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.”

listening tour

We asked six Colorado school board members what they want from the state’s next governor. Here’s what they said.

Democratic gubernatorial candidates Donna Lynne, Noel Ginsburg and Cary Kennedy at a candidate forum hosted by the Colorado Association of School Boards. (Photo by Nic Garcia)

Late last week, nine candidates for Colorado governor came together to talk education, addressing an annual fall conference of school board members.

Now, we’re giving some of those audience members a chance to speak up.

Before the gubernatorial hopefuls took the stage, Chalkbeat recorded interviews with a half-dozen school board members who represent districts across the state. Our question to them: What are the big education questions you hope the next governor will take on?

Not surprisingly, funding challenges came up time and again.

One school board member asked for a more predictable budget. Another asked for schools to get their fair share of annual increases in new tax dollars. One went so far as to say the next governor would be a chicken if he or she didn’t take on reforming the state’s tax code.

We also heard a desire for leadership on solving teacher shortages, expanding vocational training and rethinking the state’s school accountability system.

Here are the six gubernatorial wishes we heard from Colorado’s school board members:

Reform TABOR to send more money to schools

Wendy Pottorff, Limon Public Schools

Since the Great Recession, Colorado schools have lost hundreds of thousands of dollars. And while the state legislature has tried to close its education funding shortfall, lawmakers haven’t been able to keep up. Getting in the way, Pottorff says, is the state’s Taxpayer Bill of Rights, or TABOR.

Change the conversation about public schools


Paul Reich, Telluride School District

Reich says public schools are under attack under the false premise that they’re failing — and that isn’t helping the state recruit bright young teachers. He said the next governor must change the conversation about schools to make teaching a more desirable profession.

Provide a clear budget forecast

Anne Guettler, Garfield School District

Approving a school district’s budget is one of the many responsibilities of a Colorado school board. That’s a tall challenge when the state’s budget is constantly in flux, Guettler says. She hopes the next governor can help provide a clearer economic forecast for schools.

Rethink school accountability to include students and parents

Greg Piotraschke, Brighton 27J

Colorado schools are subject to annual quality reviews by the state’s education department. And it’s time for the state to rethink what defines a high-quality school, Piotraschke said. He suggested the governor could help rethink everything from how the state uses standardized tests to how to incorporate parents and students into the review process.

Give schools more resources to train the state’s high-tech workforce

Nora Brown, Colorado Springs District 11

In light of Colorado growing tech sector, several gubernatorial candidates have come out in support of more technical training for Colorado students. But that costs money, Brown says. The Colorado Springs school board member said promising better job training for high school students without more resources is empty.

Remember there’s a difference between urban and rural schools

Mark Hillman, Burlington School District

Crafting statewide policy is an onerous task in Colorado, given the diversity of the state’s 178 school districts. Hillman said the next governor must remember that any legislation he or she signs will play out 178 different ways, so they must be careful to not put more undue pressure on the state’s smallest school districts.

Colorado Votes 2018

Five things we learned when Colorado’s gubernatorial candidates got on the same stage to talk about education

Colorado Republicans running for governor addressed some of the state's school board members at a forum hosted by the state's association of school boards. From left are George Brauchler, Steve Barlock, Greg Lopez, Victor Mitchell and Doug Robinson. (Photo by Nic Garcia/Chalkbeat)

Nine Republicans and Democrats hoping to become Colorado’s next governor offered contrasting views Friday of the state’s public schools to an audience of more than 100 local school board members.

Most of the five Republicans told the crowd of locally elected officials — who are charged by the state’s constitution with governing Colorado’s public schools — that their programs were in need of improvement and innovation, and that they were there to help.

The four Democrats hoping to succeed fellow Democrat Gov. John Hickenlooper, who is term-limited, pledged to reform the state’s tax code to send more money to schools.

The candidates spoke at the annual fall delegation conference of the state’s association of school boards.It was the first forum of its kind to address education issues exclusively this election election cycle.

Unlike previous elections, Colorado’s public education system has been a key policy debate early in the campaign. Several candidates, especially Democrats, have worked on education issues before.

Here are our five takeaways from the forum:

The Republican candidates didn’t pull any punches when they said the state’s public schools were in need of improvement — and several said that they were the ones to do it.

From District Attorney George Brauchler to businessman Doug Robinson, every Republican candidate said one part or another of the state’s school system needed to do better.

“Education is life itself,” said former state lawmaker Victor Mitchell. “And there is no greater challenge facing our state than 50 percent of our at-risk kids who graduate can’t complete college-level course work.”

Both Mitchell and Robinson pointed to their experience as entrepreneurs as evidence that they could help set the state’s schools free of what they consider unnecessary red tape. Brauchler called for empowering teachers and parents.

Every Democrat and several Republicans agreed that the state’s schools were in a “funding crisis.” But they offered very different paths forward.

It was an easy question for Democrats. Businessman Noel Ginsburg, former state Sen. Michael Johnston, former state treasurer Cary Kennedy and Lt. Gov. Donna Lynne were in lock-step that the state’s schools are in need of more money.

“If we don’t fundamentally solve this crisis, the rest of the issues don’t matter,” Johnston said.

Former state Sen. Michael Johnston and Lt. Gov. Donna Lynne talk after a forum for gubernatorial candidates. Both are Democrats. (Photo by Nic Garcia/Chalkbeat)

Johnston and Kennedy forcefully pledged to take on the state’s Taxpayer Bill of Rights, which limits how much tax revenue the state can collect and requires voter approval to raise taxes.

Lynne was more tempered. While she acknowledged tax reform was needed, she said wanted a legislative committee working on school finance to complete its work before suggesting any overhauls.

Greg Lopez, the former mayor of Parker and a small business owner, was the only GOP candidate who said he would take on the state’s complicated tax laws. If elected, he promised to establish a committee to send a reform proposal to voters.

Robinson and Brauchler acknowledged that schools were in a funding crunch. But they stopped short of saying they’d send more money to schools.

Mitchell said “he wasn’t sure” if there was a funding crisis, but added, “The system should be reformed before it’s fully funded.”

PERA, the state’s employee retirement program, could play a prominent issue in the election — especially for Republicans.

Earlier at the conference, school board members received a briefing on a proposed overhaul to the state’s retirement program, which includes school district employees.

While the situation is not as dire as it was a decade ago, the program’s governing board has become so increasingly worried about unfunded liabilities that it’s asking state lawmakers to pass a reform package to provide more financial stability.

Two Republicans, Brauchler and Steve Barlock, who co-chaired President Trump’s campaign in Colorado, said PERA was in crisis. Barlock warned school board members that their budgets were in jeopardy as lawmakers fiddle with the system.

Neither went into any detail about how they hoped to see the retirement program made more fiscally stable. But watch for this issue to gain greater traction on the campaign trail, especially as Republican state Treasurer Walker Stapleton ramps up his gubernatorial campaign, and as lawmakers begin to wrestle with PERA reforms next year. (Stapleton did not attend the forum.)

Some candidates offered careful responses to a question about school choice. Others, not so much.

Every Democrat and one Republican, Brauchler, said they respected a family’s right to choose the best school for their children. But that choice, they said, should not come at the expense of traditional, district-run schools.

“I’m concerned that we’d build a system where the success of some schools is coming at the expense of other schools,” Kennedy said.

Republicans strongly supported charter schools, and in some cases, vouchers that use taxpayer dollars to pay for private schools. Robinson called on creating new ways to authorize charter schools. Mitchell said he wanted to repeal a provision in the state’s constitution that has been used to rebuff private school vouchers.

There’s no party line over rural schools.

Republicans and Democrats alike said the state needed to step up to help its rural schools, which are typically underfunded compared to schools along the Front Range. They need more teachers, better infrastructure and fewer regulations, the candidates said.

“We need to get rural areas into the modern age,” Robinson said.