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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School choice

It started with vouchers and charter schools. Now Indiana’s exploring more ways for kids to learn outside traditional public schools.

PHOTO: Alan Petersime

Through its voucher and charter school programs, Indiana lawmakers have for years embraced strategies to promote school choice. Now, a new proposal that would let kids take classes outside their public schools could expand those efforts even further.

The program, which is already gaining attention nationally for being at the forefront of school choice strategies, is making its Indiana debut in recently filed House Bill 1007, authored by Rep. Tony Cook, R-Cicero.

The bill lays out the basics of what looks kind of like a voucher program, where students can use public dollars to pay for outside schooling — one course at a time. The “course access” program would allow students to choose certain classes to take outside their public school, such as an advanced physics course, Behning said. Then, those course providers would get a cut of a school or district’s state funding.

So far, there are no specifics on who providers might be, but Behning said they could also include public schools that have online or distance learning programs set up.

“It really makes sense when you talk about some of the smaller districts we have,” said Bob Behning, House Education Committee chairman. “Even in some of our urban districts, with some of the shortages we have, It makes sense to have some availability.”

Advocates, such as the International Association for K-12 Online Learning, said in a 2014 report that it levels the playing field between students, citing that students from low-income families, those who attend rural schools or minority students might have fewer opportunities than their wealthier urban or suburban counterparts.

But critics oppose the program for many of the same reasons they oppose a voucher program. The programs can funnel money away from public schools, typically taking a cut of a school’s state tuition dollars to pay whomever provides the outside classes. In some states, that has been for-profit education providers and online schools.

Online schools across Indiana and the United States have failed to demonstrate widespread academic achievement, but they remain a choice that a growing number of Indiana students and students across the country are turning to.

Under Indiana’s proposed bill, the Indiana Department of Education would be responsible for creating a list of classes for the program by June 30, 2018. A provider could be any one that offers these courses, through any method, including online instruction.

A course tuition fee would also need to be determined. Behning said it’s too early yet to say how much that fee might be, but according to state data, Utah districts paid providers between $200 and $350 per course in 2015 depending on the class being offered.

Teresa Meredith, president of the Indiana State Teachers Association, said she already knows of districts that can engage in partnerships with other types of educational providers without this legislation.

“It sounds like they are creating a solution to a problem that doesn’t exist if there is in fact a way for schools to already do something like this,” Meredith said.

Meredith also worries that by encouraging schools and districts to go to outside providers, it could exacerbate the teacher shortage. There’s little need to hire a licensed teacher if you can outsource the class, she said.

“We need to watch out for the details and ask the question of what problem is this trying to solve,” Meredith said.

Stay tuned

Tonight Indiana’s new governor will give his first state of the state address. What can we expect to hear about education?

PHOTO: Scott Elliott

Tonight Gov. Eric Holcomb will address Hoosiers in the annual State of the State address.

Holcomb so far has had a fairly light education policy agenda and K-12 budget with increases that some lawmakers say are not enough. With this year’s emphasis on road funding and transportation, it could be that education won’t figure prominently in his speech.

Earlier this month, Holcomb proposed sending an additional $280 million to Indiana schools — an increase of 3 percent. It would double the amount the state spends on preschool tuition in 2018 and 2019 in the original five counties, going from $10 million per year to $20 million. Holcomb’s preschool proposal differs from the priorities of other Republican legislative leaders.

Aside from the $280 million increase, Holcomb’s budget plan would also set aside $1 million per year for coordinating science, technology, engineering and math programs across the state and $1 million per year, with the possibility of federal matching grants, for districts to support internet access.

Another main part of his education agenda would be making Indiana’s elected schools chief a governor-appointed position beginning in 2021.

Former Gov. Mike Pence’s speech last year made many references to education, through ISTEP, A-F grades and the consequences they can have for schools and teachers.

The speech begins at 7 p.m. and can be streamed online. Follow Chalkbeat reporter @ShainaRC on Twitter for more.