From the Statehouse

Lawyers make last Lobato case pitches

Debate over what makes a constitutionally adequate education dominated the Lobato v. State oral arguments before the Colorado Supreme Court on Thursday morning.

Lawyers David Hinojosa and Kathleen Gebhardt, along with plaintiff Taylor Lobato, met with reporters after Colorado Supreme Court arguments on March 7, 2013.
Lawyer Kathleen Gebhardt, along with plaintiff Taylor Lobato, met with reporters after Colorado Supreme Court arguments on March 7, 2013.

The high court is considering the state’s appeal of the 2011 ruling by a Denver district judge that the state’s school funding system isn’t “rationally related” to the state constitution’s requirement for a “thorough and uniform” public education system.

Potentially at stake in the case are billions of dollars in education spending and the shape of the state’s K-12 system.

The three lawyers who spoke faced the challenge of squeezing into 60 minutes the evidence, arguments and legal intricacies of a case that has stretched over eight years, took five weeks at trial and has produced hundreds of thousands of documents.

And the justices’ questions cut into the lawyers’ time.

The historic session drew a full crowd to the court’s new chambers in the Ralph Carr Judicial Center, and listeners spilled into two overflow rooms where the proceedings were broadcast live.

Do your homework
  • Learn more about the history, issues and parties involved in the Lobato case from the articles in the EdNews Lobato archive.

Many of the observers were looking for hints of the justices’ leanings in the questions they asked of lawyers Jonathan Fero, representing the state, and Terry Miller, representing the plaintiff parents and school districts. David Hinojosa of the Mexican American Legal Defense and Education Fund, who represents a separate group of clients, also spoke to the court.

One important fact about the case was revealed when the justices walked onto the bench and Justice Monica Marquez was not in the group.

Chief Justice Michael Bender then announced that Marquez would not be participating in the case. Appointed to the high court in 2010, Marquez worked on earlier parts of the Lobato case as an assistant attorney general, and there has been speculation about whether she would participate. That leaves an even number of justices – six – to decide one of the most important public policy cases in decades, creating the possibility of a tie on the court. In that case the district court decision would stand.

What the lawyers said

Jonathan Fero
Jonathan Fero / File photo

Fero, an assistant attorney general, repeatedly argued that having a thorough and uniform educational system doesn’t mean creating a system where every child is equally successful.

Yet that’s what Denver District Judge Sheila Rappaport concluded in her December 2011 decision – that “if any students aren’t making it the whole system is irrational,” Fero said.

“Universal achievement cannot be what the constitution requires,” he added.

Fero also repeated a central state argument, that if the court defines the meaning of “thorough and uniform” it will be stepping on the legislature’s authority and violating the separation of powers among branches of government.

Fero called the current finance structure “a very well thought-out system.”

Miller, one of the many volunteer lawyers on the plaintiffs’ legal team, argued that the question of the court’s role was settled in 2009, when the high court resurrected the original Lobato lawsuit and ruled it could be heard in district court.

“At the end of the day it’s this court that decides what a thorough and uniform system looks like. … Just declare a broken system unconstitutional and let the legislature do its job” to come up with a new system, Miller said.

Both he and Hinojosa disagreed that they want a “perfect” system or that Rappaport ordered the creation of one.

What the justices asked

Five of the six justices questioned the lawyers, with Chief Justice Michael Bender and Justice Gregory Hobbs taking the lead.

Hobbs seemed the most sympathetic to the plaintiffs.

Referring to the legislature, Hobbs said, “They’re setting all these [education] requirements and not backing it up” with funding.

“I’m very concerned that the state’s argument here is we don’t have any duty and should give up” trying to improve the system.

Bender noted that the court routinely rules on constitutional questions and asked Fero whether this case “different from other constitutional matters.”

The chief justice also asked if the state disagreed with the facts uncovered at trial about graduation rates, test scores and other achievement issues.

“We’re not challenging any of the factual findings, just the conclusions of law,” Fero said.

Justice Nathan Coats asked Fero about the state’s definition of “thorough and uniform education.”

“I don’t have a very helpful answer,” Fero said, adding that those three words are “extremely bare” in the constitution as to their meaning.

Terry Miller
Terry Miller

Bender asked Miller about “the balance between the role of the court and the role of the legislature.”

Miller replied, “Give the legislature the chance to do its job” and come up with “some rational determination of the cost” of standards-based education.

Bender asked how much time that might take.

“The legislature has a wide array of tools to use including time,” Miller said. “It doesn’t have to happen in one year.”

The only justice to ask no questions was Brian Boatright, who wasn’t on the court when it first considered the Lobato case in 2009 and voted 4-3 to revive it. (Two of the justices who voted on the prevailing side have since left the court.)

After the arguments wrapped up, Bender praised the “very lengthy, very articulate briefs. We have a lot of advice.”

What’s next

The Supreme Court has no deadline to rule in the case. Kathleen Gebhardt, lead attorney for the plaintiffs, told EdNews, “I’m hoping for three or four months.” The court has a variety of options ranging from upholding Rappaport’s ruling to sending the case back to her for further deliberations.

rules and regs

New York adds some flexibility to its free college scholarship rules. Will it be enough for more students to benefit?

PHOTO: Office of Governor Andrew M. Cuomo
Governor Andrew Cuomo delivered his 2017 regional State of the State address at the University at Albany.

New York is offering more wiggle room in a controversial “Excelsior” scholarship requirement that students stay in-state after graduating, according to new regulations released Thursday afternoon.

Members of the military, for example, will be excused from the rule, as will those who can prove an “extreme hardship.”

Overall, however, the plan’s rules remain strict. Students are required to enroll full-time and to finish their degrees on time to be eligible for the scholarship — significantly limiting the number who will ultimately qualify.

“It’s a high bar for a low-income student,” said Sara Goldrick-Rab, a leading expert on college affordability and a professor at Temple University. “It’s going to be the main reason why students lose the scholarship.”

The scholarship covers free college tuition at any state college or university for students whose families earn less than $125,000 per year. But it comes with a major catch: Students who receive Excelsior funding must live and work in New York state for the same number of years after graduation as they receive the scholarship. If they fail to do so, their scholarships will be converted to loans, which the new regulations specify have 10-year terms and are interest-free.

The new regulations allow for some flexibility:

  • The loan can now be prorated. So if a student benefits from Excelsior for four years but moves out of state two years after graduation, the student would only owe two years of payments.
  • Those who lose the scholarship but remain in a state school, or complete a residency in-state, will have that time count toward paying off their award.
  • Members of the military get a reprieve: They will be counted as living and working in-state, regardless of where the person is stationed or deployed.
  • In cases of “extreme hardship,” students can apply for a waiver of the residency and work requirements. The regulations cite “disability” and “labor market conditions” as some examples of a hardship. A state spokeswoman said other situations that “may require that a student work to help meet the financial needs of their family” would qualify as a hardship, such as a death or the loss of a job by a parent.
  • Students who leave the state for graduate school or a residency can defer repaying their award. They would have to return to New York afterwards to avoid having the scholarship convert to a loan.

Some of law’s other requirements were also softened. The law requires students to enroll full-time and take average of 30 credits a year — even though many SUNY and CUNY students do not graduate on time. The new regulations would allow students to apply credits earned in high school toward the 30-credit completion requirement, and stipulates that students who are disabled do not have to enroll full-time to qualify.

language proficiency

Educators working on creating more bilingual students worry new state requirements aren’t high enough

A second grade class at Bryant Webster K-8 school in Denver (Joe Amon, The Denver Post).

Colorado educators who led the way in developing high school diploma endorsements recognizing bilingual students worry that new legislation establishing statewide standards for such “seals of biliteracy” sets the bar too low.

Two years ago, Denver Public Schools, Eagle County Schools and the Adams County School District 14 started offering the seal of biliteracy to their students. The three districts worked together to find a common way to assess whether students are fluent in English and another language, and recognize that on high school diplomas. Advocates say the seal is supposed to indicate to colleges and employers that students are truly bilingual.

A bill passed by state legislators this year that will go into effect in August sets a path for districts that want to follow that lead by outlining the minimum that students must do to prove they are fluent in English and in another language.

According to the new law, students must meet a 3.0 grade point average in their English classes and also earn a proficient score on the 11th grade state test, or on Advanced Placement or IB tests. For showing proficiency in the second language, students can either earn proficient scores on nationally recognized tests — or meet a 3.0 grade point average after four years of language classes.

Although educators say the law sends a message of support for bilingual education, that last criteria is one part of what has some concerned.

“It allows for proficiency in a world language to be established solely by completing four years of high school language classes,” said Jorge Garcia, executive director of the Colorado Association for Bilingual Education. “Language classes in one school district may have a different degree of rigor than they do in another.”

The second language criteria should be comparable to the English criteria, several educators said. In the requirements set by Denver, Eagle County and Adams 14, students must at a minimum demonstrate language proficiency through a test score, or in some cases with a portfolio review and interview if a test is not available.

The three districts also catered their requirements based on what each community said was important. In Adams 14 and in Eagle schools, students must perform community service using their language skills. Students also have to do an interview in both languages with a community panel.

“Our school district team developed the community service criteria because we wanted our kids to have authentic practice in their languages,” said Jessica Martinez, director of multilingual education for Eagle County Schools. “We also wanted students to be a bridge to another community than their own. For example, one group of students created academic tutoring services for their peers who don’t yet speak a lot of English. Another student started tutoring her mom and her parents’ friends so they could get their GED.”

The state law doesn’t require students to do community service. But it does allow school districts to go above the state’s requirements when setting up their biliteracy programs.

“Thoughtful school districts can absolutely address these concerns,” Garcia said.

Several school districts in the state are looking to start their own programs. In March, the school board for the Roaring Fork School District in Glenwood Springs voted to start offering the seal. Summit School District also began offering the seal this year.

Leslie Davison, the dual language coordinator for Summit, said that although her program will change in the next year as she forms more clear requirements around some new tests, she will continue to have higher requirements than the state has set.

This year her students had prove proficiency in their second language by taking a test in that language. They also had to demonstrate English proficiency through the ACT. In addition, students did oral presentations to the community in both languages.

“Their expectations aren’t as high as mine are,” Davison said. “We’ll probably stay with our higher-level proficiencies. I do have some work to do in terms of how that’s going to look for next year, but I certainly don’t want to just use seat time.”

Meanwhile, the districts that started the seal are increasing their commitment to biliteracy so as many students as possible can be eligible to earn seals in the future.

The Adams 14 school district in Commerce City is using Literacy Squared, a framework written by local researchers for teaching students to read English by strengthening literacy in the native language. The program is being rolled up year by year and will serve students in 34 classrooms from preschool through fourth grade in the fall.

In Eagle County, Martinez said parents have shown such a strong demand for biliteracy that most elementary schools are now dual language schools providing instruction to all students in English for half of the school day and in Spanish for the other half.

Both districts are also increasing the offerings of language classes in middle and high school. The options are important for students who are native English speakers so they too can become bilingual and access the seal. For students whose primary language is not English, the classes can help ensure they don’t lose their primary language as they learn English.

Of Eagle’s 25 students who graduated with a seal of biliteracy this year, 17 were native Spanish speakers and eight were native English speakers.

“We want all kids to see their bilingualism is an asset,” Martinez said. “It’s huge for them.”