education funding

Colorado Supreme Court to issue ruling on Lobato lawsuit (called the “SuperBowl of school funding litigation”) Tuesday

The Colorado Supreme Court will issue a ruling in the resurrected ‘Lobato v. Colorado‘ school funding lawsuit (previously termed the Super Bowl of school funding litigation) this Tuesday, 28 May 2013 (the court heard oral arguments in the case in early March this year).

At issue: the constitutionality of Colorado’s system of statewide school funding.
At stake: some $4B additional school funding annually (requested by the plaintiffs), along with an additional $17B in spending on capital construction – and, perhaps even more importantly, a looming constitutional crisis regarding separation of powers and the proper role of the courts in setting taxation and educational policy.

Colorado Supreme Court Justices, from left, Nathan Coats, Gregory Hobbs, Michael Bender, Nancy Rice, Allison Eid and Brian Boatright hear school-funding arguments in the Lobato vs. Colorado case filed in 2005. Attorneys from both sides were subjected to pointed questioning from the bench. (RJ Sangosti, The Denver Post)

The Lobato lawsuit was originally filed in 2005; it was rejected at both the trial court level and in the Colorado Court of Appeals before narrowly (4-3) receiving new life in one of the Mullarkey Majority’s final (and most notorious) rulings in October 2009. The Mullarkey Majority overturned lower courts that had held (correctly) that school funding decisions are a matter of policy – not law – and are therefore the job of elected legislators – not appointed judges – to decide.

The 2009 Mullarkey Court ruling sent the case back to the trial court, and two years later (9 December 2011) Denver District Judge Sheila Rappaport issued a 183-page ruling finding for the plaintiffs – which was almost immediately appealed by the state (a bipartisan decision by Governor Hickenlooper and Attorney General Suthers) and joined in the appeal by the State Board of Education).

Although “reading the tea leaves” and predicting an outcome is always fraught with danger, it was clear from oral arguments in March that the justices who had participated in the 2009 Lobato ruling had not since shifted their opinion on the merits of the case.

However, what has changed in the interim (due in no small part to the efforts of Clear The Bench Colorado) is the composition of the state’s highest court – as two of the “unjust justices” who had previously voted to keep the Lobato lawsuit alive (Justice Alex Martinez and former Chief Justice Mary Mullarkey) have since resigned from the court (the former, after having received the lowest “retain” vote percentage of any incumbent Colorado Supreme Court justice in the state’s history – at 59% – and the latter quitting in advance of the retention vote rather than face the voters, in the face of a popular judicial accountability movement).  Mullarkey’s replacement, Justice Monica Marquez, recused herself (appropriately) from this case, having taken part in earlier decisions while representing the state as an assistant attorney general, leaving the balance of power in deciding the case to recently appointed Justice Brian Boatright.  Note that both Justice Boatright and Justice Marquez are subject to a retention vote in 2014.

 At Stake?

As previously mentioned, not only are billions of dollars in additional school funding (estimated by plaintiffs at $4B, annually) at stake – which alone could have “devastating consequences” for the state, according to Governor Hickenlooper – it could precipitate a constitutional crisis.  A court mandate to raise taxes or require more spending would intrude upon the legislature’s authority to set education policy and violate the constitutionally-defined separation of powers between the branches of state government (an issue raised in the dissenting opinion in the 2009 ruling, as Clear The Bench Colorado noted at the time:

The Colorado Constitution directs the General Assembly to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state,”placing discretionary education questions in Colorado squarely and solely within the legislative ambit. (Lobato v. State of Colorado, dissenting opinion. Emphasis added).

A court ruling in favor of the plaintiffs “could alter the relationship between the people of Colorado and their government for decades to come” – since

One of the plaintiffs’ main arguments is that the Taxpayer Bill of Rights (TABOR) must give way to the education clause so that taxes could be raised and revenues increased to meet the needs of the education clause without a vote of the people.

A ruling by the Colorado Supreme Court asserting primacy of the education clause over TABOR and imposing higher taxes or spending could - as noted by both the attorney general’s office and Governor Hickenlooper – plunge the state into a constitutional crisis:

“Let’s say that the Supreme Court agrees with the district court – if that’s the case, then we’ve got the Constitution versus the Supreme Court.”

Listen to audio of Governor Hickenlooper’s statement on the Lobato appeal

Clear The Bench Colorado‘s prediction on Tuesday’s pending ruling:

Given that the justices who voted on the previous appearance of the Lobato case before the Colorado Supreme Court are unlikely to change their positions, the weight of the decision falls firmly on the shoulders of recently appointed Justice Brian Boatright – who will be facing the voters in the 2014 retention elections.  Given the weighty constitutional issues at stake, and the potentially “devastating consequences” for the state (as well as confidence in the state’s judicial system), it is our view that Justice Boatright will do the right thing and join the previous dissenting minority in forming a new majority to overturn Judge Sheila Rappaport’s blatantly biased and political ruling.

Our bet: 4-2 to overturn, upholding the Constitution. 

Bottom Line:

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (i.e., a policy issue not to be decided by the courts).

If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit has been a fiscal, legal, and political disaster for almost a decade.

Read more about the Lobato school funding case in these articles:

The Attorney General’s office has also compiled a list of key pleadings and court decisions in the Lobato case.

Cases such as Lobato – particularly Rappaport’s biased ruling – highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government.  This is not it.

CTBC Analysis of Oral Arguments in Douglas County School Choice Voucher Program at Colorado Court of Appeals

The Colorado Court of Appeals held oral arguments yesterday (Monday, 19 November) on a challenge to Denver District Court Judge Michael Martinez’ ruling in the Douglas County Choice Scholarship Program trial.  The appeal, led by the Douglas County School Board and joined by the state of Colorado and several affected families, was held at the Colorado Supreme Court/Colorado Court of Appeals hearing room at  100 W. Colfax Avenue, Denver 80202 (the Denver Post building).

In that ruling, Judge Martinez decreed that the Douglas County Choice Scholarship Program violated multiple sections of the Colorado Constitution (Article IX, Section 7 Aid to Private Schools, Churches, Sectarian Purpose, ForbiddenArticle IX, Section 8 Religious Test and Race Discrimination Forbidden Sectarian Tenets, and Article II, Section 4, Religious Freedom) as well as the state school financing act.

Monday’s oral arguments before the Colorado Court of Appeals, in which each side had 30 minutes to make their case, were recorded and posted online shortly after the hearing.

Attorney for the appellants (Douglas County School Board) Eric Hall opened with a description of the school choice scholarship program that touched upon the key legal issues at the heart of the appeal:

The program offers an additional educational choice to students who have been enrolled in Douglas County Public Schools for at least a year.  No family must participate in it; and it in no way hurts the opportunity of any student to receive a free public education.

Key points:

  • additional educational choice (not replacing constitutionally mandated “free public education”)
  • no family must participate (program participation is non-compulsory)
  • no harm to or diversion of resources from existing system of free public education

Hall continued:

Through the Choice program, the district offers aid to parents, on a neutral basis, without regard to religion. As a neutral program, it neither favors nor disfavors any private school, religious or non-religious.

Key Point:
The test of constitutionality established in the 2002 U.S. Supreme Court Zelman case allows education vouchers to be used for schools including religious schools IF the overall program is neutral towards religion and IF the choice to attend religious schools is entirely left up to the parent:

This Court’s jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice. See, e.g., Mueller v. Allen, 463 U. S. 388. Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits.

The fact that the program disburses funds directly to the parent, to use towards any school they choose, also addresses the Colorado constitutional prohibition on “direct aid” to religious institutions (Article IX, Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden) since the aid is to the parent/student, not directly to the school.

Hall then addressed the provisions of Colorado’s School Finance Act, highlighting the aspect of local control (Section 104(1)(a)):

Finance Act funds flow to local districts… the amounts and purposes for which such Finance Act means are budgeted and expended shall be in the discretion of the district.

Key Point: 
The Douglas County School Board has the statutory authority to decide on how to allocate school funding dollars within the district.

[At this point, Judge Jones asked if the School Finance Act provided for standing of individuals to bring suit under the provisions of the Act; Hall responded that the Act does not provide such standing (indeed, explicitly rejects it) and noted that Denver District Court Judge Michael Martinez had erred in allowing individuals standing to bring a Finance Act claim.]

Hall then characterized opposition to the School Choice Scholarship program as being based on objections to the fact that

private and religious schools can participate… they assert public funds can’t be spent in this way.

Hall noted that a 1982 Colorado Supreme Court case (Americans United) held that “public funds can be spent at private and religious schools by means of a neutral program of private choice.”

[Judge Jones then brought up a question (based on a number of cases, including Lemon, Weaver, and Mitchell) concerning the "influence of overtly religious education on younger kids... being inconsistent with what we want to do with public monies."

Hall responded that, based on the Weaver case, "any sort of indoctrination doctrine is not only discarded, but unconstitutional" (as a 1st Amendment violation)]

Hall concluded by noting that the court “should apply the Zelman test” – with “genuine private choice” as the key criterion, recognizing that any incidental benefits to institutions with a religious character are attributable to parent choice, not impermissibly mandated by the program itself, and noted the existence of several state programs providing funds to schools with a religious component:

“Public funds can and do flow to institutions with a religious component” under current state practice and law.

Plaintiffs attorneys divided their time in oral arguments between addressing constitutional/religious issues and School Finance Act issues.

Attorney Matt Douglas first addressed the constitutional/religious objections to the Douglas County School Choice Scholarship program.

Douglas began by asserting that the program violates several specific articles of the Colorado Constitution with respect to the establishment of religion.  He further asserted that the appellants “must prove that the trial court was wrong on ALL of the constitutional provisions” to overturn that court’s judgment.

Douglas stated that the Colorado Constitution “specifically prohibits state funding of religious education” (under Article IX, Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden and Article II, Section 4, Religious Freedom).

Douglas characterized the routing of educational aid through a charter school construct and via direct disbursement to the parents as a “sham” designed to “get around the plain language of the Colorado Constitution.”

[Judge Graham at this point asked, "Isn’t this program facially neutral?"  (When told "no" he followed with "can the court inquire as to nature of religious beliefs if the program is facially neutral?  Isn't that exactly what the trial court did?") . Graham questioned whether the trial court's reliance on “pervasiveness of indoctrination” for judgment  was constitutionally permissible.]

Douglas argued that the court “can & should” render judgment on this basis, that the trial court viewed “whether sectarian tenets are being taught, period” which he said is allowed under federal case law.

Douglas noted that the trial court found that funds for tuition does constitute “aid to schools” (impermissible under the Colorado Constitution, Article IX Section 7).

[Judge Jones interjected at this point that the same kind of program was found NOT to constitute "aid to schools" in the Zelman ruling.]

Douglas countered that if ANY of the schools in the program don’t “admit all” regardless of religion, then the entire program is discriminatory.

 

Attorney Michael McCarthy addressed the public school finance issues and School Finance Act for the Plaintiffs

McCarthy opened by asserting that the purpose and intent of constitutional and statutory provisions for public school finance is to “prevent depletion of public school finance resources” – arguing that the Douglas County School Choice Scholarship program “will gut public school finance in Colorado” and, if allowed to proceed, would grow beyond the initial limited scope and “operate to materially deplete financing available to public schools” not only in Douglas County, but throughout the state.

Judge Graham again raised the issue of standing, noting the absence of explicit language allowing individual standing in the School Finance Act and asking

if we allow standing in private citizens, aren’t we really allowing them to be substitute Boards of Education?”

McCarthy responded that “no express cause of action is needed – other avenues exist” and that ultimately, standing was predicated on the test established by Justice Rovira,

“did plaintiff incur injury in fact, related to a constitutional right?”

The majority of the remainder of McCarthy’s time was taken up with a discussion on whether or not funding was diverted to or from other school districts, and whether students leaving the Douglas County public schools constituted a net loss (in funding) to the district. (Judges Graham and Jones, in particular, seemed skeptical).

McCarthy concluded by proclaiming,

Choice isn’t the preeminent constitutional value in this case – or in this state.

He argued that the School Finance Act requires a specific spending formula, and that a transfer of 75% of the per-pupil funding to students attending private schools constitutes an “illegal transfer” since the private schools are ‘not public, not free & uniform, not subject to local control.”

 Oral arguments concluded with rebuttal by appellants’ attorney Eric Hall.

Hall noted that the trial court had ruled in favor of plaintiffs on Article IX Sections 2 and 15; however, Article IX Section 3 creates a “trust obligation” to school districts – which can spend funds as they like (within discretion).

Hall highlighted the absurdity of insisting that “public funds can ONLY be spent on public schools” -
if true, then NO expenditures to private entities (including contracting services on everything from janitorial to legal services) would be allowable.  School districts, he continued, “can and do buy services from private entities.”

Analysis:

Based on the body of evidence and argument presented at yesterday’s hearings and throughout the appeals process, the trial court’s ruling appears likely to be overturned, in whole or in part.  On the (admittedly esoteric) issue of standing to bring claims under the School Finance Act, it was clear that a majority (if not all) of the judges were skeptical at best, making it likely that those claims will be disallowed (rendering the trial court’s judgment in those areas moot).

On the core constitutional issues (respecting religious freedom and prohibiting public funds for support or sustaining of sectarian institutions), governing case law (from the 2002 U.S. Supreme Court Zelman case to the 1982 Colorado Supreme Court Americans United case and several others touched upon in filings and at argument) is clear that so long as the overall program is facially neutral (containing neither preferences for or against either secular or religious schools) and that school funds are spent in pursuit of education meeting secular criteria under local district control, the choice of individual students (parents) to attend schools with a religious component does NOT constitute “support” of the institution (nor, since the choice to attend a given school is left to individual program participants, does it “compel” sectarian attendance).

Moreover, since the program merely provides an additional choice among several options as an expansion to (not replacement of) the existing constitutionally mandated system of “free public education” and does not result in a net loss to the public system’s funding (indeed, it results in a 25% per-pupil surplus to the district), claims of damage under the School Finance Act lack justification.

The court’s ruling (to be issued “in due course”) will most likely be published in February or March of next year.

Since both sides in the case have signaled their intent to appeal if not satisfied with the verdict, the ultimate resolution of the case will fall to the Colorado Supreme Court – most likely (the wheels of justice grind slowly) in another year or more.

 Additional References:

For another analysis of yesterday’s oral arguments (with more emphasis on policy implications over legal issues), read Education Policy Analyst Ben DeGrow’s superb summary.

Click here for a comprehensive review of the Douglas County Choice Scholarship Program (including program information, video and audio interview and news clips, news and commentary highlights and links to many legal documents in the case)

Colorado Court of Appeals to hear oral arguments in Douglas County school voucher program case Monday (19 Nov 2012)

The Colorado Court of Appeals will hear oral arguments Monday afternoon (19 November 2012) on the Douglas County school voucher program that was stopped (via permanent injunction) by Denver District Court Judge Michael Martinez in a controversial ruling (Larue v. Douglas County) in August 2011.

In that ruling, Judge Martinez decreed that the Douglas County Choice Scholarship Program violated multiple sections of the Colorado Constitution (Article IX, Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden, Article IX, Section 8 Religious Test and Race Discrimination Forbidden Sectarian Tenets, and Article II, Section 4, Religious Freedom) as well as the state school financing act.

Martinez appears to have disregarded governing constitutional precedent established in the 2002 Zelman v. Simmons-Harris case, which established the constitutionality of school vouchers even for schools with a religious component if the choice is up to the parent:

This Court’s jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice. See, e.g., Mueller v. Allen, 463 U. S. 388. Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits.

A contemporaneous Colorado Springs Gazette editorial (“Backward voucher ruling favors oppression“) was a scathing indictment of Denver District judge Michael Martinez’ ruling to stop the Douglas County school choice program via permanent injunction, calling it “a decision to segregate and oppress,” also noting that voucher programs do NOT violate the U.S. Constitution’s Establishment Clause:

 In Colorado, education money attaches to children. With each child who enrolls, a public school gets more than $6,000 for the year.

Vouchers issue the money to parents. At that point, the money belongs to the parent and child. They are free to spend it at almost any accredited school, religious or otherwise.

The key point – that educational choice belongs to the parent, not to the government (especially, not to the courts) – bears repeating:

 Once state money is converted to a voucher and given to a child, it’s no longer the government’s. It belongs to the child, who is subject to the will of a parent or guardian. Parents and guardians have the right to choose whether their children are schooled in secular or religious settings.

Bottom Line:
The Douglas County case also touches upon important constitutional issues such the separation of powers between branches and levels of government, establishment of religion, and collection and allocation of tax dollars, but ultimately comes down to a very basic and fundamental issue:
who decides how to educate Colorado’s children?

Clear The Bench Colorado believes that the decision should be in the hands of parents – NOT in the hands of the courts.

Cases such as this highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering (let alone deciding) issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government.  This is not it.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

State Education Board joins Governor Hickenlooper in bipartisan appeal of Denver judge’s ruling on Lobato school-funding lawsuit

Colorado’s State Board of Education voted 4-3 Tuesday morning to appeal Denver District Court Judge Sheila Rappaport’s ruling against the state in the Lobato school funding lawsuit.  Colorado Governor John Hickenlooper had officially announced last Wednesday* that the state would appeal Denver District Court Judge Sheila Rappaport’s ruling that the state’s education funding is not “thorough and uniform” as referenced in constitutional language (Colorado Constitution, Article IX, Section 2).  Rappaport’s 183-page ruling also paved the way for court-ordered tax increases, stating:

“It is also apparent that increased funding will be required.”

The state education board’s decision to appeal the Lobato ruling is significant because although the board’s vote to appeal Rappaport’s ruling was decided on a party-line basis (Education News Colorado)

(SBE’s four Republicans, Bob Schaffer, Marcia Neal, Paul Lundeen and Deb Scheffel, voted for appeal while Democrats Elaine Gantz Berman, Jane Goff and Angelika Schroader voted no)

the board joins Democrat Governor John Hickenlooper and Republican Attorney General John Suthers in a broad, bipartisan coalition of state elected officials seeking to overturn judicial usurpation of executive and legislative authority.

Governor Hickenlooper and Attorney General Suthers had earlier warned of “devastating” consequences for the state if the Lobato plaintiffs were successful in forcing additional school spending.

Although the lawsuit (and Rappaport’s ruling) is likely to be overturned (thanks to the departure of former Chief Justice Mullarkey and the more recent resignation of Justice Alex Martinez, 2 of the original 4 votes keeping the Lobato lawsuit alive in 2009 are now gone), appealing the case will cost Colorado taxpayers plenty:

[Mike] Saccone [spokesman for the attorney general's office] said the legislature has appropriated up to $3.5 million to defend the state against the suit.

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).

If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these articles:

The Attorney General’s office has also compiled a full list of key pleadings and court decisions in the Lobato case.

Cases such as Lobato – particularly Rappaport’s biased ruling – highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government.  This is not it.

* Governor Hickenlooper responded to a question at a 13 December 2011 town hall event about Lobato that he was leaning towards an appeal, since the court’s ruling “clearly violated TABOR” and Colorado voters had recently rejected a tax increase purportedly targeted for education funding (Prop. 103).

The Constitution says we can’t raise taxes without a vote of the people – the people just voted specifically on more revenues for education, and the people pretty clearly voted 2-to-1 that this was a bad idea. So how can the courts say that we should do it?

Governor Hickenlooper clearly disagreed with Rappaport’s ruling, and clearly expects to win on appeal, since the alternative would plunge the state into a constitutional crisis:

“Let’s say that the Supreme Court agrees with the district court – if that’s the case, then we’ve got the Constitution versus the Supreme Court.”

Listen to audio update on the Lobato appeal (playing this week on 560KLZ The Source)

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

Colorado Governor Hickenlooper announces state will appeal Denver judge’s ruling on Lobato school-funding lawsuit

Colorado Governor John Hickenlooper officially announced Wednesday* that the state would appeal Denver District Court Judge Sheila Rappaport’s ruling that the state’s education funding is not “thorough and uniform” as referenced in constitutional language (Colorado Constitution, Article IX, Section 2). Rappaport’s 183-page ruling also paved the way for court-ordered tax increases, stating:

“It is also apparent that increased funding will be required.”

Rappaport’s 183-page opus spends a mere 10 pages even purporting to address issues of law (the remainder is dedicated to a lengthy exposition of the judge’s views on the educational system and her personal opinions on the worthiness of various witnesses) and fails to address how to enforce funding increases in compliance with other constitutional provisions.  As the governor’s statement noted,

“The judge’s decision provided little practical guidance on how the state should fund a ‘thorough and uniform’ system of public education,” said Hickenlooper.  ”Moreover, while the judge focused on the inadequacy of state funding, she did not reconcile this issue with other very relevant provisions of the Constitution, including the Taxpayer’s Bill of Rights, the Gallagher Amendment and Amendment 23.”

A Denver Post article (“Gov. Hickenlooper to appeal Lobato education-funding decision to state Supreme Court; state board of education delays its own decision“) also noted the budgetary implications:

The lawsuit seeks no specific sum of money, but plaintiffs have pointed to studies estimating the state is underfunding education by as much as $4 billion.

The state now spends more than 40 percent, or $3.2 billion in the 2010-11 fiscal year that ended in June, of its almost $7 billion general fund on K-12 schools.

Coloradans in November by a two-to-one margin shot down a $3 billion tax increase measure for schools.

Governor Hickenlooper and Attorney General Suthers had earlier warned of “devastating” consequences for the state if the Lobato plaintiffs were successful in forcing additional school spending.

Although the lawsuit (and Rappaport’s ruling) is likely to be overturned (thanks to the departure of former Chief Justice Mullarkey and the more recent resignation of Justice Alex Martinez, 2 of the original 4 votes keeping the Lobato lawsuit alive in 2009 are now gone), appealing the case will cost Colorado taxpayers plenty:

[Mike] Saccone [spokesman for the attorney general's office] said the legislature has appropriated up to $3.5 million to defend the state against the suit.

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).

If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these articles:

The Attorney General’s office has also compiled a full list of key pleadings and court decisions in the Lobato case.

Cases such as Lobato – particularly Rappaport’s biased ruling – highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government.  This is not it.

* Governor Hickenlooper responded to a question at a 13 December 2011 town hall event about Lobato that he was leaning towards an appeal, since the court’s ruling “clearly violated TABOR” and Colorado voters had recently rejected a tax increase purportedly targeted for education funding (Prop. 103)

The Constitution says we can’t raise taxes without a vote of the people – the people just voted specifically on more revenues for education, and the people pretty clearly voted 2-to-1 that this was a bad idea. So how can the courts say that we should do it?

Governor Hickenlooper clearly disagreed with Rappaport’s ruling, and clearly expects to win on appeal, since the alternative would plunge the state into a constitutional crisis:

“Let’s say that the Supreme Court agrees with the district court – if that’s the case, then we’ve got the Constitution versus the Supreme Court.”

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

“Adequate Funding” unrelated to available state funds? Colorado judge rules out relevant evidence

The Lobato v. Colorado school funding lawsuit concluded its fifth and final week in trial court in Denver last Friday – with plaintiffs seeking

billions of dollars of additional funding for schools, though it’s unclear where that extra money would come from. (Denver Post, “Colorado school funding trial enters likely final week“)

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).

Plaintiffs scored a major victory when Denver District Judge Sheila Rappaport ruled to exclude evidence on the state’s budget and fiscal situation, as well as evidence on relevant constitutional provisions including the Taxpayer’s Bill of Rights (TABOR) and the Gallagher Amendment (restricting property tax collections).

According to an article in last weekend’s Pueblo Chieftain (“State’s pocketbook won’t figure in schools suit“),

Kathy Gebhardt, a lawyer for plaintiffs in Lobato v. the state of Colorado, told the education collective Colorado School Finance Project on Friday that exclusion of evidence related to the state’s budget condition was a key victory for her side in five-week trial that concluded last week.

Gebhardt said her legal team filed the motion “thinking that we probably had a 5 or 10 percent chance of winning on that, and we won, which pretty much I think gutted a big part of the state’s defense.”

In lawsuits challenging the adequacy of school funding in other states, plaintiffs rarely have sought similar rulings.

Although Judge Rappaport “does not expect to rule on the case for at least another month” the preliminary rulings do not bode well for the state, which “cannot afford to lose.”

A court ruling in favor of the plaintiffs could not only precipitate a constitutional crisis, but lead to a fiscal and budgetary train wreck of epic proportions.  Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.

If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these recent articles:

These cases highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government.  This is not it.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

Last Week in Lobato Trial – will courts decree new school taxes?

The Lobato v. Colorado school funding lawsuit enters its fifth and (likely) final week in trial court in Denver this Monday – with plaintiffs seeking

billions of dollars of additional funding for schools, though it’s unclear where that extra money would come from. (Denver Post, “Colorado school funding trial enters likely final week“)

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).

Despite the lack of correlation between spending and performance – and despite the failure of court-imposed school funding increases in several states (including Colorado neighbors Kansas and Wyoming) to achieve increased school performance, despite revenue and spending increases -

In Colorado, where per-pupil spending was $8,782 in 2008-09, students often outperformed students in Wyoming, where funding – following a school finance lawsuit – was $14,268 per pupil.

plaintiffs continue to seek additional money that the state simply does not have.  A court ruling in favor of the plaintiffs could not only precipitate a constitutional crisis, but lead to a fiscal and budgetary train wreck of epic proportions.  Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.

If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these recent articles:

These cases highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government.  This is not it.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

Monday Media Review: School choice, school funding lawsuits highlight courts’ inappropriately rising role in education policy

Continuing coverage of the pair of lawsuits seeking to have the courts decide educational policy in Colorado (the Douglas County school choice case, and the Lobato statewide educational funding case) over the weekend highlights the increasing role of the courts (as opposed to elected school boards, or the state legislature in whom constitutional authority for making education policy & resourcing decisions is vested) in deciding how – and under what conditions –  our children receive an education.

Friday’s Denver Post published a guest commentary (“Lobato case is crucial to education“) that was nothing more than a special-interest plea for more money (that the state does not have) by the same people (a pair of school superintendants) who in one breath admit that “we find ourselves failing” but blame their failure solely on a “lack of resources” (never mind the successful accomplishments of other schools, particularly – but not only – charter and private schools less dependent on state funding).

The guest commentary fails utterly to substantiate a link between educational funding and performance, and fails to make the case for how “Colorado’s school funding system… is constitutionally inadequate” – since the Constitution leaves such questions of policy up to the state legislature, NOT the courts.

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).

The authors are correct in one regard:

In terms of the future of public education, Lobato is the most important case ever tried in Colorado.

If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.

  • Douglas County school choice lawsuit:

Saturday’s Colorado Springs Gazette editorial (“Backward voucher ruling favors oppression“) was a scathing indictment of Denver District judge Michael Martinez’ ruling to stop the Douglas County school choice program via permanent injunction, calling it “a decision to segregate and oppress.”

The editorial correctly points out a fatal flaw in Judge Martinez’ ruling, which ignored governing constitutional precedent (Zelman v. Simmons-Harris, No. 00-1751, decided 27 June 2002, U.S. Supreme Court) holding that voucher programs did NOT violate the U.S. Constitution’s Establishment Clause:

In Colorado, education money attaches to children. With each child who enrolls, a public school gets more than $6,000 for the year.

Vouchers issue the money to parents. At that point, the money belongs to the parent and child. They are free to spend it at almost any accredited school, religious or otherwise.

The key point – that educational choice belongs to the parent, not to the government (especially, not to the courts) – bears repeating:

Once state money is converted to a voucher and given to a child, it’s no longer the government’s. It belongs to the child, who is subject to the will of a parent or guardian. Parents and guardians have the right to choose whether their children are schooled in secular or religious settings.

The Gazette’s editorial concludes by endorsing an appeal to a higher court: “Let’s hope this ignorant, backward ruling is soon overturned.”

Sunday’s Denver Post editorial (“The latest hurdle for school choice“) chimed in with (surprising!) support for the Douglas County school choice program in principle, but sounded a more cautionary note on the prospects for appellate success:

And while Douglas County officials have said they intend to appeal Denver District Judge Michael A. Martinez’s ruling, the language of his opinion – along with the current makeup of the Colorado Supreme Court – does not leave much room for optimism.

The Post’s editors have a point – they certainly are intimately familiar with the political predilections of the Colorado Supreme Court, as they are the court’s current landlords (a possible factor in the Post’s non-coverage of last year’s judicial retention elections) – but if the DougCo school board first takes their case to the Colorado Court of Appeals, which has largely been a bright spot for actually upholding the law in Colorado – they may have a decent shot at success, and will in any case build up a good record for where the case may ultimately be decided in the U.S. Supreme Court.

Finally, this morning’s (Monday) Parker Chronicle (online) reported on the first step of the appeal process (“Douglas County School District launches appeal process“):

The district announced it filed a stay of the permanent injunction filed against its choice scholarship pilot program, designed to deliver school vouchers to 500 district students. The program was stopped on Aug. 12 with the decision by Denver District Court Judge Michael Martinez, who ruled it unconstitutional in part because it routes public education money to private, religious schools,
In a news release issued Aug. 19, the district calls its motion “the first legal step in a planned appeal” of Martinez’s ruling.

Clearly, the fight for choice – and control – of education in  Colorado’s courts is just beginning.

These cases highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government.  This is not it.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

Weekend Wrap-up: Colorado courts ruling o’er state schools

Citizens of Colorado hold elections every year to send representatives to different venues to consider and decide on policy (and allocate resources) for their children’s education: in odd-numbered years, for local school boards; in even-numbered years, for the state legislature, which has the constitutional authority to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.

Yet ultimately, the decisions about how education is funded, and how schools are run, are being made in neither of these arenas, but in the courts.

News coverage this week has highlighted this fact with two prominent cases:

  • Douglas County school choice voucher program
  • Lobato v. Colorado education-funding lawsuit

In the Douglas County school voucher program, the issue before the court revolves around whether an elected school district board has “the broad authority to contract with private schools for the provision of a public education to public school students.” [per Education Policy Center]  One might think that making decisions about the provision of public education is precisely why county residents elect a school board, but apparently (at least in the view of the plaintiffs, and the courts in Colorado) those decisions are better made by appointed judges.

The Douglas County case also touches upon important constitutional issues such a separation of powers, establishment of religion, and collection & allocation of tax dollars, but ultimately comes down to a very basic and fundamental issue: who decides how to educate Colorado’s children?

For additional information on this case, read:

Lobato v. Colorado education-funding lawsuit

The case with far broader implications for public education in Colorado (and the state’s budget) is the Lobato v. Colorado education-funding lawsuit, which just wrapped up the 2nd week (in a trial expected to last 5 weeks total) of testimony and argument, also in Denver District Court.

In this lawsuit, plaintiffs allege (on the basis of a single phrase in the state Constitution, without regard for the actual assignment of decision-making authority and responsibility to the state legislature in that same phrase) that Colorado’s school-funding system is “unconstitutional.”  Plaintiffs seek an additional $3-4 BILLION per year in state spending (plus a near-term increase in school construction of some $18 Billion) to “fix” the alleged constitutional deficit.

One not need look very far (indeed, just across the border to Kansas) to see the potential for a fiscal and budgetary train wreck of epic proportions.  Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).

Bottom Line: the lawsuit seeks money the state simply does not have, based on extremely tenuous grounds (a few words in the state Constitution calling for “thorough and uniform” education), and is improperly seeking to achieve these goals via the courts, not through the legislative branch or local school boards where such issues are properly decided.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these recent articles:

These cases highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government.  This is not it.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

Monday Media Survey – Lobato education-funding lawsuit budget-buster aided and abetted by Colorado Supreme Court

The potentially budget-busting Lobato v. Colorado education-funding lawsuit – restored to life in October 2009 by the Colorado Supreme Court after having been rejected as non-justiciable by two lower courts – enters its second week of trial court hearings today.

Numerous analysts and commentators have noted that if the Lobato lawsuit succeeds, it will negatively impact Colorado’s schools and end up hurting – not helping – Colorado’s school-age children.  Shortly before the lawsuit went to trial last Monday, Colorado’s Democrat Governor John Hickenlooper and Republican Attorney General John Suthers took the unusual step of issuing a joint statement opposing the lawsuit, “arguing that it could cost the state billions of dollars if it loses in court.

Over the weekend, Colorado’s leading newspapers weighed in further on the issue.

Sunday’s Denver Post (“Future uncertain if plaintiffs win education-funding Lobato case“) highlighted the uncertainty around just how deeply the lawsuit could affect Colorado’s budget if successful, calling it “uncharted territory.”  The Post article did note, however:

In other states where such school-funding “adequacy” suits have prevailed, court decisions have forced greater spending on schools. (Emphasis added)

The Pueblo Chieftain’s Sunday editorial, “Billions More,” was less timorous in its conclusions:

HERE WE are trying to dig ourselves out of the Great Recession, with Colorado’s state budget barely balanced with scads of gimmicks, and now a group is seeking a court order for the state to spend umpteen billions more on public schools.

The article further noted the dubious constitutional grounds for the lawsuit:

Attorney General John Suthers argues – correctly, we believe – that discretion in school funding constitutionally rests with voters and lawmakers, not the courts. He said a ruling in favor of the plaintiffs could cost the state up to $4 billion annually.

Worse, the article notes, the plaintiffs have also asked for massive – and immediate – increases in school construction:

Moreover, because the lawsuit asks for massive new school construction, the suit could cost the state an additional $18 billion. (Emphasis added)

Bottom Line: the lawsuit seeks money the state simply does not have, based on extremely tenuous grounds (an expository phrase in the state Constitution calling for “thorough and uniform” education), and is improperly seeking to achieve these goals via the courts, not through the legislative branch where such issues are properly decided.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

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