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.

election 2019

College student, former candidate jumps into Denver school board race – early

PHOTO: Andy Cross/The Denver Post
Tay Anderson speaks to students at Denver's South High School in May 2017.

A Denver college student who as a teenager last year unsuccessfully ran for a seat on the district’s school board announced Wednesday that he plans to try again in 2019.

Tay Anderson, 20, said he will run next November for the board seat currently occupied by Happy Haynes. Haynes, a longtime Denver politician who is executive director of the city’s parks and recreation department, does not represent a particular region of the school district. Rather, she is one of two at-large members on the board. Haynes was first elected to the school board in 2011 and is barred by term limits from running again.

Haynes supports the direction of Denver Public Schools and some of its more aggressive improvement strategies, such as closing low-performing schools. Anderson does not.

He is the first candidate to declare he’s running for the Denver school board in 2019. Haynes’ seat is one of three seats that will be open in 2019. There is no school board election this year.

In 2017, Anderson ran in a heated three-way race for a different board seat representing northeast Denver. Former teacher Jennifer Bacon won that seat with 42 percent of the vote.

Anderson, a vocal critic of the district, campaigned on platform of change. He called for the district to improve what he described as weak community engagement efforts and to stop approving new charter schools, which are publicly funded but independently run.

Bacon also questioned some of the district’s policies. The Denver teachers union endorsed her over Anderson, who raised the least amount of money of the three candidates. Bacon was one of two new board members elected in 2017 who represent a more critical perspective. The 2019 election is likely to involve many of the same debates over education reform.

Anderson is a graduate of Denver’s Manual High School. He is now a student at Metropolitan State University, where he is studying education. He said he also works at Hinkley High School in neighboring Aurora, helping with the school’s restorative justice program, a method of student discipline that focuses on repairing harm rather than doling out punishment.

Anderson posted his campaign announcement on Facebook. It says, in part:

After a lot of thought, prayer, and seeking guidance from mentors, I decided this is the path I need to pursue to fulfill my commitment to the students, teachers, and community of Denver. I learned many valuable lessons during my campaign in 2017 and I know that I need to prepare and ensure that I have the adequate time to be in every part of Denver to connect with as many voters as possible, which is why I am getting to work now!

My dedication to Denver Public Schools has always been deeply personal and this campaign is reflective of that. As I gear up for another campaign, I am once again driven and motivated by my grandmother, who was an educator for over 35 years. Her tenacity to never give up is what drives my passion for the students in Denver Public Schools. I am determined to follow in her footsteps. I have organized students around school safety and more importantly impacted students’ lives in Denver Public Schools and Aurora Public Schools. These students have a voice and I am prepared to fight for their agency in their education.

more back-and-forth

Eighteen legislators show support for TNReady pause as 11 superintendents say press on

PHOTO: TN.gov
Tennessee lawmakers listen to Gov. Bill Haslam deliver his 2016 State of the State address at the State Capitol in Nashville.

School leaders and now state lawmakers continue to pick sides in a growing debate over whether or not Tennessee should pause state testing for students.

Eighteen state legislators sent the superintendents of Nashville and Memphis a letter on Tuesday supporting a request for an indefinite pause of the state’s embattled test, TNReady.

“As members of the Tennessee General Assembly responsible for helping set policies and appropriate taxpayer funds for public education, we have been dismayed at the failed implementation of and wasted resources associated with a testing system that is universally considered — by any set of objective measures – to be a colossal failure,” said the letter, signed by legislators from Davidson and Shelby counties, where Nashville and Memphis are located.

Rep. John Ray Clemmons, a Democrat from Nashville, spearheaded the letter. Representatives Johnnie Turner, G.A. Hardaway, Barbara Cooper, Antonio Parkinson and Sen. Sara Kyle were among the signers representing Memphis.

Clemmons told Chalkbeat that he believes Tennessee should have a state test, but that it shouldn’t be TNReady.

“We are showing support for leaders who are representing students and teachers who are incredibly frustrated with a failing system,” Clemmons said. “We have to come up with a system that is reliable and fair.”

The lawmakers’ statement comes a day after Education Commissioner Candice McQueen responded to the Nashville and Memphis school leaders in a strongly worded letter, where she said that a pause on state testing would be “both illegal and inconsistent with our values as a state.”

The growing divide over a pause in TNReady testing further elevates it as an issue in the governor’s race, which will be decided on Nov. 6. Democratic nominee Karl Dean, who is the former mayor of Nashville, and Republican nominee Bill Lee, a businessman from Williamson County, have both said their respective administrations would review the state’s troubled testing program.

“We are hopeful that the next governor will appoint a new Commissioner of Education and immediately embark on a collaborative effort with local school districts to scrap the failed TNready system,” the 18 state lawmakers said in their statement.

Shelby County Schools Superintendent Dorsey Hopson and Metropolitan Nashville Public Schools Director Shawn Joseph launched the back-and-forth with an Aug. 3 letter they said was sent to outgoing Gov. Bill Haslam and McQueen declaring “no confidence” in the troubled state test. McQueen’s office said Tuesday that neither her office nor the governor’s office had yet received the letter.

However, a spokeswoman for Nashville public schools told Chalkbeat on Monday that the Aug. 3 letter was sent to Assistant Commissioner Elizabeth Fiveash, who reports to McQueen. While some legislators backed the two superintendents, 11 district leaders from around the state released an email statement on Tuesday supporting state testing. Superintendents from Maryville, Alcoa, Sevier, Johnson, Dyersburg, Loudon, Clinton, Marshall, McKenzie, Trousdale, and Lenoir signed the statement, which they said was also sent to McQueen.

“Test items and question types are directly linked to the standards and are pushing students to deeper critical thinking,” the email said. “The comprehensive accountability model holds schools and districts accountable for improved student performance…. Challenges remain, but together we must be positive as we continue the work.”

The state has struggled to administer TNReady cleanly since its failed online rollout in 2016, prompting McQueen to cancel most testing that year and fire its testing company. Except for scattered scoring problems, the next year went better under new vendor Questar and mostly paper-and-pencil testing materials.

But this spring, the return to computerized exams for older students was fraught with disruptions and spurred the Legislature to order that the results not be used against students or teachers.

For the upcoming school year, the state has hired an additional testing company, and McQueen has slowed the switch to computerized exams. The state Department of Education has recruited 37 teachers and testing coordinators to become TNReady ambassadors, tasked with offering on-the-ground feedback and advice to the state and its vendors to improve the testing experience.

Read both the state lawmakers’ letter and the superintendents’ statement below:

Signers are: John Ray Clemmons, Bo Mitchell, Sherry Jones, Dwayne Thompson, Brenda Gilmore, Darren Jernigan, Antonio Parkinson, Jason Powell, Bill Beck, Mike Stewart, Barbara Ward Cooper, Larry Miller, G.A. Hardaway,  Karen D. Camper, Harold Love,  Johnnie Turner, Sara Kyle, and Joe Towns.

August 14, 2018
 
STATEMENT OF SUPPORT
 
District leaders across Tennessee understand and validate the disappointment and frustration our teachers, students, and parents felt with the glitches and errors faced during the spring’s administration of the TNReady student assessment. It was unacceptable. However, it is important that we, as leaders, step up to say that now is the time to press on and continue the important work of improving the overall education for all Tennessee students.  
 
We are optimistic about where we are heading in education – ultimately more students will graduate prepared for the next steps in their lives. The foundation is solid with (1) rigorous standards, (2) aligned assessments, and (3) an accountability model that focuses on student achievement and growth.  We are now expecting as much or more out of our students as any state in the nation. Test items and question types are directly linked to the standards and are pushing students to deeper critical thinking. The comprehensive accountability model holds schools and districts accountable for improved student performance across all subgroups.  Challenges remain, but together we must be positive as we continue the work.
 
Our students have made strong and steady gains in achievement and growth over the past few years, earning recognition at a national level. Our students now have the opportunity to be more fully prepared and competitive to enter college and the workforce. This is not the time to press the pause button. Even with the improvements in student performance, there is much work to do. Achievement gaps for subgroups are too large and not enough students are graduating “Ready” for the next step.
 
We must hold the course on rigorous standards, aligned assessments, and an accountability system focused on student achievement and growth. We, the directors of Tennessee schools, believe this rigor and accountability will impact all students. We embrace the priorities outlined in Tennessee Succeeds with a focus on foundational literacy and pathways to postsecondary success. Tennessee students have already demonstrated a determination to reach the mastery of rigorous state standards and will rise to the newly established expectations. We have work to do, and we should keep the focus on instruction and closing the gaps to ensure every student in Tennessee is ready for their future. We want to send a message of confidence and determination, a relentless ambition to reach our goals. We must step up and hold the line. We cannot expect anything less than excellence. Our students deserve it. 
 
 
Mike Winstead, Maryville City Schools
Brian Bell, Alcoa City Schools
Jack Parton, Sevier County Schools
Steve Barnett, Johnson City Schools
Neel Durbin, Dyersburg City Schools
Jason Vance, Loudon County Schools
Kelly Johnson, Clinton City Schools
Jacob Sorrells, Marshall County Schools
Lynn Watkins, McKenzie Special School District
Clint Satterfield, Trousdale County Schools
Jeanne Barker, Lenoir City Schools