Point counter-point

Lawyers offer clashing views on Colorado school funding shortfall

The two sides in a key school funding case offered sharply different interpretations in oral arguments before the Colorado Supreme Court on Wednesday.

The lawyers’ cases were interrupted repeatedly by the justices trying to tease out the meaning of the lawyers’ arguments.

The arguments were a key step in a lawsuit named Dwyer v. State, which challenges the constitutionality of the formula that the legislature has used since 2010 to reduce annual K-12 support and balance the state budget.

Lawyer Sean Connelly, representing the plaintiffs, argued that the formula (known as the negative factor), was devised with “the sole intent of circumventing the plain language and intent of Amendment 23,” the constitutional amendment that governs school funding.

But Senior Assistant Attorney General Jonathan Fero, representing the state, argued that Amendment 23 has clear language requiring annual growth only in “base” school funding, not all K-12 support. The language “provides the only answer the court needs because its meaning is plain,” Fero said.

The two sides have different interpretations of such key terms as “base funding” and “per-student funding,” a gap alluded to by Justice Nathan Coats.

“Reading the two sets of briefs, it’s like two ships passing in the night,” Coats remarked.

The case has crucial implications for Colorado’s school funding system and the overall state budget.

A ruling in favor of the plaintiffs could mean hundreds of millions in additional school support in future years but a possible severe squeeze on other state programs, including higher education. High court rejection of the suit likely would set a “new normal” for K-12 funding and be a bitter disappointment for school districts.

At issue is the meaning of Amendment 23, the 2000 constitutional provision that requires annual K-12 spending increases based on inflation and enrollment growth.

In 2010, the legislature created the negative factor formula to control school spending as lawmakers struggled to balance the overall state budget. The legal reasoning behind the negative factor is that A23 applies only to base per-student funding, not to additional state funds districts receive to compensate for staff cost of living, size, number of at-risk students, and other factors.

Prior to the budget crisis brought on by the 2008 recession, the legislature calculated K-12 increases based on both base and factor funding.

Fero argued that Amendment 23’s definition of the base is clear, and “there can be no question what this language refers to.”

The plaintiffs argue that use of the negative factor is “a charade.” Connolly said, “We should win because the state’s premise is wrong.”

Timothy Macdonald, the second plaintiffs’ lawyer who spoke, said use of the negative factor “renders Amendment 23 a hoax.”

Connelly and Madonald argued that the actual effect of using the negative factor has been to cut base funding, not factor funding.

Fero stuck to his position, saying, “I think they are trying to overcomplicate the case.”

Coats summed up the back and forth by saying, “It’s a question of what the base consists of.”

Use of the negative factor has created an annual funding shortfalls of about $1 billion. Despite improving state revenues and district pressure on lawmakers, the legislature has been able to make only modest reductions in the negative factor. It’s pegged at $855 million for the 2015-2016 school year. School funding will be $6.24 billion next year, compared to $5.93 billion in the school year that ends June 30.

Background of the case

The suit was filed in June 2014 by a group of parents, school districts and education organizations. The lead plaintiffs are Lindi and Paul Dwyer, who have four daughters in the Kit Carson district, and the case takes their name. A Denver judge rejected the state’s motion to dismiss the suit last December, sending the case to the state’s Supreme Court.

In addition to Connelly and Macdonald, the plaintiffs are being represented by Boulder public interest lawyer Kathleen Gebhardt.

The Dwyer case has attracted several friend-of-the-briefs in both sides. Briefs supporting the plaintiffs have been 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.

There’s no set deadline for the seven-member high court to issue a ruling.

Dwyer is the second major school-funding case to reach the high court in two years.

In late May 2013 the court rejected plaintiffs’ claims in the long-running Lobato v. State suit, which was a much broader challenge to the state’s school funding system. (See Chalkbeat’s Lobato archive here.)

The court issued its Lobato ruling less than three months after hearing oral arguments.

school facilities

Cold temps close Memphis state-run schools, highlighting bigger issue of repairing costly, aging buildings

PHOTO: Caroline Bauman
Georgian Hills Achievement Elementary was one of four school closed Tuesday due to heating issues.

More than 1,200 students in Tennessee’s turnaround district stayed home from school on Tuesday because their school heating systems weren’t working properly.

Temperatures dipped below 35 degrees, and four schools in the Achievement School District opted to cancel classes because of boiler issues: Georgian Hills Achievement Elementary School, Frayser Achievement Elementary School, Corning Achievement Elementary School, and Martin Luther King Jr. High School. In addition, Kirby Middle School decided to close Wednesday.

Aging school buildings in Memphis have caused headaches and missed school time for Shelby County Schools and the Achievement School District, which occupies buildings rent-free from the local district. Just last week, Hamilton High School in Shelby County Schools closed for two days after a power outage caused by heavy rain, and Kirby High School remains closed because of a rodent infestation. Kirby’s students are being housed in different schools for the rest of the semester while repairs are made to rid the school of pests. And Shelby County Schools had to deal with the dropping temperatures on Tuesday as well, with Westwood High School and Oak Forest Elementary ending classes early due to their own heating issues. Westwood High will remain closed Wednesday.

But Tuesday’s closures for state-run schools point to a larger issue of facilities: In a city full of older school buildings needing expensive updates, who pays, and who does the work? There is a formal maintenance agreement between the two districts, but the lines that divide responsibilities for repairs are not always clear.

Shelby County Schools is responsible for bigger fixes in the state district, such as new roofs or heating and air conditioning systems, while the state district’s charter operators are responsible for daily maintenance.

Bobby White, chief of external affairs for the Achievement School District, said they are working with Shelby County Schools to resolve the heating problem at the three elementary schools, two of which share a building. But he said that the issues won’t be fixed by Wednesday, and the schools will remain closed.

“We know it throws off our teachers and students to miss class,” White said. “It’s an unfortunate situation. And it underscores the larger issue of our buildings not being in good shape.”

The charter organization Frayser Community Schools runs MLK Jr. High School as part of the Achievement School District, and a spokeswoman for Frayser said they were handling the boiler repairs on their own as opposed to working with Shelby County Schools. School will remain canceled at the high school on Wednesday.

“Currently our maintenance team is working with a contracted HVAC company to rectify the heating issue,” Erica Williams told Chalkbeat. “Unfortunately, it was not resolved today, resulting in school being closed Wednesday. While our goal is to have school as soon as possible, we want to make sure it’s in a comfortable environment for our students.”

The state district was created in 2012 to turn around the state’s lowest-performing schools by taking over local schools and giving them to outside charter organizations to run. Shelby County Schools has a crippling amount of deferred maintenance for its school buildings, including those occupied by the state district, that would cost more than $500 million. The Shelby County district prioritizes how to chip away at that huge cost based on how many children are affected, the condition of the building, and the type of repair, spokeswoman Natalia Powers told Chalkbeat, adding that the district has made some major repairs at state-run schools.

But Sharon Griffin, chief of the Achievement School District told Chalkbeat previously that one of her goals is to resolve problems more quickly with Shelby County Schools when a major repair is needed to avoid lost class time.

Still counting

Jeffco bond measure that had been failing pulls ahead in narrow race

PHOTO: Andy Cross/The Denver Post
Students work on breathing exercises during a yoga class at the end of the school day at Pennington Elementary School.

Update: Over the weekend, the bond measure pulled ahead and is currently headed toward passage, with 50.3 percent of the vote. We’ll continue to update this post as new results come in.


Vote tallies released Thursday in Jefferson County show that a $567 million bond request is down by just 132 votes, opening up the possibility that it might yet pass.

We previously reported that Jefferson County voters had approved a $33 million local tax increase but turned down the bond request. At midday Wednesday, just 48 percent of voters had said yes. The gap was roughly 7,000 votes, and the trend hadn’t changed since the first returns were posted Tuesday evening. It appeared to mark the second time in two years that Jeffco voters had turned down a request to issue debt to improve school buildings.

But by Thursday evening, with additional ballots counted, the margin by which Jeffco Measure 5B was failing had narrowed significantly. The 132-vote margin is currently within the window that would trigger an automatic recount. A mandatory recount is triggered when the difference is one half of one percent of the number of votes cast for the higher vote count, according to officials from the Secretary of State’s office.

Backers of the tax measures are holding out hope the result could change.

District officials said they plan to use the proceeds of this year’s tax measures to raise teacher pay, increase mental health support for students, beef up school security, expand career and technical education, improve science facilities, add more full-day preschool, and buy classroom materials and technology.

On Wednesday, Katie Winner, a mother of two students in Jeffco schools, told us the two tax measures were closely tied and both equally needed.

“I want to know what voters were thinking,” she said. “I didn’t see one without the other.”

We’ll keep tabs on the counting and update you as soon as we have a final tally.