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

legislative update

Senators kill two education proposals, but plan to replace ISTEP moves ahead with a new high school test

PHOTO: Shaina Cavazos
The Senate Education Committee had its last 2017 meeting today.

The plan to replace Indiana’s unpopular ISTEP exam took another step forward Wednesday as the Senate Education Committee finished up its work for the year.

The committee killed two bills and passed four, including an amended version of the bill to overhaul the state testing system. The bill passed 7-4, but some lawmakers still weren’t happy with the plan — especially because the bill continues to tie teacher evaluations to state test results and removes a requirement for students to take end-of-course exams that many principals and educators had supported.

The amended bill would:

  • Require high school students to take a national college entrance exam, such as the SAT or ACT, rather than end-of-course exams. The Indiana State Board of Education would choose the specific test and set a passing score needed for graduation.
  • Create tests that would allow Indiana students to be compared with peers nationally.
  • Allow the state to create its own test questions only if the option saves Indiana money or would be necessary to ensure the test complies with Indiana academic standards.
  • Require schools to give state tests on computers or using “digital technology” unless they receive a waiver from the education department.
  • Create a legislative panel to study Indiana’s teacher evaluation laws and draft a final report by Nov. 1.

Some of the changes in the amendment came from state Superintendent Jennifer McCormick. Earlier this month, she outlined some of those ideas for the committee, which were similar to ones pushed by former schools chief Glenda Ritz. But that still didn’t make it especially popular with the committee today.

“I’m still not comfortable with where we are,” said Sen. Eddie Melton, D-Merrillville.

Sen. Aaron Freeman, R-Indianapolis, and Sen. Jean Leising, R-Oldenburg, also expressed concerns about the bill, although Leising voted “yes” because the state is still required to have a test, she said.

“I’m very disappointed we can’t move away from ISTEP more quickly,” Leising said. “I’m most disappointed that we’re still going to evaluate teachers based on ISTEP results which nobody believes in currently.”

Here are the rest of the bills that passed the committee today. All of them still must face debate by the full Senate, and likely further discussions by the House:

Charter school renewal and closure: House Bill 1382 would make changes to how the Indiana State Board of Education handles authorizers who want to renew charters for schools that have failed for four years in a row. This proposal, as well as other changes, could benefit Indiana’s struggling virtual charter schools — particularly Hoosier Academies.

The bill was amended today to give the state board of education more control over what education and experience charter school teachers need in order to be allowed to teach.

High school graduation rate and student mobility: House Bill 1384 would require the Indiana State Board of Education to consider a school’s rate of student turnover from year to year when it assigns A-F accountability grades.

But it was amended today to change previous language that would have given schools two A-F grades — one reflecting state test results from students who move around frequently, and one based on students who have been at the school for at least a year. The amendment removes the two grades and instead would instruct the state board to consider student mobility in the existing A-F system, and “whether any high school should be rewarded for enrolling credit deficient students or penalized for transferring out credit deficient students.”

This bill, too, has implications for Indiana virtual schools, which have struggled to show success educating a wide range of students. The schools have complained that they often accept students who are far behind their peers and are using the school as a last-ditch chance to graduate.

The bill also includes two proposals regarding private schools and vouchers.

Teacher induction program: House Bill 1449, offered by Rep. Dale DeVon, R-Mishawaka, would create a program to support new teachers, principals and superintendents that would be considered a pilot until 2027.

And here are the bills that died, both authored by House Education Committee Chairman Bob Behning, R-Indianapolis:

Elementary school teacher licenses: House Bill 1383 would encourage the state board of education to establish content-area-specific licenses, including math and science, for elementary teachers. It was defeated by the committee 6-5

Competency-based learning: House Bill 1386 would provide grants for five schools or districts that create a “competency-based” program, which means teachers allow students to move on to more difficult subject matter once they can show they have mastered previous concepts or skills, regardless of pace (Learn more about Warren Township’s competency-based program here). It was defeated by the committee 8-3.

under study

Tennessee lawmakers to take a closer look at school closures

PHOTO: Laura Faith Kebede
The once-bustling sidewalks outside of shuttered Lincoln Elementary School are empty today. Shelby County Schools closed the school in 2015.

In five years, more than 20 public schools have closed in Memphis, often leaving behind empty buildings that once served as neighborhood hubs.

Now, Rep. Joe Towns wants to hit the pause button.

The Memphis Democrat asked a House education subcommittee on Tuesday to consider a bill that would halt school closures statewide for five years. The measure would require the state comptroller’s Office of Research and Education Accountability to study the impact on students and communities before allowing local districts to shutter schools again.

The panel will review Towns’ proposal during a summer study session.

Towns said empty school buildings hurt property values, lower tax revenue, and hit local governments in the pocketbook. Currently, there’s no Memphis-specific research on the economic impact of shuttering schools.

“There are unintended consequences,” Towns said. “What this does to a community is not good. Who here would want to live next to a school that’s been closed?”

Rep. Mark White, a Memphis Republican who chairs the subcommittee, said he sympathizes. But pausing school closures might make it more difficult for Shelby County Schools to balance its budget, he said.

“Our superintendent is faced with buildings that hold a thousand kids, and they’re down to 250,” White said. “I don’t want to put one more burden on them.”

Last fall, Superintendent Dorsey Hopson said the district may need to close 18 schools in the next five years if student enrollment continues to decline. Hopson recently unveiled a framework for investing in struggling schools before being considering them for closure.

Any future school closures in Memphis won’t be just to cut costs, district leaders have said. And for the first time since the historic merger, Shelby County Schools is not grappling with a budget deficit.