Who Is In Charge

Lobato plaintiffs pick apart state’s case

The state defendants in the Lobato v. State case “ignore the evidence and engage in speculation,” lawyers for the plaintiffs argued in a brief filed Wednesday with the Colorado Supreme Court.

Lobato v. State illustrationThe 80-page document is the plaintiffs’ formal reply to the attorney general’s appeal brief, submitted to the court on July 18. The state is appealing the December 2011 Denver District Court ruling that Colorado’s school finance system violates state constitutional guarantees of a “thorough and uniform” K-12 education system and also violates the constitution’s requirement for local control of instruction.

The Colorado Supreme Court’s ultimate decision in Lobato could have sweeping but hard-to-foresee effects on school districts, classrooms, the state budget and the taxes that Colorado citizens and businesses pay. A ruling for the plaintiffs could be costly, and a decision for the state could mean a lean future for Colorado schools.

Central to the state’s defense are the arguments that upholding the district court decision would be an unconstitutional judicial intrusion on the executive branch and the legislature, and that education spending must be balanced with other state budgetary needs.

The plaintiffs’ brief takes on both of those arguments.

It asserts that the first argument was settled by the Colorado Supreme Court’s 2009 ruling that the Lobato case could go to trial and that the courts had jurisdiction over the constitutional issues. The high court set a standard that the plaintiffs had to prove at trial that the school finance system isn’t “rationally related” to the state constitution’s education clause.

The state defendants “ask this Court to permit a dissatisfied litigant to keep re-litigating settled issues until it finds a receptive judge or justice. The Court should reject Defendants’ disregard for the Court’s decisions,” the plaintiffs’ brief argues.

Referring to Denver District Judge Sheila Rappaport’s 2011 decision, the brief reads, “The court did not dictate the new funding system’s structure or dollar amount, recognizing that ‘these are appropriately legislative and executive functions.’ … The trial in this case looked like any other trial on complex constitutional questions. The court heard competing evidence from lay and expert witnesses, found facts based on the persuasiveness of the evidence and the witnesses’ credibility, and applied the law to the facts. The court did not make education policy. Nor need this Court stray into the policy realm.”

On the issue of competing state needs, the plaintiffs’ brief reads, “Any need to fund non-school services cannot justify the arbitrary underfunding of education. The Lobato test [in the high court’s 2009 ruling] protects the affirmative rights stated in the Education Clause and respects the separation of powers doctrine. The trial court did not clearly err in finding that the legislature made no effort to determine the resources needed to provide, or to fund, a thorough and uniform system of schools. The record does not support defendants’ improper and premature speculation about the impact of the trial court’s decision on the State’s budget.”

Who’s who in the case

The plaintiffs include 67 individuals – parents and students – who live in six school districts, plus 21 school districts. They’re represented by Children’s Voices, a non-profit Boulder law firm, and by a variety of private lawyers. An additional 27 individuals living in four districts entered the case later as intervening plaintiffs and are represented by the Mexican American Legal Defense and Educational Fund.

The defendants are Gov. John Hickenlooper, the State Board of Education and education Commissioner Robert Hammond. They’re represented by Attorney General John Suthers and his staff.

Also filed Wednesday in support of the plaintiffs were a dozen “friend of the court” briefs representing 28 organizations or groups of people, including the Colorado Education Association, the Colorado Association of School Boards, the Colorado Association of School Executives, the ACLU of Colorado and the Bell Policy Center. A friend of the court is referred to as “amicus curiae” in legal language.

A smaller number of friend or amicus briefs were filed in July in support of the state’s case. Groups filing those briefs included the University of Colorado Board of Regents, three former governors, a coalition of business groups and two health care groups. The Colorado League of Charter Schools and the National Alliance for Public Charter Schools also filed what they called an “informational” brief in July.

The state’s argument

The primary assertion made in the state’s 64-page July brief is that the district court decision should be overturned because it ignores the state constitution and gives legislative and executive powers to the judiciary.

The state’s brief, along with most of the amicus briefs, also made the point that the high court needs to consider all state budgetary needs, not just whether K-12 funding is constitutional, in making its eventual decision.

The district court considered only the issue of whether the K-12 funding system meets constitutional requirements.

“Nothing in the Education Clause [of the state constitution] suggests the duty to provide a free public education overrides either legislative discretion or the competing demands for limited state revenue,” the state’s brief argued.

What’s next

The state has until Oct. 18 to file a reply to the plaintiffs’ brief, although it can request an extension. After that, the court will decide on the scheduling of oral arguments. Because the court has only a limited number of days each month for such arguments, it’s possible those won’t take place until next year.

The original Lobato lawsuit, filed in 2005, was rejected by two lower courts, but the state supreme court voted 4-3 in 2009 that it could go to trial.

Two of the four justices who voted to revive the case, then-Chief Justice Mary Mullarky and Justice Alex Martinez, have since left the court. Their replacements are Justice Brian Boatwright, a former district judge in Jefferson County, and Justice Monica Márquez, a former assistant attorney general. Márquez worked on previous stages of the Lobato case while serving in the attorney general’s office.

It’s up to an individual justice to decide whether to recuse oneself from a case.

A 3-3 supreme court tie on the Lobato appeal would have the effect of upholding the district court ruling.

Whatever the court’s ultimate decision, the question of school finance will end up in the legislature. The district court decision basically ordered the legislature to come up with a new system.

Even through the district court decision came down before the 2012 legislature convened, lawmakers pretty much ignored the issue this year pending appeal. The advocacy group Great Education Colorado is running an organized campaign to pressure lawmakers to take the issue up in 2013, and Sen. Mike Johnston, D-Denver, is working on possible school finance legislation for next year.

pushing back

State’s most drastic school intervention plans won’t work, say Memphis board members

PHOTO: Laura Faith Kebede
Shelby County Schools board member Stephanie Love

School board members in Memphis are pushing back on the state’s plan to intervene in two low-performing schools.

In their first public discussion of an intervention plan outlined this month by the Tennessee Department of Education, members of Shelby County’s board of education said they aren’t convinced the most drastic recommendations will work for Hawkins Mill Elementary and American Way Middle schools.

The state has recommended closing Hawkins Mill because of its low enrollment and poor academic performance. American Way is on the state’s track either for takeover by Tennessee’s Achievement School District or transfer to a charter organization chosen by Shelby County Schools beginning in the fall of 2019.

But school board members said they’d rather move both schools to the Innovation Zone, a turnaround program run by the local district which has had some success since launching in 2012.

And Superintendent Dorsey Hopson said he wants to keep Hawkins Mill open because the Frayser school is in its first year under his “critical focus” plan to invest in struggling schools instead of just closing them.

“I would prefer to stay the course,” he told board members Tuesday evening. “I don’t think the board should be forced to close something by the state.”

Whether local school leaders can make that call is up for debate, though.

The intervention plan is the first rolled out under Tennessee’s new tiered school improvement model created in response to a 2015 federal education law. State officials say it’s designed for more collaboration between state and local leaders in making school improvement decisions, with the state education commissioner ultimately making the call.

But Rodney Moore, the district’s chief lawyer, said the state does not have the authority to close a school if the board votes to keep it open.

Both Hawkins Mill and American Way are on the state’s most intensive track for intervention. The state’s plan includes 19 other Memphis schools, too, with varying levels of state involvement, but only Hawkins Mill and American Way sparked discussion during the board’s work session.

Until this year, Hawkins Mill was one of the few schools in the Frayser community that hadn’t been under a major improvement plan in the last decade — unlike the state-run, charter, and iZone schools that surround it. But last year, Hopson’s “critical focus” plan set aside additional resources for Hawkins Mill and 18 other struggling schools and set a three-year deadline to turn themselves around or face possible closure.

School board members Stephanie Love, whose district includes Hawkins Mill, said that timeline needs to play out. “I am in no support of closing down Hawkins Mill Elementary,” she said. “We have what it takes to fully educate our children.”

PHOTO: Tajuana Cheshier
Protests over the state takeover of American Way Middle School in 2014, which is in Rep. Raumesh Akbari’s district in Memphis, motivated her to file legislation designed to limit the power of the state’s Achievement School District.

American Way Middle has been on the radar of local and state officials for some time. In 2014, the state explored moving it to the ASD, but that didn’t happen because the southeast Memphis school had higher-than-average growth on student test scores. American Way has not kept up that high growth, however, and Chief of Schools Sharon Griffin considered it last year for the iZone.

Board member Miska Clay Bibbs, whose district includes American Way, was opposed to both of the state’s intervention options.

“What you’re suggesting is something that’s not working,” Bibbs said of the ASD’s track record of school turnaround based on its charter-driven model.

Bibbs added that any improvement plan for American Way must be comprehensive and offered up a resolution for consideration next week to move the school into the iZone next school year.

“We can no longer be: change a principal, tack on an extra hour. It has to be a holistic approach,” she said, adding that feeder patterns of schools should be part of the process.

Turnaround 2.0

McQueen outlines state intervention plans for 21 Memphis schools

PHOTO: TN.gov
Candice McQueen has been Tennessee's education commissioner since 2015 and oversaw the restructure of its school improvement model in 2017.

Tennessee Education Commissioner Candice McQueen has identified 21 Memphis schools in need of state intervention after months of school visits and talks with top leaders in Shelby County Schools.

In its first intervention plan under the state’s new school improvement model, the Department of Education has placed American Way Middle School on track either for state takeover by the Achievement School District or conversion to a charter school by Shelby County Schools.

The state also is recommending closure of Hawkins Mill Elementary School.

And 19 other low-performing schools would stay under local control, with the state actively monitoring their progress or collaborating with the district to design improvement plans. Fourteen are already part of the Innovation Zone, the Memphis district’s highly regarded turnaround program now in its sixth year.

McQueen outlined the “intervention tracks” for all 21 Memphis schools in a Feb. 5 letter to Superintendent Dorsey Hopson that was obtained by Chalkbeat.

Almost all of the schools are expected to make this fall’s “priority list” of Tennessee’s 5 percent of lowest-performing schools. McQueen said the intervention tracks will be reassessed at that time.

McQueen’s letter offers the first look at how the state is pursuing turnaround plans under its new tiered model of school improvement, which is launching this year in response to a new federal education law.

The commissioner also sent letters outlining intervention tracks to superintendents in Nashville, Chattanooga, Knoxville, and Jackson, all of which are home to priority schools.

Under its new model, Tennessee is seeking to collaborate more with local districts to develop improvement plans, instead of just taking over struggling schools and assigning them to charter operators under the oversight of the state-run Achievement School District. However, the ASD, which now oversees 29 Memphis schools, remains an intervention of last resort.

McQueen identified the following eight schools to undergo a “rigorous school improvement planning process,” in collaboration between the state and Shelby County Schools. Any resulting interventions will be led by the local district.

  • A.B. Hill Elementary
  • A. Maceo Walker Middle
  • Douglass High
  • Georgian Hills Middle
  • Grandview Heights Middle
  • Holmes Road Elementary
  • LaRose Elementary
  • Sheffield Elementary
  • Wooddale High

These next six iZone schools must work with the state “to ensure that (their) plan for intervention is appropriate based on identified need and level of evidence.”

  • Sheffield Elementary
  • Raleigh-Egypt High
  • Lucie E. Campbell Elementary
  • Melrose High
  • Sherwood Middle
  • Westwood High

The five schools below will continue their current intervention plan within the iZone and must provide progress reports to the state:

  • Hamilton High
  • Riverview Middle
  • Geeter Middle
  • Magnolia Elementary
  • Trezevant High

The school board is expected to discuss the state’s plan during its work session next Tuesday. And if early reaction from board member Stephanie Love is any indication, the discussion will be robust.

“We have what it takes to improve our schools,” Love told Chalkbeat on Friday. “I think what they need to do is let our educators do the work and not put them in the situation where they don’t know what will happen from year to year.”

Among questions expected to be raised is whether McQueen’s recommendation to close Hawkins Mill can be carried out without school board approval, since her letter says that schools on the most rigorous intervention track “will implement a specific intervention as determined by the Commissioner.”

Another question is why the state’s plan includes three schools — Douglass High, Sherwood Middle, and Lucie E. Campbell Elementary — that improved enough last year to move off of the state’s warning list of the 10 percent of lowest-performing schools.

You can read McQueen’s letter to Hopson below: