From the Statehouse

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


More grades?

Schools with lots of transfer students say A-F labels don’t fit

PHOTO: Alan Petersime

Schools with large numbers of kids who transfer in or out should get an extra grade from Indiana’s A-F system, a legislative committee said Thursday.

The proposal, backed by both Democrats and Republicans on the House Education Committee, would give schools a second A-F grade based just on the scores of students who have attended for at least a year.

The goal is to account for schools with “high mobility,” common in poor neighborhoods where families move frequently and kids sometimes change schools several times in a single school year. When kids change schools, their test scores often sink. Lawmakers argued the schools where they end up on test day can be unfairly saddled with a low grade that doesn’t necessarily reflect the quality of teaching at the school.

Even so, the schools will still be judged the same as all schools in Indiana on their first A-F grade.

The proposal was added as an amendment to House Bill 1384, which is mostly aimed at clarifying how high school graduation rate is calculated. The bill passed out of committee today, 8-4. It next heads to the full House for a vote, likely later this week.

The amended bill would require the Indiana State Board of Education to first define a “high-mobility” school. Then, starting in the 2018-19 school year, the board would assign those schools both the typical grade based primarily on state tests and a second grade that only considers the test and other academic data of students who have attended the school for one year or more.

The second grade could not be used by the state board to make decisions about state sanctions, the bill says. But it would help parents and others better understand the circumstances at the school, said Rep. Bob Behning, the bill’s author and chairman of the education committee.

“Especially in our urban centers, there are several schools … that have very high mobility rates,” Behning said. “We could all recognize that if you’re being moved from school A to school B to school C to school D in a year, it’s going to be very difficult for your performance to be where it needs to be.”

The bill also makes a similar change to high school graduation rates, which would help Indiana better comply with new federal law, Behning said. The bill would alter the graduation rate calculation so that students who drop out would only count in a school’s rate if they attended that school for at least 90 percent of the school year. Otherwise, their graduation data gets counted at the previous school they attended for the longest time.

Melissa Brown, head of Indiana Connections Academy, one of the largest online schools in the state, testified in support of the bill. She said the graduation rate change and second letter grade better reflect the work they’re doing with students.

“We really believe that if we can keep a student, we can help them,” Brown said.

Virtual schools have performed poorly on state tests, which some school leaders argue is because they serve a challenging population of students, including those who frequently move and switch schools, come to school far behind grade level and have other learning difficulties that make them more difficult to educate.

Read: The broken promise of Indiana’s online schools

Indiana Connections Academy sees about 20 to 25 percent of students come and go each year, Brown said. Other virtual schools, such as Hoosier Academies, have reported more than double that rate.

Although the rates for individual schools could vary widely, Beech Grove schools had the highest district mobility rate in 2015 in Marion County, where 20.1 percent of students left a Beech Grove school to go outside the district, according to state data. Franklin Township had the lowest, with 8.5 percent. Generally, transfer within districts was much lower.

In IPS, the rate was 18.4 percent for students leaving to attend a school in another district, and 8.2 percent of students left their home school to attend another in IPS.

Brown said she thinks the second school grade could help all schools that see high turnover, but it also could dispel some misinformation about what virtual schools are for — it’s not a “magic pill” for kids who are far behind, she said, a scenario she encounters frequently.

“At the end of the day, it’s really about what’s best for the kid,” Brown said. “And it’s not best to send a student to another school with two weeks left in the semester expecting a miracle to happen.”

new plan

Lawmakers want to allow appeals before low-rated private schools lose vouchers

PHOTO: Shaina Cavazos
Rep. Bob Behning, chairman of the House Education Committee, authored HB 1384, in which voucher language was added late last week.

Indiana House lawmakers signaled support today for a plan to loosen restrictions for private schools accepting state voucher dollars.

Two proposal were amended into the existing House Bill 1384, which is mostly aimed at clarifying how high school graduation rate is calculated. One would allow private schools to appeal to the Indiana State Board of Education to keep receiving vouchers even if they are repeatedly graded an F. The other would allow new “freeway” private schools the chance to begin receiving vouchers more quickly.

Indiana, already a state with one of the most robust taxpayer-funded voucher programs in the country, has made small steps toward broadening the program since the original voucher law passed in 2011 — and today’s amendments could represent two more if they become law. Vouchers shift state money from public schools to pay private school tuition for poor and middle class children.

Under current state law, private schools cannot accept new voucher students for one year after the school is graded a D or F for two straight years. If a school reaches a third year with low grades, it can’t accept new voucher students until it raises its grade to a C or higher for two consecutive years.

Rep. Bob Behning, R-Indianapolis, the bill’s author, said private schools should have the right to appeal those consequences to the state board.

Right now, he said, they “have no redress.”  But public schools, he said, can appeal to the state board.

Behning said the innovation schools and transformation zones in Indianapolis Public Schools were a “perfect example” for why schools need an appeal process because schools that otherwise would face state takeover or other sanctions can instead get a reprieve to start over with a new management approach.

In the case of troubled private schools receiving vouchers, Behning said, there should be an equal opportunity for the state board to allow them time to improve.

”There are tools already available for traditional public schools and for charters that are not available for vouchers,” he said.

But Democrats on the House Education Committee opposed both proposals, arguing they provided more leeway to private schools than traditional public schools have.

“Vouchers are supposed to be the answer, the cure-all, the panacea for what’s going on in traditional schools,” said Rep. Vernon Smith, D-Gary. “If you gave an amendment that said this would be possible for both of them, leveling the playing field, then I would support it.”

The second measure would allow the Indiana State Board of Education to consider a private school accredited and allow it to immediately begin receiving vouchers once it has entered into a contract to become a “freeway school” — a type of state accreditation that has few regulations and requirements compared to full accreditation.Typically, it might take a year or so to become officially accredited.

Indiana’s voucher program is projected to grow over the next two years to more than 38,000 students, at an anticipated cost — according to a House budget draft — of about $160 million in 2019. Currently in Indiana, there are 316 private schools that can accept vouchers.

The voucher amendments passed along party lines last week, and the entire bill passed out of committee today, 8-4. It next heads to the full House for a vote, likely later this week.