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.

Decision makers

5 things to know about Austan Goolsbee, the high-powered new addition to Chicago’s school board

PHOTO: Chip Somodevilla / Getty Images
In 2013, Austan Goolsbee testified before the Congressional Joint Economic Committee on Capitol Hill about the nation's economic recovery

Chicago’s school board is once again complete after outgoing mayor Rahm Emanuel chose a University of Chicago economist to fill a long-vacant seat.

Austan Goolsbee, an economics professor at University of Chicago’s Booth School of Business, will round out the seven-member, mayor-appointed board that sets education policy in the city.

Here are five things to know about Goolsbee:

  1. Like Emanuel, he served in the Obama White House. Goolsbee was as a close adviser to President Barack Obama, eventually becoming chair of his Council of Economic Advisors. The Chicago Teachers Union see this tie as a liability. “Mr. Goolsbee comes into a board responsible for students and their schools being starved of resources for the last eight years by the man who appointed him,” the union said in a statement. “Those same neighborhoods continue to struggle from the consequences of a foreclosure crisis that the administration he served in Washington failed to address.”
  2. He has weighed in on education before. A prolific opinion writer, he has written favorably about the economic arguments for universal prekindergarten, a priority for the outgoing mayor, saying that expanding early childhood education is a bargain over the long term. In a 2015 survey of economists’ positions on public issues, Goolsbee expressed optimism about “value-added” measures that try to isolate the impact of individual teachers on student test scores — though he qualified the approach as having “lots of noise and unobservables.” Expressing uncertainty about vouchers, Goolsbee said he fears that letting parents use public funds to pay for private school tuition could harm public schools, which have fixed costs cannot easily be reduced when students leave them. (A tax-credit version of vouchers launched in Illinois last year but now faces an uncertain future under a new Democratic governor.)
  3. He’ll bring a focus on fiscal policy to a board that oversees a big and uncertain budget. A close economic adviser to President Obama and prolific commenter on matters of economic policy in the national media, he’s joining a board that oversees $8 billion in outstanding debt. Chicago has credited the passage of an equitable funding bill, in 2017, for helping stabilize its finances. But the district’s economic future is uncertain, especially as families continue to leave the city.
  4. His personal public school experience is limited. He attended an elite private high school in the suburbs of Boston where he grew up, and his children attended the University of Chicago’s Lab School both before and after the family’s time in Washington, D.C., he has said in interviews.
  5. He’s got a following, and a sense of humor. For proof, check out his Twitter feed, which has 80,000 followers, and his October appearance on the popular NPR quiz show “Wait, Wait, Don’t Tell Me.” Plus, his official University of Chicago profile lists a special interest in improv comedy. That sets him apart from the rest of the school board members, who tend to keep a low public profile.  

How long Goolsbee serves could depend on what happens after Emanuel leaves office in early 2019. Chicago’s mayor has controlled the city school board since 1995, but Emanuel’s decision not to seek a third term has heightened debate about whether the city’s schools have benefitted.

In 2011 and 2015, voters backed non-binding resolutions that would make the board democratically elected. Now, two of the leading candidates in the mayor’s race, Cook County Board President Toni Preckwinkle and state comptroller Susana Mendoza, have said they’d support an elected school board — reducing their own power over education if they become mayor.

How soon a change could happen is unclear, but state lawmakers who would have to sign off on such a change have an ally in Gov.-elect J.B. Pritzker, who has said he supports the call for an elected school board.

The issue was a point of debate at a Chalkbeat Chicago event this week at Malcolm X College. At the event, titled “Education for All? Chicago’s Next Mayor and the Future of Public Schools,” some panelists voiced concern that elections would be dominated by well-organized factions, such as the teachers union, that would have the ability to outspend other candidates.

Super Search

The pressing question at Denver’s final forum: How will Susana Cordova tackle inequity?

PHOTO: AAron Ontiveroz/The Denver Post
Susana Cordova poses for a portrait in December 2018.

The challenges that Susana Cordova will face if she’s hired next week as superintendent of the Denver school district were laid bare at a public forum Tuesday night.

Standing in a high school cafeteria with a microphone in her hand, the deputy superintendent and sole finalist for the top job faced tough questions about why struggling schools have high numbers of inexperienced teachers, whether she would commit to removing all police officers from schools, and what she would do about what one student called the “charter-ization” of Denver Public Schools — that is, the district’s practice of replacing low-performing district-run schools, sometimes with charter schools.

The most heated and emotional exchanges, however, were about inequities: Why is the district not serving black, Latino, and Native American students as well as white students? Why do test score gaps exist between students from poor families and those from wealthier ones?

Onecia Garcia, a senior at East High School, the city’s largest school and one of its most diverse, told Cordova there is a noticeable gap at East between the kids whose parents have money to pay for tutors and SAT prep courses, and the kids whose parents don’t.

“I want to know what your plan is to get that gap in order,” Garcia said.

In response to Garcia’s question and others like it, Cordova acknowledged that institutional racism exists in Denver Public Schools and has contributed to those gaps. She said the district needs to do a better job informing families about opportunities such as free SAT help and concurrent enrollment classes that allow students to earn college credit while in high school.

Cordova, who grew up in Denver and climbed the district ranks from teacher to her current position of deputy superintendent, talked about making it mandatory for all teachers to undergo training on bias and being culturally responsive, instead of allowing some to opt out.

Cordova said one of her top priorities would be to take the myriad and disparate efforts the district has started over the years to address specific inequities and combine them into one comprehensive plan. She called it “an equity plan that is for all kids, but that also has the specifics for African-American kids, for Latino kids, for low-income kids.”

“It is important that we’re not introducing too many things that you can’t keep a focus,” she said. “I think that’s a valid criticism of the work that we’ve done: We’ve introduced too many things that have made it hard to understand what is the progress that we’re trying to get at.”

But after the forum, Garcia said she didn’t feel Cordova had fully answered the questions. Other students who attended said they felt the same way.

“She wasn’t willing to commit to anything,” said Jonathan Bateman, a freshman at George Washington High School, where the forum was held.

“She answered questions like a politician,” said Carlye Raabe, also a freshman at George Washington.

Cordova emphasized that if she’s hired as superintendent, she’ll approach the job differently than her predecessor, Tom Boasberg, who stepped down in October after nearly 10 years of leading Denver Public Schools. Boasberg was often criticized for not listening to the community.

“I believe deeply in the power of relationships,” Cordova said. “I think it’s really important that we’re not just listening to people who think like I think or who sound like I sound, but who have different experiences, because Denver is an incredibly diverse place.”

The school board is expected to vote Monday on whether to appoint Cordova to the top job.