Who Is In Charge

Ruling a clean sweep for Lobato plaintiffs

A Denver judge’s ruling in the Lobato school funding case represents a sweeping legal victory – at least at the trial court level – for the parents and school districts that brought the case.

Lobato trial site
Site of Lobato trial in Denver City and County Building

In fact, District Judge Sheila Rappaport’s 189-page decision, issued late Friday afternoon, incorporates word-for-word much of a proposed ruling filed by the plaintiffs in late October.

It’s an established legal practice for lawyers to file documents called “proposed conclusions of law and findings of fact” in many complex civil lawsuits. Lawyers for the attorney general’s office filed their own 90-page findings-and-conclusions document, which could have formed the basis of a ruling in favor of the state, had the judge chosen that course.

Rappaport’s ruling also included small parts of the document filed by lawyers for the Mexican-American Legal Defense and Education Fund, who represented a separate group of plaintiffs but whose claims were basically the same as those of the main group.

“It tracks it very closely,” lead plaintiffs’ lawyer Kathleen Gebhardt said of how the judge’s ruling compares to Gebhardt’s proposed document.

The Rappaport ruling even included plaintiffs’ language that was critical of defense witnesses, such as:

• “Dr. Hanushek’s analysis that there is not much relationship in Colorado between spending and achievement contradicts testimony and documentary evidence from dozens of well-respected educators in the State, defies logic, and is statistically flawed.” (That referred to Eric Hanushek, a Hoover Institution economist who was a central expert witness for the state.)

• “Some of the State’s witnesses hold extreme views on education and school funding that are inconsistent with the Colorado Constitution and/or state reform legislation.” (That referred to Republican former Senate President John Andrews, who also testified for the defense.)

The Lobato case generated tens of thousands of pages of documents, including exhibits, expert-generated studies, witness depositions, state agency documents and reports and even news articles. The trial started at the beginning of August and stretched until the Friday before Labor Day. (Get links to many case documents here, including daily transcripts from the trial.)

The proposed findings of fact and conclusions of law filed by each party essentially laid out their summaries of all that evidence and the conclusions they believed the evidence led to, providing the judge a choice of rulings without having to create one from scratch.

Inside the ruling

District Judge Sheila Rappaport
Denver District Judge Sheila Rappaport

Rappaport’s ruling is big enough that it has a table of contents, but a chunk of the document is basically legal boilerplate and for-the-record material – including agreed-to facts, such as names of and information about the plaintiffs.

The bulk of the ruling – stretching for 160 pages – consists of summaries of witness testimony (cross referenced to pages of trial transcripts) and was taken word-for-word from the plaintiffs’ proposed findings of fact and conclusions of law.

The main topics covered in those summaries include the meaning of a thorough and uniform education system, the school finance system, the relationship between funding and a thorough and uniform system, the impacts of underfunding of education, the relationship of funding and educational quality, the effect of funding on education quality, Colorado student achievement, impact on special student populations, school construction and the impact on individual plaintiff school districts

The ruling also includes much of the plaintiffs’ take on the testimony of defense witnesses, including all the critical references.

Rappaport’s decision reaches these key conclusions:

• “The Court therefore concludes that the entire system of public school finance … is not rationally related to the mandate of the Education Clause.”

• “The public school finance system falls short of providing sufficient funding to meet the mandate of the Education Clause and standards-based education.”

• “Due to lack of access to adequate financial resources, the Plaintiff School Districts and the school districts where Individual Plaintiffs reside (collectively, the “School Districts”) are unable to provide the educational programs, services, instructional materials, equipment, technology, and capital facilities necessary to assure all children an education that meets the mandates of the Education Clause and standards-based education.”

• “The Court therefore concludes that Colorado public school children are not receiving the thorough and uniform educational opportunities mandate by the Education Clause.”

(Although the ruling doesn’t put it in these terms, it essentially says the legislature needs to pay for the education reforms it enacts, something it has not done for such major legislation as the 2008 Colorado Achievement Plan for Kids and the 2010 educator effectiveness act. In a sense, the Lobato ruling is the ultimate rebuke to the “unfunded mandates” that school district leaders constantly complain about.)

What’s next

Kathleen Gebhardt
Kathleen Gebhardt

Gebhardt said at a Saturday news conference in Colorado Springs that the plaintiffs hope the state won’t appeal, which would create a big assignment for the 2012 legislature in starting to work on a new school finance system.

But it’s expected that the state will appeal. Gebhardt estimates it would take the Colorado Supreme Court a year to decide the case, based what’s happened with past appeals in major state public policy cases.

Beyond an eventual court decision is the question of whether the state can afford to increase education spending and continue funding other state programs. Most observers expect that would require going to the voters for a tax increase, as the Taxpayer’s Bill of Rights requires.

That raises the yet-bigger question of what happens if the voters say no, as they did in November to a proposed tax increase for K-12 schools and higher education.

For now, Gebhardt says enigmatically, “The voters can’t ignore a court order.”

Text of Rappaport’s order

The first paragraph was taken from the plaintiffs’ proposed findings of fact and conclusions of law. The remaining text was added by the judge.

The Court finds that the Colorado public school finance system is unconstitutional.
Evidence establishes that the finance system must be revised to assure that funding is rationally related to the actual costs of providing a thorough and uniform system of public education. It is also apparent that increased funding will be required. These are appropriately legislative and executive functions in the first instance. Thus, the Supreme Court has directed that this Court shall “provide the legislature with an appropriate period of time to change the funding system so as to bring the system in compliance with the Colorado Constitution.” Taking these directions into account, the Court enters Judgment and Orders as follows:

Injunctive relief enters in favor of the Plaintiffs, and all of them, and against the Defendants, and all of them, as follows:

1. Defendants are enjoined from adopting, implementing, administering, or enforcing any and all laws and regulations that fail to establish, maintain, and fund a thorough and uniform system of free public schools throughout the state that fulfills the qualitative mandate of the Education Clause and the rights guaranteed to the Plaintiffs thereunder and that is in full compliance with the requirements of the Local Control Clause; including, without limitation the Public School Finance Act of 1994 in its entirety, categorical funding programs, and capital construction funding laws and regulations;

2. Defendants are further enjoined to design, enact, fund, and implement a system of public school finance that provides and assures that adequate, necessary, and sufficient funds are available in a manner rationally related to accomplish the purposes of the Education Clause and the Local Control Clause;

3. The Court hereby stays the enforcement of the injunctive relief set forth herein above in order to provide the State with a reasonable time to create and implement a system of public school finance that meets the mandates of the Education Clause and the Local Control Clause. This stay shall continue in effect until final action by the Colorado Supreme Court upon appeal of the Court’s decision; provided that if appeal is not perfected to the Colorado Supreme Court, this Court shall review the stay upon application of either party submitted no earlier than the conclusion of the 2012 legislative session. While this stay is in place and until further action by the Supreme Court or this Court, the present financing formula and funding may remain in effect.

Follow the money

In Denver school board races, incumbents outpacing challengers in campaign contributions

PHOTO: Melanie Asmar
Denver school board vice president Barbara O'Brien speaks at a press conference at Holm Elementary.
Donations to Denver school board candidates as of Oct. 12
    Barbara O’Brien, At-Large: $101,291
    Angela Cobián, District 2: $94,152
    Mike Johnson, District 3: $81,855
    Rachele Espiritu, District 4: $73,847
    Jennifer Bacon, District 4: $59,302
    Robert Speth, At-Large: $38,615
    “Sochi” Gaytán, District 2: $24,134
    Carrie A. Olson, District 3: $18,105
    Tay Anderson, District 4: $16,331
    Julie Bañuelos, At-Large: $7,737

Three Denver school board incumbents brought in more money than challengers seeking to unseat them and change the district’s direction, according to new campaign finance reports.

Board vice president Barbara O’Brien has raised the most money so far. A former Colorado lieutenant governor who was first elected to the board in 2013 and represents the city at-large, O’Brien had pulled in $101,291 as of Oct. 12.

The second-highest fundraiser was newcomer Angela Cobián, who raised $94,152. She is running to represent southwest District 2, where there is no incumbent in the race. The board member who currently holds that seat, Rosemary Rodriguez, has endorsed Cobián.

Incumbent Mike Johnson, who is running for re-election in central-east District 3, brought in far more money than his opponent, Carrie A. Olson. In a three-way race for northeast Denver’s District 4, incumbent Rachele Espiritu led in fundraising, but not by as much.

O’Brien, Cobián, Johnson and Espiritu had several big-money donors in common. They include former Denver Center for the Performing Arts chairman Daniel Ritchie, Oakwood Homes CEO Pat Hamill and Denver-based oil and gas company founder Samuel Gary. All three have given in past elections to candidates who support the direction of Denver Public Schools, which is nationally known for embracing school choice and collaborating with charter schools.

Meanwhile, teachers unions were among the biggest contributors to candidates pushing for the state’s largest school district to change course and refocus on its traditional, district-run schools. The Denver Classroom Teachers Association Fund gave the most money — $10,000 — to candidate Jennifer Bacon, a former teacher who is challenging Espiritu in District 4.

It gave smaller amounts to Xóchitl “Sochi” Gaytán, who is running against Cobián in District 2; Olson, who is challenging Johnson in District 3; and Robert Speth, who is running in a three-person race with O’Brien. Speth narrowly lost a race for a board seat in 2015. A supplemental campaign filing shows Speth loaned himself $17,000 on Oct. 13.

The two candidates who raised the least amounts of money also disagree with the district’s direction but were not endorsed by the teachers union and didn’t receive any union money. Tay Anderson, who is running against Espiritu and Bacon in District 4, counts among his biggest donors former Denver mayor Wellington Webb, who endorsed him and gave $1,110.

In the at-large race, candidate Julie Bañuelos’s biggest cash infusion was a $2,116 loan to herself. As of Oct. 11, Bañuelos had spent more money than she’d raised.

With four seats up for grabs on the seven-member board, the Nov. 7 election has the potential to shift the board’s balance of power. Currently, all seven members back the district’s direction and the vision of long-serving Superintendent Tom Boasberg. Mail ballots went out this week.

The new campaign finance reports, which were due at midnight Tuesday and cover the previous year, show that several of this year’s candidates have already raised more money than the candidate who was leading the pack at this time in the 2015 election.

O’Brien’s biggest contributor was University of Colorado president Bruce Benson, who gave $10,000. Other notable donors include Robin Hickenlooper, wife of Colorado Gov. John Hickenlooper; Lieutenant Governor Donna Lynne; and billionaire Phil Anschutz.

Several Denver charter school leaders, including Rocky Mountain Prep CEO James Cryan and KIPP Colorado CEO Kimberlee Sia, donated to O’Brien, Johnson, Espiritu and Cobián.

Political groups are also playing a big role in the election. The groups include several backed by local and state teachers unions, as well as others funded by pro-reform organizations.

Following the money

Douglas County slate that favors continuing school voucher court case is ahead in early fundraising, records show

Former State Board of Education member Debora Scheffel at a campaign event in 2016. Scheffel is now running for the Douglas County school board. (Photo by Nic Garcia/Chalkbeat)

A group of candidates that largely supports the direction of the Douglas County School District, especially its embrace of school choice policies, has raised nearly $100,000 in campaign contributions, new financial records show.

The group, which calls itself “Elevate Douglas County,” topped its competition, the “Community Matters” slate, by more than $30,000 in monetary contributions to committees for individual candidates.

A lot is at stake in the south suburban Denver school board contest. A majority of seats on the seven-member school board are up for grabs, putting the philosophical direction of the state’s third largest school district on the line.

For eight years, the school board has pushed a conservative education reform agenda that included developing a voucher program that would allow parents to use tax dollars to send their children to private school and establishing a market-based pay system for teachers.

While the Elevate slate has promised to reconsider and tweak many of the board’s most controversial decisions, such as teacher pay, the Community Matters slate has promised to roll back many of the previous board’s decisions.

The contrast between the two groups is most stark on the issue of the school district’s voucher program. Created in 2011, the voucher program has been tied up in courts ever since. The Elevate slate supports continuing the court case and reinstating the program. The Community Matters slate staunchly opposes vouchers and would end the court case.

According to records, the Elevate slate raised a total of $98,977 during the first campaign reporting period that ended Oct. 12. Grant Nelson raised the most, $34,373. The three other candidates — Ryan Abresch, Randy Mills and Debora Scheffel — each raised about $21,000.

All four candidates received $6,250 from John Saeman, a Denver businessman and the former chairman of the Daniels Fund. The foundation has financially supported the school district’s legal battle over the voucher program.

Other major contributors to the Elevate team are Ed McVaney, the founder of JD Edwards, and businesswoman Chrystalla Larson.

The Community Matters slate raised a total of $66,692 during the same period. Candidate Krista Holtzmann led the pack, raising more than $21,000. Her teammates — Anthony Graziano, Chris Schor and Kevin Leung — raised between $13,000 and $15,000 each.

Among the major donors to the Community Matters slate are Clare Leonard and Herschel Ramsey. Both Parker residents gave $1,000 each to all four candidates.

The campaign finance reports that were due Tuesday tell only part of the story. Earlier this week, special interest groups working to influence the election were required to report their spending.

The American Federation of Teachers, the nation’s second largest teachers union, has pumped $300,000 into the race in an effort to support the Community Matters slate.

Meanwhile, Americans For Prosperity, a conservative political nonprofit, is running a “social welfare” issue campaign promoting school choice. Because the nonprofit is not directly supporting candidates, it is not required to disclose how much it is spending. However, the organization said in a statement the campaign would cost six-figures.