Editor’s note: The following piece was written by Ken DeLay, executive director of the Colorado Association of School Boards.
Students do not show up at the schoolhouse door equally well equipped for success. We know, for example, that young children who grow up in homes where adults regularly read and speak to them by age three have heard 30 million more words and have a vocabulary more than twice as large as children who grow up without those experiences.
There are also differences in intellect and a host of other factors that affect student learning. Colorado’s public schools have been rightly challenged to accept every one of these children, no matter how well equipped to learn, and to launch them into adulthood 12 years later fully prepared for college or career.
Leaving aside the legal analysis and the political jousting, the plaintiffs in the just-concluded Lobato trial are seeking only recognition of the fact that it costs more to educate the child with a vocabulary less than half that of his peers and a life experience of hearing more than 30 million fewer spoken words, and an order requiring the state to create a plan for funding those costs. The plaintiffs’ claims are rooted in an old idea. We get what we pay for.
Of course we cannot leave aside legal analysis or political jousting. The Colorado Supreme Court has already ruled in the Lobato case that the courts, not the legislature, will decide what the state constitution means when it says that the legislature must create and maintain a “thorough and uniform” system of public schools in Colorado. That the courts have “the province and the duty” to say what the law means is also an old idea, one first articulated by the great U.S. Supreme Court Justice Marshall almost 210 years ago.
In its 2009 Lobato opinion, the Colorado Supreme Court also rejected the state’s arguments that other constitutional restrictions on the legislature’s taxing power, such as the Taxpayers Bill of Rights (TABOR), prohibit the courts from requiring additional funding for schools under the “Thorough and Uniform Clause.” The mere possibility of a remedy beyond the means of the current budget, said the court, is not a reason for the courts to shirk their duty to say what the constitution means.
The trial court judge strictly followed the law of this case as set down by the Colorado Supreme Court. And here began the political jousting: the court is stepping improperly on the toes of the legislature by defining what “thorough and uniform” means; the court will overstep its authority if it orders the legislature to find resources which the legislature does not now have; and the oft-repeated contention that there is no connection between additional dollars spent and a quality education.
That last contention is, of course, an issue of fact in the case. There was much testimony from experts and others on both sides of this issue, and the trial court must now decide which side had the better of the evidence. That evidence, not political argument, will decide this issue.
The argument that it is the legislature’s, not the court’s, role to define “thorough and uniform” is puzzling. It has been settled law for more than 200 years that courts, not legislatures, decide what a constitution means. Moreover, in this case, both the Supreme Court and the plaintiffs have relied heavily on legislative requirements already in law that define the level of education Colorado schools must deliver. The plaintiffs are only asking the legislature to fund requirements it has already imposed on school districts.
The claim that the state’s budget is insufficient to pay additional money for public education is an especially troubling and disingenuous argument. It is disingenuous because the plaintiffs do not seek an order directing the state to pay any amount of money to public education. The plaintiffs seek merely a determination that the current funding system is unconstitutional and an order to the legislature to build a constitutional system. Further, if it is necessary for the legislature to find additional funds to build that system, the constitution already provides a way for the legislature to seek those funds.
The argument is also troubling because it suggests that where the restrictions contained in TABOR create an obstacle to other constitutional rights or obligations, those other rights or obligations must give way to TABOR. Boiled down to its essence, the state’s argument is that TABOR has effectively repealed the “Thorough and Uniform Clause,” a provision that has been in our constitution since it was first adopted in the 1870s. The Colorado Supreme Court properly rejected this argument.
In its 2009 decision, the Colorado Supreme Court held that the trial court must determine whether there is a rational connection between the funding system for public schools in Colorado and the mandates placed on our schools to educate every child. This seems altogether an unremarkable proposition.
If our public schools can give the boys and girls of this state a quality education that prepares them for life and career after graduation, it will have given them the one ticket for success which we know always works.
We as a state can and should do no less for our children.
It’s a good essay, but a small point: “that there is no connection between additional dollars spent and a quality education” is not the argument — it is if there is a correlation — a higher bar than just connection. And the question then is not if there is “zero” correlation (you could hire a tutor for every child) but if the correlation is high enough to warrant the spending.
It will be a fascinating opinion.
Be that as it may, if this case were to succeed, it would kill post-secondary public education in Colorado, and our students would not have any options to “launch them into adulthood 12 years later fully prepared for college or career.” We already badly underfund higher education, and employers do not come to places without robust college and university systems.
All parts of our education system are imporant, and it is short-sighted and dangerous to damage one in order to serve another.
The real question is this: Why does the fifth wealthiest state in the country (last estimate, might be a little lower or higher by now) fund its schools far below the national average? Don’t tell me money doesn’t count. Computers and the internet are replacing books in many states. This state doesn’t even provide books. In my district, the Internet is not an available tool because we have few projectors to use in class. I’m working on a fund raiser to replace some paperback books needed for my classroom. The simple truth is that the taxpayers of this state could not care less about the education of their children. It’s not about teachers; it’s about kids. Children don’t vote. Only a minority of the adults in this state have children in school. The rest have gotten their education at public expense and are in no mood to provide these non-voting children with what they have already enjoyed at the expense of those who came before them: a quality education.
Being a school board member I have followed this issue for awhile. I feel the case is long over due and applaud the school districts and individuals who have taken the time and energy to mount the case. I find it interesting that responses tend to focus on the status quo as if we have to live with current dwindling revenue sources. I am also very aware of the funding crisis Colorado is currently in and a resent study shows that in the not too distant future doing nothing will eliminate ALL discretionary funding with serve cuts to non-discretionary funding. I believe it is correct for the case and thus the courts to make us look at what a though and uniform education is. Once we know that we can go to work on making that possible. We have a lot of hard work in front of us to fund our needs, school and otherwise, but we are not without tools to work with. We simply need the will.