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

a closer look

Fact-check: Weighing 7 claims from Betsy DeVos’s latest speech, from Common Core to PISA scores

PHOTO: Dylan Peers McCoy

In a speech Tuesday at the American Enterprise Institute, U.S. Education Secretary Betsy DeVos made the case for giving up on the type of school improvement efforts favored by Presidents Obama and George W. Bush. In its place, she argued, the federal government should encourage tech-infused innovation and school choice.

Looking to weigh her claims? Here’s a closer look at a few.

1. DeVos: “The most recent Program for International Student Assessment, or PISA, report, with which you are all familiar, has the U.S. ranked 23rd in reading, 25th in science and 40th in math. And, you know this too: it’s not for a lack of funding. The fact is the United States spends more per pupil than most other developed countries, many of which perform better than us in the same surveys.”

This stats are accurate, but may not be fair. The U.S. does spend more per pupil, in raw dollars, than most other countries. But international comparisons of these sorts are complicated, and American spending is similar to countries with similarly sized economies.

As we’ve written previously, it’s also misleading to say that more money wouldn’t help American schools. A number of studies have found precisely the opposite, including a recent one showing how cuts to schools during the Great Recession lowered student test scores and graduation rates.

2. DeVos appeared to refer to Common Core as “federal standards,” saying, “Federally mandated assessments. Federal money. Federal standards. All originated in Washington, and none solved the problem.”

That’s off the mark. As advocates for the Common Core never tire of pointing out, the creation of the standards was driven by state leaders through the National Governors Association and Council of Chief State School Officers, with the support of several private organizations, most prominently the Gates Foundation. (Gates is a funder of Chalkbeat.) As DeVos notes earlier in the speech, the Obama administration did incentivize states to adopt the standards, though, and Secretary Arne Duncan was a vocal champion.

3. DeVos: “At the U.S. Department of Education, Common Core is dead.”

This is true, in a sense — the Every Student Succeeds Act, which passed before DeVos became secretary, prohibits the federal government from pushing states to adopt specific standards. But DeVos doesn’t control what academic standards states adopt, and most states are still using use some version of the Common Core.

4. DeVos: “Throughout both initiatives, the result was a further damaged classroom dynamic between teacher and student, as the focus shifted from comprehension to test-passing. This sadly has taken root, with the American Federation of Teachers recently finding that 60 percent of its teachers reported having moderate to no influence over the content and skills taught in their own classrooms. Let that sink in. Most teachers feel they have little – if any — say in their own classrooms.”

The statistic DeVos pulled from this poll is accurate, though her framing may be more negative than the results suggest. It asked teachers to rate how much control they had over “setting content, topics, and skills to be taught.” The most common answer was “a great deal” (at about 40 percent of teachers), and another 30 percent or so chose moderate control. Twenty percent said minor, and only 10 percent said they had no control.

5. DeVos: “To a casual observer, a classroom today looks scarcely different than what one looked like when I entered the public policy debate thirty years ago. Worse, most classrooms today look remarkably similar to those of 1938 when AEI was founded.”

This statement is misleading but has a grain of truth. We examined a similar claim when the TV program produced by the XQ prize argued that schools haven’t changed in 100 years. In short, DeVos is right that many basic trappings of school — a building, a teacher at the front of the class, a focus on math, reading, science, and social studies — have remained consistent. But this glosses over some substantial changes since 1938: the end of legally mandated race-based segregation, the rise of standards for special education students, and the expanded use of testing, among others.

6. DeVos: “While we’ve changed some aspects of education, the results we all work for and desire haven’t been achieved. The bottom line is simple: federal education reform efforts have not worked as hoped.”

This is a big assertion, and it’s always tricky to judge whether something in education “worked.” As DeVos pointed out, a federal study showed the federal school turnaround program didn’t help students. She also highlighted relatively flat international test scores, and others have pointed to flat national scores in recent years.

That said, there were substantial gains in math in fourth and eighth grade, particularly in the early 2000s.

But raw trend data like this can’t isolate the effects of specific policies, particularly when other unrelated changes — like the Great Recession — can also make a big difference. Studies on No Child Left Behind have shown positive results in math, but little or no effect in reading. An analysis of Race to the Top was inconclusive.

One bright spot: a program that paid performance bonuses through the federal Teacher Incentive Fund led to small test score bumps, according to a recent study by DeVos’s Department of Education.

7. In response to a question about school performance in Detroit, DeVos said she shouldn’t be credited — or blamed — for the results in the city. “You’re giving me a whole lot of credit to suggest that whatever happened in Detroit was as a result of what I did,” she said. “We have been long-term supporters of continued reform and choice in Michigan.”

This one is up for debate, though it’s clear DeVos has long been a major player in Detroit’s education scene. She has supported charter schools, which educate about half the public school students in that city, and been a major donor to Republican politicians and causes in the state. She started an influential advocacy group in the state called Great Lakes Education Project.

She was also a key opponent of a commission that would more tightly oversee Detroit charter schools, which ultimately failed amid GOP opposition. It’s clear she has had an impact in the city, but that doesn’t mean she’s gotten everything she’s wanted: in 2000, Michigan voters rejected a DeVos-funded effort to fund vouchers for private schools. She also hasn’t gotten her wish that Detroit have a traditional school district eliminated entirely.

DeVos on offense

DeVos criticizes Bush-Obama policies, saying it’s time to overhaul conventional schooling

PHOTO: U.S. Department of Education
U.S. Education Secretary Betsy DeVos speaking to the Council of Great City Schools.

One era of federal involvement in education is over, U.S. Secretary of Education Betsy DeVos said Tuesday, in some of her most expansive public remarks since taking over the department last year.

DeVos used a speech at the American Enterprise Institute to hit on familiar themes: America’s schools haven’t changed in many years, failing to embrace technology while still spending more and more money. But she also offered a pointed skewering of the approach of her recent successors.

“Federally mandated assessments. Federal money. Federal standards. All originated in Washington, and none solved the problem,” said DeVos. “Too many of America’s students are still unprepared.”

She also gave a harsh assessment of one of the most controversial policies of the period. “Common Core is a disaster,” DeVos said, echoing her boss, President Trump. “And at the U.S. Department of Education, Common Core is dead.”

In place of those efforts, DeVos offered a different framework for improving education: overturning a host of conventional approaches to schooling.

“Why do we group students by age?” she asked. “Why do schools close for the summer? Why must the school day start with the rise of the sun? Why are schools assigned by your address? Why do students have to go to a school building in the first place? Why is choice only available to those who can buy their way out? Or buy their way in? Why can’t a student learn at his or her own pace? Why isn’t technology more widely embraced in schools?”

Some of these questions dovetail with DeVos’s embrace of private school choice programs and tech-infused approaches to schools, including fully virtual options. The emphasis on technology is aligned with a number of wealthy philanthropies that have embraced computer-based “personalized learning.”

They also mark a departure from the paradigm of previous administrations. No Child Left Behind, the law signed by President George W. Bush, and the Obama-era Race to the Top program both focused on improving academic standards, instituting tests, holding schools and teachers accountable for results, and expanding charter schools, though generally not private school voucher initiatives.

DeVos’s vision is more aligned with a strain of conservative thought that has grown increasingly skeptical of test scores. “I talk about accountability more in terms of transparency and information that parents can access to find out how the schools are doing for their child,” DeVos said in a follow-up session with Rick Hess of AEI, the conservative think tank whose board DeVos previously sat on.

This rift is not entirely surprising. Former secretary Arne Duncan has sharply criticized DeVos and Trump, and left-of-center charter advocates have attempted to separate themselves from an unpopular and polarizing president and secretary of education.

In a rare agreement with the American Federation of Teachers, DeVos argued that federal involvement had put too much focus on test scores, citing a poll commissioned by the union. “The result was a further damaged classroom dynamic between teacher and student, as the focus shifted from comprehension to test-passing,” she said.

The AFT responded icily on Twitter: “More American educators feel disrespected by DeVos than anyone else in the entire world. You can’t blame Bush & Obama for that.”  

Debates about evidence continue

Earlier at the event, “Bush-Obama school reform: Lessons learned,” researchers and policymakers conducted a post-mortem of the last couple of decades of federal school reform.

The results weren’t always pretty. Virtually all participants agreed that well-meaning efforts had proven difficult to implement and sustain: No Child Left Behind had become widely reviled for increasing testing; teacher evaluations pushed by the Obama administration continued to rate most teachers as effective and faced stiff opposition from teachers’ unions; Common Core became the target of conservative ire and the associated tests were scrapped in most states; and a comprehensive study of the federal school turnaround program found that it made little impact on test scores or graduation rates.

Evaluating large policies, like Race to the Top or Common Core, is inherently challenging.  Nationwide test scores have been fairly stagnant in recent years, though that may be due to the effects of the Great Recession.

At one session, participants suggested that not enough had been done to incorporate teachers’ perspective into federal policy. (Notably, no current teachers or union representatives participated in panels at the AEI event.)

Still, research suggests that No Child Left Behind substantially improved math achievement. Studies in some districts have found benefits of their revamped teacher evaluation systems, too.

Joanne Weiss, chief of staff at the Department of Education under Duncan, cautioned against judging policies too quickly. “At some point you gotta say, the results should be in today,” she said. “[But] we have a history in education of calling it too early and moving on to something else, and then 10 years later the research comes in.”

Nevertheless, DeVos seized on the mixed results of past efforts to make the case for her favored changes: more school choice and more innovation at the school level, not driven by the federal government.

She didn’t mention the research on those approaches, which is decidedly mixed and even negative in some cases.

A number of recent studies on school voucher programs have found showed they hurt student test scores, though they bounce back for some students who stay in private schools for several years. In DeVos’s account of disappointing federal programs, she did not mention a recent study of Washington D.C.’s voucher program, which showed drops in math achievement. (A few studies have found positive impacts on high school graduation rates and college attendance.)

Fully virtual charter schools, which DeVos has long backed, have posted even worse results. And some math programs that blend technology with more traditional classroom culture have posted positive results, but as a whole, the evidence base for those approaches remains thin.

DeVos’s skepticism of federal involvement also highlights the central paradox of her job: As the leader of the very agency she is critiquing, how will she advance her agenda without expanding the federal footprint?

So far, DeVos has rolled back a number of Obama-era regulations and supported a new federal tax break for private school tuition, while acknowledging its impact would be modest.

We also fact-checked seven claims — from Common Core to PISA test scores — DeVos made during her speech. Read more here.