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.

beyond high school

Tennessee leads nation in FAFSA filings for third straight year

PHOTO: TN.gov
Bill Haslam has been Tennessee's governor since 2011.

Equipping more Tennesseans with the tools to succeed after high school has been a hallmark of Gov. Bill Haslam’s administration. And the efforts seem to be paying off as the governor heads into his final 18 months in office.

Haslam announced on Thursday that the state has set another new record for the number of high school seniors filing their Free Application for Federal Student Aid, also known as FAFSA.

With 73.5 percent completing the form for the upcoming academic year — an increase of 3.2 percent from last year — Tennessee led the nation in FAFSA filings for the third straight year, according to the governor’s office.

The increase isn’t surprising, given that students had a longer period to fill out the form last year. In order to make the process more user-friendly, the FAFSA window opened on Oct. 1 instead of Jan. 1.

But the increase remains significant. The FAFSA filing rate is one indicator that more students are pursuing educational opportunities beyond a high school diploma.

Getting students ready for college and career has been a major focus under Haslam, a businessman and former Knoxville mayor who became governor in 2011. He launched his Drive to 55 initiative in 2013 with the goal that at least 55 percent of Tennesseans will have postsecondary degrees or other high-skill job certifications by 2025.

“The continued surge in FAFSA filing rates shows the Drive to 55 is changing the college-going culture in Tennessee,” Haslam said in a news release. “First-time freshman enrollment in Tennessee has grown 13 percent in the past two years and more students than ever are going to college. As a state, we have invested in making college accessible and open to everyone and students are hearing the message.”

According to calculations from the Tennessee Higher Education Commission, Tennessee led all states by a large margin this year. The closest states or districts were Washington D.C., 64.8 percent; Delaware, 61.6 percent; New Jersey, 61 percent; and Massachusetts, 60.4 percent.

The commission calculated the filing rates using data provided through June 30 from the U.S. Department of Education.

Filing the FAFSA is a requirement to qualify for both state and federal financial aid and is part of the application process for most colleges and universities across the nation.

To get more students to complete the form, state and local FAFSA drives have been organized in recent years to connect Tennessee students with resources, guidance and encouragement.

U.S. Sen. Lamar Alexander has championed bipartisan efforts to simplify the FAFSA process. The Tennessee Republican and former governor introduced legislation in 2015 that would reduce the FAFSA paperwork from a hefty 108 questions down to two pertaining to family size and household income.

You can read more information about the FAFSA in Tennessee here.

an almost-deal

Albany deal appears close after Assembly passes two-year extension of mayoral control

Assembly Speaker Carl Heastie at a 2015 press conference with Democratic colleagues

After weeks of haggling by state lawmakers — and a day spent huddling behind closed doors — the stage is set for a possible two-year extension of Mayor Bill de Blasio’s control of city schools.

The Assembly passed a bill in the wee hours of Thursday morning that outlines both the extension and a number of other provisions, including the reauthorization of local taxes and the renaming of the Tappan Zee Bridge for the late Governor Mario Cuomo. Notably, it does not include sweeteners for the charter school sector, which Assembly Speaker Carl Heastie has forcefully opposed.

The state Senate is expected to return for a vote Thursday afternoon, though it is not yet clear if a deal has been reached. Scott Reif, a spokesman for Senate Majority Leader John Flanagan, did not confirm a final agreement, but told reporters Wednesday night that negotiations were “moving in the right direction.”

According to Politico, the text of the bill was released just before 11:30 p.m. and passed the Assembly around 1 a.m., by a vote of 115-15.

The bill was passed in an “extraordinary session” called by Governor Andrew Cuomo this week after lawmakers failed to reach a deal during the regular legislative session, which ended last Wednesday. Mayoral control is set to expire Friday at midnight, an imminent deadline that’s led to a flurry of “what-ifs.”

If the Senate approves the deal, it would be a victory for Mayor Bill de Blasio, who has repeatedly sought multi-year extensions but been granted only one-year reprieves. It would also allay the fears of education experts on both sides of the political aisle, who have spoken out on the need to retain mayoral control rather than returning to a decentralized system run by 32 community school boards.

Losing mayoral control “would be devastating,” wrote schools Chancellor Carmen Fariña in a June 19 op-ed. “If Albany lets mayoral control lapse, there will be no one accountable for progress.”

But not everyone was pleased with the way things have gone down this week. “Today’s extraordinary session produced nothing to celebrate,” wrote Assembly Minority Leader Brian Kolb in a statement released after the vote. “There is no victory in completing work that should have been done weeks ago. No one deserves applause for passing bills in the middle of the night out of public view.”