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.

Do your homework

money matters

Why so negative? Colorado lawmakers seek to rebrand controversial tool that limits spending on schools

A student works at Tollgate Elementary School in Aurora. (Photo by Nic Garcia, Chalkbeat)

Colorado lawmakers are tired of hearing about the “negative factor.”

So they changed its name — at least in statute.

Going forward, the tool that budget writers will use to spend down the state’s financial obligation to public schools to balance the state budget officially will go by its original name: the “budget stabilization factor.”

The change was made when lawmakers passed the state’s annual school funding bill earlier this month.

The negative factor “has been used as a pejorative,” said state Sen. Kevin Priola, the Henderson Republican who put forth the idea of the name change. “The budget is never perfect. But these are the economic realities we have to deal with.”

Some education funding advocates are rolling their eyes. The term, they say, has become so well known and accepted that any attempt to change it will be difficult.

“You can change the name, but the debt’s the same,” said Lisa Weil, executive director of Great Education Colorado, a nonprofit that advocates for more school funding.

The negative factor — oh, sorry, we mean the budget stabilization factor — is just one part of a much larger and complex formula used to determine school funding.

The budget tool was first created in 2009 when state lawmakers were forced to slash the budget after the Great Recession.

School advocates knew they couldn’t escape the cuts the rest of the state was facing. So a team of lawmakers, lobbyists, superintendents and financial officers helped developed the tool.

Here’s how it works: After lawmakers determine how much funding schools should receive based on a formula developed in 1994, they compare that amount to available tax revenue. The difference is that year’s “stabilization factor.”

At the time the tool was created, the group wanted the cuts to be systematic — applied equally across all schools — and transparent. As part of the compromise, the state was required to track how much money it was withholding from schools.

In 2014, funding advocates sued the state, claiming the negative factor was unconstitutional. But the state Supreme Court disagreed.

Since then, Republican lawmakers have become more critical about the provision that requires them to track how much money the state isn’t giving schools. They argue that other state services such as roads, hospitals and parks all share a burden when it comes to balancing the budget.

Lawmakers have withheld about $5.8 billion from schools since the budget balancing tool was created. However, funding has slowly crept up each year, just not as fast as school leaders would hope.

School Politics

Colorado schools were a hot topic at the state Capitol this year. Here’s what lawmakers did.

A teacher reads to her students at the Cole Arts and Science Academy in Denver. (Photo by Nic Garcia/Chalkbeat)

Colorado lawmakers this week are celebrating major education-related policy wins, including finding more money for public schools.

This year’s legislative session, which ended Wednesday, was marked by big compromises on issues that have befuddled policy makers for years: charter school funding, ninth-grade standardized testing and measuring the reading skills of the state’s youngest bilingual students.

With so many thorny debates behind them, lawmakers and Capitol observers are now looking toward other major policy questions they’ve put off for years, including reforming how the state pays for its public schools and making changes to Colorado’s school accountability laws and teacher licensure policies.

“The hope is now that the K-12 community can come together to focus on the big issues,” said Jen Walmer, Colorado state director of Democrats for Education Reform.

But before we get ahead of ourselves, let’s look back at the last 120 days:

Lawmakers found more money for schools than anyone could have imagined.

Before the legislative session began, school districts were preparing for the worst. Despite the state’s booming economy, constraints on how much the state could spend meant schools could have gone without much of a funding increase.

State Sen. Jerry Sonnenberg, a Republican from Sterling, on the first day of the legislative session.

The forecast became even more dire midway through the session when lawmakers learned the local tax base that generates about a third of all state spending on schools was going to shrink drastically. The worst predictions had the state’s education funding shortfall growing to more than $1 billion.

State officials found a technical workaround, and lawmakers were able to send more money to schools. On average, schools will see about $242 more per student next year.

However, leaders in both parties are aware that the state’s problematic constitutional constraints, tax policies and school funding formula still exist. That’s why a bipartisan coalition of lawmakers led a successful effort to create a committee to study and propose changes to the way the state funds it schools.

“We have more work to do. We need to continue with what we’ve done this session: have tough conversations,” said Speaker Crisanta Duran, a Denver Democrat.

“How do we make sure that students, regardless of race, income, regardless of whether they have a disability, that they have the opportunity to succeed?” she said. “There is no doubt that we have structural decisions we have to make when it comes to our budget.”

Republican leaders said they’re also anxious to see the committee get to work. But they’re less likely to support an influx of cash to the state’s schools.

“If we’re going to look at real overhauls to the system and funding, we need to look at all the options — not just throwing more money at the system — a system that by many’s accounting is not working well or efficiently,” said Senate President Kevin Grantham, a Canon City Republican.

He and other Republicans are encouraging the committee to look at how other states have focused their funding formulas on students rather than on a school’s size or geographic location, and used funding to expand school choice.

Lawmakers already have one option on the table: A proposal to set a statewide property tax rate, which was born out of the legislature’s budget office and floated early in the session. While there was a lot of talk behind the scenes, it failed to gain traction. Expect to hear a lot more about the idea.

The charter school funding compromise, which some called “historic,” was just one of many longstanding issues that were resolved this year.

The 2017 legislative session will likely be remembered as the most productive in a decade because of several big compromises.

State Rep. Brittany Pettersen, a Lakewood Democrat, sits alone on the House of Representatives floor as members of her own party filibustered her compromise on charter school funding. (Photo by Nic Garcia)

Lawmakers grinned Thursday as they ticked off a long list of accomplishments to reporters, including one that could send more local money to charter schools. In return, charter schools will be required to post on their official websites more tax documents and will no longer receive two specific financial waivers.

The last-minute charter school funding bill — sponsored by a bipartisan group of lawmakers that included state Reps. Brittany Pettersen and Lang Sias and state Sens. Owen Hill and Angela Williams — was the compromise no one saw coming.

“Anything is possible,” Pettersen said after the session.

Lawmakers had wrestled with the question of requiring the state’s school districts to share their locally approved tax increases with charter schools for two years. Despite vocal objections from several school superintendents, the legislature overwhelmingly supported the bill.

Early in the session, lawmakers eager to reduce the number of standardized tests reached another compromise with the governor’s office. High school freshmen will no longer be required to take the controversial PARCC English and math tests. Instead, they’ll take a test that is aligned to the college entrance exam, the SAT.

We kicked the PARCC test out of high schools,” said Rep. Paul Lundeen, a Monument Republican. “It’s gone!”

Other deals that were reached include the creation of a diploma seal of biliteracy for students who demonstrate proficiency in two languages and new regulations on how to monitor the reading skills of young English language learners.

Colorado schools will also see a financial boost for the next three years after lawmakers passed an omnibus bill that resolved a debate over a hospital fee that helps pay for the state’s health insurance program.

As part of the biggest compromise of the year, the state will raise taxes on recreational marijuana. Those taxes will send $30 million to rural schools next year and $40 million over two years to the state education fund, a sort of savings account for schools.

Rural schools flexed their muscles and blocked a bill to reform the state’s student suspension rules, but they didn’t get everything they wanted.

Not every piece of bipartisan legislation reached the governor’s desk.

Students at Merino Elementary School work during class.

A bill that aimed to reduce the number of preschool and elementary school students who are suspended was killed by a GOP-controlled committee at the request of rural schools, despite having overwhelming support from both Democrats and Republicans.

Rural school leaders said the bill attempted to create a statewide solution for a Front Range problem. A Chalkbeat analysis of suspension data, which rural superintendents refuted, showed otherwise.

Supporters of the legislation vowed to work with opponents this summer and fall and try again next year.

While rural schools were successful in blocking that mandate, they were dealt a setback when a bill that would have allowed them to remedy a teacher shortage by hiring unlicensed teachers was killed by its sponsors.

State Rep. Jim Wilson, a Salida Republican, said he couldn’t garner enough support for his effort. At least not this year.

“Like Arnold Schwarzenegger said, ‘I’ll be back,’” Wilson said.

Even though that bill failed, lawmakers did take steps to curb the state’s teacher shortage.

Stanley Teacher Prep resident Lily Wool works with kindergartner Samori McIntosh at Tollgate Elementary School in Aurora. Wood’s residency program is merging the Boettcher Teacher Residency program. (Photo by Nic Garcia/Chalkbeat)

Prior to the session, education leaders at the Capitol had few if any plans to take on the state’s teacher shortage. But retired teacher and freshman state Rep. Barbara McLachlan pushed to address the issue.

The Durango Democrat partnered with a host of other lawmakers from both parties to sponsor legislation to study the shortage and provide solutions. She also sponsored a bill that would allow rural schools to hire retired teachers without penalizing their pension. Both bills were sent to the governor.

Two other bills, including one to create multiple teacher preparation pilot programs, failed to advance. But with the issue on the legislature’s radar, expect it to come back.

“That’s the most pressing issue, next to funding,” said state Sen. Rachel Zenzinger, an Arvada Democrat.

Despite newfound freedom from Washington, lawmakers didn’t make any bold changes to the state’s school accountability system.

Several lawmakers early in the session seemed eager to take advantage of new flexibility from the federal government.

While the state education department was busy putting together a mandated statewide plan to adopt the new Every Student Succeeds Act, lawmakers were debating how they could update the state’s school accountability laws.

But only two bills making minor tweaks advanced.

A HOPE Online student works during the day at an Aurora learning center. (Photo by Nicholas Garcia, Chalkbeat)

One requires elementary schools that receive low quality ratings to address the needs of students in preschool through third grade.

The second bill requires the state to measure how well high school students are meeting updated graduation requirements. As part of the new requirements, which go into effect in the year 2021, high schools must adopt a list of options students can use to prove they’re prepared for college or a career.

Those options include the SAT exam, which all Colorado juniors are required to take; passing a concurrent enrollment college-level course; passing a Advanced Placement test; or completing a college thesis-like capstone project demonstrating knowledge of a subject.

“This bill is a really clever way to allow school districts to say, ‘This is what we care about, and this how we’re going to do it,’” said Luke Ragland, president of Ready Colorado, a conservative education reform group.

Some of the most anticipated school-accountability bills of the session never materialized.

One would have provided more clarity on what happens to schools that consistently receive low quality ratings from the state.

“This was a big undertaking, and the bill’s sponsors needed more time,” Ragland said.

It’s another issue Capitol-watchers can expect to see return next year.

As Ragland put it, “The lack of clarity at the end of the state’s accountability clock is bad for everyone.”