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.

Colorado's 2017 General Assembly

Colorado students could earn biliteracy credential on diploma

A 2010 graduation ceremony of Denver's Bruce Randolph School (Hyoung Chang/ The Denver Post).

Colorado high school graduates next year likely will be able to earn a new credential that proves to colleges and employers they can communicate in at least two languages.

The House Education Committee on Monday approved Senate Bill 123, which lays out the criteria students must meet to earn a biliteracy endorsement.

The bill already has won support from the state Senate and faces one last debate in the House of Representatives before going to the governor’s desk.

Three school districts began issuing their own bilingual endorsements in 2016.

Last year, the State Board of Education rejected a resolution that would have encouraged more schools to develop their own seal of biliteracy. Republicans on the board voiced concern about a lack of statewide criteria and that the endorsement would be handed out unevenly.

If this bill becomes law, that would change.

For a students to earn the seal, they would need to prove they’ve mastered both English and another language by earning at least a B in all of their language classes, earning high marks on the English portion of the SAT, and pass both an English and foreign language test provided by either the Advanced Placement or International Baccalaureate programs.

If such a test doesn’t exist for a language the student has studied, the school may either create a test that must be vetted by the state education department or the student may submit a sample of work for review.

Ella Willden, a seventh grader at Oberon Middle School in Arvada, told Colorado lawmakers she and her fellow students are excited for the chance to earn the diploma seal, and that it would mean a better shot at a good college or career after high school.

“I know many of my classmates will jump at the chance to earn this seal if given the opportunity because they want to get into some of the top schools in the nation and they want every advantage they can get,” she said. “Whether I go to college or I go to work, this seal will open doors for me throughout the state.”


Lawmakers take first step to ease testing burden for young English language learners

PHOTO: Helen H. Richardson/Denver Post
Justin Machado, 9, reads on his iPad during his 3rd grade class at Ashley Elementary in 2015.

State lawmakers from both political parties are seeking to undo a controversial State Board of Education decision that called for schools to test thousands of Colorado’s youngest students in English — a language they are still learning.

House Bill 1160 cleared its first legislative hurdle Monday with unanimous support from the House Education Committee.

The bill would allow school districts to decide whether to use tests in English or Spanish to gauge whether students in kindergarten through third grade enrolled in dual-language or bilingual programs have reading deficiencies.

The bill is sponsored in the House of Representatives by Reps. Millie Hamner, a Frisco Democrat, and Jim Wilson, a Salida Republican.

If the bill becomes law, it would overrule a decision by the State Board of Education last year that required testing such students at least once in English. That meant some schools would need to test students twice if they wanted to gauge reading skills in a student’s native language.

Colorado’s public schools under the 2012 READ Act are required to test students’ reading ability to identify students who aren’t likely to be reading at grade-level by third grade.

The bill is the latest political twist in a years-long effort to apply the READ Act in Colorado schools that serve a growing number of native Spanish-speakers.

School districts first raised concern about double-testing in 2014, one year after the law went into effect. The state Attorney General’s office issued an opinion affirming that the intent of the READ Act was to measure reading skills, not English proficiency. The state board then changed its policy to allow districts to choose which language to test students in and approved tests in both English and Spanish.

But a new configuration of the state board in 2016 reversed that decision when it made other changes in response to a 2015 testing reform law that included tweaks to early literacy testing.

The board’s decision at the time was met with fierce opposition from school districts with large Spanish speaking populations — led by Denver Public Schools.

Lawmakers considered legislation to undo the board’s decision last year, but a committee in the Republican-controlled Senate killed it.

Capitol observers believe the bill is more likely to reach the governor’s desk this year after a change in leadership in the Senate.

Some members of the state board, at a meeting last week, reaffirmed their support for testing students in English.

Board member Val Flores, a Denver Democrat who opposed the rule change last year, said she opposes the bill. In explaining her reversal, Flores said she believes the bill would create a disincentive for schools, especially in Denver, to help Spanish-speakers learn English.

“If the district does not give the test in English, reading in English will not be taught,” she said.

Board member Steve Durham, a Colorado Springs Republican, said he still believes the intent of the READ Act was to measure how well students were reading in English.

“I think this is a serious departure from what the legislature intended initially,” he said last week. “The READ Act had everything to do with reading in English.”

Hamner, one of the sponsors of House Bill 1160, also sponsored the READ Act in 2012. She disagrees with Durham and told the House committee Monday that the intent was always for local school districts to decide which language was appropriate.

“We’re giving the local educators and districts the decision-making authority on what’s best for the students,” she said.

Multiple speakers on Monday said the requirement to test native Spanish speakers in English was a waste of time and money, and provided bad information to teachers.

“A teacher who teaches in Spanish will not be able to use data from an English assessment to drive their instruction, much like a hearing test would not give a doctor information about a patient’s broken arm,” said Emily Volkert, dean of instruction at Centennial Elementary School in Denver.

The bill only applies to students who are native Spanish speakers because the state has only approved tests that are in English and Spanish. Students whose native language is neither English nor Spanish would be tested in English until the state approves assessments in other languages.

“The question is can you read and how well,” said bill co-sponsor Wilson. “We’re trying to simplify that.”