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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beyond high school

Tennessee leads nation in FAFSA filings for third straight year

PHOTO: TN.gov
Bill Haslam has been Tennessee's governor since 2011.

Equipping more Tennesseans with the tools to succeed after high school has been a hallmark of Gov. Bill Haslam’s administration. And the efforts seem to be paying off as the governor heads into his final 18 months in office.

Haslam announced on Thursday that the state has set another new record for the number of high school seniors filing their Free Application for Federal Student Aid, also known as FAFSA.

With 73.5 percent completing the form for the upcoming academic year — an increase of 3.2 percent from last year — Tennessee led the nation in FAFSA filings for the third straight year, according to the governor’s office.

The increase isn’t surprising, given that students had a longer period to fill out the form last year. In order to make the process more user-friendly, the FAFSA window opened on Oct. 1 instead of Jan. 1.

But the increase remains significant. The FAFSA filing rate is one indicator that more students are pursuing educational opportunities beyond a high school diploma.

Getting students ready for college and career has been a major focus under Haslam, a businessman and former Knoxville mayor who became governor in 2011. He launched his Drive to 55 initiative in 2013 with the goal that at least 55 percent of Tennesseans will have postsecondary degrees or other high-skill job certifications by 2025.

“The continued surge in FAFSA filing rates shows the Drive to 55 is changing the college-going culture in Tennessee,” Haslam said in a news release. “First-time freshman enrollment in Tennessee has grown 13 percent in the past two years and more students than ever are going to college. As a state, we have invested in making college accessible and open to everyone and students are hearing the message.”

According to calculations from the Tennessee Higher Education Commission, Tennessee led all states by a large margin this year. The closest states or districts were Washington D.C., 64.8 percent; Delaware, 61.6 percent; New Jersey, 61 percent; and Massachusetts, 60.4 percent.

The commission calculated the filing rates using data provided through June 30 from the U.S. Department of Education.

Filing the FAFSA is a requirement to qualify for both state and federal financial aid and is part of the application process for most colleges and universities across the nation.

To get more students to complete the form, state and local FAFSA drives have been organized in recent years to connect Tennessee students with resources, guidance and encouragement.

U.S. Sen. Lamar Alexander has championed bipartisan efforts to simplify the FAFSA process. The Tennessee Republican and former governor introduced legislation in 2015 that would reduce the FAFSA paperwork from a hefty 108 questions down to two pertaining to family size and household income.

You can read more information about the FAFSA in Tennessee here.

an almost-deal

Albany deal appears close after Assembly passes two-year extension of mayoral control

Assembly Speaker Carl Heastie at a 2015 press conference with Democratic colleagues

After weeks of haggling by state lawmakers — and a day spent huddling behind closed doors — the stage is set for a possible two-year extension of Mayor Bill de Blasio’s control of city schools.

The Assembly passed a bill in the wee hours of Thursday morning that outlines both the extension and a number of other provisions, including the reauthorization of local taxes and the renaming of the Tappan Zee Bridge for the late Governor Mario Cuomo. Notably, it does not include sweeteners for the charter school sector, which Assembly Speaker Carl Heastie has forcefully opposed.

The state Senate is expected to return for a vote Thursday afternoon, though it is not yet clear if a deal has been reached. Scott Reif, a spokesman for Senate Majority Leader John Flanagan, did not confirm a final agreement, but told reporters Wednesday night that negotiations were “moving in the right direction.”

According to Politico, the text of the bill was released just before 11:30 p.m. and passed the Assembly around 1 a.m., by a vote of 115-15.

The bill was passed in an “extraordinary session” called by Governor Andrew Cuomo this week after lawmakers failed to reach a deal during the regular legislative session, which ended last Wednesday. Mayoral control is set to expire Friday at midnight, an imminent deadline that’s led to a flurry of “what-ifs.”

If the Senate approves the deal, it would be a victory for Mayor Bill de Blasio, who has repeatedly sought multi-year extensions but been granted only one-year reprieves. It would also allay the fears of education experts on both sides of the political aisle, who have spoken out on the need to retain mayoral control rather than returning to a decentralized system run by 32 community school boards.

Losing mayoral control “would be devastating,” wrote schools Chancellor Carmen Fariña in a June 19 op-ed. “If Albany lets mayoral control lapse, there will be no one accountable for progress.”

But not everyone was pleased with the way things have gone down this week. “Today’s extraordinary session produced nothing to celebrate,” wrote Assembly Minority Leader Brian Kolb in a statement released after the vote. “There is no victory in completing work that should have been done weeks ago. No one deserves applause for passing bills in the middle of the night out of public view.”