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.

reconsidering takeover

Indiana lawmakers clear path for state to take over struggling districts, but scales back academic control of Muncie schools

PHOTO: Meghan Mangrum

A plan that would’ve allowed the state to take control over finances and academics in Gary and Muncie would now offer Muncie schools some relief from the threat of academic takeover.

Muncie educators and lawmakers were vocally opposed when their C-rated district was added into Senate Bill 567. The district is facing significant debt issues and feared potential state control of its academic programs as well as its finances. But a final version of the bill that passed with bipartisan support in the Senate and House late Friday scaled back the original plan, removing the academic piece. Financial control is still part of the deal.

“We’ve laid out a path that they may follow so that hopefully, in the next six months, they can right the ship,” said Sen. Luke Kenley, a Noblesville Republican and author of the bill. “I know the community of Muncie is not happy about this, but perhaps it is a wake up call at the right time to get things accomplished.”

Sen. Eddie Melton, a Democrat from Merrilville and the bill’s second author, agreed with the decision to adjust the plan for Muncie schools and encouraged lawmakers to continue these conversations about how to help struggling districts.

The bill next heads to Gov. Eric Holcomb for consideration to be signed into law.

The Gary school district would be on-track for the state to take over both academics and finances. A few provisions called for by local lawmakers were also added in, such as first considering a Gary or Lake County resident for the role of “emergency manager,” the person who’d take charge of the takeover.

Kenley said he specified in the compromise version of the bill that these measures are “not precedent for and may not be appropriate for addressing issues faced by other” districts. Kenley said he hopes the work he and Melton have done on the bill can help Gary schools and that the financial requirements placed on Muncie would be a “wake-up call.”

“This is not a pleasant task, but it’s one that needs to be done,” Kenley said of the Gary plan. “We have a long way to go and a lot to do.”

Lawmakers came up with the takeover strategy to solve long-standing financial troubles in Gary Community Schools, which has racked up $100 million in debt and dwindled to fewer than 6,000 students. The district has also been labeled an F since 2011, with seven schools considered failing.

The bill originally designated Gary and Muncie as “distressed political subdivisions” and moved them under the auspices of an emergency manager, fiscal management board and chief academic officer. In the new plan, Gary would remain a distressed political subdivision, but Muncie would be considered a “fiscally impaired” district, a less harsh category that wouldn’t require they have a chief academic officer but still places them under a stringent plan to shore up their finances and requires them to appoint an emergency manager.

Sen. Tim Lanane, a Democrat from Anderson, near Muncie, spoke on the floor and cautioned lawmakers not to be so quick to take such serious action unless it is fully warranted. Further labeling districts in this way, he said, could cause them to deteriorate further if more families decide to leave.

“What we’re doing here as a precedent is very, very important,” Lanane said. “A community’s reputation is at stake here.”

Compromise

Indiana budget deal would offer modest school funding increases plus a big fix for teacher bonuses

PHOTO: Alan Petersime

Many schools across Indiana could expect more money per student in the coming years and strong teachers at struggling schools would be likely to receive higher bonuses under a budget deal announced Friday.

House and Senate lawmakers have come to an agreement on how much money to send to Indiana schools over the next two years. The budget would increase total dollars for schools by about 3.3 percent from 2017 to 2019. Included within that: a 2.5 percent average increase for per-student funding to $6,709 in 2019, up from $6,540 this year. The budget is expected to go up for a final vote late Friday.

Overall, the budget plan would accomplish some of the key goals prioritized by Gov. Eric Holcomb, state Superintendent Jennifer McCormick and House Republicans. Those goals include increasing funding for the state’s preschool program, internet access for schools, and Advanced Placement exams that help students earn college credit while in high school.

Under the compromise, every district in Marion County would see its basic state aid and per-student funding increase, including Indianapolis Public Schools. (IPS would have seen cuts in the House plan, and the increases wound have been higher under the Senate plan.)

Suburban districts such as Carmel and Hamilton Southeastern would get sizable funding bumps as with the Senate plan. Districts losing enrollment, including East Chicago, could lose state money. But overall, many of the districts with some of the state’s poorest students stand to see increases. The Gary and Hammond districts, for example, would both see gains in per-student funding and overall.

Lawmakers also settled on a compromise about how to pay teachers.

Throughout the session, they waffled about whether to pay teachers more for their performance or for taking on additional work in their schools.

At first, the House cut the bonuses entirely and set aside $3 million for a “career pathways” program that would reward teachers who take on leadership roles in their schools. That was far less money than the $40 million the Senate wanted to put toward teacher bonuses, but some teachers said they would rather have the long-term opportunity to improve their teaching and leadership skills rather than a short-term bonus that might not go toward their salaries in the future.

“I want a leadership role, but I want to be a teacher — I don’t want to be an administrator,” said Allison Larty, a teacher in Noblesville and Teach Plus policy fellow. “(A bonus) is not going to be make an impact. The creation of career pathways will make an impact in the long run.”

But those dollars were eliminated in the Senate budget and the budget compromise. Rep. Tim Brown, chairman of the House Ways & Means Committee, said it came down to Senate negotiations. Senators were willing to spend more on preschool, Brown said, if they didn’t have to spend elsewhere — so career pathways dollars were cut.

But lawmakers did agree to change the state’s now $30 million teacher bonus program, which came under fire from educators across the state last year for rewarding effective teachers in high-performing, usually affluent schools at a higher level than similar teachers in lower-performing schools.

Going forward, the program will dole out money based on a policy created by each school district, rather than ISTEP scores. Under the plan, the state would distribute $30 per student to each district, which would then divvy up the local bonus pool among teachers rated “effective” or “highly effective.” Of that money, up to 50 percent can be added into a teacher’s base salary so that the teacher receives it in future years as well. And teachers in virtual schools can receive these bonuses — something the Senate had moved against.

The compromise plan keeps other requirements suggested by the Senate for virtual schools, mandating that they report information about class size, teacher-per-student ratios, and how often teachers have in-person meetings to the education department each year. Virtual schools would get 90 percent of the basic per-student funding amount from the state, as they do now. (The House’s plan would have increased that to 100 percent.)

The state’s voucher program would see its funding grow over the next two years under the compromise plan. Indiana is projected to spend more than $156 million by 2018 and $167 million by 2019 on the program, up from $146 million in 2017.

This new agreement no longer carves out the voucher money as a budget line item. Critics of making it a line item said it made the program vulnerable to cuts, but supporters applauded the change because they said it increased transparency around how much the state spends on vouchers but pulling it out of school-by-school calculations and placing it squarely in the budget itself.

The budget also includes:

  • $22 million per year for the state’s preschool program, up from about $12 million. $1 million per year is set aside for “in-home” online preschool programs.
  • About $32 million for English-language learners, up from about $20 million. The grant would be $250 per English-learner student in 2018 and $300 per student in 2019. Schools with higher concentrations of English learners would get additional funding.
  • $3 million per year to improve school internet access.
  • $5 million over two years in incentive grants for schools and districts that consolidate services.
  • $10.4 million for Advanced Placement tests and $4.1 million for PSAT tests.
  • $1 million to align initiatives in science, technology, engineering and math.
  • $500,000 per year for dual language immersion programs.
  • $26.3 million per year for testing and $12.3 million per year for remediation testing.
  • $15 million per year for the Charter and Innovation Network School Grant Program, which would support schools that want to become “innovation schools.”

Chalkbeat reporter Dylan Peers McCoy contributed to this story.