Ruling is in

Supreme Court rejects challenge to school funding formula

Ralph Carr Judicial Center

The Colorado Supreme Court in a 4-3 decision issued Monday rejected a constitutional challenge to part of the state’s school funding formula.

At issue in the case of Dwyer v. State of Colorado was the negative factor, a calculation the legislature has used to reduce school funding to balance the state budget.

“At the end of the day, the State has not reduced statewide base per pupil funding below its constitutional minimum. That fact torpedoes Plaintiffs’ lawsuit,” the opinion said. (See full opinion at bottom of article.)

The decision was not unexpected, but it deals a hard blow to advocates of increased school funding by closing the last big court option available to them.

“This disappointing decision has slammed the courthouse doors on the children of Colorado, cementing in place our uncompetitive levels of education investment,” said Kathleen Gebhardt, a lead lawyer for the plaintiffs.

“We just have to keep trying” to strengthen school funding, she added. “The new normal, it’s just not acceptable. … The next step has to be the voters,” perhaps with a ballot proposal to tweak constitutional requirements for school funding.

The suit was filed just over a year ago by a group of parents and school districts organized by Children’s Voices, the Boulder nonprofit law firm that also put together the Lobato v. State of Colorado lawsuit. That case challenged the state funding system on broader grounds and was rejected by the high court in 2013.

The target in the Dwyer case was much narrower — the negative factor and the proper interpretation of Amendment 23, the constitutional provision that requires K-12 funding to increase annually by population growth and the rate of inflation.

The plaintiffs asked 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 didn’t ask that lost funding be restored.

The case boiled down to a fundamental disagreement between the plaintiffs and the state on two key issues — the definitions of base school funding and per-student funding.

“Plaintiffs’ challenge to the negative factor presents a surprisingly straightforward question of constitutional interpretation. Quite simply, this case is about one thing: the meaning of the term ‘base,'” the ruling said.

The court’s majority came down on the state’s side.

“By its plain language, Amendment 23 only requires increases to statewide base per pupil funding, not to total per pupil funding,” the majority wrote. “The Supreme Court therefore holds that the negative factor does not violate Amendment 23.”

The ruling said that principles of ballot measure interpretation “compel the conclusion that Amendment 23 only requires increases to statewide base per pupil funding, not total per pupil funding. We know that this is what Amendment 23 means, because this is exactly what Amendment 23 says.”

The ruling also said those legal principles required that “We presume that the negative factor is constitutional, and we will only void it if we deem it to be unconstitutional beyond a reasonable doubt.”

The negative factor has been an issue of increasing concern — and even bitterness — among school board members, administrators and teachers since the legislature first used it in 2010, when state revenues still were reeling from the recession.

State and local funding for basic school operations totals about $6.23 billion this school year, an average of $7,295 per pupil. Without the negative factor, total funding would be $885 million higher. (See this spreadsheet of how negative factor affects individual districts.)

Legislators from both parties have been sympathetic about the negative factor’s impact on schools, if not to the argument that it was unconstitutional. They have concerns about reducing the legislature’s budgeting flexibility and about impacts on other state programs.

But for the last two legislative sessions, lawmakers have worked to reduce the negative factor, which had produced a funding shortfall as high as $1 billion in past years.

Budget experts fear it will be increasingly difficult to shrink the negative factor more in the future. Despite rising state revenues, constitutional requirements for annual state spending caps and taxpayer refunds make it unlikely significantly larger amounts of money will be available for K-12 in 2016-17 and beyond. (See the 2016-17 projection from the Colorado School Finance Project and these models of future negative factor impacts.)

How Amendment 23 works

Passed by voters in 2000, Amendment 23’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.

State funding for schools comes in two major 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 individual 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. That money is not distributed by the same formula that governs total program funding.

A 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.

Behind the negative factor

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 Amendment 23 applies only to base funding, not to factor funding. The original legal rationale for the negative factor is based on a 34-page 2003 memo issued by the Office of Legislative Legal Services.

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 Amendment 23’s multiplier in the future.

Behind the Dwyer lawsuit

The suit was filed about a month after the 2014 legislative session, during which supporters of increased school funding were unable to persuade lawmakers to make a big cut in the negative factor.

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

But discussions about a challenge to the formula had been in the works long before that.

The lead plaintiffs were Lindi and Paul Dwyer, who have four daughters in the Kit Carson district.

Other plaintiffs  included 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 were the Colorado Rural Schools Caucus (now known as the Rural Alliance) and the Colorado PTA. Four sets of parents with children in the Kit Carson, Lewis-Palmer and Hanover districts also signed on to the suit.

The case also drew several friend of the court briefs supporting either the plaintiffs or the state.

Briefs supporting the plaintiffs were filed by the Colorado Association of School Boards and the Colorado Education Association, among others. A brief supporting the state’s position was filed by several business groups, including the Denver Metro Chamber of Commerce.

Monday’s ruling was written Chief Justice Nancy Rice and supported by justices Brian Boatright, Nathan Coats and Allison Eid. Justices Monica Marquez, William Hood and Richard Gabriel dissented.

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.