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.

getting to know you

These 10 Colorado lawmakers are rethinking how the state pays for its public schools

PHOTO: Kevin J. Beaty/Denverite
State Sen. Rachel Zezninger, an Arvada Democrat, on the first day of the legislative session.

Ten Colorado lawmakers, many with longstanding ties to the education community, are set to begin debating the future of Colorado’s school finance system.

The legislative group tasked with studying and making recommendations about how the state pays for public education includes former teachers and superintendents, a former State Board of Education member and a practicing charter school lawyer.

State Rep. Alec Garnett, a Denver Democrat, will lead the committee during its first year.

Garnett helped establish the committee earlier this year when he co-sponsored House Bill 1340 with state Rep. Paul Lundeen, a Monument Republican. Lundeen also will serve on the panel.

State Sen. Owen Hill, a Colorado Springs Republican, will be the vice-chair.

The committee was formed against a backdrop of fear that the state’s schools would face deep budget cuts next school year. However, lawmakers at the last minute averted putting the state’s schools in an even deeper financial hole.

Still, lawmakers from both parties and members of the state’s education community agree the funding system is outdated and in need of a massive overhaul. The state last made significant changes to the system in 1994.

The committee’s first meeting is scheduled for July 24. Among its first decisions will be selecting a third-party consultant to help with research and guide discussions and decisions.

Here’s the full committee:

  • State Rep. Alec Garnett, Denver Democrat, chair
  • State Sen. Owen Hill, Colorado Springs Republican, vice chair
  • State Sen. Janet Buckner, Aurora Democrat
  • State Sen. Bob Gardner, Colorado Springs Republican
  • State Rep. Millie Hamner, Frisco Democrat
  • State Rep. Timothy Leonard, Evergreen Republican
  • State Rep. Paul Lundeen, Monument Republican
  • State Sen. Michael Merrifield, Colorado Springs Democrat
  • State Sen. Jerry Sonnenberg, Sterling Republican
  • State Sen. Rachel Zenzinger, Arvada Democrat

CSI New York

Will you close my school? Transfer school staff, parents and students worry about the new federal education law

PHOTO: Alex Zimmerman
A class at Brooklyn Frontiers High School

Jamie Hawkins marched to the front of a Brooklyn auditorium Tuesday night holding two pieces of paper.

One had information from her son’s Individualized Education Program, which showed that when he entered high school, he read at a second-grade level and did math at a sixth-grade level. The other, she said proudly, proved he graduated from high school.

The reason her son finished school is he attended Brooklyn Frontiers High School, she said, one of several schools in New York City designed specifically for students who have fallen behind.

“He got the skills that he needed,” she explained after her testimony. When asked if he would have graduated without Brooklyn Frontiers she said, “No. Absolutely not.”

Students, teachers and parents from the city’s transfer high schools — which serve students who are over-age and under-credited — crowded into the Prospect Heights Educational Campus on Tuesday for a hearing on the Every Student Succeeds Act, which they fear will treat their schools unfairly.

These schools present a conundrum for state officials. The new law requires that schools with graduation rates under 67 percent are targeted for improvement. But for transfer schools, many people testified at the hearing, that is often an unrealistic standard.

“The language of this legislation, the ESSA legislation, puts our schools in grave danger,” said Rachel Forsyth, director of partnership schools at Good Shepherd Services, a nonprofit that works in multiple transfer schools.

So what will happen to transfer schools under New York’s draft ESSA plan? Are they really in danger? Here’s what we found out:

What does the plan currently say?

The state’s draft plan does not separate the way it evaluates transfer schools from how it judges traditional high schools — but it does gives all high schools some wiggle room.

Instead of using on-time (four-year) graduation rates, the state allows six-year graduation rates in its draft plan. That might not be enough for transfer schools, though. The average six-year graduation rate for transfer schools is 46.7 percent.

If a school does not meet a six-year graduation rate of 67 percent, it will be identified as a school that needs improvement.

Can the state make an exception for transfer schools under the law?

The state says all high schools have to reach a 67 percent graduation rate. Based on information the state’s education department has received from the U.S. Department of Education, there is no exemption for transfer high schools, state officials said.

But advocates say the law offers more leeway. Under the regulations approved by former U.S. Education Secretary John King, schools that serve special populations — such as alternative schools — were permitted to use different metrics than traditional high schools.

Those regulations have been undone by Congress, but the fact that they existed before shows the law allows that flexibility, said Ian Rosenblum, executive director of EdTrust-NY.

“We believe that the state can and should propose a different methodology for identifying specialized schools, such as transfer schools,” Rosenblum said.

What will happen if transfer schools are identified for improvement?

At one point during the hearing, a transfer school advocate gestured to the crowd and declared that if this plan moves forward, all the transfer schools represented in the room would soon cease to exist.

That is very unlikely to come to pass. Even if a school is identified as needing improvement, it would probably be several years before it could face any serious consequences under the new law, according to the state’s draft.

If a school is identified for Comprehensive School Improvement (CSI), it has three years to receive extra support and to implement an improvement plan. Then, it could be put into the state’s receivership program, which means it would likely have another two years to demonstrate improvement. If it does not demonstrate enough improvement, it risks being taken over by an outside receiver.

The state has already proven itself lenient in forcing an independent receiver on schools. So far, only one school in New York state has been threatened with takeover. According to state officials, once schools are in receivership, the state education commissioner has some flexibility in tracking their progress and determining whether schools should still be deemed struggling.

Still, any threat looms large for transfer schools, whose advocates say even if the worst-case scenario never plays out, they are still being rated by unfair metrics.

“We’re already working with kids who have been told repeatedly they are failures. Now we’re looking at a system where 90 percent of the [transfer] schools in the city will be looked at as failing schools,” Forsyth said. “I don’t think it’s really understanding the population we’re working with.”

State officials said they are aware of these concerns and will work to come up with a solution.