Ruling is in

Supreme Court rejects challenge to school funding formula

Ralph Carr Judicial Center

The Colorado Supreme Court in a 4-3 decision issued Monday rejected a constitutional challenge to part of the state’s school funding formula.

At issue in the case of Dwyer v. State of Colorado was the negative factor, a calculation the legislature has used to reduce school funding to balance the state budget.

“At the end of the day, the State has not reduced statewide base per pupil funding below its constitutional minimum. That fact torpedoes Plaintiffs’ lawsuit,” the opinion said. (See full opinion at bottom of article.)

The decision was not unexpected, but it deals a hard blow to advocates of increased school funding by closing the last big court option available to them.

“This disappointing decision has slammed the courthouse doors on the children of Colorado, cementing in place our uncompetitive levels of education investment,” said Kathleen Gebhardt, a lead lawyer for the plaintiffs.

“We just have to keep trying” to strengthen school funding, she added. “The new normal, it’s just not acceptable. … The next step has to be the voters,” perhaps with a ballot proposal to tweak constitutional requirements for school funding.

The suit was filed just over a year ago by a group of parents and school districts organized by Children’s Voices, the Boulder nonprofit law firm that also put together the Lobato v. State of Colorado lawsuit. That case challenged the state funding system on broader grounds and was rejected by the high court in 2013.

The target in the Dwyer case was much narrower — the negative factor and the proper interpretation of Amendment 23, the constitutional provision that requires K-12 funding to increase annually by population growth and the rate of inflation.

The plaintiffs asked that the negative factor section be stricken from the state’s school funding law and that the legislature be barred from reinstating the factor in another form. The suit didn’t ask that lost funding be restored.

The case boiled down to a fundamental disagreement between the plaintiffs and the state on two key issues — the definitions of base school funding and per-student funding.

“Plaintiffs’ challenge to the negative factor presents a surprisingly straightforward question of constitutional interpretation. Quite simply, this case is about one thing: the meaning of the term ‘base,'” the ruling said.

The court’s majority came down on the state’s side.

“By its plain language, Amendment 23 only requires increases to statewide base per pupil funding, not to total per pupil funding,” the majority wrote. “The Supreme Court therefore holds that the negative factor does not violate Amendment 23.”

The ruling said that principles of ballot measure interpretation “compel the conclusion that Amendment 23 only requires increases to statewide base per pupil funding, not total per pupil funding. We know that this is what Amendment 23 means, because this is exactly what Amendment 23 says.”

The ruling also said those legal principles required that “We presume that the negative factor is constitutional, and we will only void it if we deem it to be unconstitutional beyond a reasonable doubt.”

The negative factor has been an issue of increasing concern — and even bitterness — among school board members, administrators and teachers since the legislature first used it in 2010, when state revenues still were reeling from the recession.

State and local funding for basic school operations totals about $6.23 billion this school year, an average of $7,295 per pupil. Without the negative factor, total funding would be $885 million higher. (See this spreadsheet of how negative factor affects individual districts.)

Legislators from both parties have been sympathetic about the negative factor’s impact on schools, if not to the argument that it was unconstitutional. They have concerns about reducing the legislature’s budgeting flexibility and about impacts on other state programs.

But for the last two legislative sessions, lawmakers have worked to reduce the negative factor, which had produced a funding shortfall as high as $1 billion in past years.

Budget experts fear it will be increasingly difficult to shrink the negative factor more in the future. Despite rising state revenues, constitutional requirements for annual state spending caps and taxpayer refunds make it unlikely significantly larger amounts of money will be available for K-12 in 2016-17 and beyond. (See the 2016-17 projection from the Colorado School Finance Project and these models of future negative factor impacts.)

How Amendment 23 works

Passed by voters in 2000, Amendment 23’s backers intended for it to provide a predictable and growing source of funding for schools. The amendment’s goal was to restore per-pupil funding to 1988 levels over time.

State funding for schools comes in two major chunks. The larger amount, base funding, provides an identical per-student amount to every district. The second chunk, called factor funding, gives districts varying additional per-student amounts based on individual district characteristics such as numbers of at-risk students, low enrollment and cost of living for staff.  Local property and vehicle tax revenues also contribute to what’s called total program funding for schools.

A third, smaller pot of state support known as categorical funding provides money to districts for programs such as special education, gifted and talented and transportation. That money is not distributed by the same formula that governs total program funding.

A key fact is that up until the 2010-11 school year, the legislature applied the inflation-and-enrollment increase to both base and factor funding.

Behind the negative factor

In 2010, the legislature created the negative factor (originally called the stabilization factor) to control school spending as lawmakers continued to struggle with the overall state budget. It applied to the 2010-11 K-12 budget and has been in effect ever since.

The legal reasoning behind the negative factor is that Amendment 23 applies only to base funding, not to factor funding. The original legal rationale for the negative factor is based on a 34-page 2003 memo issued by the Office of Legislative Legal Services.

With state revenues improving, reduction of the negative factor was the top priority for education interest groups during the 2014 legislative session. Their proposals ranged as high as $275 million. In the end, lawmakers agreed to a $110 million reduction.

The Hickenlooper administration and legislative budget experts resisted a larger buy down, arguing that a bigger amount would put too much pressure on the state budget in future years. That can happen because reducing the negative factor puts more money into K-12 base funding, which is subject to Amendment 23’s multiplier in the future.

Behind the Dwyer lawsuit

The suit was filed about a month after the 2014 legislative session, during which supporters of increased school funding were unable to persuade lawmakers to make a big cut in the negative factor.

Lawsuit backers met with key lawmakers near the end of the session, but legislators reportedly refused to be swayed by any possibility of a lawsuit.

But discussions about a challenge to the formula had been in the works long before that.

The lead plaintiffs were Lindi and Paul Dwyer, who have four daughters in the Kit Carson district.

Other plaintiffs  included the Colorado Springs 11, Boulder Valley, Mancos, Holyoke and Plateau Valley school districts, along with the East Central Board of Cooperative Educational Services. Other plaintiffs were the Colorado Rural Schools Caucus (now known as the Rural Alliance) and the Colorado PTA. Four sets of parents with children in the Kit Carson, Lewis-Palmer and Hanover districts also signed on to the suit.

The case also drew several friend of the court briefs supporting either the plaintiffs or the state.

Briefs supporting the plaintiffs were 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.

Monday’s ruling was written Chief Justice Nancy Rice and supported by justices Brian Boatright, Nathan Coats and Allison Eid. Justices Monica Marquez, William Hood and Richard Gabriel dissented.

funding dance

Indiana to tap reserves to free up $140M for teacher pay, Holcomb promises

PHOTO: Dylan Peers McCoy/Chalkbeat
Governor-Elect Eric Holcomb speaks to Republican supporters at an Election night event.

Indiana plans to free up $140 million over two years for schools with the goal of increasing teacher pay, Republican Gov. Eric Holcomb pledged Tuesday night in his State of the State address.

The state will tap into its $2 billion in reserves to pay down a pension liability for schools, Holcomb said, reducing schools’ expenses so more money could go to educators.

“Just like paying off your mortgage frees up money in your personal budget, this state investment will save all local schools $140 million over the biennium with continued savings thereafter,” Holcomb said.

He said he hoped schools would use the savings to increase teacher salaries. Lawmakers said after the speech that they would look for ways to make sure local districts direct more dollars to teachers.

The freed-up funding would equate to relatively small raises for Indiana’s roughly 70,000 public school teachers. In a bill seeking designated funds for teacher pay, Sen. Eddie Melton, D-Gary, estimated it would cost $315 million to raise educators’ salaries by 5 percent over two years.

The move to find the money to increase teacher pay comes after education leaders raised concerns over not having earmarked dollars. Holcomb previously suggested that schools use their overall funding, proposed to increase by 2 percent each year, for teachers’ salaries. Other Republican lawmakers have also proposed increasing teacher pay by reducing school budgets in other areas.

Still, the $140 million would come from reduced expenses, not a new influx of state dollars. Lawmakers would still have to approve the move.

“Personally, I think it’s a wise use of surplus,” said House Speaker Brian Bosma, R-Indianapolis.

Against a backdrop of an ongoing teacher strike in Los Angeles and large-scale teacher demonstrations in places such as West Virginia, Oklahoma, and Arizona, Indiana has made addressing teacher pay a top priority in this year’s legislative session. Indiana ranks 18th highest in the nation for teachers salaries adjusted for cost of living, according to an analysis of data from the National Center for Education Statistics and Council of Community and Economic Research — leading some to fear teachers will flee to higher-paying states.

But while the issue has easily won bipartisan support and united unlikely allies, it has proved more difficult to find a solution — namely, the money — that satisfies educators and lawmakers on both sides of the aisle.

“It’s too early to pick a number,” Bosma said, though both Republican and Democratic leaders agreed after the speech that the $140 million — while a “creative” approach — wasn’t enough.

“We can do that this year,” said Senate Minority Leader Tim Lanane, D-Anderson. “We can find a way to give an increase in teacher pay this year. We don’t have to kick the can down the road. We don’t have to say, oh, let’s turn it back over to the local school districts and let them find the money.”

But a meaningful solution could take time: Holcomb also announced Tuesday night the formation of a commission to study teacher compensation and search for ways to improve salaries, with the goal of proposing action in 2021. Business leader Michael L. Smith, an investment fund co-founder and retired Anthem executive, will lead the commission.

“Teachers deserve compensation that reflects one of the most honorable, critical and challenging occupations in the state,” tweeted Lawrence Township teacher Tamara Markey, Indiana’s Teacher of the Year, who was among community leaders invited by House Republicans to provide social media commentary on the speech.

Holcomb’s State of the State speech also emphasized workforce development, including preparing high school students for careers. He introduced Mary Roberson, superintendent of Perry Central Community Schools, to tout the district’s partnerships with local manufacturers to give students hands-on training.

“A strong economy depends on a world-class workforce,” Holcomb said. “That workforce depends on a great education. A great education depends on great teachers.”

protest prep

Los Angeles teachers went on strike Monday. Here’s what you need to know.

Teachers, retired teachers and parents show their support for UTLA in front of Venice High School in Venice, Calif., on Jan. 10, 2019. (Photo by Brian van der Brug/Los Angeles Times via Getty Images)

The nation’s second-largest school district will be upended Monday as Los Angeles teachers are set to go on strike.

Teachers and their union say they are fighting for higher pay, lower class sizes, and more support for district schools. The district says it agrees with many of the union’s demands, but can’t pay for them given its fiscal realities.

The United Teachers of Los Angeles rejected a final offer from the district Friday afternoon, which included steeper class size reductions and more nurses and counselors for schools. There was no bargaining over the weekend.

What will happen at Los Angeles schools on Monday?

Schools will remain open — with other staff, emergency substitutes, and parent volunteers supervising kids. Teachers will be outside picketing. Inside, the L.A. Times reports that “schools have been preparing to keep students together in large spaces and use online education when they can.”

Is this a continuation of the #RedForEd wave of teacher protest?

Yes and no. Schools staying open marks one crucial difference from what happened when teachers went on strike in West Virginia last year, closing schools for nearly two weeks. That was the start of a wave of teacher activism focused on school funding and teacher pay, reaching Oklahoma, Kentucky, and Arizona.

The L.A. Times has a helpful look at why this strike is both similar to and different from the ones across the country last year. Unlike in those red states, it notes, California teachers can’t be portrayed as “victims of Republican machinations” because the state government is reliably Democratic:

An us-versus-them construct, however, does not translate readily to California, where unions are among the state’s most powerful special interests.

And L.A. teachers must face off against a district whose leaders echo their union’s demand for increased state and federal funding for schools.

The union leader also is trying to put forward a complex argument on funding. While [UTLA president Alex] Caputo-Pearl argues that the state needs to do much more, he also says that L.A. Unified is hoarding a fortune — and that district leadership is choosing to starve its schools.

What are the union and the district really fighting about?

The L.A. Times broke down the essential disagreement over funding in a separate story this weekend. In short: Although the district currently has a substantial surplus, the district’s analyses, as well as one from L.A. County, suggest it will soon turn into a deficit. The union claims the district is “hoarding” money, while the district says it’s simply being prudent. At the same time, a proposed budget from the state’s new governor, Gavin Newsom, could bring an infusion of new resources. Reporter Howard Blume ends it here:

Beutner says the union’s demands would cost $3 billion. That’s debatable, partly because the union has not responded to the district with specifics on how much smaller it is asking for classes to be. The union’s position, so far, is to demand the elimination of a contract clause that gives the district broad authority over class sizes. …

Everyone wants smaller class sizes — teachers, parents, students. But meaningful class-size reduction is one of the most expensive reforms in education.

What about charter schools?

Unlike in most places that saw teacher strikes last year, Los Angeles is set to see charter schools play a big role in striking teachers’ rhetoric.

The union has gone on the attack against charters, which serve about one in five Los Angeles public school students and are mostly non-unionized. UTLA recently called for stopping any new charters from opening, pinning the district’s financial struggles on their growth.

The union also believes that the district wants to implement a “portfolio model” of managing schools, a controversial idea that often brings about charter school growth and holds district and charter schools accountable for their results in similar ways. (The district says it has no such plans.)

These union–charter battles have deeply shaped the district’s politics. The last set of school board elections were the most expensive in American history, with charter supporters spending nearly $10 million and unions putting in over $5 million.

But the union’s contract demands only briefly touch on charters. Charters, though, are the focus of many district educators’ anger over not having the resources they say they need and, in the unions’ telling, amount to privatization of public education.

Some of L.A.’s charter schools share buildings with district schools, making some confrontation possible on Monday.

The head of the state charter association wrote an open letter to Caputo-Pearl before the strike. “Please be kind to both our District and charter community,” wrote Myrna Castrejón on Friday. “Students, parents, and school staff aren’t crossing picket lines to make political statements.” (The union’s strike guidelines tells members not to “get involved in confrontations or debates,” threaten people who cross the picket line, or block entrances for kids. “It’s okay to make adults wait a little while to get in [to schools], though,” UTLA says.)

As to the substantive debate, each side can point to research backing up one of their key points. Academic analyses from other states, as well as a union-backed report from Los Angeles, show that districts really do lose resources as charters grow, at least in the short term. At the same time, studies show Los Angeles charter students do better on state tests than similar students in district schools.

What does this mean for teacher unions nationwide?

As the strike kicks off, other teachers unions will be paying attention — wearing red in solidarity or watching for cues as they inch toward strikes of their own. In Denver, for one, the teachers union is entering its last week of negotiations. And as CALmatters noted on Jan. 11:

Issues at the forefront of the LAUSD dispute, such as rising pension costs, declining enrollment and the charged debate over charter schools, are also brewing in other school districts across the state.

The looming strike in Los Angeles has made ripples in local unions across California. Teachers in the Oakland Unified School District, for example, are nearing a potential strike and plan to rally Saturday similar to a demonstration UTLA held in downtown Los Angeles in mid-December.

What will the political ramifications of the strike be?

That’s not at all clear, and likely depends on the length of the strike and the public response. But there is a special election around the corner to fill the seventh seat on the closely divided LAUSD board. Expect the strike and its fallout to play a big role in the race.

A few prominent elected officials have also weighed in supporting teachers, including U.S. Senator Bernie Sanders and California Rep. Ro Khanna — though most national Democrats have been silent.

Los Angeles Mayor Eric Garcetti, who is mulling a run for president, has tried to broker an agreement between the two sides, to no avail. A strike would complicate a campaign kickoff.

“Launching a presidential bid while thousands of chanting, sign-toting teachers take to the streets would seem to be a non-starter,” the L.A. Times wrote. “A strike could force Garcetti to push back any presidential announcement, as better-known rivals enter the race, soak up media attention and begin fundraising.”