From the Statehouse

Lawyers make last Lobato case pitches

Debate over what makes a constitutionally adequate education dominated the Lobato v. State oral arguments before the Colorado Supreme Court on Thursday morning.

Lawyers David Hinojosa and Kathleen Gebhardt, along with plaintiff Taylor Lobato, met with reporters after Colorado Supreme Court arguments on March 7, 2013.
Lawyer Kathleen Gebhardt, along with plaintiff Taylor Lobato, met with reporters after Colorado Supreme Court arguments on March 7, 2013.

The high court is considering the state’s appeal of the 2011 ruling by a Denver district judge that the state’s school funding system isn’t “rationally related” to the state constitution’s requirement for a “thorough and uniform” public education system.

Potentially at stake in the case are billions of dollars in education spending and the shape of the state’s K-12 system.

The three lawyers who spoke faced the challenge of squeezing into 60 minutes the evidence, arguments and legal intricacies of a case that has stretched over eight years, took five weeks at trial and has produced hundreds of thousands of documents.

And the justices’ questions cut into the lawyers’ time.

The historic session drew a full crowd to the court’s new chambers in the Ralph Carr Judicial Center, and listeners spilled into two overflow rooms where the proceedings were broadcast live.

Do your homework
  • Learn more about the history, issues and parties involved in the Lobato case from the articles in the EdNews Lobato archive.

Many of the observers were looking for hints of the justices’ leanings in the questions they asked of lawyers Jonathan Fero, representing the state, and Terry Miller, representing the plaintiff parents and school districts. David Hinojosa of the Mexican American Legal Defense and Education Fund, who represents a separate group of clients, also spoke to the court.

One important fact about the case was revealed when the justices walked onto the bench and Justice Monica Marquez was not in the group.

Chief Justice Michael Bender then announced that Marquez would not be participating in the case. Appointed to the high court in 2010, Marquez worked on earlier parts of the Lobato case as an assistant attorney general, and there has been speculation about whether she would participate. That leaves an even number of justices – six – to decide one of the most important public policy cases in decades, creating the possibility of a tie on the court. In that case the district court decision would stand.

What the lawyers said

Jonathan Fero
Jonathan Fero / File photo

Fero, an assistant attorney general, repeatedly argued that having a thorough and uniform educational system doesn’t mean creating a system where every child is equally successful.

Yet that’s what Denver District Judge Sheila Rappaport concluded in her December 2011 decision – that “if any students aren’t making it the whole system is irrational,” Fero said.

“Universal achievement cannot be what the constitution requires,” he added.

Fero also repeated a central state argument, that if the court defines the meaning of “thorough and uniform” it will be stepping on the legislature’s authority and violating the separation of powers among branches of government.

Fero called the current finance structure “a very well thought-out system.”

Miller, one of the many volunteer lawyers on the plaintiffs’ legal team, argued that the question of the court’s role was settled in 2009, when the high court resurrected the original Lobato lawsuit and ruled it could be heard in district court.

“At the end of the day it’s this court that decides what a thorough and uniform system looks like. … Just declare a broken system unconstitutional and let the legislature do its job” to come up with a new system, Miller said.

Both he and Hinojosa disagreed that they want a “perfect” system or that Rappaport ordered the creation of one.

What the justices asked

Five of the six justices questioned the lawyers, with Chief Justice Michael Bender and Justice Gregory Hobbs taking the lead.

Hobbs seemed the most sympathetic to the plaintiffs.

Referring to the legislature, Hobbs said, “They’re setting all these [education] requirements and not backing it up” with funding.

“I’m very concerned that the state’s argument here is we don’t have any duty and should give up” trying to improve the system.

Bender noted that the court routinely rules on constitutional questions and asked Fero whether this case “different from other constitutional matters.”

The chief justice also asked if the state disagreed with the facts uncovered at trial about graduation rates, test scores and other achievement issues.

“We’re not challenging any of the factual findings, just the conclusions of law,” Fero said.

Justice Nathan Coats asked Fero about the state’s definition of “thorough and uniform education.”

“I don’t have a very helpful answer,” Fero said, adding that those three words are “extremely bare” in the constitution as to their meaning.

Terry Miller
Terry Miller

Bender asked Miller about “the balance between the role of the court and the role of the legislature.”

Miller replied, “Give the legislature the chance to do its job” and come up with “some rational determination of the cost” of standards-based education.

Bender asked how much time that might take.

“The legislature has a wide array of tools to use including time,” Miller said. “It doesn’t have to happen in one year.”

The only justice to ask no questions was Brian Boatright, who wasn’t on the court when it first considered the Lobato case in 2009 and voted 4-3 to revive it. (Two of the justices who voted on the prevailing side have since left the court.)

After the arguments wrapped up, Bender praised the “very lengthy, very articulate briefs. We have a lot of advice.”

What’s next

The Supreme Court has no deadline to rule in the case. Kathleen Gebhardt, lead attorney for the plaintiffs, told EdNews, “I’m hoping for three or four months.” The court has a variety of options ranging from upholding Rappaport’s ruling to sending the case back to her for further deliberations.

legal opinion

Tennessee’s attorney general sides with charter schools in battle over student information

PHOTO: TN.gov
Herbert H. Slatery III was appointed Tennessee attorney general in 2014 by Gov. Bill Haslam, for whom he previously served as general counsel.

Tennessee’s attorney general says requests for student contact information from state-run charter school operators don’t violate a federal student privacy law, but rather are “entirely consistent with it.”

The opinion from Herbert Slatery III, issued late on Wednesday in response to a request by Education Commissioner Candice McQueen, was a win for charter schools in their battle with the state’s two largest districts.

PHOTO: TN.gov
Education Commissioner Candice McQueen

McQueen quickly responded by ordering school leaders in Memphis and Nashville to comply. In letters dispatched to Shelby County Schools Superintendent Dorsey Hopson and Director Shawn Joseph of Metropolitan Nashville Public Schools, McQueen gave the districts a deadline, adding that they will face consequences if they refuse.

“If you do not provide this information by Sept. 25, 2017, to the (Achievement School District) and any other charter school or charter authorizer who has an outstanding request, we will be forced to consider actions to enforce the law,” she wrote.

Neither superintendent responded immediately to requests for comment, but school board leaders in both districts said Thursday that their attorneys were reviewing the matter.

Chris Caldwell, chairman for Shelby County’s board, said he’s also concerned “whether the timeframe stated gives us enough time to make sure families are aware of what is happening.”

Wednesday’s flurry of events heats up the battle that started in July when charter operators Green Dot and LEAD requested student contact information under the state’s new charter law, which gives districts 30 days to comply with such requests. School boards in both Memphis and Nashville refused, arguing they had the right under the federal student privacy law to restrict who gets the information and for what reasons.

The attorney general said sharing such information would not violate federal law.

The requested information falls under “student directory information,” and can be published by school districts without a parent’s permission. For Shelby County Schools, this type of information includes names, addresses, emails and phone numbers.


To learn what information is at stake and how it’s used, read our in-depth explainer.


The opinion also backs up the new state law, which directs districts to share information that charter operators say they need to recruit students and market their programs in Tennessee’s expanding school-choice environment.

However, the opinion allowed for districts to have a “reasonable period of time” to notify parents of their right to opt out of sharing such information. It was not clear from the opinion if the two school districts have exhausted that time.

A spokeswoman for Shelby County Schools said Tuesday the district had not yet distributed forms that would allow parents to opt out of having their students’ information shared, although the district’s parent-student handbook already includes instructions for doing so.

Below, you can read the attorney general’s opinion and McQueen’s letters to both superintendents:

Clarification, Sept. 14, 2017: This story has been updated to clarify the school boards’ arguments for not sharing the information.

First Person

I covered Tennessee’s ed beat for Chalkbeat. Here’s what I learned.

PHOTO: Marta W. Aldrich
Grace Tatter covers a press conference at the Tennessee State Capitol in 2015.

For three years, I covered the Statehouse for Chalkbeat Tennessee, reporting on how policies from Nashville trickled down into more than 1,800 public schools across the state.

Now I’m starting back to school myself, pursuing graduate studies aimed at helping me to become a better education journalist. I’m taking with me six things I learned on the job about public education in Tennessee.

1. Apathy is often cited as a major problem facing education. That’s not the case in Tennessee.

I heard from hundreds of parents, educators, and students who were passionate about what’s happening — good and bad — inside of schools. I covered crowded school board meetings and regularly scrambled for an open seat at legislative hearings where parents had filled the room after driving since dawn to beat the opening gavel. Not incidentally, those parents usually came from communities with the “worst” schools and the lowest test scores. While many disagreements exist about the best way to run schools, there is no shortage of people, particularly parents and educators, who care.

2. Tennessee has one of the most fascinating education stories in America.

I’ve had a front-row seat to massive changes in K-12 education under reforms ushered in by Race to the Top — an overhaul being tracked closely well beyond the state’s borders. But the national interest and import doesn’t end with changes stemming from the $500 million federal award. Tennessee is home to some of the nation’s premier education researchers, making its classrooms laboratories for new ideas about pre-K, school turnaround, and literacy instruction, just to name a few. And at the legislature, more lobbyists are devoted to education than to most any other cause. A lot of eyes are on Tennessee schools.

3. The education community is not as divided as it looks.

During the course of just a few years, I watched state lawmakers change their positions on accountability and school vouchers. I witnessed “anti-charter” activists praise charter leaders for their work. I chronicled task force meetings where state leaders who were committed to standardized testing found middle ground with classroom educators concerned that it’s gone too far. In short, a lot of people listened to each other and changed their minds. Watching such consensus-building reminded me that, while there are no simple debates about education, there is a widespread commitment to making it better.

4. Money matters.

Even when stories don’t seem to be about money, they usually are. How much money is being spent on testing, teacher salaries, school discipline reform? How much should be available for wraparound services? Why do some schools have more money than others? Is there enough to go around? Tennessee leaders have steadily upped public education spending, but the state still invests less than most other states, and the disparities among districts are gaping. That’s why more than a handful of school districts are battling with the state in court. Conversations about money are inextricable from conversations about improving schools.

5. Race is a significant education issue, but few leaders are willing to have that conversation.

More than 60 years after Brown v. Board of Education, Tennessee’s schools are largely racially segregated. Yet most policymakers tread lightly, if ever, into conversations about achieving real racial integration. And in many cases — such as a 2011 law enabling mostly white suburban Shelby County towns to secede from the mostly black Memphis district — they’ve actually gone backwards. Then there’s the achievement data. The annual release of test scores unleashes a flurry of conversation around the racial achievement gap. But the other 11 months of the year, I heard little about whether state and local policies are closing those gaps — or contributing to them — or the historical reasons why the gaps exist in the first place. To be sure, state leadership is trying to address some of Tennessee’s shortcomings. For example, the State Department of Education has launched modestly funded initiatives to recruit more teachers of color. But often, race and racism are the elephants in the room.

6. Still, there’s lots to celebrate.

If there were unlimited hours in the day, I could have written thousands of stories about what’s going right in public education. Every day, I received story ideas about collaborations with NASA in Oak Ridge, high school trips to Europe from Memphis, gourmet school lunches in Tullahoma, and learning partnerships with the Nashville Zoo. Even in schools with the steepest challenges, they were stories that inspire happiness and hope. They certainly inspired me.

Grace Tatter graduated from public schools in Winston-Salem, N.C., and received her bachelor’s degree in history from the University of North Carolina. She’s now pursuing a master’s degree in specialized studies at the Harvard Graduate School of Education.