of improvement and innovation, and that they were there to help.

The four Democrats hoping to succeed fellow Democrat Gov. John Hickenlooper, who is term-limited, pledged to reform the state’s tax code to send more money to schools.

The candidates spoke at the annual fall delegation conference of the state’s association of school boards.It was the first forum of its kind to address education issues exclusively this election election cycle.

Unlike previous elections, Colorado’s public education system has been a key policy debate early in the campaign. Several candidates, especially Democrats, have worked on education issues before.

Here are our five takeaways from the forum:

The Republican candidates didn’t pull any punches when they said the state’s public schools were in need of improvement — and several said that they were the ones to do it.

From District Attorney George Brauchler to businessman Doug Robinson, every Republican candidate said one part or another of the state’s school system needed to do better.

“Education is life itself,” said former state lawmaker Victor Mitchell. “And there is no greater challenge facing our state than 50 percent of our at-risk kids who graduate can’t complete college-level course work.”

Both Mitchell and Robinson pointed to their experience as entrepreneurs as evidence that they could help set the state’s schools free of what they consider unnecessary red tape. Brauchler called for empowering teachers and parents.

Every Democrat and several Republicans agreed that the state’s schools were in a “funding crisis.” But they offered very different paths forward.

It was an easy question for Democrats. Businessman Noel Ginsburg, former state Sen. Michael Johnston, former state treasurer Cary Kennedy and Lt. Gov. Donna Lynne were in lock-step that the state’s schools are in need of more money.

“If we don’t fundamentally solve this crisis, the rest of the issues don’t matter,” Johnston said.

Former state Sen. Michael Johnston and Lt. Gov. Donna Lynne talk after a forum for gubernatorial candidates. Both are Democrats. (Photo by Nic Garcia/Chalkbeat)

Johnston and Kennedy forcefully pledged to take on the state’s Taxpayer Bill of Rights, which limits how much tax revenue the state can collect and requires voter approval to raise taxes.

Lynne was more tempered. While she acknowledged tax reform was needed, she said wanted a legislative committee working on school finance to complete its work before suggesting any overhauls.

Greg Lopez, the former mayor of Parker and a small business owner, was the only GOP candidate who said he would take on the state’s complicated tax laws. If elected, he promised to establish a committee to send a reform proposal to voters.

Robinson and Brauchler acknowledged that schools were in a funding crunch. But they stopped short of saying they’d send more money to schools.

Mitchell said “he wasn’t sure” if there was a funding crisis, but added, “The system should be reformed before it’s fully funded.”

PERA, the state’s employee retirement program, could play a prominent issue in the election — especially for Republicans.

Earlier at the conference, school board members received a briefing on a proposed overhaul to the state’s retirement program, which includes school district employees.

While the situation is not as dire as it was a decade ago, the program’s governing board has become so increasingly worried about unfunded liabilities that it’s asking state lawmakers to pass a reform package to provide more financial stability.

Two Republicans, Brauchler and Steve Barlock, who co-chaired President Trump’s campaign in Colorado, said PERA was in crisis. Barlock warned school board members that their budgets were in jeopardy as lawmakers fiddle with the system.

Neither went into any detail about how they hoped to see the retirement program made more fiscally stable. But watch for this issue to gain greater traction on the campaign trail, especially as Republican state Treasurer Walker Stapleton ramps up his gubernatorial campaign, and as lawmakers begin to wrestle with PERA reforms next year. (Stapleton did not attend the forum.)

Some candidates offered careful responses to a question about school choice. Others, not so much.

Every Democrat and one Republican, Brauchler, said they respected a family’s right to choose the best school for their children. But that choice, they said, should not come at the expense of traditional, district-run schools.

“I’m concerned that we’d build a system where the success of some schools is coming at the expense of other schools,” Kennedy said.

Republicans strongly supported charter schools, and in some cases, vouchers that use taxpayer dollars to pay for private schools. Robinson called on creating new ways to authorize charter schools. Mitchell said he wanted to repeal a provision in the state’s constitution that has been used to rebuff private school vouchers.

There’s no party line over rural schools.

Republicans and Democrats alike said the state needed to step up to help its rural schools, which are typically underfunded compared to schools along the Front Range. They need more teachers, better infrastructure and fewer regulations, the candidates said.

“We need to get rural areas into the modern age,” Robinson said.