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.

Voucher votes

Trump wants states to push vouchers. Tennessee shows why that might be hard, even in red states.

PHOTO: Marta W. Aldrich
Voucher opponents cheer as Tennessee lawmakers exit the House chambers following Rep. Bill Dunn's decision last February to table voucher legislation.

When President-elect Donald Trump tapped Betsy DeVos as his choice for U.S. secretary of education, advocates of school tuition vouchers saw it as a good omen. The Michigan Republican is a staunch advocate for vouchers that allow taxpayer money to be spent on private schools.

But the perennial battle over vouchers in Tennessee, which voted overwhelmingly for Trump, suggests it won’t be easy for vouchers to sweep the nation, even if Trump’s administration champions federal incentives for such programs. While Tennessee’s Senate has voted in favor of a voucher bill three times since 2011, opponents have blocked it each year in the House of Representatives, albeit by decreasing margins. Opposition has coalesced around a fear of undermining public schools — a concern that transcends party lines and geography.

Tennessee’s voucher proposals have exclusively targeted urban schools, anomalies in a mostly rural state. But as each major vote approached, lawmakers in Nashville fielded calls from constituents back home who worried that the program would quickly expand at the expense of public schools in areas with few alternatives.

During the last legislative session, the perceived lack of public support for vouchers eclipsed Gov. Bill Haslam’s endorsement of them. It also countered an outpouring of spending from pro-voucher advocacy groups that include a state chapter of American Federation for Children, of which DeVos founded and serves as chairwoman of the board.

The most vocal opponent of vouchers has been the Tennessee Education Association, the state’s largest teachers’ union and an organization that many Republican lawmakers openly oppose. But lawmakers also got pushback from statewide professional groups that represent superintendents and school boards and argue that vouchers would hurt public schools.

Rep. Bill Dunn
PHOTO: TN.Gov
Rep. Bill Dunn

During the most recent legislative session, Rep. David Hawk, a Republican from Greeneville, made a last-minute attempt to make vouchers more palatable to sympathetic lawmakers wary of how the issue would play out at home. With the blessing of the bill’s lead sponsor, Rep. Bill Dunn of Knoxville, Hawk amended the proposal so it only would impact Memphis, home to Tennessee’s largest school district and frequently a laboratory for the state’s education reforms. The move infuriated many Memphis lawmakers and failed to sway enough undecided legislators to push the bill over the top.

Still, the proposal came closer to passing than ever before. It cleared all committees before Dunn tabled it on the House floor. He said he just didn’t have the votes. Later, Dunn told reporters that he only had 48 “yes” votes confirmed out of the necessary 50.

“I believe there are legislators who hear from their school board that they’re against this,” Dunn reflected on Tuesday. “Instead of legislators sitting down and saying what’s best for students, it’s about what’s best for school bureaucracy.”

Research is mixed on whether vouchers help or hurt students. According to a 2015 review by the National Bureau of Economic Research, “vouchers have been neither the rousing success imagined by proponents nor the abject failure predicted by opponents.”

Undaunted, Dunn says he will sponsor voucher legislation again in the upcoming legislative session, which starts in January. But if vouchers pass this time, he said, it will be because of growing support for the program among Tennesseans, not because of Trump or DeVos.

“Education is a state issue,” he said.

changing of the guard

Will Indiana Republicans now move to make the state superintendent job appointed?

Now that a Republican is heading into the state superintendent office in January, Indiana lawmakers — Republicans and Democrats — might start singing a different tune about the powers of that office.

The office has been the subject of dispute since 2012 when Democrat Glenda Ritz defeated Republican Tony Bennett in a surprise upset, becoming the only Democrat elected to statewide office.

Since then, as Ritz clashed repeatedly with Gov. Mike Pence and other GOP lawmakers,  Republicans have openly questioned the role of Indiana’s state superintendent, suggesting the job should have less power and should be appointed by the governor rather than elected.

During Ritz’s superintendency, GOP lawmakers passed a bill giving the Indiana State Board of Education the right to choose its own leader rather than having the superintendent automatically assigned as board chair.

But in the weeks since Republican Jennifer McCormick blocked Ritz’s re-election bid, the GOP resolve to limit the state superintendent’s powers seems to have diminished.

There might also be changes on the other side of the aisle, where Democrats signaled their support for a strong superintendent could waver.

At Tuesday’s legislative Organization Day, House Speaker Brian Bosma, R-Indianapolis, said he’s advocated for reducing the superintendent’s power “for 30 years” but that he didn’t think he’ll make that a priority for the next legislative session beginning in January.

“I want to have a discussion with the superintendent-elect,” he said. “It’s probably not an issue for this session. Perhaps next.”

For Democrats who were in office when Indiana had Democratic governors, the question of appointing the state superintendent is a sticky one. Back then, Indiana had a Republican state superintendent and many Democrats argued the governor should appoint that position in order to have consistency in education policymaking.

But with Ritz in the role and constantly crossing swords with Pence, Democrats defended her against calls to strip power from her office.

Democratic House leader Scott Pelath of Michigan City said that’s why big changes, like taking away voters’ option to choose the state superintendent, shouldn’t be made lightly.

“On balance I think people like more choices rather than fewer at the ballot box,” he said. “I think we’ve had a system that has more or less functioned over a period of time. We shouldn’t change it without a great deal of hesitation.”

Even so, Pelath said he wasn’t necessarily opposed to making the superintendent job appointed.

“I have an open mind,” he said. “I could be convinced either way.”

With McCormick in and Ritz out, there could be a lot of second guessing on key questions about her role and her power.

Bosma was among a majority of Republicans who successfully backed a bill to change that longstanding rule, instead allowing the 11 board members to pick their own leader. Democrats opposed the change, arguing that it was a blatant attempt to take power away from the superintendent.

After fighting to give the board the option to choose someone besides the state superintendent as chair] — a right that kicks in for the first time next year —  Bosma declined to say whether he thinks the board members should simply select McCormick for the role. “I have not made a determination on that,” he said.

Pelath said he still thinks the state superintendent should chair the board, even if it’s McCormick.

“That’s one you can’t have both ways,” he said. “I support the way that it was before the attacks on Superintendent Ritz and the stripping of her abilities. If we’re going to have a state superintendent this person should be empowered to do something about education.”

Bosma said he wants to let the changes the legislature made to the state board play out.

“I think the system we put into place has worked,” he said. “Is it perfect? Probably not. We’ll let the new superintendent get her legs under herself first and get the Department of Education back on track, because I’m not sure it is right now, and let the dust settle.”