From the Statehouse

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.

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reconsidering takeover

Indiana lawmakers clear path for state to take over struggling districts, but scales back academic control of Muncie schools

PHOTO: Meghan Mangrum

A plan that would’ve allowed the state to take control over finances and academics in Gary and Muncie would now offer Muncie schools some relief from the threat of academic takeover.

Muncie educators and lawmakers were vocally opposed when their C-rated district was added into Senate Bill 567. The district is facing significant debt issues and feared potential state control of its academic programs as well as its finances. But a final version of the bill that passed with bipartisan support in the Senate and House late Friday scaled back the original plan, removing the academic piece. Financial control is still part of the deal.

“We’ve laid out a path that they may follow so that hopefully, in the next six months, they can right the ship,” said Sen. Luke Kenley, a Noblesville Republican and author of the bill. “I know the community of Muncie is not happy about this, but perhaps it is a wake up call at the right time to get things accomplished.”

Sen. Eddie Melton, a Democrat from Merrilville and the bill’s second author, agreed with the decision to adjust the plan for Muncie schools and encouraged lawmakers to continue these conversations about how to help struggling districts.

The bill next heads to Gov. Eric Holcomb for consideration to be signed into law.

The Gary school district would be on-track for the state to take over both academics and finances. A few provisions called for by local lawmakers were also added in, such as first considering a Gary or Lake County resident for the role of “emergency manager,” the person who’d take charge of the takeover.

Kenley said he specified in the compromise version of the bill that these measures are “not precedent for and may not be appropriate for addressing issues faced by other” districts. Kenley said he hopes the work he and Melton have done on the bill can help Gary schools and that the financial requirements placed on Muncie would be a “wake-up call.”

“This is not a pleasant task, but it’s one that needs to be done,” Kenley said of the Gary plan. “We have a long way to go and a lot to do.”

Lawmakers came up with the takeover strategy to solve long-standing financial troubles in Gary Community Schools, which has racked up $100 million in debt and dwindled to fewer than 6,000 students. The district has also been labeled an F since 2011, with seven schools considered failing.

The bill originally designated Gary and Muncie as “distressed political subdivisions” and moved them under the auspices of an emergency manager, fiscal management board and chief academic officer. In the new plan, Gary would remain a distressed political subdivision, but Muncie would be considered a “fiscally impaired” district, a less harsh category that wouldn’t require they have a chief academic officer but still places them under a stringent plan to shore up their finances and requires them to appoint an emergency manager.

Sen. Tim Lanane, a Democrat from Anderson, near Muncie, spoke on the floor and cautioned lawmakers not to be so quick to take such serious action unless it is fully warranted. Further labeling districts in this way, he said, could cause them to deteriorate further if more families decide to leave.

“What we’re doing here as a precedent is very, very important,” Lanane said. “A community’s reputation is at stake here.”

Compromise

Indiana budget deal would offer modest school funding increases plus a big fix for teacher bonuses

PHOTO: Alan Petersime

Many schools across Indiana could expect more money per student in the coming years and strong teachers at struggling schools would be likely to receive higher bonuses under a budget deal announced Friday.

House and Senate lawmakers have come to an agreement on how much money to send to Indiana schools over the next two years. The budget would increase total dollars for schools by about 3.3 percent from 2017 to 2019. Included within that: a 2.5 percent average increase for per-student funding to $6,709 in 2019, up from $6,540 this year. The budget is expected to go up for a final vote late Friday.

Overall, the budget plan would accomplish some of the key goals prioritized by Gov. Eric Holcomb, state Superintendent Jennifer McCormick and House Republicans. Those goals include increasing funding for the state’s preschool program, internet access for schools, and Advanced Placement exams that help students earn college credit while in high school.

Under the compromise, every district in Marion County would see its basic state aid and per-student funding increase, including Indianapolis Public Schools. (IPS would have seen cuts in the House plan, and the increases wound have been higher under the Senate plan.)

Suburban districts such as Carmel and Hamilton Southeastern would get sizable funding bumps as with the Senate plan. Districts losing enrollment, including East Chicago, could lose state money. But overall, many of the districts with some of the state’s poorest students stand to see increases. The Gary and Hammond districts, for example, would both see gains in per-student funding and overall.

Lawmakers also settled on a compromise about how to pay teachers.

Throughout the session, they waffled about whether to pay teachers more for their performance or for taking on additional work in their schools.

At first, the House cut the bonuses entirely and set aside $3 million for a “career pathways” program that would reward teachers who take on leadership roles in their schools. That was far less money than the $40 million the Senate wanted to put toward teacher bonuses, but some teachers said they would rather have the long-term opportunity to improve their teaching and leadership skills rather than a short-term bonus that might not go toward their salaries in the future.

“I want a leadership role, but I want to be a teacher — I don’t want to be an administrator,” said Allison Larty, a teacher in Noblesville and Teach Plus policy fellow. “(A bonus) is not going to be make an impact. The creation of career pathways will make an impact in the long run.”

But those dollars were eliminated in the Senate budget and the budget compromise. Rep. Tim Brown, chairman of the House Ways & Means Committee, said it came down to Senate negotiations. Senators were willing to spend more on preschool, Brown said, if they didn’t have to spend elsewhere — so career pathways dollars were cut.

But lawmakers did agree to change the state’s now $30 million teacher bonus program, which came under fire from educators across the state last year for rewarding effective teachers in high-performing, usually affluent schools at a higher level than similar teachers in lower-performing schools.

Going forward, the program will dole out money based on a policy created by each school district, rather than ISTEP scores. Under the plan, the state would distribute $30 per student to each district, which would then divvy up the local bonus pool among teachers rated “effective” or “highly effective.” Of that money, up to 50 percent can be added into a teacher’s base salary so that the teacher receives it in future years as well. And teachers in virtual schools can receive these bonuses — something the Senate had moved against.

The compromise plan keeps other requirements suggested by the Senate for virtual schools, mandating that they report information about class size, teacher-per-student ratios, and how often teachers have in-person meetings to the education department each year. Virtual schools would get 90 percent of the basic per-student funding amount from the state, as they do now. (The House’s plan would have increased that to 100 percent.)

The state’s voucher program would see its funding grow over the next two years under the compromise plan. Indiana is projected to spend more than $156 million by 2018 and $167 million by 2019 on the program, up from $146 million in 2017.

This new agreement no longer carves out the voucher money as a budget line item. Critics of making it a line item said it made the program vulnerable to cuts, but supporters applauded the change because they said it increased transparency around how much the state spends on vouchers but pulling it out of school-by-school calculations and placing it squarely in the budget itself.

The budget also includes:

  • $22 million per year for the state’s preschool program, up from about $12 million. $1 million per year is set aside for “in-home” online preschool programs.
  • About $32 million for English-language learners, up from about $20 million. The grant would be $250 per English-learner student in 2018 and $300 per student in 2019. Schools with higher concentrations of English learners would get additional funding.
  • $3 million per year to improve school internet access.
  • $5 million over two years in incentive grants for schools and districts that consolidate services.
  • $10.4 million for Advanced Placement tests and $4.1 million for PSAT tests.
  • $1 million to align initiatives in science, technology, engineering and math.
  • $500,000 per year for dual language immersion programs.
  • $26.3 million per year for testing and $12.3 million per year for remediation testing.
  • $15 million per year for the Charter and Innovation Network School Grant Program, which would support schools that want to become “innovation schools.”

Chalkbeat reporter Dylan Peers McCoy contributed to this story.