Who Is In Charge

Curtain rises on historic Lobato trial

Is the system Colorado uses to pay for its schools constitutional?

That short but infinitely complex question is the focus of a five-week trial in the case of Lobato v. State, which opens Monday before Denver District Judge Sheila Rappaport.

Lobato v. State illustrationThe outcome of the trial 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.

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 Gov. John Hickenlooper, a defendant, and Attorney General John Suthers, who’s leading the state’s defense.

(If the plaintiffs win, the trial isn’t expected to end with an order that the state spend a specific amount on education. Rather, the plaintiffs are asking the judge to find the current finance system unconstitutional and tell the legislature to come up with a new one.)

The case “really goes to the heart of what we want from out education system today,” said Kelly Hupfeld, associate dean of the School of Public Affairs, University of Colorado Denver, and an education policy expert.

The plaintiffs “are saying if you want standards-based education … then you have to fund it accordingly. What the state is saying is there’s no requirement to fund at a particular level. They’re also saying there’s not much evidence that when you spend more on education you get better results.”

The case will provide a forum for expert views on that issue of spending and results, one of the most contentious in education.

Two of the top expert witnesses are well-known national figures, Linda Darling-Hammond for the plaintiffs and Eric Hanushek for the defendants.

“In the education reform world this is like an all-star lineup,” Hupfeld said. “This is going to be pretty monumental.”

However Rappaport rules sometime after the trial ends, that decision won’t be the end of the story.

“It will come back to the Colorado Supreme Court” no matter who wins at trial, Suthers said.

Given the state constitutional requirement that voters approve tax increases, ultimately “the voters may need to decide how much they prioritize education,” said Hupfeld.

Education News Colorado will provide extensive coverage of the trial. To get readers up to speed, here’s a primer on the issues, the players and other details about the case.

Issues: What’s at stake

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 (see below) argues that the current finance system is underfunded and allocates money in an “irrational and arbitrary” way that violates the “thorough and uniform” standard.

Further, they claim 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 claim the current system violates constitutionally guaranteed local control of schools because it doesn’t give school districts enough money to fully exercise that control.

The Colorado Supreme Court framed the Lobato issues in an Oct. 19, 2009, ruling that directed the case be heard in district 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.”

District Judge Sheila Rappaport
District Judge Sheila Rappaport

Above the lawsuit loom the larger policy and political issues of whether courts can tell the legislature what to do, and whether education spending should be considered in the larger context of other state programs and the Taxpayer’s Bill of Rights and the Gallagher Amendment, two other constitutional provisions that put limits on state and local revenues (TABOR) and on local property taxes (Gallagher).

But those issues won’t be decided formally in Courtroom 424 of the Denver City and County Building.

The supreme court said in its 2009 ruling that the courts do have the power to consider the issues raised by the Lobato plaintiffs.

And Rappaport, in a ruling issued July 14, concluded that TABOR, Gallagher and the legislative need to balance competing spending needs are not legal issues to be considered in this case. (Read the ruling.)

Those issues won’t go away after the trial and undoubtedly will loom large in any future legislative debates. Gov. John Hickenlooper and Suthers, speaking with reporters before the trial started, repeatedly emphasized their belief that the state can’t afford to spend a lot more on schools and that school finance ultimately is a legislative and voter decision.

People: A big cast of characters

The plaintiffs include 26 parents (representing 40 children) from across the state, plus 21 school districts. Many of the districts are small, rural ones in the impoverished San Luis Valley, but Aurora, Colorado Springs District 11, Jefferson County and Pueblo City also are among the group.

A second group of plaintiffs, nine parents of 21 children in four school districts, are represented by the Mexican American Legal Defense and Educational Fund and entered the case in 2010 as “intervenors.” MALDEF’s case focuses on the impact of current funding on poor and minority children and on English language learners. It also is targeting problems with low funding for school construction and renovation.

Some 100 school boards have passed resolutions supporting the lawsuit. Roughly half of the state’s 178 districts have contributed money to the cause, according to Ken DeLay, executive director of the Colorado Association of School Boards.

A notable exception is the conservative Douglas County board, which has passed two resolutions opposing the lawsuit (read second resolution).

Various stages of the case have drawn formal involvement by other groups. Before the supreme court ruled that the case should go to trial, CASB, the Colorado Association of School Executives, the Colorado Education Association, the Colorado Lawyers Committee, the Colorado Center on Law and Policy, the Colorado League of Charter Schools and Padres Unidos all filed briefs with the court.

The formal defendants in the case are the State Board of Education, education Commissioner Robert Hammond and Hickenlooper.

Kathleen Gebhardt
Kathleen Gebhardt

The lead lawyers for the plaintiffs are Kathleen Gebhardt and Alexander Halpern of the non-profit Boulder firm Children’s Voices, which focuses on educational issues. Former U.S. Attorney Henry Solano is representing the MALDEF plaintiffs.

On the plaintiffs’ side the case involves 22 lawyers, many from such heavyweight Denver firms as Davis Graham & Stubbs, Reilly Pozner, Faegre & Benson, Greenberg Traurig, Holland & Hart and Holme Roberts & Owen. Most of the lawyers are serving without fee, and Children’s Voices and school boards have raised about $500,000 to cover other court costs.

On the other side, the state has seven lawyers on the case, including Suthers and Senior Assistant Attorney General Antony Dyl, who in the past has advised the state board on legal issues. Suthers estimates the case will cost the state $2-$3 million, not including salaries.

Judge Rappaport was appointed to the bench in 2000 by Republican Gov. Bill Owens after a 22-year career as prosecutor in the Denver District Attorney’s office, specializing in domestic violence cases. Voters retained her office in 2002 and 2008. In the required survey before her 2008 re-election, 77 percent of lawyers responding recommended she be retained in office, and 97 percent of non-lawyers recommended retention. (See full retention survey report.)

Docket: What to expect in court

The trial will be a battle of experts testifying about their views and research on school funding, the amount of money needed to implement reform laws and the degree to which financial support affects academic achievement.

The plaintiffs’ listed expert witnesses include Darling-Hammond, a Stanford University education professor who has a high national profile on education issues. (See her report, filed with the court ahead of the trial.)

Two other out-of-state experts listed as plaintiffs’ witnesses are Bruce Baker and W. Steven Barnett of Rutgers University, who’ve done extensive research on school finance and adequacy.

Linda Darling-Hammond
Linda Darling-Hammond

Another key witness is expected to be Justin Silverstein of the Denver consulting and research firm of Augenblick, Palaich and Associates, which has lengthy experience in school finance.

The state’s top expert witness is Eric Hanushek of the Hoover Institution (which is affiliated with Stanford), a leading expert on the economics of education. (See pretrial preview of his testimony.)

The lists of possible witnesses filed by the parties are a who’s who of Colorado education, including superintendents, academics, former legislators and state officials. Here’s a sampling:

  • Plaintiffs: Former state Treasurer Cary Kennedy, former House Speaker Andrew Romanoff and former Cherry Creek Superintendent Monte Moses.
  • Plaintiff-intervenors: Several superintendents, including Mapleton’s Charlotte Ciancio and Greeley’s Ranelle Lange.
  • Defendants: Former education Commissioner William Moloney, Lt. Gov. Joe Garcia, retired state school finance chief Vody Herrmann, past and present state budget chiefs Todd Saliman and Henry Sobanet, former Manual High School Principal Rob Stein and a host of CDE officials.

(Parties are required to disclose potential witnesses before trial starts, but that doesn’t mean all listed witnesses will be called to the stand.)

Eric Hanushek
PHOTO: Nicholas Garcia
Eric Hanushek

The case has generated a blizzard of paperwork (electronic documents in this day and age) ahead of the trial. Depositions (formal interviews by lawyers) were taken from more than 160 people. (Find links to documents on the Children’s Voices and attorney general’s websites.)

The plaintiffs are expected to take two and half weeks to present their case and the intervenors and the state a week each, according to plaintiffs’ lawyer Gebhardt.

The parties outline their cases in the trial briefs linked at the right.

History: The case

The Lobato case has been floating around the Colorado courts since the first version of the suit was filed June 23, 2005.

On March 2, 2006, Denver District Judge Michael Martinez dismissed the case, ruling the current school finance system meets the requirements of Amendment 23, isn’t subject to court review and that the school districts didn’t have standing to sue. Martinez made his decision on legal grounds and didn’t hear any factual evidence.

That decision was appealed, and on Jan. 24, 2008, a three-judge panel of the Colorado Court of Appeals upheld Martinez’ decision, ruling that while the parents had standing to sue, school districts did not and that there was no claim because school finance is the responsibility of the legislature.

Del Norte Middle School
The Del Norte School District is one of the original plaintiffs in the Lobato case.

That second ruling also was appealed, and the Colorado Supreme Court’s 2009 ruling revived the case, concluding the plaintiffs have standing to sue, school districts can be part of the case and that the issue can legally be considered by the courts.

Citing an earlier school finance case, the high court’s 4-3 majority concluded, “We interpret Lujan v. Colorado State Board of Education, 649 P.2d 1005 (Colo. 1982), as recognizing the authority of the judiciary to review whether the current funding system is constitutional.” (The Court of Appeals had relied on a federal court precedent to toss the case out, but the supreme court disagreed with that.)

History: Other Colorado lawsuits

Two other major education-funding cases have been decided in the Colorado courts over the last three decades.

The case of Lujan v. State Board of Education challenged the equity of school funding and made it all the way to the supreme court, which upheld the school finance system, concluding that the state constitution doesn’t require absolute equality in school spending or services.

But the case did establish, at least in the minds of current supreme court justices, the validity of court review over education spending.

In 2000, the case of Giardino v. State Board was settled with the state agreeing to pay $190 million over 10 years for school construction costs. That settlement later was folded into the Building Excellent Schools Today construction program created by the legislature in 2008.

History: School finance

Colorado school districts spent about $10.2 billion for all expenses in 2009-10, the most recent year for which the state Department of Education has data. Instructional costs totaled $4.4 billion.

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 is about $5.2 billion in 2011-12.

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 nearly 65 percent of total program funding.

Education revenues are affected by the complicated interplay of several constitutional provisions:

  • The Gallagher Amendment, passed in 1982, which governs property taxes.
  • The Taxpayer’s Bill of Rights, passed in 1992, which sets limits on annual increases in state and local revenues and requires voter approval for tax increases.
  • Amendment 23, passed in 2000, which sets a formula for annual increases in school spending. (The interpretation of A23 has been substantially narrowed by the legislature.)
  • Referendum C, passed in 2006, which amends TABOR, particularly in regard to how government revenues can recover after economic downturns.

Context: What’s happening around the nation

Debate over adequacy has intensified nationwide in recent years as pressures on school budgets have increased at the same time that schools have been required to do a better job of educating at-risk and special education students, raising test scores, transforming their operations, graduating more high school seniors and sending more students to college.

Lawsuits involving some aspect of school funding have been brought in 45 states. Starting in the 1970s suits focused on equity – disparities in spending between individual districts in a state. In recent years the focus has turned to adequacy – whether schools receive enough money to produce the results expected of them.

Thirteen funding cases currently are in process across the nation, according to the National Access Network, an organization at Columbia University that tracks the issue.

Attorney General John Suthers
Attorney General John Suthers

Of cases decided so far, 22 have been in favor of plaintiffs and 11 for states, according to the group. (See lists of current litigation, dispositions of adequacy cases and dispositions of both equity and adequacy cases.)

Education Justice, a group affiliated with the Education Law Center at Rutgers University, also tracks adequacy suits around the country. The center has helped plaintiffs in a long-running adequacy lawsuit in New Jersey.

Despite plaintiffs’ success around the country, Suthers remains skeptical that such suits affect education quality. Noting that such cases are “a 10- to 15-year process” in some states, he believes, “Litigation has shown this is not the way to resolve educational problems.”

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, he 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.