First Person

A legal take on Lobato's future

Richard B. Collins is a member of the University of Colorado Law School and teaches a course called Colorado Government.

Lobato v. State hit the headlines when the Denver District Court held all the state’s school funding laws to be unconstitutional. The lawsuit claims that Colorado’s public school funding system violates the state constitution’s requirement that the General Assembly establish and maintain “a thorough and uniform system of free public schools.” This extraordinarily broad claim engages most of the major issues of constitutional jurisprudence, so our seminar is extensive.

We first consider separation of powers. The U. S. Supreme Court finds some legal claims to be beyond the courts’ powers, or “nonjusticiable,” because the Constitution commits them to final determination by Congress or the President. Opinions of the Colorado Supreme Court have said that this is a doctrine of our state Constitution, but the Court has never found an occasion to find any claim to be nonjusticiable. Lobato was a near miss.

In 2006 the Denver District Court held its claims to be committed to final resolution by the General Assembly, and the Colorado Court of Appeals affirmed in 2008. But in 2009 the Supreme Court reversed in an opinion that came close to deciding that all claims are justiciable in Colorado. However, the court’s vote was 4-3, and two members of the majority have been replaced, so it is difficult to conclude that the issue is finally settled. Whether the decision will be followed as precedent is discussed below in another part of our seminar.

The Supreme Court’s 2009 decision sent the case back to Denver District Court for trial. Plaintiffs made three broad claims. First, the funding system is unequal, and poorer districts lack sufficient resources to provide “thorough and uniform” schooling. Second, school children disadvantaged by poverty, handicap, or language must have greater than equal resources to achieve “thorough and uniform” schooling. Third, the system as a whole is underfunded; all districts need more money to achieve “thorough” schooling. The first claim, inequality between richer and poorer districts, is familiar to constitutional law. The others are relatively novel.

The second constitutional issue for our seminar is what level of deference the courts should give to legislative judgments. The Supreme Court’s 2009 opinion said the question for all claims is whether the state’s school funding system is “rationally related” to the requirement of “a thorough and uniform system of free public schools.” This sounds like the constitutional law standard for highly deferential review that sustains validity of most legislation. The district court’s sweeping decision seems to be based on a much stricter constitutional standard, but rationality is a sufficiently open concept to shelter a broad range of viewpoints. This also will be debated in the coming appeal.

The third question for our seminar is original intent about the meaning of “thorough and uniform” schooling. Should courts seek to apply constitutional language as it was understood by those who composed it and ratified it in 1876, or should constitutional meaning adjust with the times?

The district court’s decision paid some attention to original meaning, but its judgment ordered forms of educational support that have not existed for most of the state’s history. One way this question was addressed was to “rely on the legislature’s own pronouncements to develop the meaning of a ‘thorough and uniform’ system of education.”

Thus much of the court’s opinion was devoted to comparing Colorado schools as they are with modern studies, reports, and standards declaring what they ought to be. The four-justice Lobato Supreme Court majority announced this standard, but it is likely to be contested on appeal.

Our seminar’s fourth question is closely related to the third. To what extent should today’s courts follow past decisions of the Colorado Supreme Court based on the doctrine of precedent?

A 1982 decision, much discussed by the district court, rejected the claim that unequal funding of school districts violated the obligation to provide “thorough and uniform” schooling, and earlier decisions held that the obligation to provide “free” schooling did not extend to books and supplies. On the other side, the Supreme Court’s 2009 decision will be cited as precedent by plaintiffs in the appeal.

Last but far from least, our seminar must confront problems of legal remedy.

This is another important question about the separation of powers. Can the courts order a major increase in, or reallocation of, state revenue?

The district court held that revenue limits in the TABOR and Gallagher amendments should be disregarded in this lawsuit, and that “TABOR was not intended to restrict the growth of government.” It is difficult to see how the court’s injunction can be enforced without some way to increase revenue, so this question is also likely to be a prominent part of the appeal. A related issue is remedy for past harm. The district court did not order damages, so apparently plaintiffs did not ask it to.

The appeal will take at least a year, and the district court’s injunction will not be enforced until the appeal is decided. Our seminar can take time to study the issues.

First Person

‘I didn’t feel like I had anyone to ask for support’: Why it matters to have teachers who look like me

PHOTO: Alan Petersime

For 10 years — the first decade I was in school — all my teachers were white women.

As a Mexican-American kid, I didn’t get the chance to have a man of color as a teacher until high school. Going into my senior year, I like how diverse my teachers are now, but I wish I’d had the same experience when I was younger.

When I think about why it matters to have a teacher I can relate to, I think back to fifth grade. A classmate said to me, “Mexicans are illegal—they cross the border every day! How about you, did you cross the border?” This bothered me. So, after class, I asked the teacher for help. But all she said was, “That’s OK, he was just playing.” From there, I had nowhere to go. She was at the top of the food chain.

In 1990, before they met, my mother and father came over the border from Mexico. My mom’s parents weren’t making enough profit from their cattle ranch, so they had little choice but to immigrate. My mom came with them to the United States and worked at a restaurant so she could send money back home. My father followed his older brother here because he wanted to start a new life. Little did he know he would one day cross paths with my mother and eventually start a family.

But my classmate was “just playing” when he insulted all of this. I wish my teacher had done something else.

If I’d been the teacher, I would’ve taken a different approach and worked to understand why we were acting and responding the way we were. Maybe the other student and I could’ve found common ground. But, unfortunately, we never had a chance to try.

Up until ninth grade, I had zero male teachers of color. I didn’t feel like I had anyone to ask for support when things like the fifth-grade incident happened. Many of us students felt that way — and that’s why I want to be a teacher, a fifth-grade teacher in particular. I want to make my culture an asset in the classroom and be a teacher students feel comfortable confiding in, no matter their background.

A teacher’s perspective: Cut from the same cloth: Why it matters that black male teachers like me aren’t alone in our schools

In middle school, I started seeing more male educators, but they were all white. Then, when it came time for me to start high school, I ended up going to school in a different neighborhood — an hour commute away—and things finally changed for me. Since starting high school, I’ve had six male teachers of color, and it’s made a huge difference.

My high school makes a big deal out of the whole “building relationships” thing. To my teachers and everyone else at the school, relationships are just as important as academics. At first, it was hard to get used to, but eventually it started making sense to me. I’m in an all-male mentorship group led by two African-American men who openly share about their struggles growing up in New York, and give us advice in any area of life — including what it means to appreciate our cultures. This is one of the things I like most about my school.

It’s hard to explain the way it feels to have a teacher who looks like you; they’re like older brothers who become a huge part of our lives, even if it’s just for four years. They make it easier to connect and socialize and help me feel more like I belong. To me, learning from someone who reflects who you are is one of the best things a student can experience.

Near the end of the school year, my mentorship group did an activity where we took turns getting asked questions by other students and staff. One of the mentors asked me, “What’s it like being Mexican American and how has your background influenced your goals?” No one had ever asked me that before, and it took a long time for me to process the question.

After a few moments, I spoke a bit about my family’s story and shared some of the stereotypes I had encountered and how they affect me today. Everyone was so supportive, and the mentors encouraged me to continue breaking stereotypes and defining myself rather than letting others define me.

It was nerve-wracking at first, telling my story in that group, but after three years of high school, we’d developed that level of trust. It was the first time I’d shared my story with that many people at once, but it felt intimate and very different from the time in fifth grade when that kid tried to tell my story for me.

Finally having teachers that look like me has made a huge difference. They don’t just mentor me and help me with my academics, they also make my goal of becoming a teacher seem more realistic.

Having men of color I can look up to and model myself after is a big part of why I have no doubt I’ll make it to college — and eventually be able to give other kids the type of help my mentors have given me. I know where I’m needed, and that’s where I’m headed.

Jose Romero is a senior at EPIC High School North in Queens, New York. This piece originally appeared on the blog of TNTP, a national nonprofit and advocacy group that trains new teachers.

First Person

A Queens teacher on Charlottesville: ‘It can’t just be teachers of color’ offering lessons on race

PHOTO: Bob Mical/Creative Commons

In a few short weeks, school will resume in New York and I’m already thinking about how we are going to address racism within the four walls of my classroom. I’m thinking about what texts, historical and current, we can read and films and documentaries we can watch to support dialogue, questioning, and solutions for combatting that ugly, pervasive thread in the fabric of our country’s patchwork quilt called racism.

Last year we read “Narrative of the Life of Frederick Douglass,” a former slave turned abolitionist, and juxtaposed its reading with a viewing of Ava DuVernay’s documentary “13th,” which discusses modern-day slavery in the guise of mass incarceration. Students asked questions of the documentary as they watched it and discussed those queries within their groups and with the class at large afterwards.

We do our children and ourselves a disservice when we don’t have these difficult conversations as a part of our collective curriculums. However, many teachers from various walks of life are neither well-versed nor fully comfortable discussing race on any level with their students. Not talking about racism won’t make it go away. If anything, not talking about racism in the classroom further perpetuates racist ideologies that are, at their root, born out of ignorance. Education’s goal is to dispel ignorance and replace it with truth.

With that being said, just how many teachers feel equipped to facilitate lessons that touch heavily upon race in the classroom? Not nearly enough.

According to Teaching Tolerance, “The dialogue about race should start in the classroom — the teacher-prep classroom, that is. Preservice teachers should be exploring multiculturalism and discussing ways to honor diversity in their future classrooms.”

But often, Hilton Kelly, a professor of education at Davidson College in North Carolina told the site, the coursework isn’t giving future teachers the training they need to talk about race. “Even when future teachers take courses on diversity and multiculturalism,” Kelly said, “those courses don’t take the critical approach to race that future teachers truly need.”

“Food, folklore and festivals are not the same as an analysis of race in America,” Kelly argued.

But an analysis of race in America is exactly what needs to happen. Furthermore, it can’t just be teachers of color solely facilitating such lessons in their classrooms.

I don’t want to write about the events going on in Virginia. I don’t want to think about it. I’m so tired of the hatred and I long for peace, but I can’t very well in good conscience remain silent. That would be akin to protesting with those hate-mongers in Virginia last weekend. I can’t just write about back-to-school shopping, lesson planning, and business-as-usual while my brothers and sisters in Virginia are being murdered in cold blood by white supremacist American Nazis.

Are the children of Virginia safe? Are our children anywhere safe? What can I do to make a difference within the hearts and minds of the children whom I teach? If education is our best vehicle for bringing about change — which it is— how am I going to infuse the lessons I teach with critical thinking and analysis about racism in the United States for the seventh-graders entrusted in my care? How are other educators planning to address these events with their students at every grade-level?

I pose these questions to all who are reading. Whether you are a teacher, a student, a parent, an administrator, or a community member, I plead with you to work together to create answers that work toward healthy conversations and hands-on action in the fight against racism.

Vivett Dukes is a teacher at Queens Collegiate: A College Board School. A version of this post first appeared on New York School Talk