What did the creators of Colorado’s 1876 constitution mean when they required the legislature to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state”?
Tom Romero, an associate law professor at the University of Denver, tried to answer that question Tuesday afternoon during testimony at the Lobato v. State school finance lawsuit.
The central claim by plaintiffs in the case is that the state’s current school finance system doesn’t meet the constitutional requirement for “thorough and uniform” and that the system should be declared unconstitutional and the legislature instructed to come up with a new one. The requirement is in Article IX, Section 2 of the constitution.
“Education was centrally important” to the framers of the state constitution, Romero said, because they believed it was vital to forming good citizens and productive members of society.
He also quoted William Curtis, first territorial superintendent of schools, as saying education “is of greater value than the gold of our mountains.”
On cross-examination, Assistant Attorney General Jonathan Fero worked to pick holes in Romero’s expertise and his findings, getting Romero to acknowledge that he’s not a practicing lawyer, hasn’t taught constitutional law and that historical research is limited by what’s in the historical record. (Romero holds a doctorate in history.)
Fero also teased out the acknowledgement that the proceedings of the convention don’t include records of debates, and that there are no minutes of the convention’s education committee.
“What they meant has been elusive?” on the subject of thorough and uniform, Fero asked.
That’s true as far as the official proceedings go, Romero agreed, but he stuck to his conclusion about the importance of education to the state’s founders.
Building a case
Most of the second day of trial was taken up with plaintiffs’ lawyers methodically trying to build their case with the testimony of expert witnesses.
John Hefty, a former superintendent and former executive director of the Colorado Association of School Executives, resumed the witness stand first thing in the morning and talked about the demands and costs of standards-based education.
The old system of education was “designed for the purpose of sorting and selecting” while a standards-based system requires “that we need to move away from that selecting and sorting system to one where everyone is proficient.”
Plaintiffs’ lawyer Alexander Halpern asked if the school finance system has been changed to accommodate new demands.
“To the best of my knowledge, it has not,” Hefty said. “We do not have the money to deliver on it.”
Littleton Superintendent Scott Murphy continued on the same theme, saying, “I believe there are not sufficient resources.”
Glenn Gustafson, chief financial officer of the Colorado Springs 11 schools, echoed many of the same concerns in giving a detailed description of school finance and how budget cuts have affected his district.
Highlights of the day
TONE: The day was a little dense with detailed testimony about the mechanics of school finance and recaps of studies on the issue, punctuated by a bit of chippiness as state lawyers tried to nibble away at the expertise of the expert witnesses.
QUOTE: A plaintiff’s lawyer asked Gustafson, “Are you familiar with the school finance act of 1994?”
“Yes ma’am, I eat, drink and sleep it,” he replied.
MANEUVERING: On cross-examination, lawyers for the attorney general’s office did their best to plant seeds of doubt about the expertise of the plaintiffs’ expert witnesses.
They took pains to establish through questions that the witnesses are neither lawyers nor elected policymakers. One element of the case is whether Colorado has a legally “rational” school finance system, and the defense seems to want to establish that “rational” can’t be defined by non-lawyers.
On cross-examination of Murphy, Senior Assistant Attorney General Carey Markel tried to counter his testimony about financial and achievement challenges with questions about the district’s successes.
DOCUMENTS: Summaries of expected witness testimony were submitted to the court before trial. Go here for the summaries of Hefty’s (starts on page 31), Murphy’s (starts on page 12) and Gustafson’s (starts on page 14) testimony.
Much of Tuesday’s testimony focused on past legislative studies of school finance. Read them here:
The 2009 study produced no major recommendations. The earlier study made some substantial proposals. But, as some witnesses noted Tuesday, none of them were enacted into law.
Romero’s report on constitutional history is on pages 257-265 of this document.
COLOR: Policy lawsuits are thirsty work. One lawyer entered the courtroom Tuesday morning with a full case of water bottles balanced on top of his rolling briefcase.
SEEN: The trial audience was sparse Tuesday, mostly a handful of people working on the case in one capacity or another.
UPCOMING: Wednesday witnesses may include former Cherry Creek Superintendent Monte Moses, current Creek Assistant Superintendent Elliott Asp, school finance expert Ed Steinbrecher and plaintiff Taylor Lobato.