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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Voucher votes

Trump wants states to push vouchers. Tennessee shows why that might be hard, even in red states.

PHOTO: Marta W. Aldrich
Voucher opponents cheer as Tennessee lawmakers exit the House chambers following Rep. Bill Dunn's decision last February to table voucher legislation.

When President-elect Donald Trump tapped Betsy DeVos as his choice for U.S. secretary of education, advocates of school tuition vouchers saw it as a good omen. The Michigan Republican is a staunch advocate for vouchers that allow taxpayer money to be spent on private schools.

But the perennial battle over vouchers in Tennessee, which voted overwhelmingly for Trump, suggests it won’t be easy for vouchers to sweep the nation, even if Trump’s administration champions federal incentives for such programs. While Tennessee’s Senate has voted in favor of a voucher bill three times since 2011, opponents have blocked it each year in the House of Representatives, albeit by decreasing margins. Opposition has coalesced around a fear of undermining public schools — a concern that transcends party lines and geography.

Tennessee’s voucher proposals have exclusively targeted urban schools, anomalies in a mostly rural state. But as each major vote approached, lawmakers in Nashville fielded calls from constituents back home who worried that the program would quickly expand at the expense of public schools in areas with few alternatives.

During the last legislative session, the perceived lack of public support for vouchers eclipsed Gov. Bill Haslam’s endorsement of them. It also countered an outpouring of spending from pro-voucher advocacy groups that include a state chapter of American Federation for Children, of which DeVos founded and serves as chairwoman of the board.

The most vocal opponent of vouchers has been the Tennessee Education Association, the state’s largest teachers’ union and an organization that many Republican lawmakers openly oppose. But lawmakers also got pushback from statewide professional groups that represent superintendents and school boards and argue that vouchers would hurt public schools.

Rep. Bill Dunn
PHOTO: TN.Gov
Rep. Bill Dunn

During the most recent legislative session, Rep. David Hawk, a Republican from Greeneville, made a last-minute attempt to make vouchers more palatable to sympathetic lawmakers wary of how the issue would play out at home. With the blessing of the bill’s lead sponsor, Rep. Bill Dunn of Knoxville, Hawk amended the proposal so it only would impact Memphis, home to Tennessee’s largest school district and frequently a laboratory for the state’s education reforms. The move infuriated many Memphis lawmakers and failed to sway enough undecided legislators to push the bill over the top.

Still, the proposal came closer to passing than ever before. It cleared all committees before Dunn tabled it on the House floor. He said he just didn’t have the votes. Later, Dunn told reporters that he only had 48 “yes” votes confirmed out of the necessary 50.

“I believe there are legislators who hear from their school board that they’re against this,” Dunn reflected on Tuesday. “Instead of legislators sitting down and saying what’s best for students, it’s about what’s best for school bureaucracy.”

Research is mixed on whether vouchers help or hurt students. According to a 2015 review by the National Bureau of Economic Research, “vouchers have been neither the rousing success imagined by proponents nor the abject failure predicted by opponents.”

Undaunted, Dunn says he will sponsor voucher legislation again in the upcoming legislative session, which starts in January. But if vouchers pass this time, he said, it will be because of growing support for the program among Tennesseans, not because of Trump or DeVos.

“Education is a state issue,” he said.

changing of the guard

Will Indiana Republicans now move to make the state superintendent job appointed?

Now that a Republican is heading into the state superintendent office in January, Indiana lawmakers — Republicans and Democrats — might start singing a different tune about the powers of that office.

The office has been the subject of dispute since 2012 when Democrat Glenda Ritz defeated Republican Tony Bennett in a surprise upset, becoming the only Democrat elected to statewide office.

Since then, as Ritz clashed repeatedly with Gov. Mike Pence and other GOP lawmakers,  Republicans have openly questioned the role of Indiana’s state superintendent, suggesting the job should have less power and should be appointed by the governor rather than elected.

During Ritz’s superintendency, GOP lawmakers passed a bill giving the Indiana State Board of Education the right to choose its own leader rather than having the superintendent automatically assigned as board chair.

But in the weeks since Republican Jennifer McCormick blocked Ritz’s re-election bid, the GOP resolve to limit the state superintendent’s powers seems to have diminished.

There might also be changes on the other side of the aisle, where Democrats signaled their support for a strong superintendent could waver.

At Tuesday’s legislative Organization Day, House Speaker Brian Bosma, R-Indianapolis, said he’s advocated for reducing the superintendent’s power “for 30 years” but that he didn’t think he’ll make that a priority for the next legislative session beginning in January.

“I want to have a discussion with the superintendent-elect,” he said. “It’s probably not an issue for this session. Perhaps next.”

For Democrats who were in office when Indiana had Democratic governors, the question of appointing the state superintendent is a sticky one. Back then, Indiana had a Republican state superintendent and many Democrats argued the governor should appoint that position in order to have consistency in education policymaking.

But with Ritz in the role and constantly crossing swords with Pence, Democrats defended her against calls to strip power from her office.

Democratic House leader Scott Pelath of Michigan City said that’s why big changes, like taking away voters’ option to choose the state superintendent, shouldn’t be made lightly.

“On balance I think people like more choices rather than fewer at the ballot box,” he said. “I think we’ve had a system that has more or less functioned over a period of time. We shouldn’t change it without a great deal of hesitation.”

Even so, Pelath said he wasn’t necessarily opposed to making the superintendent job appointed.

“I have an open mind,” he said. “I could be convinced either way.”

With McCormick in and Ritz out, there could be a lot of second guessing on key questions about her role and her power.

Bosma was among a majority of Republicans who successfully backed a bill to change that longstanding rule, instead allowing the 11 board members to pick their own leader. Democrats opposed the change, arguing that it was a blatant attempt to take power away from the superintendent.

After fighting to give the board the option to choose someone besides the state superintendent as chair] — a right that kicks in for the first time next year —  Bosma declined to say whether he thinks the board members should simply select McCormick for the role. “I have not made a determination on that,” he said.

Pelath said he still thinks the state superintendent should chair the board, even if it’s McCormick.

“That’s one you can’t have both ways,” he said. “I support the way that it was before the attacks on Superintendent Ritz and the stripping of her abilities. If we’re going to have a state superintendent this person should be empowered to do something about education.”

Bosma said he wants to let the changes the legislature made to the state board play out.

“I think the system we put into place has worked,” he said. “Is it perfect? Probably not. We’ll let the new superintendent get her legs under herself first and get the Department of Education back on track, because I’m not sure it is right now, and let the dust settle.”