Who Is In Charge

Lawsuit: Education clause trumps TABOR

The revised school-funding lawsuit filed Monday argues that the state constitutional requirement for “a thorough and uniform system of free public schools” creates a “substantive” right to which “procedural amendments” such as TABOR “must yield.”

The new complaint in Lobato v. State, made possible by an October 2009 Colorado Supreme Court ruling that revived the original 2005 case, raises the issue of whether Colorado spends enough on its schools at a time when the legislature is considering historic cuts in K-12 spending.

The case also is expected to set into motion years of judicial and perhaps legislative debate on some big constitutional and policy questions:

  • What educational rights does the state constitution confer?
  • What is “adequate” funding of the schools?
  • Is it up to the courts or legislature to determine that?
  • Does the state constitution’s original language about a “thorough and uniform” system of schools – and any rights that language confers on citizens – override such later amendments as the Taxpayer’s Bill of Rights and the Gallagher Amendment, which regulates property taxes?

The plaintiffs’ claim about TABOR, deep in the 38-page complaint, reads: “The ability of the state and school districts to provide and maintain sufficient funding and other resources and to implement a system of public school finance that meets the substantive right to a quality public education established by the Education Clause is fundamentally impaired by the taxing and spending conditions imposed by TABOR and the Gallagher Amendment. These procedural amendments to the constitution must yield to the substantive rights guaranteed by the Education Clause.”

The Lobato case started in 2005 when a 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.

On Oct. 19, 2009, the Colorado Supreme Court ruled 4-3 to revive the lawsuit, sending it back to the trial court.

The updated suit adds new plaintiffs – the Jefferson County and Colorado Springs 11 districts plus a group of metro-area parents. The parents and their children include residents of the Adams 14, Boulder Valley, Denver, Pueblo County and Woodlin schools districts, plus the San Luis Valley districts.

There now are more than 30 individuals and 17 school districts on the suit.

The suit also cites more recent facts about the condition of school funding in Colorado.

As was the case when the lawsuit originally was filed, the core of the plaintiffs’ argument is that Colorado public schools are so under-funded that students are denied an adequate education, in violation of that state constitutional mandate of a “thorough and uniform” system. The suit also claims the current system violates the constitutional local control rights of schools boards.

“The state has persistently failed to fund public education in a rational and sufficient manner and at the levels required to meet constitutional and statutory standards of quality,” the complaint reads.

“The Colorado public school finance system particularly fails to provide sufficient funding to provide a constitutionally adequate, quality education for the under-served student populations in the state.”

The suit repeated uses the words “irrational and inadequate” and also has some critical things to say about state education reform efforts in recent years.

“Education reform legislation has established instructional and other substantive goals and mandates without analyzing the cost to attain those goals or providing the means to fund the accomplishment of those mandates. The General Assembly has enacted education reform legislation without corresponding reform to the system of school finance.”

The suit seeks a court declaration that the current system isn’t rationally related to the constitutional education mandate, doesn’t provide enough funding to fulfill that mandate and violates the constitutional rights of school districts. It asks injunctions directing the state to fix the system and establishing continuing court monitoring of any such efforts.

At the time of the high court’s ruling last autumn, 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.”

The legislature, faced with a continued decline in state revenues, already has cut just over 2 percent from 2009-10 state school support and is expected to reduce state aid by 6 percent or more in 2010-11.

Lawmakers and the Ritter administration are taking a narrow view of Amendment 23, arguing that its provision only apply to base school funding, which is about 75 percent of total state aid.

School districts were prepared for the 2009-10 cuts, given that they had to hold a total of $110 million in reserve until the legislature decided whether or not to release it.

Administrations and school boards around the state now are working in earnest to cut their 2010-11 budgets, and some boards already have taken the legal steps necessary to lay off teachers before the new budget year starts on July 1.

Several education and other advocacy groups were part of the original 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.

The school boards group, CASB, has been particularly active on the issue, including helping raise money to pay legal bills.

While “adequacy” might seem to 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 gave to a legislative study panel last summer, funding an “ideal” K-12 education system could cost nearly $9 billion a year, compared to the $6.1 billion currently spent.

The lawsuit also cited a 2008 Colorado School Finance Project study that estimated a similar, $2.9 billion-a-year gap in adequate state funding.

The next step in the process will be filing of an answer by lawyers representing the state.

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

Do your homework

Turnaround 2.0

McQueen outlines state intervention plans for 21 Memphis schools

PHOTO: TN.gov
Candice McQueen has been Tennessee's education commissioner since 2015 and oversaw the restructure of its school improvement model in 2017.

Tennessee Education Commissioner Candice McQueen has identified 21 Memphis schools in need of state intervention after months of school visits and talks with top leaders in Shelby County Schools.

In its first intervention plan under the state’s new school improvement model, the Department of Education has placed American Way Middle School on track either for state takeover by the Achievement School District or conversion to a charter school by Shelby County Schools.

The state also is recommending closure of Hawkins Mill Elementary School.

And 19 other low-performing schools would stay under local control, with the state actively monitoring their progress or collaborating with the district to design improvement plans. Fourteen are already part of the Innovation Zone, the Memphis district’s highly regarded turnaround program now in its sixth year.

McQueen outlined the “intervention tracks” for all 21 Memphis schools in a Feb. 5 letter to Superintendent Dorsey Hopson that was obtained by Chalkbeat.

Almost all of the schools are expected to make this fall’s “priority list” of Tennessee’s 5 percent of lowest-performing schools. McQueen said the intervention tracks will be reassessed at that time.

McQueen’s letter offers the first look at how the state is pursuing turnaround plans under its new tiered model of school improvement, which is launching this year in response to a new federal education law.

The commissioner also sent letters outlining intervention tracks to superintendents in Nashville, Chattanooga, Knoxville, and Jackson, all of which are home to priority schools.

Under its new model, Tennessee is seeking to collaborate more with local districts to develop improvement plans, instead of just taking over struggling schools and assigning them to charter operators under the oversight of the state-run Achievement School District. However, the ASD, which now oversees 29 Memphis schools, remains an intervention of last resort.

McQueen identified the following eight schools to undergo a “rigorous school improvement planning process,” in collaboration between the state and Shelby County Schools. Any resulting interventions will be led by the local district.

  • A.B. Hill Elementary
  • A. Maceo Walker Middle
  • Douglass High
  • Georgian Hills Middle
  • Grandview Heights Middle
  • Holmes Road Elementary
  • LaRose Elementary
  • Sheffield Elementary
  • Wooddale High

These next six iZone schools must work with the state “to ensure that (their) plan for intervention is appropriate based on identified need and level of evidence.”

  • Sheffield Elementary
  • Raleigh-Egypt High
  • Lucie E. Campbell Elementary
  • Melrose High
  • Sherwood Middle
  • Westwood High

The five schools below will continue their current intervention plan within the iZone and must provide progress reports to the state:

  • Hamilton High
  • Riverview Middle
  • Geeter Middle
  • Magnolia Elementary
  • Trezevant High

The school board is expected to discuss the state’s plan during its work session next Tuesday. And if early reaction from board member Stephanie Love is any indication, the discussion will be robust.

“We have what it takes to improve our schools,” Love told Chalkbeat on Friday. “I think what they need to do is let our educators do the work and not put them in the situation where they don’t know what will happen from year to year.”

Among questions expected to be raised is whether McQueen’s recommendation to close Hawkins Mill can be carried out without school board approval, since her letter says that schools on the most rigorous intervention track “will implement a specific intervention as determined by the Commissioner.”

Another question is why the state’s plan includes three schools — Douglass High, Sherwood Middle, and Lucie E. Campbell Elementary — that improved enough last year to move off of the state’s warning list of the 10 percent of lowest-performing schools.

You can read McQueen’s letter to Hopson below:

Mergers and acquisitions

In a city where many charter schools operate alone, one charter network expands

Kindergarteners at Detroit's University Prep Academy charter school on the first day of school in 2017.

One of Detroit’s largest charter school networks is about to get even bigger.

The nonprofit organization that runs the seven-school University Prep network plans to take control of another two charter schools this summer — the Henry Ford Academy: School for Creative Studies elementary and the Henry Ford Academy: School for Creative Studies middle/high school.

The move would bring the organization’s student enrollment from 3,250 to nearly 4,500. It would also make the group, Detroit 90/90, the largest non-profit charter network in the city next year — a distinction that stands out in a city when most charter schools are either freestanding schools or part of two- or three-school networks.

Combined with the fact that the city’s 90 charter schools are overseen by a dozen different charter school authorizers, Detroit’s relative dearth of larger networks means that many different people run a school sector that makes up roughly half of Detroit’s schools. That makes it difficult for schools to collaborate on things like student transportation and special education.

Some charter advocates have suggested that if the city’s charter schools were more coordinated, they could better offer those services and others that large traditional school districts are more equipped to offer — and that many students need.

The decision to add the Henry Ford schools to the Detroit 90/90 network is intended to “create financial and operational efficiencies,” said Mark Ornstein, CEO of UPrep Schools, and Deborah Parizek, executive director of the Henry Ford Learning Institute.

Those efficiencies could come in the areas of data management, human resources, or accounting — all of which Detroit 90/90 says on its website that it can help charter schools manage.

Ornstein and Parizek emphasized that students and their families are unlikely to experience changes when the merger takes effect on July 1. For example, the Henry Ford schools would remain in their current home at the A. Alfred Taubman Center in New Center and maintain their arts focus.  

“Any changes made to staff, schedule, courses, activities and the like will be the same type a family might experience year-to-year with any school,” they said in a statement.