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.

Vision quest

Colorado lawmakers want to reimagine the state’s schools. Here’s how.

PHOTO: Nicholas Garcia
Students at Merino Elementary School work during class.

What should Colorado schools look like in 2030, and how should the state pay for them?

Those are two big questions a bipartisan coalition of state lawmakers hope to answer in the next several years.

State Reps. Millie Hamner and Bob Rankin, two of the state’s most influential lawmakers on education policy, are asking their colleagues this spring to approve a bill that would create a legislative process for rethinking the state’s entire public education system.

“Right now, there’s dissatisfaction with our system,” said Rankin, a Carbondale Republican and member of the state’s budget committee. “We’re sort of average. We’re average in the U.S. We’re average in the world. That’s not good enough for Colorado.”

The bill’s sponsors have two outcomes in mind: Create a vision for improving and modernizing Colorado schools and change the way the state pays for them. The plan, they think, could create enough support to convince voters to send more money to schools as needed.

“We realize it’s time to have a conversation with the state of Colorado around what is it that they want for their kids, how can we achieve that and how can we fund it,” said Hamner, a Frisco Democrat and vice-chair of the state’s budget committee, noting two recent failed attempts at the ballot to raise statewide taxes for schools.

The discussion over the future of Colorado’s schools comes as states are being handed more control over education policy. The nation’s new education law, the Every Student Succeeds Act, has fewer requirements than previous iterations of the federal law.

And soon, Colorado will no longer be bound by agreements it made with the Obama administration. The state may re-evaluate and perhaps repeal some of the policies it enacted during the last decade in an effort to win federal money.

“We’ve all been working hard, but I’m not convinced we’ve been working toward the same direction — the right direction,” Hamner said.

House Bill 1287 would create a series of committees to craft a vision and strategic plan for the state’s schools.

Already, it is being met with caution by some district-level school board members who hold dear their constitutionally protected local control.

“I can see the noble desire to invest in a vision and strategic plan. But many school districts have already done this locally,” said Doug Lidiak, a member of the Greeley school board. “I worry the outcome is more education bills coming from our state legislature.”

The idea faces other challenges: educators who feel taxed by a slew of mandates and are wary of change; school leaders already dealing with with tightening school budgets; and growing inequalities between schools on the Front Range and in the more rural parts of the state.

“Whatever comes out of this process needs to take into consideration the various differences of districts in size and geography,” said Kerrie Dallman, president of the Colorado Education Association, the state’s largest teachers union.

Some education lobbyists at the Capitol have also voiced concern that the process laid out in the bill is too bureaucratic and could take too long to address urgent needs.

The bill would create a series of committees.

The first legislative steering committee would be made up of a dozen state lawmakers, including the chairs of the House and Senate education committees and two members of the Joint Budget Committee.

A second executive advisory board would be made up of the state education commissioner, two members of the State Board of Education, representatives from the early childhood leadership commission and higher education department. The governor would also have a representative on the advisory board.

The third committee would be made up of teachers, parents, school board members, education policy advocates, representatives of the business community and others. These individuals would be appointed by the legislative steering committee.

The work would be done in four stages.

In the first phase, the committees would take stock of Colorado’s current education landscape and create a process to solicit input on what the state’s schools should look like. The second phase would collect that input. The vision and plan would be drafted in the third phase. And lawmakers would consider any legislation necessary to make the vision and plan a reality in the fourth phase.

The bill also requires the committees to meet periodically after the vision and plan are adopted to monitor how the plan is being carried out across the state.

Rankin, the House Republican, said Colorado’s education system could benefit from short-term fixes, but that it was important to take the long view, too.

“If you fight a lot of tactical battles, it ought to fit into your overall strategy,” he said. “We’re trying to build something the public can buy in to.”

legislative update

GOP plan to appoint Indiana’s schools chief claws its way back to a win in Senate panel

PHOTO: Shaina Cavazos
House Speaker Brian Bosma presents legislative priorities for Indiana House Republicans at the beginning of the session. Bosma is the author of the bill to appoint the next state superintendent, one of this year's priorities.

Indiana Republicans are pulling out all the stops to make sure the state schools chief would be appointed, not elected, in the future.

The Senate Rules Committee passed and amended a bill on Monday that would change how the state’s top education official is selected, giving new life to a measure that GOP leaders say has been debated in Indiana for 45 years — and is one of Gov. Eric Holcomb’s 2017 legislative priorities.

“It’s been advocated by every governor since 1985,” said House Speaker Brian Bosma, the bill’s author. “It’s been advocated by both parties, in fact.”

Supporters of the measure say it’s finally time to align efforts between the state’s top executive and education official, reducing the possibility for political squabbles that have marred previous administrations. Opponents argue the change disenfranchises voters, taking away their chance to have a voice in the direction of the state’s education policy.

The amended House Bill 1005 includes two major changes from an earlier version debated last month. It would allow the governor to appoint a “secretary of education” beginning in 2025, a change from the originally proposed 2021 start date.

That seemingly small change could be a point of contention as the bill moves forward. With the 2021 start date, Holcomb, a Republican, would make the appointment if elected to a second term. Pushing it four years farther puts the first appointment out of Holcomb’s — and potentially GOP — control.

Additionally, a 2025 start date would allow current state Superintendent Jennifer McCormick, also a Republican, to run for a second term in 2020 before a possible replacement would be appointed.

Read: She’s no Tony Bennett or Glenda Ritz — Jennifer McCormick is charting her own course as Indiana’s schools chief

The new bill also introduces qualifications for the position. In addition to living in Indiana for at least two years prior to an appointment, the secretary of education candidate would also be required to:

  • Demonstrate “personal and professional leadership success, preferably in the administration of public education.”
  • Have an advanced degree, preferably in education or educational administration.
  • Hold, or have previously held, a license to be a teacher, principal of superintendent, or otherwise be employed as such for at least five years before taking office.
  • Have five years of working experience as an executive in the education field.

Senate President David Long, chairman of the committee, said these changes to the bill make it “substantially” different from Senate Bill 179, a similar proposal that was defeated by the Senate 26-23 last month. According to Senate rules, another bill with the same language could not be considered unless significant changes were made.

Sen. Tim Lanane, D-Anderson, said he believed the Senate violated its own rules by even having a hearing on the House bill. Senate rules state that if a bill has had a majority of senators vote against it, it is “decisively defeated,” and similar language cannot be considered again that year.

“It does not say it shall not be voted on, it says it shall not be considered,” Lanane said. “It pays respect to the idea in the Indiana Senate that we don’t do do-overs.”

But Republicans on the committee disagreed, and said their amendment means the bill can proceed.

Now, a few concerns remain as the bill heads to the full Senate.

First, Indiana’s constitution says that there “shall be a State Superintendent of Public Instruction,” not a secretary of education. Bosma said he doesn’t think that’s a problem because the bill’s language allows for the change.

And second, if the Senate passes the bill, it heads to conference committee, where lawmakers come together to try to reconcile differences over bills. Democrats on the rules committee said they were worried that parts of the original bill — no specific qualifications for candidates, a 2021 start date — might resurface at that point.

Long reassured the committee that only minor changes could be made. But Bosma was less decisive on that point, which might indicate that the closed-door dealings on this bill could be particularly contentious.

Bosma has said all along that he’s waited years for this proposal to become a reality, and he sees no point in waiting any longer.

“Maybe we should wait another 40 years from when this was first proposed,” he joked. “The time is right.”