Updated Dec. 10 – Plaintiffs in and supporters of the Lobato v. State lawsuit savored a moment of celebration Saturday morning, gathering on the steps of the Colorado Springs District 11 headquarters to meet with reporters and urge the legislature to act on school funding reform.
The Lobato family and Center Superintendent George Welsh (right)
“What a great opportunity for the people of Colorado, what a great opportunity for the legislature to step up and fund schools,” said Anthony Lobato, a rancher in Center.
Daughter Taylor, now a student at the University of Denver, joked that “the ruling is a little late for me” but said she hopes the judge’s ruling in favor of the plaintiffs will lead to a better funding system and “ensure no more students fall through the cracks.”
Mother Denise and daughter Alexa also were in the front row at the news conference, along with Center Superintendent George Welsh.
Kathleen Gebhardt, lead attorney for the plaintiffs, said, “We call on the governor and the attorney general not to appeal” the ruling. But she has acknowledged that an appeal is likely and said she expects it could be a year before the Colorado Supreme Court decides the case.
Text of Friday story follows
A Denver District Court judge has ruled in favor of the plaintiffs in the Lobato v. State school funding lawsuit, finding the state’s spending formula for K-12 schools does not meet constitutional requirements for a “thorough and uniform” school system.
The next step for the case is expected to be review by the Colorado Supreme Court.
“We think it’s a great day for the children of Colorado,” said a jubilant Kathleen Gebhardt, one of the plaintiff’s attorneys, who was giving a presentation on the lawsuit at the Colorado Association of School Boards convention when she got the news. “We’re calling on the legislature to step up immediately and fix the problem.”
Mike Saccone, spokesman for Attorney General John Suthers, said, “We are going to consult with the governor in the coming days on this decision. However, if you read the opinion, the judge clearly invited an appeal and, at this point, an appeal is likely. The attorney general is disappointed in the ruling but not surprised. It was clearly very tempting for the judge to wade into what is a public policy debate.”
“We will carefully review the ruling and consult with the Attorney General’s office in the coming days. The state will almost certainly appeal this decision,” said Eric Brown, spokesman for Gov. John Hickenlooper.
The lawsuit did not ask Denver District Judge Sheila Rappaport to order the state to pay up or provide a specific amount. Instead, it asked the court to decide whether the state school finance system fails to meet constitutional requirements and if the legislature should be ordered to come up with a new one.
The heart of Rappaport’s ruling, starting on page 182 of the decision, reads:
“The Court finds that the Colorado public school finance system is unconstitutional. Evidence establishes that the finance system must be revised to assure that funding is rationally related to the actual costs of providing a thorough and uniform system of public education. It is also apparent that increased funding will be required. These are appropriately legislative and executive functions.”
Rappaport ordered that the state stop implementing and enforcing “any and all laws and regulations that fail to establish, maintain, and fund a thorough and uniform system of free public schools,” including the current school finance act.
She also ordered the state “to design, enact, fund, and implement a system of public school finance that provides and assures that adequate, necessary, and sufficient funds are available in a manner rationally related to accomplish the purposes of the Education Clause and the Local Control Clause” of the state constitution.
But – and this is a big but – Rappaport stayed those orders “until final action by the Colorado Supreme Court upon appeal of the Court’s decision.
“While this stay is in place and until further action by the Supreme Court or this Court, the present financing formula and funding may remain in effect.”
“What’s really important, this will not be a judicial takeover of the education system,” Gebhardt said. “This is just telling the legislature – time to do your job.”
It was difficult to hear Gebhardt at times because of the celebration in the background at the CASB convention at the Broadmoor Hotel in Colorado Springs. The celebrations continued into the evening.
Rumors that a ruling was imminent began circulating at the end of the week. The case, which was originally filed in June 2005, wrapped up Sept. 2 after five weeks of testimony before Rappaport.
Kathleen Gebhardt
Studies done for the plaintiffs estimate that “full funding” of Colorado schools could cost $2 to $4 billion more a year than the state spends now. Such increases would wreck the state budget and decimate other programs say Hickenlooper, a defendant, and Suthers, who oversaw the state’s defense.
The two took the unusual step of calling a news conference on the eve of the trial to warn of the serious effects of a ruling for the plaintiffs.
Hickenlooper spoke to the CASB convention Friday morning, before the ruling was released, and said he believes a solution to the state’s financial constraints has to come from the grassroots (see story).
Colorado is in a difficult position because the legislature is unable to raise taxes to meet any future court order about school funding. (The Taxpayer’s Bill of Rights requires all tax increases be approved by voters.) That’s why Hickenlooper argues that a court-ordered hike in school funding would force cuts in other programs.
That possible fiscal squeeze wasn’t part of the Lobato trial last summer. Rappaport ruled that the trial was to focus solely on whether the school funding system meets the educational sections of the constitution.
Given the time involved in a supreme court appeal, the 2012 legislative session may not have to take any action on Lobato. But the issue is expected to hang over legislative discussion. Hickenlooper has proposed another cut in school spending for 2012-13 – $89 million – and that figure could go higher if lawmakers don’t agree to other parts of the governor’s budget plan.
Lobato is a lawsuit about “adequacy,” or whether the state’s school finance system is adequate and is appropriately designed to support the kind of education required in the state constitution, which mandates a “the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.”
The large group of plaintiffs who brought the suit argued that the current finance system is underfunded and allocates money in an “irrational and arbitrary” way that violates the “thorough and uniform” standard. Lawyers for the plaintiffs argued during trial that education requirements passed by the legislature, including recent reforms like the Colorado Achievement Plan for Kids and the educator effectiveness law, provide a detailed definition of what thorough and uniform means.
Further, they claimed the system doesn’t provide constitutionally adequate education to disabled, poor and minority students or to English language learners and doesn’t provide enough funding to meet state requirements for instruction and student achievement. Plaintiffs also claimed the current system violates constitutionally guaranteed local control of schools because it doesn’t give school districts enough money to fully exercise that control.
- Read the EdNews’ backgrounder on Lobato and trial coverage
The main group of plaintiffs includes parents and school districts around the state. A second group of plaintiffs, represented by lawyers from the Mexican American Legal Defense and Education Fund, joined the case later. Those plaintiffs, parents of students in several low-income districts, attacked the school finance system on grounds related to services for poor students and English language learners.
David Hinojosa, lead attorney for the MALDEF plaintiffs, said, “The court’s courageous decision is the first step in fixing a broken educational system that disproportionately harms at-risk and ELL students. We hope the General Assembly will see this as a wake-up call and live up to its responsibility under the Colorado Constitution by fully and fairly funding educational opportunity for all school children, including Colorado’s most vulnerable.”
The Colorado Supreme Court framed the Lobato issues in an Oct. 19, 2009, ruling that directed the case be heard in district court. (At that time the high court ruled that the issue could be heard by the courts. The attorney general had argued that school finance was an issue for the legislative and executive branches, not the judicial branch.)
“To be successful, they [plaintiffs] must prove that the state’s current public school financing system is not rationally related to the General Assembly’s constitutional mandate to provide a ‘thorough and uniform’ system of public education. … The trial court must give substantial deference to the legislature’s fiscal and policy judgments. It may appropriately rely on the legislature’s own pronouncements concerning the meaning of a ‘thorough and uniform’ system of education. If the trial court finds the current system of public finance irrational and thus unconstitutional, then that court must permit the legislature a reasonable period of time to change the funding system so as to bring the system in compliance with the Colorado Constitution.”
While the ultimate outcome of the Lobato case could have serious implications in Colorado, such education adequacy suits are nothing new and have cropped up in many states. The question of whether court-ordered funding increases improve educational quality was a major point of dispute between dueling expert witnesses during the trial, with voluminous evidence introduced about the effects of court ruling in other states.
Plaintiffs react
“I know we were real optimistic, and I was optimistic,” Anthony Lobato, the lead plaintiff, told Education News Colorado’s partner 9News. “But until the ruling actually came down, I had no idea.
“I don’t know what to say. I almost feel numb. It’s beyond emotion right now. I think when it starts to sink in it’s just going to be fantastic,” he said.
Lobato, a Center rancher with deep roots in the San Luis Valley, and his wife filed the suit on behalf of their daughters, one who’s still in high school and one who’s now at the University of Denver.
“I’m on a big high,” said George Welsh, Center superintendent and an active figure in the lawsuit. “I felt that we were going to win the case, [but] I’m thrilled.”
Welsh said he notified the Lobatos by phone, calling that “the thrill of a lifetime.”
He said the news was brought to the convention session on the case when Mary Wickersham, a staff member at the Colorado Children’s Campaign, came into the room and whispered to Gebhardt. “Her eyes got real big,” Welsh said.
“We just broke out cheering, and we went crazy.”
The organizing forces behind the suit were Children’s Voices, a Boulder public-interest law firm, and CASB, which helped recruit numerous school districts to sign on as plaintiffs and/or to donate money toward legal costs.
Jane Urschel, Colorado Association of School Boards (file photo)
Several smaller rural districts are among the plaintiffs, along with the Jefferson County, Littleton and Aurora districts in the metro area. The ruling came just as Jeffco announced that a study committee had proposed $70 million in additional cuts over the next two years for the state’s largest district.
Hick says that this ruling, if upheld, will “decimate other programs”. Which ones? That’s a serious question because I’d like to know precisely what combination of other programs outweighs the future of our children. Perhaps, when programs that TABOR supporters care about (public ed not being one of them) are affected, we’ll actually be able to overturn this misguided and hurtful amendment.
The level of funding for public education in Colorado is shameful. Even more shameful is that we can’t even get our governor, a Democrat, to put up a fight. DINO-Democrat in Name Only!
Finally, a true victory for every child that has left a Colorado school unprepared for further academic success and for every great teacher and principal who has been blamed for the challenges when our communities have continued to fail to provide the resources that would help to make a difference. Judge Rappaport took note of how little we invest in our children and has made a courageous statement. What has yet to be seen is whether our State’s politicians will care enough to finally act.
Kudos to the Lobato’s, whose older daughter I also congratulate for showing the initiative and potential to continue her schooling at the top-tier University of Denver. It is indeed a superior place to earn a degree, and some genuine education occurs there. But I suspect her real education began at home under the watchful eye of her parents, living the ranching life with its attendant lessons of hard work, respect for life, balancing priorities, and perhaps some exposure to music, family history, certain artistic crafts, and other languages and the cultures they introduce.
My Dr is of the math variety, and I get to work with some of the graduates of this state’s K-12 system as an adjunct for PPCC and UCCS. The experience is enjoyable, and I believe mutually so. But the kids are, as kids always are, stuck on “do”. Nothing wrong with that, as it is age-appropriate. However, “demonstrating sound mathematical reasoning” , a universally offered opportunity, is not a universally achieved outcome. The best catch it best and see its potential in a broader life setting, making it worth the effort for them to become better at it–it sharpens their thinking more generally. In other words, education is pursued, not received.
Which brings me to my point. The state cannot PROVIDE education to students en masse and programatically (“thoroughly and uniformly”). All the debased money in this country cannot make that happen. There is no such thing as education (delivery) system. Schooling/Training? Yes. We have a system to train students to perform pretty well on standardized tests, just as most can be trained to perform competently on an oboe. Those students who, thanks to their wiring and an inspiring teacher, connect with the writers or the beauty of the music they played on their oboes are those who will pursue an education in music, which may become a life vocation or a life-enriching hobby.
By all means, balance the dollars per student, for after all this is the only action that the court can demand. It cannot demand the provision of an equally qualified teaching staff state-wide, for it cannot mandate where people live and work, and it cannot overturn TABOR, for which we should bow the knee daily in gratitude that it was in place for many years before the sky fell in 2008. If not for a pugnacious California ex-pat lawyer, Governor Hickenlooper would be faced with thrice the cutting task he has now. No wonder his predecessor could stand only one term: cutting programs for a Democrat is antithetical to his or her emotional well-being. Let the legislature make its case to the voters to fund worthy programs under duress. I was outvoted on the ones offered last November, but the arguments for more taxes persuaded me. TABOR doesn’t make a tax increase impossible; it requires the offerer to make the compelling case.
In the District Judge’s ruling we see a logical conclusion drawn from the tyranny of words penned into the Constitution by unsophisticated politicians who valued high-sounding words over actionable language. Judge Rappaport’s order attempts the impossible, and she is to be commended. “Thorough and uniform education system”, indeed. Words matter. The law-writers should make the first order of business a constitutional amendment precisely prescribing what is possible with education, not what is ideal. There are other angels in this state that require funding every bit as much as the education system, and last time I checked, there have not been sudden riches made available to the spenders. Oh wait–there is oil and gas, but….oh, frack it.
Pugnacious? Are you referring to Doug Bruce? TABOR was a BAD idea and has hog-tied our state from making the kind of investments we need in education and infrastructure. You seem to think our legislators are incapable of making budget decisions without that anti-tax trickery. Listen, I vote for my representatives and I want them to make decisions and I want to hold them accountable at the ballot box. TABOR takes from my representatives and from me the power to perform democratically. Prop 13 and a slew of voter-initiated amendments has made California a financial basket case; I don’t want that to happen here.
Our schools do need better financing and better facilities, especially in rural areas of the state. I suggest you go visit the sometime.
When the decision of Brown vs. Board of education challenged the notion in the fifties that education could no longer be separate and unequal, our country has struggled, as evidenced by the achievement gap, to ensure all students perform at the level of proficiency. Fifteen African American families finally took a stand and brought about the most significant educational lawsuit of our country. They took a courageous stand and risked everything to ensure their children didn’t fall through the cracks. Do we have even a small amount of this courage to stand for our students?
As the expectations and accountability have increased, support has decreased to attain these goals. During a tough economic time, it makes sense that the state and local government funding will decrease. However, when you examine priorities for a state and country, educating our children must be our top priority.
As evidenced by our nation’s history, there is no better way to overcome the social oppression minority groups experience in our country than to have a system of education open the doors to more diverse voices and cultures and perspectives. Our future generation depends on this, and an investment in education is a direct and long-term solution to addressing poverty, institutional racism, cultural bias, homelessness, and many other issues facing our country. It is the long-term key to a more stable economic fuiture.
I am honored to be a native Coloradan today, and I hope and pray our legislators do not ignore the voice of the people and the silent voices of our children hoping that we have the courage to stand up and ensure the door of their future is opened wide for them. Educating all children is a civil rights issue. We as a country and a state must own the achievement gap and stand for all of our students to have educational access and a meaningful future.