Who Is In Charge

State lays out its Lobato appeal

Last year’s decision that found the state school finance system unconstitutional should be overturned because it actually ignores the state constitution and “collapses” legislative and executive roles into the judiciary, Attorney General John Suthers argued in a brief filed with the Colorado Supreme Court late Wednesday afternoon.

Lobato v. State illustrationThe state formally appealed the 2011 district court decision last January, but the brief is the first filing to lay out the state’s arguments in detail.

The supreme court’s ultimate decision could have far-reaching but hard-to-predict impacts on school districts, classrooms, the state budget and the taxes that Colorado citizens and businesses pay.

A ruling against the state could be costly. Studies done for the plaintiffs estimate that “full funding” of Colorado schools could cost $2 billion to $4 billion more a year than the state spends now. A ruling in the state’s favor could leave Colorado schools facing a lean future.

Also Wednesday, a raft of friend-of-the-court briefs were submitted, according to Judicial Department spokesman Rob McCallum. Those include filings by three former governors; the University of Colorado Board of Regents; by a large coalition of business and civic groups led by Colorado Concern; by two associations of agencies that serve the mentally ill and developmentally disabled, and by the Colorado League of Charter Schools and the National Alliance for Public Charter Schools.

The first four briefs side with the state; the brief from the charter groups is neutral. (Get more details on the friend-of-the-court briefs.)

The state’s brief, along with most of the amicus briefs, attempts to make the point that the high court needs to consider all state budgetary needs, not just whether K-12 funding is constitutional, in making its eventual decision.

The district court specifically did not consider overall state spending but only the issue of whether the K-12 funding system meets constitutional requirements.

In a statement summarizing his 64-page brief, Suthers said:

“For Plaintiffs to prevail, this Court must ignore the Constitution, abandon deferential review of executive and legislative actions, and collapse the powers of these elected branches into the judiciary.

“The trial proved plaintiffs present a nonjusticiable political question this court can resolve only by violating the separation of powers.” Nonjusticiable is legal jargon meaning a matter that can’t be decided by the courts.

“This Court should reverse the trial court’s unprecedented intrusion into public policy, refuse to issue what could only be an advisory opinion, and decline further commitment of the judiciary to this case.

“Rational basis requires the judiciary to examine all possible grounds that could support a challenged legislative action. The trial court, however, held any school finance system is irrational unless it accomplishes the goals of standards-based education to the exclusion of all other government services.”

Turning to the Denver District Court’s interpretation of the constitution’s education clause, Suthers said, “Nothing in the Education Clause suggests the duty to provide a free public education overrides either legislative discretion or the competing demands for limited state revenue.”

The plaintiffs respond

Kathleen Gebhardt, lead attorney for the plaintiffs, responded in a statement of her own:

“The State’s brief is most notable for what it does not say:

“It does not argue that the State is meeting the needs of all Colorado students;

“It does not – and cannot – dispute the voluminous evidence brought forth at trial about students who do not have access to the technology, textbooks, programs, and/or coursework necessary to meet standards, succeed academically, or attend college;

“It does not even argue that the current system is thorough and uniform.

“Instead, the State contends that it should be excused from meeting its duties to Colorado’s students because to comply with the Constitution might be difficult. It promotes the cynical and mistaken argument that the legislature is powerless to vindicate the rights of K-12 students without defunding higher education and other critical state services. In short, the State seeks to avoid its constitutional responsibilities through excuses and legal technicalities. In fact, the State goes so far as to rehash arguments already settled by the Supreme Court in 2009.”

What’s next

The Lobato plaintiffs have until late next month to file an answer brief. The friend-of-the-court or amicus briefs don’t automatically become part of the case; the court has to decide formally to accept or reject them. Court spokesman Robert McCallum said decisions should be made within 10 days.

After further paperwork, the court is expected to hear oral arguments late this year or early in 2013.

The original Lobato lawsuit was rejected by two courts, but the supreme court voted 4-3 in 2009 that it could go to trial.

Two of the four justices who voted to revive the case, then-Chief Justice Mary Mullarky and Justice Alex Martinez, have since left the court. Their replacements are Justice Brian Boatwright, a former district judge in Jefferson County, and Justice Monica Márquez, a former assistant attorney general. Márquez worked on previous stages of the Lobato case while serving in the attorney general’s office.

It’s up to an individual justice to decide whether to recuse oneself from a case. “I have to wait and see” about the Lobato case, Márquez told The Pueblo Chieftain last year.

A Suthers spokesman told The Denver Post last year that the attorney general’s office expected Márquez to recuse herself.

A 3-3 supreme court tie on the Lobato appeal would have the effect of upholding the district court ruling.

District court decision was sweeping

District Judge Sheila Rappaport
Denver District Judge Sheila Rappaport

Following a five-week trial held last summer, Denver District Judge Sheila Rappaport ruled in December that the school funding system is unconstitutional for these reasons:

• “The entire system of public school finance … is not rationally related to the mandate of the” state constitution’s education clause, which requires “the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.”

• “The public school finance system falls short of providing sufficient funding to meet the mandate of the Education Clause and standards-based education.” By standards-based education, Rappaport was referring to the reform and other education mandates passed by the legislature in recent years.

• Lack of financial resources means school districts “are unable to provide the educational programs, services, instructional materials, equipment, technology, and capital facilities necessary to assure all children an education that meets the mandates of the Education Clause and standards-based education.”

Rappaport’s ruling pretty much accepted all the plaintiffs’ claims, including that the current finance system is underfunded and allocates money in an “irrational and arbitrary” way; 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 student achievement.

In addition to the parents, students and school districts represented by the non-profit law firm Children’s Voices, a second group of parent plaintiffs is represented by the Mexican-American Legal Defense and Education Fund.

Case has long history

Lobato timeline
  • July 18, 2012 – State files appeal brief
  • Jan. 23, 2012 – State files notice of appeal
  • Dec. 9, 2011 – District court decision issued
  • Aug.1-Sept. 2, 2011 – Lobato trial held
  • March 1, 2010 – Revised lawsuit filed
  • Oct. 19, 2009 – Supreme court rules trial can proceed
  • Jan. 24, 2008 – Court of Appeals upholds district court decision
  • March 2, 2006 – Lawsuit thrown out in Denver District Court
  • June 23, 2005 – Original lawsuit filed

The Lobato case was filed in 2005, and a different Denver judge and the Colorado Court of Appeals rejected it on the grounds that the issue wasn’t subject to judicial review.

The suit was revived in October 2009 by the supreme court, which laid out these guidelines for the trial court:

“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.”

Legislature didn’t respond to ruling this year

Rappaport did stay her ruling to give the legislature time to work on the issue, and the filing of the appeal put the entire issue on ice. With the appeal pending, lawmakers didn’t talk much about Lobato this year.

A Democratic attempt to commission a Lobato cost study fizzled, as did a Republican effort to have the legislature intervene in the case.

The one major reform bill of 2012, the Colorado READ Act (House Bill 12-1238), was passed with $21 million in funding. That was in marked contrast to previous reform legislation, such as the 2008 Colorado Achievement Plan for Kids and the 2010 educator effectiveness law, which passed without significant funding.

School funding system complex

Colorado school districts spent about $9.7 billion for all expenses in 2010-11, the most recent year for which the state Department of Education has full data. Instructional costs totaled $4.4 billion.

Ed funding for 2012-13
  • Find individual district allocations for the upcoming school year in this EdNews database.

Schools get money from a variety of sources, many of them earmarked, such as state funds for transportation costs, property taxes to pay off bonds and federal funds for special education students and high-poverty schools.

In Colorado, the most closely-watched budget item is what’s called total program funding, the combination of state and local funds used to pay staff, operate buildings and support other basic operations. Total program funding for 2012-13 is about $5.3 billion.

Under the school finance formula created in 1994, the legislature each year sets a base amount of per-pupil funding. Additional factors such as district size, staff cost of living and numbers of at-risk students are considered to come up with customized per-pupil amounts for each district. Districts receive varying percentages of state aid based on the amount of local revenues. Overall, the state contributes about 65 percent of total program funding.

What the “friends” say

Here are summaries of arguments in the friend-of-the court filings, formally known as amicus curiae briefs. Links to the full briefs are in the box near the top of this article.

A number of the briefs that side with the state were solicited by the offices of Gov. John Hickenlooper and Attorney General John Suthers.

Former governors – Bill Ritter and Dick Lamm, both Democrats, plus Republican Bill Owens signed on to this brief. The filing reads, “The Amici submit this brief to provide the Court with their viewpoint and understanding of the Executive Branch’s constitutional and statutory responsibilities regarding K-12 public education funding – including guiding administering, and approving the General Assembly’s appropriations, and the difficult policy and fiscal challenges the State of Colorado faces, which ultimately render these issues inherently political in nature and thus ill-suited for resolution through the courts.”

An earlier version of this story incorrectly reported that former Gov. Roy Romer was among those signing the brief.

University of Colorado – The CU regents’ brief urges the court to consider state support of higher education, saying, “As this Court considers the rationality of an educational finance scheme that affects millions of Coloradans, the Regents have an important interest in ensuring that the judiciary gives meaningful effect to the Colorado Constitution’s mandate that the State of Colorado ‘establish and support’ institutions of higher education.” While not taking a position on the district court’s Lobato ruling as it relates to K-12 funding adequacy, the CU brief argues that the supreme court needs to take in to consideration all state funding needs, including higher education.

Colorado Concern and business groups – The brief argues, “It is important to also understand that education funding is not the state’s only priority. … Ultimately, our elected representatives must make difficult choices in how to fund each of these priorities, and must do so within the spending and revenue limitations articulated in the constitution and the myriad similar requirements in statute.”

Represented on the brief are the Colorado Hospital Association, Denver Metro Chamber of Commerce, Colorado Contractors Association, Colorado Competitive Council, Colorado Association of Commerce and Industry, Progressive 15, Colorado Mining Association, Colorado Association of Mechanical and Plumbing Contractors, Colorado Bankers Association, Colorado Association of Health Plans, Denver South Economic Development Partnership, National Federation of Independent Business and the Associated General Contractors of Colorado.

Colorado League of Charter Schools and National Alliance for Public Charter Schools – The brief doesn’t side with the state or the plaintiffs in the case but rather seeks to raise some charter issues for the court. “Charter school finance in Colorado is ‘broken’ and, if there is a remand [to the district court] for remedy, should be addressed. … Colorado’s system of school finance fails on its own statutory terms to ‘equalize’ funding for charter school students, or even provide amounts that reasonably approximate the publicly defined level of minimum per student funding. The result is not sustainable,” the brief concludes.

Behavioral Healthcare Council and Alliance – Siding with the state, the brief argues, “While public education is undeniably critical to Colorado’s future, there are other state services that are equally critical to Colorado’s children, and inextricably linked to the goals of public education. Dramatically increasing funding for public education, while simultaneously cutting other social service spending, would be a Pyrrhic victory for those children whose other needs, such as mental healthcare or developmental disabilities, are not being met.” The council is an association of mental health care providers; the Alliance represents providers of services to clients with development disabilities.

a closer look

Fact-check: Weighing 7 claims from Betsy DeVos’s latest speech, from Common Core to PISA scores

PHOTO: Dylan Peers McCoy

In a speech Tuesday at the American Enterprise Institute, U.S. Education Secretary Betsy DeVos made the case for giving up on the type of school improvement efforts favored by Presidents Obama and George W. Bush. In its place, she argued, the federal government should encourage tech-infused innovation and school choice.

Looking to weigh her claims? Here’s a closer look at a few.

1. DeVos: “The most recent Program for International Student Assessment, or PISA, report, with which you are all familiar, has the U.S. ranked 23rd in reading, 25th in science and 40th in math. And, you know this too: it’s not for a lack of funding. The fact is the United States spends more per pupil than most other developed countries, many of which perform better than us in the same surveys.”

This stats are accurate, but may not be fair. The U.S. does spend more per pupil, in raw dollars, than most other countries. But international comparisons of these sorts are complicated, and American spending is similar to countries with similarly sized economies.

As we’ve written previously, it’s also misleading to say that more money wouldn’t help American schools. A number of studies have found precisely the opposite, including a recent one showing how cuts to schools during the Great Recession lowered student test scores and graduation rates.

2. DeVos appeared to refer to Common Core as “federal standards,” saying, “Federally mandated assessments. Federal money. Federal standards. All originated in Washington, and none solved the problem.”

That’s off the mark. As advocates for the Common Core never tire of pointing out, the creation of the standards was driven by state leaders through the National Governors Association and Council of Chief State School Officers, with the support of several private organizations, most prominently the Gates Foundation. (Gates is a funder of Chalkbeat.) As DeVos notes earlier in the speech, the Obama administration did incentivize states to adopt the standards, though, and Secretary Arne Duncan was a vocal champion.

3. DeVos: “At the U.S. Department of Education, Common Core is dead.”

This is true, in a sense — the Every Student Succeeds Act, which passed before DeVos became secretary, prohibits the federal government from pushing states to adopt specific standards. But DeVos doesn’t control what academic standards states adopt, and most states are still using use some version of the Common Core.

4. DeVos: “Throughout both initiatives, the result was a further damaged classroom dynamic between teacher and student, as the focus shifted from comprehension to test-passing. This sadly has taken root, with the American Federation of Teachers recently finding that 60 percent of its teachers reported having moderate to no influence over the content and skills taught in their own classrooms. Let that sink in. Most teachers feel they have little – if any — say in their own classrooms.”

The statistic DeVos pulled from this poll is accurate, though her framing may be more negative than the results suggest. It asked teachers to rate how much control they had over “setting content, topics, and skills to be taught.” The most common answer was “a great deal” (at about 40 percent of teachers), and another 30 percent or so chose moderate control. Twenty percent said minor, and only 10 percent said they had no control.

5. DeVos: “To a casual observer, a classroom today looks scarcely different than what one looked like when I entered the public policy debate thirty years ago. Worse, most classrooms today look remarkably similar to those of 1938 when AEI was founded.”

This statement is misleading but has a grain of truth. We examined a similar claim when the TV program produced by the XQ prize argued that schools haven’t changed in 100 years. In short, DeVos is right that many basic trappings of school — a building, a teacher at the front of the class, a focus on math, reading, science, and social studies — have remained consistent. But this glosses over some substantial changes since 1938: the end of legally mandated race-based segregation, the rise of standards for special education students, and the expanded use of testing, among others.

6. DeVos: “While we’ve changed some aspects of education, the results we all work for and desire haven’t been achieved. The bottom line is simple: federal education reform efforts have not worked as hoped.”

This is a big assertion, and it’s always tricky to judge whether something in education “worked.” As DeVos pointed out, a federal study showed the federal school turnaround program didn’t help students. She also highlighted relatively flat international test scores, and others have pointed to flat national scores in recent years.

That said, there were substantial gains in math in fourth and eighth grade, particularly in the early 2000s.

But raw trend data like this can’t isolate the effects of specific policies, particularly when other unrelated changes — like the Great Recession — can also make a big difference. Studies on No Child Left Behind have shown positive results in math, but little or no effect in reading. An analysis of Race to the Top was inconclusive.

One bright spot: a program that paid performance bonuses through the federal Teacher Incentive Fund led to small test score bumps, according to a recent study by DeVos’s Department of Education.

7. In response to a question about school performance in Detroit, DeVos said she shouldn’t be credited — or blamed — for the results in the city. “You’re giving me a whole lot of credit to suggest that whatever happened in Detroit was as a result of what I did,” she said. “We have been long-term supporters of continued reform and choice in Michigan.”

This one is up for debate, though it’s clear DeVos has long been a major player in Detroit’s education scene. She has supported charter schools, which educate about half the public school students in that city, and been a major donor to Republican politicians and causes in the state. She started an influential advocacy group in the state called Great Lakes Education Project.

She was also a key opponent of a commission that would more tightly oversee Detroit charter schools, which ultimately failed amid GOP opposition. It’s clear she has had an impact in the city, but that doesn’t mean she’s gotten everything she’s wanted: in 2000, Michigan voters rejected a DeVos-funded effort to fund vouchers for private schools. She also hasn’t gotten her wish that Detroit have a traditional school district eliminated entirely.

DeVos on offense

DeVos criticizes Bush-Obama policies, saying it’s time to overhaul conventional schooling

PHOTO: U.S. Department of Education
U.S. Education Secretary Betsy DeVos speaking to the Council of Great City Schools.

One era of federal involvement in education is over, U.S. Secretary of Education Betsy DeVos said Tuesday, in some of her most expansive public remarks since taking over the department last year.

DeVos used a speech at the American Enterprise Institute to hit on familiar themes: America’s schools haven’t changed in many years, failing to embrace technology while still spending more and more money. But she also offered a pointed skewering of the approach of her recent successors.

“Federally mandated assessments. Federal money. Federal standards. All originated in Washington, and none solved the problem,” said DeVos. “Too many of America’s students are still unprepared.”

She also gave a harsh assessment of one of the most controversial policies of the period. “Common Core is a disaster,” DeVos said, echoing her boss, President Trump. “And at the U.S. Department of Education, Common Core is dead.”

In place of those efforts, DeVos offered a different framework for improving education: overturning a host of conventional approaches to schooling.

“Why do we group students by age?” she asked. “Why do schools close for the summer? Why must the school day start with the rise of the sun? Why are schools assigned by your address? Why do students have to go to a school building in the first place? Why is choice only available to those who can buy their way out? Or buy their way in? Why can’t a student learn at his or her own pace? Why isn’t technology more widely embraced in schools?”

Some of these questions dovetail with DeVos’s embrace of private school choice programs and tech-infused approaches to schools, including fully virtual options. The emphasis on technology is aligned with a number of wealthy philanthropies that have embraced computer-based “personalized learning.”

They also mark a departure from the paradigm of previous administrations. No Child Left Behind, the law signed by President George W. Bush, and the Obama-era Race to the Top program both focused on improving academic standards, instituting tests, holding schools and teachers accountable for results, and expanding charter schools, though generally not private school voucher initiatives.

DeVos’s vision is more aligned with a strain of conservative thought that has grown increasingly skeptical of test scores. “I talk about accountability more in terms of transparency and information that parents can access to find out how the schools are doing for their child,” DeVos said in a follow-up session with Rick Hess of AEI, the conservative think tank whose board DeVos previously sat on.

This rift is not entirely surprising. Former secretary Arne Duncan has sharply criticized DeVos and Trump, and left-of-center charter advocates have attempted to separate themselves from an unpopular and polarizing president and secretary of education.

In a rare agreement with the American Federation of Teachers, DeVos argued that federal involvement had put too much focus on test scores, citing a poll commissioned by the union. “The result was a further damaged classroom dynamic between teacher and student, as the focus shifted from comprehension to test-passing,” she said.

The AFT responded icily on Twitter: “More American educators feel disrespected by DeVos than anyone else in the entire world. You can’t blame Bush & Obama for that.”  

Debates about evidence continue

Earlier at the event, “Bush-Obama school reform: Lessons learned,” researchers and policymakers conducted a post-mortem of the last couple of decades of federal school reform.

The results weren’t always pretty. Virtually all participants agreed that well-meaning efforts had proven difficult to implement and sustain: No Child Left Behind had become widely reviled for increasing testing; teacher evaluations pushed by the Obama administration continued to rate most teachers as effective and faced stiff opposition from teachers’ unions; Common Core became the target of conservative ire and the associated tests were scrapped in most states; and a comprehensive study of the federal school turnaround program found that it made little impact on test scores or graduation rates.

Evaluating large policies, like Race to the Top or Common Core, is inherently challenging.  Nationwide test scores have been fairly stagnant in recent years, though that may be due to the effects of the Great Recession.

At one session, participants suggested that not enough had been done to incorporate teachers’ perspective into federal policy. (Notably, no current teachers or union representatives participated in panels at the AEI event.)

Still, research suggests that No Child Left Behind substantially improved math achievement. Studies in some districts have found benefits of their revamped teacher evaluation systems, too.

Joanne Weiss, chief of staff at the Department of Education under Duncan, cautioned against judging policies too quickly. “At some point you gotta say, the results should be in today,” she said. “[But] we have a history in education of calling it too early and moving on to something else, and then 10 years later the research comes in.”

Nevertheless, DeVos seized on the mixed results of past efforts to make the case for her favored changes: more school choice and more innovation at the school level, not driven by the federal government.

She didn’t mention the research on those approaches, which is decidedly mixed and even negative in some cases.

A number of recent studies on school voucher programs have found showed they hurt student test scores, though they bounce back for some students who stay in private schools for several years. In DeVos’s account of disappointing federal programs, she did not mention a recent study of Washington D.C.’s voucher program, which showed drops in math achievement. (A few studies have found positive impacts on high school graduation rates and college attendance.)

Fully virtual charter schools, which DeVos has long backed, have posted even worse results. And some math programs that blend technology with more traditional classroom culture have posted positive results, but as a whole, the evidence base for those approaches remains thin.

DeVos’s skepticism of federal involvement also highlights the central paradox of her job: As the leader of the very agency she is critiquing, how will she advance her agenda without expanding the federal footprint?

So far, DeVos has rolled back a number of Obama-era regulations and supported a new federal tax break for private school tuition, while acknowledging its impact would be modest.

We also fact-checked seven claims — from Common Core to PISA test scores — DeVos made during her speech. Read more here.