Funding & Finance

Lawsuit claims school funding reduction mechanism unconstitutional

Updated 9 a.m. – A group of school districts and parents filed a lawsuit Friday arguing that the device used by the legislature to control annual K-12 spending, the so-called negative factor, is unconstitutional.

The suit, filed against the state in Denver District Court, argues that the negative factor violates Amendment 23, the constitutional provision that requires school funding to increase by inflation and enrollment growth every year.

The suit has been expected for some time and opens a new front in the policy war over the negative factor, a conflict that intensified during the 2014 legislative session. It’s estimated that use of the negative factor has cut about $1 billion a year from what school districts otherwise would have received for basic operating costs. (See text of suit here.)

The plaintiffs ask that the negative factor section be stricken from the state’s school funding law and that the legislature be barred from reinstating the factor in another form. The suit does not ask that lost funding be restored.

Lead lawyers in the case are Timothy Macdonald of Arnold and Porter and Kathleen Gebhardt of Children’s Voices, a Boulder public interest law firm. She was the lead lawyer in the long-running Lobato v. State school funding suit, which was thrown out by the Colorado Supreme Court in 2013. (Get full background on the Lobato case here.)

Kathleen Gebhardt / File photo
PHOTO: Scott Elliott
Kathleen Gebhardt / File photo

Gebhardt told Chalkbeat Colorado that the final decision to file was made on Tuesday, partly because recent state revenue forecasts (see story) indicate continued improvement in state finances.

“It’s a simple claim, just that the negative factor violates Amendment 23,” Gebhardt said, describing it as a very different case from the complex Lobato suit.

The plaintiffs in the new case include the Colorado Springs 11, Boulder Valley, Mancos, Holyoke and Plateau Valley school districts, along with the East Central Board of Cooperative Educational Services. Other plaintiffs are the Colorado Rural Schools Caucus and the Colorado PTA. Four sets of parents with children in the Kit Carson, Lewis-Palmer and Hanover districts also have signed on to the suit.

The lead plaintiffs are Lindi and Paul Dwyer, who have four daughters in the Kit Carson district, and the case takes their name, Dwyer v. State. Gov. John Hickenlooper and Education Commissioner Robert Hammond are the named defendants in the suit.

Lawyers from four Denver law firms have agreed to assist Gebhardt with the case without charge.

What Amendment 23 does

Passed by voters in 2000, A23’s backers intended for it to provide a predictable and growing source of funding for schools. The amendment’s goal was to restore per-pupil funding to 1988 levels over time. For the first 10 years after passage the amendment required that funding increase an additional 1 percent a year on top of the increases for inflation and enrollment.

State funding for schools comes in two chunks. The larger amount, base funding, provides an identical per-student amount to every district. The second chunk, called factor funding, gives districts varying additional per-student amounts based on district characteristics such as numbers of at-risk students, low enrollment and cost of living for staff.  Local property and vehicle tax revenues also contribute to what’s called total program funding for schools.

(A third, smaller pot of state support known as categorical funding provides money to districts for programs such as special education, gifted and talented and transportation. While A23 requires overall categorical funding to increase by inflation every year, the money is not distributed by the same formula that governs total program funding.)

The key fact is that up until the 2010-11 school year, the legislature applied the inflation-and-enrollment increase to both base and factor funding. (Because of the recession, in 2008-09 and 2009-10 the legislature cut school funding by other means.)

Behind the negative factor

School funding chart
Source: Colorado legislative staff. Click for larger view

With the economy still squeezing state revenues, in 2010 the legislature created the negative factor (originally called the stabilization factor) to control school spending as lawmakers continued to struggle with the overall state budget. It applied to the 2010-11 K-12 budget and has been in effect ever since.

The legal reasoning behind the negative factor is that A23 applies only to base funding, not to factor funding. And while the original A23 factors are intended to increase school funding, the negative factor gives lawmakers a tool for reducing it. This is the key issue under attack in the new lawsuit. The negative factor hasn’t been tested in court before. Its rationale is based on a 34-page 2003 memo issued by the Office of Legislative Legal Services at the request of then-Rep. Keith King, R-Colorado Springs. (Read memo here.)

“Amendment 23 precludes the General Assembly from purporting to grow the base but then slashing overall education funding by fundamentally revamping or jettisoning the [finance] formula as in effect in 2000,” the suit argues.

The policy debate

Negative factor impact
  • $5.9 billion K-12 funding in 2014-15 with
  • $6.8 billion without

A23 isn’t the only constitutional provision that applies to the state budget. Among other things, the constitution requires a balanced state budget every year, limits the amount of new revenue that can be spent even in years of high growth and restricts property taxes in a way that has reduced growth of local district revenues.

Because of those restrictions, policymakers who support the negative factor argue that it’s necessary to prevent K-12 spending from consuming larger and larger shares of the state’s general fund budget and squeezing out other state programs.

With state revenues improving, reduction of the negative factor was the top priority for education interest groups during the 2014 legislative session. Their proposals ranged as high as $275 million. In the end lawmakers agreed to a $110 million reduction.

The Hickenlooper administration and legislative budget experts resisted a larger buy down, arguing that a bigger amount would put too much pressure on the state budget in future years. That can happen because reducing the negative factor puts more money into K-12 base funding, which is subject to A23’s multiplier in the future.

Lawsuit backers met with key lawmakers near the end of the session, but legislators reportedly refused to be swayed by any possibility of a suit.

What happens next

As usually happens in these kinds of constitutional cases, the attorney general is expected to ask the district court to dismiss the suit. If that happens, the plaintiffs would appeal to the Colorado Court of Appeals.

Assuming the case stays alive in district court one way or another, both sides could file their written arguments by the end of the year – creating a pile of legal documents for the 2015 legislature to ponder as lawmakers consider the 2015-16 budget and how big a negative factor to include.

Interest groups already are gearing up to push for additional factor buy downs in 2015, and a live lawsuit will provide additional fuel and tension for the debate.

 

money matters

Why money for Memphis schools is about to be based on students, not adults

PHOTO: Laura Faith Kebede
Under a budget model switch, Shelby County Schools would focus more on the types of students in their buildings and less on the number of staff per school.

Educators generally agree that a one-size-fits-all approach to teaching doesn’t work. Now school leaders in Memphis are saying it doesn’t work when distributing money to schools, either.

Beginning this July, Tennessee’s largest district will pilot student-based budgeting at up to eight schools, with the expectation of expanding to the entire district in three years. The goal is to distribute money more equitably.

Under the new method, each student brings to their school a certain dollar amount, which can grow based on factors like whether the student has a disability, is an English language learner, or comes from a low-income family.

That’s a big change from traditional budgeting, which distributes money primarily based on how much it costs to pay the salaries of adults who work in a building. The traditional model usually allocates less money to schools with high-needs students because they generally employ less experienced and lower-paid teachers.

The new approach would give principals more say in how they allocate money within their building. The system also appeals to those who want schools with greater challenges to receive more funding. And recently, student-based budgeting got a boost from President Donald Trump, whose proposed budget includes $1 billion in incentives for school districts with poor students that make the switch.

Leaders with Shelby County Schools have been working for more than a year with Education Resource Strategies, a Massachusetts-based consulting organization, to lay the groundwork for the transition. The method already is being used in districts in Nashville, Indianapolis, Denver, Boston and Houston.

David Rosenberg, a partner at Education Resource Strategies, said traditional budgeting models cater to the most politically savvy principals who find funds for academic programs and interventions in system loopholes. Student-based budgeting changes the dynamic to empower principals, making them more like CEOs than strict academicians. It also means principals will have to learn more about the complexities of budgeting.

“It works because you make it more flexible for schools and teams for how they see fit within parameters the district provides,” Rosenberg said.

During the next few months, the Memphis district will analyze how money is being allocated to its schools — which ones don’t have enough funds and which ones have too much under the new formula. The change will create winners and losers, and it’s the losers that concern some school board members.

PHOTO: Caroline Bauman
Lin Johnson, finance chief of Shelby County Schools

The board is generally supportive of student-based budgeting and is scheduled next week to vote on a resolution endorsing it. But board members also want the transition to be as painless as possible in a district that they say is underfunded by the state.

Finance chief Lin Johnson reassured board members at a work session this week that the district can mitigate losses for schools with less money. Options include tapping a separate pool of money to lessen the shock and giving some schools an extra year for the transition.

“The goal is not to fund all schools equally, but equitably (and) to make sure the funding we have is meeting the unique needs of students,” he said. “We need to work with schools to provide training and examples, to give schools the support they need to maximize the resources that they have.”

In Metropolitan Nashville Public Schools, which fully switched to student-based budgeting 2015, about 60 percent of schools received more money than the previous year. The rest received the same amount.

In other districts, the model has had the effect of shaking up central office structures, increasing the need for fiscal oversight, and stretching principal capacity.

Below is a video from Nashville’s school district to explain how student-based budgeting was rolled out there.

Compromise

Teacher pay overhaul would establish merit pay, tackle salary inequities

PHOTO: Laura Faith Kebede
Trinette Small, chief of human resources for Shelby County Schools, explains the district's proposal for a new teacher pay structure.

Since 2014, Superintendent Dorsey Hopson has tried to establish a merit pay plan for teachers in Shelby County Schools but, for one reason or another, it’s eluded the district.

Now, his team is trying again — and they’ve come up with a proposal that they hope will help Tennessee’s largest district retain its most talented teachers, while also appealing to teachers that previously have balked at shifting to performance-based pay.

The proposal unveiled Tuesday would address inequities in the pay structure that have given higher salaries to newly hired teachers than to existing teachers with the same experience for up to 10 years.

Any subsequent raises would be based on teacher evaluation scores of 3 to 5 on the state’s 1-to-5 model, which is based on classroom observations and student test scores.

The plan also would resurrect additional compensation for job-related advanced degrees — but only in the form of bonuses if the teachers rate 4 or 5. The same goes for hard-to-staff teaching positions such as in special education, math and science, as well as veteran teachers who have reached the district’s maximum salary, which would go from $72,000 to $73,000.

The overhaul would take effect next school year using $10.7 million earmarked in Hopson’s proposed $945 million spending plan for 2017-18. The school board is scheduled to vote on the budget in April.

Recruiting and retaining effective teachers is a high priority as Shelby County Schools seeks to boost test scores in low-performing schools with many poor students. And research shows teachers have the most influence on student achievement.

Trinette Small, chief of human resources, said the district has to keep its pay structure competitive to retain its most effective teachers, especially with six municipal school systems nearby.

“This is trying to get base pay stabilized,” Small told school board members during a budget review session. “This is an investment in teachers but this is something we can afford.”

In exit surveys, a fourth of high-performing teachers cited noncompetitive pay as their reason for leaving the district, she said. And most who left had the second-highest evaluation score.

The plan pleased school board members, and parts of it appeared to appeal to teachers unions, although its leaders still had some concerns.

Chairman Chris Caldwell said the new structure positions the district for a more stable learning environment.

“The big point about the change was to have (pay) merit-based and not just longevity-based because at a certain point, they plateau,” Caldwell said. “The main thing we got to worry about is student draining and teacher draining.”

School board member Mike Kernell said the plan should boost teacher morale by addressing inequities in the system. “I think by resetting this, we’re going to start seeing more experienced teachers at the right level starting to help the younger teachers without the resentment that you’re making $2,000 less,” he said

Tikeila Rucker, president of the United Education Association of Shelby County, was mostly pleased with the proposal but took issue with tying pay for advanced degrees with evaluation scores. Teachers should be rewarded in their base pay for advanced degrees, not through bonuses, she said.

Rucker and Keith Williams, executive director of the Memphis-Shelby County Education Association, both said the initial leveling up should apply to all teachers on the former step schedule up to 17 years, instead of stopping at 10.

“If you’re going to abandon the schedule system, at least level everyone up,” Williams told Chalkbeat. “If it’s not going to benefit everybody, you might as well throw it in the trash.”

Small said the leveling up is meant to make teacher pay competitive with new hires. Since the district only incorporates up to 10 years of experience in pay for new teachers, the leveling up was limited to the same.

The New Teacher Project provided consultation on the district’s pay plan by gathering data, conducting focus groups and crafting the compensation model.

Editor’s note: This story has been updated to show the district proposes to level up pay up to 10 years of experience.