From the Statehouse

Lobato case makes lots of “friends”

This story was updated on Oct. 23 to include additional briefs.

It’s nice to have friends when you’re in court and the Lobato v. State school funding case has drawn plenty, some backing the parents and school districts that brought the lawsuit and others supporting the state officials who are defendants in the case.

Lobato v. State illustrationThe case has attracted 20 “friend of the court” filings with the Colorado Supreme Court, including 13 that support the plaintiffs, four backing the state’s case and one that’s neutral. The briefs represent the formal views of nearly 50 organizations and groups of individuals.

Added up, the documents run to well over 500 pages, on top of the more than 200 pages of arguments filed by lawyers for the state and the two sets of plaintiffs.

Issues highlighted in the “friend” briefs include:

  • Role of the courts – do the courts have the constitutional power to decide school finance issues?
  • Other state needs – does victory for the Lobato plaintiffs mean other state programs are slashed to give money to schools?
  • State mandates – have state lawmakers defined what constitutes a “thorough and uniform” through mandates and reforms?
  • Local control – if districts have to spend all their resources to meet state requirements, how do they meet serve local needs?

The role that friends play

Known in legal language as amicus curiae briefs, the filings seek to provide additional arguments and background to the high court beyond what was provided by the parties to the lawsuit.

The Lobato friends

The Lobato parties

  • Plaintiffs – 67 individuals – parents and students – who live in six school districts, plus 21 school districts
  • Plaintiff-intervenors – 27 other individuals living in four districts
  • Defendants – Gov. John Hickenlooper, the State Board of Education and education Commissioner Robert Hammond, all in their official capacities

While “friends” don’t have the legal standing in a case that the parties do, amicus briefs can be an important part of an appeal, according to Melissa Hart, associate professor at the University of Colorado Law School.

“They can go more broadly than the parties can,” Hart said, and bring economic, political and other context beyond the legal arguments made by the parties. “That’s one of the important roles they serve.”

Kathleen Gebhardt, lead lawyer for the main group of Lobato plaintiffs, agreed, noting, “Our brief is pretty much circumscribed” to the issues raised in the state’s appeal.

Organizations that file amicus briefs are saying, “ ‘We have issues we think the court needs to be aware of,’ “ Gebhardt said. “It’s to give context to our brief.”

Amicus briefs “can make a significant difference” in a case, Hart said. She noted that the rising popularity of such briefs, particularly in U.S. Supreme Court cases, can discount the value of such filings. But the briefs filed in Lobato aren’t “such a number that it’s unhelpful,” she said.

According to Colorado Supreme Court records, 385 amicus briefs were filed in 127 cases over the last five years, an average of about three per case. Only four cases saw 10 or more briefs filed – including the first version of Lobato, which the high court ruled on in 2009.

Who’s who among the friends

Amicus briefs are sometimes solicited by parties in a case; others are filed voluntarily.

CU Law Professor Melissa Hart
Melissa Hart / CU photo

Gebhardt said, for example, that she asked for a brief from the Brennan Center for Justice in New York, but that the Colorado Education Association, the Colorado Association of School Boards and the Colorado Association of School Executives filed briefs on their own.

On the state’s side, the amicus brief from the University of Colorado Board of Regents was solicited.

The organizations and individuals behind the briefs provide an interesting perspective on who supports whom in the Lobato case, which already involves scores of parents, students and school districts as direct participants, not to mention squads of lawyers.

On the plaintiffs’ side, mainline state education interest groups, Colorado and out-of-state legal groups and out-of-state education advocacy groups are heavily represented among the friends.

For the state, the friends include a large coalition of business groups, including Colorado Concern, the Denver Metro Chamber of Commerce and the Colorado Association of Commerce and Industry plus former Govs. Bill Owens, Dick Lamm and Bill Ritter, and the CU Regents. Briefs also were filed by two organizations that support strict interpretation of the TABOR Amendment, the Colorado Union of Taxpayers and the TABOR Foundation.

Highlights of the amicus briefs

The core of the December 2011 Lobato decision by Denver District Judge Sheila Rappaport held that the state’s system of paying for schools is unconstitutional because it’s not “rationally related” to the state constitution’s requirement for a “thorough and uniform” public education system.

Her ruling also held that the system violates the constitutional guarantee of “local control” of instruction.

But the case is complex and involves a long list of constitutional and other issues. Most of the amicus briefs focus on particular parts of the case or specific sub-issues.

Here are brief snapshots of those issues and what the friends on both sides are arguing:

The role of the courts

A central issue in Lobato is whether the courts have the constitutional power to decide school finance issues. In their brief supporting the state, the three former governors argue that it’s a power reserved for the executive and legislative branches.

That view is rebutted in the amicus brief filed by the Brennan Center and seven national constitutional experts. A second brief, filed by the Colorado Women’s Bar Association and three other specialty bar groups, argues that the Colorado Supreme Court essentially settled that question in 2009 when it overturned two lower courts and ruled the Lobato case could go to trial. That first phase of Lobato is commonly called “Lobato I” by lawyers.

Other state needs

Related to the argument about which branch of government gets to decide school funding is the defense contention that a victory for the Lobato plaintiffs would force the state to slash other government programs in order to give more money to schools.

On the state’s side, the amicus brief filed by Colorado Concern and other business groups makes that case. Plaintiff amicus briefs filed by the New York-based Campaign for Educational Equity and by the Colorado Center on Law and Policy argue otherwise, maintaining that school finance can be considered alone as a constitutional issue and that the state has budget options besides slashing other programs to pay for schools.

Several plaintiffs’ amicus briefs note that Rappaport’s decision doesn’t require a specific amount of K-12 funding but just tells the legislature to come up with a constitutional finance system.

And the Colorado Center on Law and Policy brief directly takes on the issue of the Taxpayer’s Bill of Rights, arguing that while “Defendants and their amici … argue that TABOR precludes – and excuses – the State from complying with its obligations under two other constitutional provisions – the Education Clause … and the Local Control Clause. … This Court should decline to address TABOR because the issue is not relevant to this stage of the case. The narrow question before this Court is whether the district court erred in finding Colorado’s school finance system violates the Education and Local Control Clauses of the Colorado Constitution.

“The revenue restrictions in TABOR are not relevant to the issue of whether students’ rights have been violated.”

State mandates and education budget cuts

A key piece of the plaintiffs’ case is the assertion that the legislature has defined “thorough and uniform” through the education mandates and reforms it has passed over the years, some of which were approved even as the state was cutting school funding.

Amicus briefs from the CEA and from Great Education Colorado and the Colorado PTA attempt to buttress that argument.

Local control of schools

Another plaintiffs’ argument is that the school finance system unconstitutionally restricts local control of schools because districts are forced to spend all their resources to meet state requirements, leaving no funds for unique programs to serve the individual needs of districts.

The amicus brief filed by CASB and CASE amplifies on that issue.

Other amicus arguments

Several of the briefs highlight the impact of the current school funding system on certain kinds of schools and students.

  • Rural and small schools – A brief filed by the Colorado BOCES Association and the Colorado Rural Schools Caucus, as well as a brief from three small school districts, provides background on how the current system hurts rural and small districts, in their view.
  • At-risk students – The effect of underfunding on high-needs students is fleshed out in a brief filed the Bell Policy Center and the ACLU of Colorado.
  • English language learners – A similar argument about the impact of the school funding system on non-English speakers is made in the brief filed by the activist group Padres y Jovenes Unidos and the Colorado Association for Bilingual Education.
  • Special education students – The amicus brief submitted by the Colorado Cross-Disability Coalition, the Legal Center for People with Disabilities and Older People and The Arc is intended to make the case for the needs of disabled students.
  • Higher education – The lone “special interest” amicus brief filed on the state’s side is the document by the CU Regents, who take no position on the adequacy of K-12 funding but remind the court of the constitutional requirement that the state ‘establish and support’ institutions of higher education.

What’s next

The state has until Nov. 2 to file a reply to the plaintiffs’ brief. After that, the court will decide on the scheduling of oral arguments. Because the court has only a limited number of days each month for such arguments, it’s possible those won’t take place until next year.

A high court ruling would come sometime after that, perhaps while the 2013 legislature is still in session.

Lobato “Friends of the Court” chart

Types of organizations filing friend-of-the-court briefs in the Lobato case, as organized by EdNews Colorado. Does not include a neutral brief filed by two charter organizations. Click to enlarge.

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.”