Colorado Supreme Court gives go-ahead to schools funding trial

The justices rule, 4-3, that courts can decide whether state funding is sufficient.
By Tim Hoover
The Denver Post

In an opinion that could eventually have profound implications for the state budget, the Colorado Supreme Court ruled Monday that a challenge to whether the state spends enough on public schools can go forward.

In a 4-3 decision, the state's high court overturned the ruling of two lower courts that said the question of how much school funding is enough is one for lawmakers to decide, not the courts.

The ruling Monday means the plaintiffs, who include parents from eight school districts across the state and 14 school districts from the San Luis Valley, can now go to Denver District Court and try to prove the state does not provide enough money for education.

"The state has never figured out how much it costs to provide an education that meets the constitution," said Alex Halpern, an attorney for the plaintiffs.

This is one of the key points in the lawsuit and education in Colorado. The Constitution says "thorough," but we've never looked at what it would take to give every student in Colorado a thorough education.

Halpern said he expected a trial on the question of funding adequacy could go to court in about a year.

Attorney General John Suthers, who defended the state in the case, said the decision is not good news for Colorado taxpayers.

"The majority opinion suggests the plaintiffs, who are seeking additional tax funding that could potentially involve billions of dollars, might find relief from the courts even though the legislature and the voters have determined current educational funding is adequate," Suthers, a Republican, said in a statement.

This isn't quite true. The voters haven't ever said whether or not we put enough money into education. The last time they were asked, in 2000, the passed Amendment 23 which required the legislature to increase the amount of money that's going to schools. And they were pretty specific that Amendment 23 set a minimum amount of money, not necessarily a sufficient amount.

Legislators have varying views on how well we fund schools. I don't think are funding is adequate and I know there are a lot of legislators who agree. Just because we vote for the School Finance Act, or for the budget, doesn't mean we believe it's spending enough on education -- we make do with what we have and what we can get.

Potential impact is huge Rep. Jack Pommer, D-Boulder, a member of the legislature's Joint Budget Committee and a key lawmaker involved in school finance issues, also said the ultimate impact of the ruling could be huge.

"I think it's good for education but bad for the budget," Pommer said. "If they find that our education funding is not thorough, it puts the onus on us to fix that, and I don't see how we could fix it without more money."

We've taken the view that without enough tests, enough commissions, enough requirements on schools and enough talk, education in Colorado will improve. It hasn't worked and it won't in the future. A lot of legislators say more money won't help. Oddly, they never apply that view to highway construction and maintenance.

Sen. Keith King, R-Colorado Springs, another lawmaker involved in school finance issues, said any challenge to school-funding adequacy would take years to resolve. He doubted a challenge would be successful.

"I think the judiciary would have a very challenging row to hoe to say what we are funding in Colorado is not adequate," King said, "but I've been surprised by courts in Colorado before."

Plaintiffs originally filed the case in 2005, arguing that the state was not spending enough to meet the requirement in the state constitution to provide a "thorough and uniform" system of school funding.

The group of parents and school districts argued that the school-funding system did not adequately provide for disabled, poor or minority students and those who don't speak English and come from low property-value districts.

But Denver District Judge Michael Martinez in 2006 threw out the case, ruling that because the current funding system complied with Amendment 23, the voter-approved measure that requires education funding to increase every year by at least the rate of inflation, the system complied with the constitution and the courts had no say in the matter.

Requiring school funding to go up with inflation just means it stays the same from year to year after you figure in costs. It's hardly a definition of a thorough education. Or uniform, for that matter.

A Colorado Court of Appeals panel upheld the decision in 2008.

But the state's high court Monday overturned both lower courts, declaring that Amendment 23 "neither relates to nor concerns the 'thorough and uniform' mandate" in the state constitution.

Ruling that courts could not decide what is a proper level of education funding "would give the legislative branch unchecked power, potentially allowing it to ignore its constitutional responsibility to fashion and to fund a 'thorough and uniform' system of public education," the Supreme Court said in its opinion.

Dissent: "Thorough" not defined
In a dissent, Justice Nancy Rice said the constitution places the issue "squarely and solely in the legislative ambit."

Sure, but what if the legislature doesn't obey the constitution?

She was joined in the dissent by Justices Nathan Coats and Allison Eid.

"There is no national standard from which this court could adopt a definition of 'thorough,' and more importantly, the varying definitions other states ascribe to the term illustrate no consensus on what 'thorough' means," Rice wrote. "As such, any definition we might construe would necessarily constitute a policy determination. "

Odd how some people who believe in states rights suddenly need a national standard when it's convenient. The Colorado Constitution doesn't call for meeting national standards, it sets its own standard.

It's not hard to construe a definition; the legislature has put plenty of them into law already. Just defer to the legislature, pick a legislatively-approved definition, and apply it. Of course, the we put education standards in law assuming only other people will have to measure up to them, like teaches and school boards, but laws sometimes boomerang on the people who write them.

And, of course, once courts begin to make policy, it is difficult to stop."

The state is facing its worst budget crisis since the Great Depression and has already filled a $1.8 billion shortfall over the past two budget cycles. In September, lawmakers learned revenues likely would be another $240 million short in the current 2009-10 budget year that ends in June.

Gov. Bill Ritter, a Democrat, is considering a cut to public-school funding for the next fiscal year that would result in at least a $170 million net reduction over the current year. Some education groups say that cut could violate Amendment 23.

And this decision won't make "reinterpreting" Amendment 23 any easier."

Tim Hoover: 303-954-1626 or thoover@denverpost.com