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

Re-Bruce, Part II

By The Daily Sentinel
Wednesday, April 01, 2009

The Mesa County commissioners apparently spooked Democrats in the Legislature when they talked of school districts “re-Brucing” to make up for the mill-levy freeze.

The Mesa County commissioners alerted us to the fact that they had a plan to get taxpayers in the rest of the state to subsidize their schools. We're not spooked, in fact we expect politicians from Mesa County to look for new ways of getting the rest of the state to subsidize them.

The School Finance Act, introduced in the Legislature this week, includes a provision to penalize school districts that re-Bruce in an attempt to reduce their property taxes. The legislation also includes new student-monitoring requirements for school districts that approve changes related to the mill-levy freeze.

It doesn't penalize the school districts, it just says we won't make everybody else in the state pay more to make up the difference. If people in Grand Junction want to pay less for their schools why should everyone else in the state have to pay more for their schools? If we reward that kind of thing, they'll decide not to pay anything for their schools and we'll have to pay all of it.

It was Colorado Attorney General John Suthers who noticed the measures, buried within the lengthy school finance bill, and alerted the public and GOP lawmakers to them.

Interesting. Colorado's Attorney General sees his jobs as supporting Republican legislators rather than upholding the laws of the state.

Now, Senate Minority Leader Josh Penry is hoping he can strike a compromise with Democrats about the provision.

We hope he’s successful. Voters in school districts around the state should have the option — without penalizing their school districts — of making it clear they never intended to raise property taxes when they approved overrides to TABOR revenue limits.

And there's nothing in the school finance act that would increase their property taxes. This is about what happens when they lower their property taxes. If people in the school district lower the property taxes they pay for their schools, does everyone else in the state have to pay more to make up the difference.

That was the case for years, until the Legislature passed the mill-levy freeze in 2007. It prevented school districts’ mill levies from dropping as their assessed valuations increased. That effectively raised taxes in 174 school districts statewide. The Supreme Court ruled last month that the mill-levy freeze didn’t violate TABOR.

The reasoning here is that not letting people in Grand Junction lower their property tax rates is actually a property tax increase. They say it's an increase because if the value of a person's home goes up, the amount of tax they pay goes up.

Oddly, the Mesa County Commissioners think that's just fine when it comes to paying property taxes to support their county. They just don't like it when it applies to paying property taxes to support their schools. What's the difference? A subsidy. If the Mesa County Commissioners cut their own property taxes, they lose money.

But they were hoping that if they cut their property taxes for schools, we'd force taxpayers in the rest of the state to increase their subsidy of the Grand Junction schools to make up the difference.

In response, the Mesa County commissioners suggested School District 51 should “re-Bruce” — reinstate the provisions that allow the mill levy to drop as the district’s assessed valuation increases.

We argued last week that putting such a question to voters should be a decision of the District 51 School Board, not the county commissioners. And, even though members of the School Board don’t seem inclined to push such an approach, we believe they ought to have the option.

But with language included in the School Finance Act, they would be penalized for doing so.

School funding comes from both local property taxes and the state general fund. The school-finace language says if school districts vote to re-Bruce, they won’t get any additional state funding. Whatever money they cut in local property taxes will be deducted from the school district’s budget.

Is that a radical concept. You cut the taxes you pay so your school district has less money to spend?

Additionally, any school district that votes to re-Bruce would face new requirements for reporting to the state and for boosting student achievement, mandates that other school districts wouldn’t have to meet.

This is something the Senate put into the bill and it does seem unfair. We might take it out in the House.

We’re all for doing things to improve student achievement, but these requirements are clearly punitive, designed to treat school districts differently if they try to overcome the mill-levy freeze.

We don’t think many school districts will try to do that in the current economic crisis. But, with the School Finance Act, the Legislature is telling voters in 174 school districts, “We raised your property taxes without your permission, and we’re going to do everything we can to prevent you from reducing them.”

Not really. The provision they're talking about said that if the voters in a school district voted to let the district keep the money it gets from the existing property tax rate, the district can keep it.

The provision in this year's bill just says that if you lower your property taxes we won't force everyone else in the state to pay more to make up the difference.

That’s not exactly the way to promote trust in government.

Actually, it's exactly the way to promote trust in government.

Pommer derides enrollment exclusion

Democrat says charter schools ‘cherry pick’ students they want
By John Fryar
The Daily Times-Call

DENVER — Some Colorado charter schools are “cherry picking” the students they’ll admit and weeding out “kids that they don’t want,” a local lawmaker charged on Tuesday.
Even though semi-independent charter schools are technically public schools and get government funding, “we’ve built a separate set of schools that are quasi-private,” said Democratic Rep. Jack Pommer, whose House district includes parts of both the St. Vrain Valley and Boulder Valley school districts.
During a budget hearing with Colorado Department of Education officials, Pommer reported that parents and local school district officials have complained to him that there’s little they can do to prevent charter schools from turning away certain students they would rather not admit.
Pommer did not specifically name any such schools during the hearing. But several State Board of Education members said such exclusionary practices are illegal because charter schools have to have open-enrollment policies.
“I don’t know legally how the school can cherry-pick,” said Randy DeHoff, a Republican education board member from Littleton.
Evie Hudak, a Democratic state board member from Westminster, agreed with DeHoff but added that “it’s true that some charter schools counsel out students” who don’t fit into a school’s particular educational program.
Boulder Democrat Jared Polis, vice chairman of the state board, said the exclusionary enrollment practices Pommer described are not only illegal, but that local school districts shouldn’t allow them.
Polis said he thought the state board would be unanimous in saying that school districts should not allow preferential admissions policies by the charter schools within those districts.
But Pommer told Polis and DeHoff during a break in the hearing that school districts “all over the state” say there’s little they can do about the creation or practices of charter schools within their local jurisdictions.
Those local school districts fear they’ll be overruled by the State Board of Education, or that would-be charter schools will bypass the districts entirely and seek authority to form and operate themselves under a separate charter school law, he said.
Pommer charged that some families can’t even get their children into charter schools in their own neighborhoods because slots have been filled by children of the charter schools’ board members or employees.
Meanwhile, Pueblo Democratic Sen. Abel Tapia aired a separate charter-school-related complaint during Tuesday’s hearing.
Charter schools, which began forming under a 1993 law sponsored by Gov. Bill Owens when he was a state senator, were supposed to be laboratories for education innovations that could be adapted by conventional public schools, said Tapia, the chairman of the budget committee.
Tapia said he’s seen little idea-sharing between charter schools and public school districts in the 13 years since.
Polis suggested the blame may lie both with some charter schools, which may be too protective and “proprietary” about their techniques, and school districts with “an excess of pride” that don’t want to implement ideas they didn’t come up with for themselves.
“There is a lot of room for improvement” on both sides, Polis said.

Education mandates tie up state cash flow

By John Fryar
The Daily Times-Call

DENVER — Several key lawmakers expressed concerns Monday over the state’s annually escalating share of responsibility for covering a majority of the present multibillion-dollar system of funding Colorado’s public schools.
None of the Legislature’s Joint Budget Committee members or any of the other lawmakers attending a Monday morning JBC briefing objected to the overall projected $5.1 billion price tag of Public School Finance Act distributions to Colorado’s 178 school districts in 2007-08.
However, some of those lawmakers indicated that sometimes-conflicting fiscal mandates and constraints within the Colorado Constitution continue to require the state to absorb increasing portions of the cost of paying for most of the day-to-day expenses of operating the state’s public schools.
Carolyn Kampman, one of the JBC’s staff analysts, said that of the nearly $5.1 billion in spending that the Public School Finance Act might amount to in 2007-08, more than $3.2 billion would have to come from various state budget accounts. The other $1.8 billion would come from property taxes and specific ownership taxes paid directly to the local school districts.
Kampman reported that between 1993-94, when the basic framework of the state’s school-funding law was first adopted, and the current 2006-07 budget year, when funding under that act is expected to total nearly $4.8 billion, the state’s annual share of that funding package has grown from 54.3 percent of the total to about 64 percent.
“The local-share issue is huge,” Boulder Democratic Rep. Jack Pommer said after Monday’s meeting.
Amendment 23, a measure Colorado voters approved in 2000, ensures annual increases in the base level of the Public School Finance Act’s per-student funding, but other constitutional provisions have meant the Legislature might face having to cut other state programs and services to meet that school-finance mandate, said Pommer, a JBC member and Amendment 23 supporter.
House Education Committee chairman Mike Merrifield, D-Manitou Springs, another staunch Amendment 23 fan, said the shifting of school-funding burden to the state budget is a concern, “but what can you do about it” without voters approving changes to things like the Taxpayer’s Bill of Rights?
TABOR and the Gallagher Amendment, a 1982 constitutional change intended to protect residential property owners from some of that era’s growing tax burdens, are provisions that voters alone could change, noted Boulder Democratic Sen. Ron Tupa, soon to be vice chairman of the Senate Education Committee.
He said, however, that he didn’t know any solutions to the state-local share situation “that are viable.”
“We still haven’t cracked that nut,” Tupa said.
Merrifield said, “We have to bite the bullet and talk to the public about how they want to finance public education” in the future.
Senate Education Committee chairwoman Sue Windels, D-Arvada, agreed: “The only real solution lies in getting public support” for one or more school-finance-related ballot items.
John Fryar can be reached by e-mail at jfryar@times-call.com.

Teacher open-talks bill gets initial OK

By Ryan Morgan
Denver Post Staff Writer

Tuesday, March 18, 2003 - A bill requiring that employment contract negotiation sessions between teachers and their school boards be open to the public survived two Democratic attempts to kill it on the House floor Monday.

Instead, it won preliminary approval and will be up for a final vote later this week.
Sponsored by Rep. Rob Fairbank, R-Littleton, House Bill 1314 would "let the sunshine in" on the negotiations.

"I would ask for us to take a look at allowing the taxpayers to have some idea of how millions of dollars are being spent on teacher contract negotiations," he said.
Republican Rep. Don Lee of Littleton agreed.

"This could be a civics lesson for the children," he said. "It's much better to have it open to the public."

Current state law requires that public officials hold the vast majority of their meetings in public, but doesn't explicitly make that requirement for teachers' contract negotiations. Some school districts' meetings are public, while others hold theirs behind closed doors. The final contract, however, is public.

Democrats spoke up against the bill. Rep. Suzanne Williams, D-Aurora, said she supports the principle of Colorado's open-meetings law, and thinks that it should probably be expanded.
But, she said, "this bill is singling out teachers, and it's unfair."

Rep. Mike Merrifield, D-Manitou Springs, had another worry. Unlike legislative meetings, contentious school contract negotiation sessions don't have a sergeant-at-arms to keep order, he said, and could turn into a melee.

"If we have these negotiations open to the public, we're going to have a potentially dangerous, potentially frightening situation," he said.

But the floor debate itself soon took on an air of the potentially ridiculous a few minutes later, when Merrifield hopped up and down in front of the speaker's podium, incensed because it looked as though acting Speaker Rep. Ray Rose wouldn't recognize him to speak.

Rose relented, and Merrifield was able to speak again, denouncing a remark made by Republican Rep. Nancy Spence, who recalled "shakedowns" at the hands of teachers unions when she served as a school board member.

Several other Democrats criticized Fairbank's bill on the grounds that it violates the cherished Republican principle of local control.
"I think we should have faith that the school boards will do what they were elected to do," said Rep. Jack Pommer, a Boulder Democrat.

Officials at the Colorado Education Association, which came out against the bill, made similar criticisms.

"It is because the school district and its employees have determined how they want their negotiations to be held," spokeswoman Deborah Fallin explained. "They've decided at the local level how they're going to negotiate."

A no-brainer for schools

Monday, March 17, 2003 - House Bill 1032 seemed like a no-brainer.

Fortunately, state lawmakers saw it that way, too. Even though it was sponsored by two Boulder Democrats - folks not necessarily en vogue this session - it sailed through both chambers.

The bill, which becomes effective upon Gov. Bill Owens' signature, requires school district superintendents and chief financial officers to get school board approval before seeking an interest-free loan from the state.

"It's a good idea to prevent another St. Vrain," state Sen. Ron Tupa, D-Boulder, told the Senate Education Committee last month. He was a co-sponsor of the bill, along with Rep. Jack Pommer, D-Boulder.

Had the St. Vrain Valley School District board been given monthly updates on the district's loans and financial status, the nearly $14 million financial fiasco that has engulfed the district might have been avoided.

Lawmakers should be lauded for passing HB 1032 quickly and with few changes.

According to the bill, the CFO and superintendent must explain to the board why the loan is needed. A majority of the board members must then approve the request.

It's up to State Treasurer Mike Coffman to decide whether they'll receive the money.

The Colorado Association of School Boards supported the bill for much the same reason we do: It triggers an opportunity for boards to start asking questions.

Most school board members are not financial experts (although we wouldn't be surprised if some St. Vrain candidates this fall have money backgrounds) and could use the extra dialogue.

Really, it's about oversight. In these days of Enron and Qwest, it's hard to argue against more disclosure.