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.

More grades?

Schools with lots of transfer students say A-F labels don’t fit

PHOTO: Alan Petersime

Schools with large numbers of kids who transfer in or out should get an extra grade from Indiana’s A-F system, a legislative committee said Thursday.

The proposal, backed by both Democrats and Republicans on the House Education Committee, would give schools a second A-F grade based just on the scores of students who have attended for at least a year.

The goal is to account for schools with “high mobility,” common in poor neighborhoods where families move frequently and kids sometimes change schools several times in a single school year. When kids change schools, their test scores often sink. Lawmakers argued the schools where they end up on test day can be unfairly saddled with a low grade that doesn’t necessarily reflect the quality of teaching at the school.

Even so, the schools will still be judged the same as all schools in Indiana on their first A-F grade.

The proposal was added as an amendment to House Bill 1384, which is mostly aimed at clarifying how high school graduation rate is calculated. The bill passed out of committee today, 8-4. It next heads to the full House for a vote, likely later this week.

The amended bill would require the Indiana State Board of Education to first define a “high-mobility” school. Then, starting in the 2018-19 school year, the board would assign those schools both the typical grade based primarily on state tests and a second grade that only considers the test and other academic data of students who have attended the school for one year or more.

The second grade could not be used by the state board to make decisions about state sanctions, the bill says. But it would help parents and others better understand the circumstances at the school, said Rep. Bob Behning, the bill’s author and chairman of the education committee.

“Especially in our urban centers, there are several schools … that have very high mobility rates,” Behning said. “We could all recognize that if you’re being moved from school A to school B to school C to school D in a year, it’s going to be very difficult for your performance to be where it needs to be.”

The bill also makes a similar change to high school graduation rates, which would help Indiana better comply with new federal law, Behning said. The bill would alter the graduation rate calculation so that students who drop out would only count in a school’s rate if they attended that school for at least 90 percent of the school year. Otherwise, their graduation data gets counted at the previous school they attended for the longest time.

Melissa Brown, head of Indiana Connections Academy, one of the largest online schools in the state, testified in support of the bill. She said the graduation rate change and second letter grade better reflect the work they’re doing with students.

“We really believe that if we can keep a student, we can help them,” Brown said.

Virtual schools have performed poorly on state tests, which some school leaders argue is because they serve a challenging population of students, including those who frequently move and switch schools, come to school far behind grade level and have other learning difficulties that make them more difficult to educate.

Read: The broken promise of Indiana’s online schools

Indiana Connections Academy sees about 20 to 25 percent of students come and go each year, Brown said. Other virtual schools, such as Hoosier Academies, have reported more than double that rate.

Although the rates for individual schools could vary widely, Beech Grove schools had the highest district mobility rate in 2015 in Marion County, where 20.1 percent of students left a Beech Grove school to go outside the district, according to state data. Franklin Township had the lowest, with 8.5 percent. Generally, transfer within districts was much lower.

In IPS, the rate was 18.4 percent for students leaving to attend a school in another district, and 8.2 percent of students left their home school to attend another in IPS.

Brown said she thinks the second school grade could help all schools that see high turnover, but it also could dispel some misinformation about what virtual schools are for — it’s not a “magic pill” for kids who are far behind, she said, a scenario she encounters frequently.

“At the end of the day, it’s really about what’s best for the kid,” Brown said. “And it’s not best to send a student to another school with two weeks left in the semester expecting a miracle to happen.”

new plan

Lawmakers want to allow appeals before low-rated private schools lose vouchers

PHOTO: Shaina Cavazos
Rep. Bob Behning, chairman of the House Education Committee, authored HB 1384, in which voucher language was added late last week.

Indiana House lawmakers signaled support today for a plan to loosen restrictions for private schools accepting state voucher dollars.

Two proposal were amended into the existing House Bill 1384, which is mostly aimed at clarifying how high school graduation rate is calculated. One would allow private schools to appeal to the Indiana State Board of Education to keep receiving vouchers even if they are repeatedly graded an F. The other would allow new “freeway” private schools the chance to begin receiving vouchers more quickly.

Indiana, already a state with one of the most robust taxpayer-funded voucher programs in the country, has made small steps toward broadening the program since the original voucher law passed in 2011 — and today’s amendments could represent two more if they become law. Vouchers shift state money from public schools to pay private school tuition for poor and middle class children.

Under current state law, private schools cannot accept new voucher students for one year after the school is graded a D or F for two straight years. If a school reaches a third year with low grades, it can’t accept new voucher students until it raises its grade to a C or higher for two consecutive years.

Rep. Bob Behning, R-Indianapolis, the bill’s author, said private schools should have the right to appeal those consequences to the state board.

Right now, he said, they “have no redress.”  But public schools, he said, can appeal to the state board.

Behning said the innovation schools and transformation zones in Indianapolis Public Schools were a “perfect example” for why schools need an appeal process because schools that otherwise would face state takeover or other sanctions can instead get a reprieve to start over with a new management approach.

In the case of troubled private schools receiving vouchers, Behning said, there should be an equal opportunity for the state board to allow them time to improve.

”There are tools already available for traditional public schools and for charters that are not available for vouchers,” he said.

But Democrats on the House Education Committee opposed both proposals, arguing they provided more leeway to private schools than traditional public schools have.

“Vouchers are supposed to be the answer, the cure-all, the panacea for what’s going on in traditional schools,” said Rep. Vernon Smith, D-Gary. “If you gave an amendment that said this would be possible for both of them, leveling the playing field, then I would support it.”

The second measure would allow the Indiana State Board of Education to consider a private school accredited and allow it to immediately begin receiving vouchers once it has entered into a contract to become a “freeway school” — a type of state accreditation that has few regulations and requirements compared to full accreditation.Typically, it might take a year or so to become officially accredited.

Indiana’s voucher program is projected to grow over the next two years to more than 38,000 students, at an anticipated cost — according to a House budget draft — of about $160 million in 2019. Currently in Indiana, there are 316 private schools that can accept vouchers.

The voucher amendments passed along party lines last week, and the entire bill passed out of committee today, 8-4. It next heads to the full House for a vote, likely later this week.