Who Is In Charge

High court revives Lobato “adequacy” suit

The Colorado Supreme Court Monday ruled 4-3 to overturn a lower court decision in the case of Lobato vs. State of Colorado, opening the way for lengthy judicial deliberations on whether the state’s school finance system is adequately funded.

StockSupCt101909While any final decision likely is years in the future, the high court’s ruling adds an important new dimension to the ongoing debate over school funding, a discussion that has been sharpened by the state’s severe budget challenges.

The Lobato case started in 2005 when large group of parents from eight school districts across the state and 14 school districts in the San Luis Valley sued the state, claiming that Colorado’s school finance system violates the state constitution’s requirement for a “thorough and uniform” public education system.

In March 2006 Denver District Judge Michael Martinez ruled against the plaintiffs, concluding the current system meets the requirements of Amendment 23, isn’t subject to court review and that the school districts didn’t have standing to sue.

A Colorado Court of Appeals panel upheld the district court decision in January 2008.

The high court’s decision Monday overturned all that and sends the case back to district court for trial.

The plaintiffs and education groups were buoyed by the decision.

But, Attorney General John Suthers, defending the state in the case, said, “This decision is not good news for the Colorado taxpayer. The majority opinion suggests the plaintiffs, who are seeking additional tax funding that could potentially involve billions of dollars, might find relief from the courts even though the legislature and the voters have determined current educational funding is adequate.”

According to a statement issued by Children’s Voice, plaintiff Anthony Lobato said, “We have been fighting for far too long for someone to recognize our children’s futures are in jeopardy.  I am extremely relieved and grateful that, after nearly five years in the court system, we will finally have an opportunity to expose the dire financial condition of our schools in this State.”  Children’s Voices is the public-interest law firm that originally brought the lawsuit.

George Welsh, superintendent of Center School District, said,  “We welcome the opportunity to show how the state’s lack of funding for education affects all students, from the lack of early childhood education programs to inadequate preparation for college and the work force.  The state’s lack of funding is preventing us from providing kids with a meaningful 21st century education.”

Two of the lawyers involved in the case, Alexander Halpern and Kathleen Gebhardt, called on “the legislature to act immediately to remedy the problem, thereby avoiding a costly and lengthy trial.”

That would seem unlikely, given the bleak revenue situation and constitutional restrictions facing lawmakers. It’s expected that the 2010 session will have to take an narrow interpretation of Amendment 23, which sets minimum levels of school funding, just to balance the 2010-11 state budget.

In an interview with EdNews, Gebhardt said, “We obviously are pleased with the court’s decision,” adding that the next step would be filing an amended complaint. “We are hoping for a trial within 12 to 18 months, hopefully on the 12 side.”

Others in the education world also were pleased by the ruling.

Ken DeLay, executive director of the Colorado Association of School Boards, said, “I think it’s a good decision and they struck a good balance. … We’ll see how it sorts out.” DeLay commented that it could take four to five years for the case ultimately to be decided. “Hopefully a decision will come between this recession and the next recession.”

“We have long been on the side of the people who say we have a school funding problem in the state of Colorado. This moves that discussion forward,” said Deb Fallin of the Colorado Education Association. “It will be years, but this is another step.”

Several education and other advocacy groups are part of the case as “friends of the court,” including the Colorado Education Association, the Colorado Association of School Boards, the Colorado Association of School Executives, the Colorado League of Charter Schools, the Colorado Lawyers Committee, the Colorado Center on Law and Policy, Great Education Colorado and Padres Unidos. They joined the case in support of the plaintiffs.

Here are some key portions of the high court’s decision:

“The Colorado Supreme Court holds that the plaintiffs may challenge the current state’s public school financing system as violating the Colorado constitutional mandate of the education clause requiring a ‘thorough and uniform’ system of public education,” the decision said. “Following 1982 precedent, the court holds that it is the responsibility of the judiciary to determine whether the plaintiffs prove that the public school finance system is not rationally related to this constitutional mandate.”

The “1982 precedent” was the Lujan case, which successfully challenged the equity of the school finance system. The Lobato case challenges the system’s adequacy.

“The court’s task is not to determine ‘whether a better financing system could be devised,’ … but merely to determine whether the system passes constitutional muster. …

“Accordingly, the plaintiffs must be provided the opportunity to prove their allegations.  To be successful, they must prove that the state’s current public school financing system is not rationally related to the General Assembly’s constitutional mandate to provide a ‘thorough and uniform’ system of public education.  …   If the trial court finds the current system of public finance irrational and thus unconstitutional, then that court must permit the legislature a reasonable period of time to change the funding system so as to bring the system in compliance with the Colorado Constitution.”

The high court also ruled that the existence of Amendment 23 is not a defense against any challenge to the school finance system’s adequacy, because A23 only sets minimum funding levels.

The opinion was written by Justice Michael Bender and supported by Chief Justice Mary Mullarky and justices Gregory Hobbs and Alex Martinez. All were appointed to the court by Democratic former Gov. Roy Romer.

Justice Nancy Rice wrote the dissent, citing various federal and state cases and a different interpretation of the Lujan case to argue that school finance is not a proper area for court jurisdiction. Rice, a Romer appointee, was joined in dissent by justices Nathan Coats and Allison Eid. Those two were appointed by Republican former Gov. Bill Owens.

While “adequacy” might currently be a concept whose definition is in the mind of the beholder, some people have taken a stab at estimating its cost. According to an estimate the Department of Education recently gave to a legislative study panel, funding an “ideal” K-12 education system could cost nearly $9 billion a year, compared to the $6.1 billion currently spent.

Adequacy has been a focus of interest and court action in several other states in recent years. Here’s information on court action around the country, as reported by the National Access Network, a project of Teachers College at Columbia University.

Read the decision here


Follow the money

Final Denver school board campaign finance reports show who brought in the most late money

PHOTO: Denver Post file
Victoria Tisman, 8, left, works with paraprofessional Darlene Ontiveros on her Spanish at Bryant-Webster K-8 school in Denver.

Final campaign finance reports for this year’s hard-fought Denver school board elections are in, and they show a surge of late contributions to Angela Cobián, who was elected to represent southwest Denver and ended up bringing in more money than anyone else in the field.

The reports also showed the continued influence of independent groups seeking to sway the races. Groups that supported candidates who favor Denver Public Schools’ current direction raised and spent far more than groups that backed candidates looking to change things.

No independent group spent more during the election than Raising Colorado, which is affiliated with Democrats for Education Reform. In the week and a half before the Nov. 7 election, it spent $126,985. That included nearly $57,000 to help elect Rachele Espiritu, an incumbent supportive of the district’s direction who lost her seat representing northeast Denver to challenger Jennifer Bacon. Raising Colorado spent $13,765 on mail opposing Bacon in that same period.

Teachers union-funded committees also were active in the campaign.

Individually, Cobián raised more money in the days before the election than the other nine candidates combined. She pulled in $25,335 between Oct. 30 and Dec. 2.

That includes a total of $11,000 from three members of the Walton family that founded Walmart: Jim, Alice and Steuart. The Waltons have over the years invested more than $1 billion in education-related causes, including the creation of charter schools.

Total money raised, spent by candidates
  • Angela Cobián: $123,144, $105,200
    Barbara O’Brien: $117,464, $115,654
    Mike Johnson: $106,536, $103,782
    Rachele Espiritu: $94,195, $87,840
    Jennifer Bacon: $68,967, $67,943
    Carrie A. Olson: $35,470, $35,470
    Robert Speth: $30,635, $31,845
    “Sochi” Gaytan: $28,977, $28,934
    Tay Anderson: $18,766, $16,865
    Julie Bañuelos: $12,962, $16,835

Cobián was supported in her candidacy by donors and groups that favor the district’s brand of education reform, which includes collaborating with charter schools. In the end, Cobián eclipsed board vice president Barbara O’Brien, who had been leading in contributions throughout the campaign, to raise the most money overall: a total of $123,144.

The two candidates vying to represent central-east Denver raised about $5,000 each in the waning days of the campaign. Incumbent Mike Johnson pulled in $5,300, including $5,000 from Colorado billionaire Phil Anschutz. Teacher Carrie A. Olson, who won the seat, raised $4,946 from a host of donors, none of whom gave more than $500 during that time period.

The other candidates raised less than $5,000 each between Oct. 30 and Dec. 2.

O’Brien, who staved off two competitors to retain her seat representing the city at-large, spent the most in that period: $31,225. One of her competitors, Julie Bañuelos, spent the least.

money matters

In election of big spending, winning Aurora candidates spent less but got outside help

Four new board members, Kyla Armstrong-Romero, Marques Ivey, Kevin Cox and Debbie Gerkin after they were sworn in. (Photo courtesy of Aurora Public Schools)

A slate of Aurora school board candidates that won election last month were outspent by some of their rival campaigns — including in the final days of the race — but benefited from big spending by a union-backed independent committee.

Outside groups that backed the winning slate spent more overall during the campaign, but wound down as pro-education reform groups picked up their spending in the last period right before the election. Those efforts were not enough to push their candidates to victory.

According to the last campaign finance reports turned in on Thursday and covering activity from Oct. 26 through Dec. 2, Gail Pough and Miguel Lovato spent the most from their individual contributions.

Together Pough and Lovato spent more than $7,000 on calls, canvassing and consulting fees. Both candidates were supported by reform groups and had been reporting the most individual contributions in previous campaign finance reports.

But it was the slate of candidates endorsed by the teachers union — Kevin Cox, Debbie Gerkin, Kyla Armstrong-Romero and Marques Ivey — that prevailed on election night.

How much did candidates raise, spend?

  • Gail Pough, $12,756.32; $12,328.81
  • Lea Steed, $1,965.00; $1,396.16
  • Kyla Armstrong Romero, $7,418.83; $3,606.12
  • Kevin Cox, $2,785.54; $2,993.07
  • Miguel Lovato, $16,856.00; $16,735.33
  • Jane Barber, $1,510.32; $1,510.32
  • Debbie Gerkin, $4,690.00; $4,516.21
  • Marques Ivey, $5,496.50; $5,638.57
  • Barbara Yamrick, did not file

The slate members spent varying amounts in the last few days before the election. For instance, Cox, who won the most votes, spent $403 while Ivey who recorded the fewest votes of the four winning candidates, spent $2,056.

Most of the slate candidates’ spending went to Facebook ads and consulting fees.

The four also reported large amounts in non-monetary contributions. Collectively, the slate members reported about $76,535 in non-monetary contributions, mostly from union funds, to cover in-kind mail, polling, office space and printing. All four also reported a non-monetary contribution in the form of a robocall from the Arapahoe County Democratic Party.

Other financial support for candidates, through independent expenditure committees, showed that the group Every Student Succeeds which was backed by union dollars and was supporting the union slate, spent less in the last days than the reform groups Raising Colorado and Families First Colorado which were supporting Pough and Lovato.

Overall, the independent expenditure committee groups spent more than $419,000 trying to sway Aurora voters.

Incumbent Barbara Yamrick failed to file any campaign finance reports throughout the campaign.

This story has been updated to include more information about in-kind contributions to the union-backed candidates.