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.

School choice

It started with vouchers and charter schools. Now Indiana’s exploring more ways for kids to learn outside traditional public schools.

PHOTO: Alan Petersime

Through its voucher and charter school programs, Indiana lawmakers have for years embraced strategies to promote school choice. Now, a new proposal that would let kids take classes outside their public schools could expand those efforts even further.

The program, which is already gaining attention nationally for being at the forefront of school choice strategies, is making its Indiana debut in recently filed House Bill 1007, authored by Rep. Tony Cook, R-Cicero.

The bill lays out the basics of what looks kind of like a voucher program, where students can use public dollars to pay for outside schooling — one course at a time. The “course access” program would allow students to choose certain classes to take outside their public school, such as an advanced physics course, Behning said. Then, those course providers would get a cut of a school or district’s state funding.

So far, there are no specifics on who providers might be, but Behning said they could also include public schools that have online or distance learning programs set up.

“It really makes sense when you talk about some of the smaller districts we have,” said Bob Behning, House Education Committee chairman. “Even in some of our urban districts, with some of the shortages we have, It makes sense to have some availability.”

Advocates, such as the International Association for K-12 Online Learning, said in a 2014 report that it levels the playing field between students, citing that students from low-income families, those who attend rural schools or minority students might have fewer opportunities than their wealthier urban or suburban counterparts.

But critics oppose the program for many of the same reasons they oppose a voucher program. The programs can funnel money away from public schools, typically taking a cut of a school’s state tuition dollars to pay whomever provides the outside classes. In some states, that has been for-profit education providers and online schools.

Online schools across Indiana and the United States have failed to demonstrate widespread academic achievement, but they remain a choice that a growing number of Indiana students and students across the country are turning to.

Under Indiana’s proposed bill, the Indiana Department of Education would be responsible for creating a list of classes for the program by June 30, 2018. A provider could be any one that offers these courses, through any method, including online instruction.

A course tuition fee would also need to be determined. Behning said it’s too early yet to say how much that fee might be, but according to state data, Utah districts paid providers between $200 and $350 per course in 2015 depending on the class being offered.

Teresa Meredith, president of the Indiana State Teachers Association, said she already knows of districts that can engage in partnerships with other types of educational providers without this legislation.

“It sounds like they are creating a solution to a problem that doesn’t exist if there is in fact a way for schools to already do something like this,” Meredith said.

Meredith also worries that by encouraging schools and districts to go to outside providers, it could exacerbate the teacher shortage. There’s little need to hire a licensed teacher if you can outsource the class, she said.

“We need to watch out for the details and ask the question of what problem is this trying to solve,” Meredith said.

Stay tuned

Tonight Indiana’s new governor will give his first state of the state address. What can we expect to hear about education?

PHOTO: Scott Elliott

Tonight Gov. Eric Holcomb will address Hoosiers in the annual State of the State address.

Holcomb so far has had a fairly light education policy agenda and K-12 budget with increases that some lawmakers say are not enough. With this year’s emphasis on road funding and transportation, it could be that education won’t figure prominently in his speech.

Earlier this month, Holcomb proposed sending an additional $280 million to Indiana schools — an increase of 3 percent. It would double the amount the state spends on preschool tuition in 2018 and 2019 in the original five counties, going from $10 million per year to $20 million. Holcomb’s preschool proposal differs from the priorities of other Republican legislative leaders.

Aside from the $280 million increase, Holcomb’s budget plan would also set aside $1 million per year for coordinating science, technology, engineering and math programs across the state and $1 million per year, with the possibility of federal matching grants, for districts to support internet access.

Another main part of his education agenda would be making Indiana’s elected schools chief a governor-appointed position beginning in 2021.

Former Gov. Mike Pence’s speech last year made many references to education, through ISTEP, A-F grades and the consequences they can have for schools and teachers.

The speech begins at 7 p.m. and can be streamed online. Follow Chalkbeat reporter @ShainaRC on Twitter for more.