Court reverses Lobato school finanace decision

The Colorado Statesman

Colorado’s system of public school finance will remain intact, at least until voters have a chance in November to decide whether to shift (and pay for) a new public school finance system.

This week, the Colorado Supreme Court voted 4 to 2, absent the participation of Justice Monica Marquez, to side with the state on State of Colorado v. Lobato. The Court’s decision reversed a lower court ruling that said the state system of financing public education was unconstitutional.

Justice Nancy Rice wrote the majority opinion, which was joined by Justices Brian Boatwright, Nathan Coats and Allison Eid. Chief Justice Michael Bender and Justice William Hobbs dissented.

The lawsuit was filed in 2005 by 47 individuals, almost all of them parents representing their minor children, and 14 school districts in the San Luis Valley. That same year, the state, represented by Attorney General John Suthers, asked the courts to dismiss the case, stating that school finance decisions are the purview of the General Assembly. While the district court and court of appeals agreed with the state, in 2009, the Colorado Supreme Court reversed those decisions and ordered the matter to trial. That trial took place in 2011, where Denver District Court Judge Sheila Rappoport ruled for the plaintiffs, but delayed implementation of her order until the Court had a chance to review the appeal.

The original complaint challenged the constitutionality of Colorado’s K-12 funding system, noting that education reform efforts, beginning in the 1990s, imposed instructional and other mandates on school districts but without the funding to accomplish those mandates. The plaintiffs also claimed that the Education Clause of the state constitution, which calls for a “thorough and uniform” system of free public education, implies that the state must also provide a uniform funding of school districts.

The Court’s majority did not agree. The opinion centered on the definition of “thorough and uniform,” which the Court noted had never been defined before. So they came up with one: “through and uniform” means a “free public school system that is of a quality marked by completeness, is comprehensive, and is consistent across the state.” As to the uniform funding claims, the opinion cited a 1982 case, Lujan v. Colorado State Board of Education, which said “thorough and uniform” does not necessarily require absolute equality in educational services or funding, a system restricting each school district to equal spending per student, or even to provide free textbooks to all students.

The Court noted just what the minimum standard would be for a thorough and uniform education system: one that is provided to all state residents between the ages of six and 21 years old; and a system that has one or more public schools open at least three months of the year.

The Court didn’t ignore what it called “disparities in wealth” between one school district and another, but
said that such disparities don’t require the Court to strike down the entire system.

But while the Court maintained that they had a role in reviewing Lobato, the opinion concluded that it is not the Court’s job to determine whether a better financing system could be created. “Courts must avoid making decisions that are intrinsically legislative. It is not up to the court to make policy or to weigh policy,” the opinion stated.

The ruling shocked plaintiff’s lead counsel Kathleen Gebhardt of Children’s Voices. Gebhardt told this week that the requirement of a three-month school year, no textbooks and no minimum funding makes Colorado’s public school standards the lowest in the nation. She relayed the story of one school administrator, a plaintiff in Lobato, who explained the decision to his fifth-grade daughter. Her response: “what’s a textbook?” It wasn’t because the school uses computers for instruction: it’s because the school has no textbooks for elementary school children, Gebhardt explained.

“It puts us at the bottom,” Gebhardt said. “When people understand the standard is set so low, they should expect more for their kids.”

Attorney General John Suthers, who defended the state throughout the seven-year case, said Tuesday that he was pleased that the Court had finally recognized that the education funding system “satisfies constitutional standards…To be sure, our education system is not perfect. The proper bodies to fix this complex policy issue, however, are the general assembly, governor, state and local school boards, teachers, parents, students and the people of Colorado, not lawyers and judges.”

Richard Collins, a constitutional law expert at the University of Colorado, told The Statesman that the Lobato case was an effort to come up with a different theory on “thorough and uniform” funding, to rely on adequacy of funding rather than equal protection, which was what the Lujan suit claimed. “Courts are not going to order the state” to increase school funding, Collins said. And while Lujan (a ruling in favor of the state) set the precedent for discussions around school funding, Collins said Lobato attempted to find a different theory for a different result. “It came close,” he added.

The Lobato case means the Court accepts the state’s argument that school finance doesn’t belong in the courts, according to Kevin Welner, a professor of education and director of the National Education Policy Center at CU-Boulder. Welner said this week that the impact of Lobato is that “we should trust the politicians to act responsibly” when it comes to school finance. “Clearly, we’re going to have to take their word for it. We will have to turn to the governor and legislators to trust that they will act responsibly and give meaning to this idea of ‘uniform and through’ and adequate resources and opportunities for kids.”

Welner said Senate Bill 13-213, the new school finance act that was signed last week by Gov. John Hickenlooper, was never designed to fully meet the needs raised by Lobato. Welner referred to it as a “down payment” on the current system. The Court’s opinion, especially the dissents filed by Justices Bender and Hobbs, indicates the system is inadequate, Welner said. And despite the funding provided by Amendment 23 and Referendum C in the past decade, Welner said educational opportunities have steadily deteriorated for Colorado’s children. “I see nothing in the immediate future that will change that,” Welner said. “That’s the sad part.”