Q: What are the claims in the Lobato case?

A: The Lobato case challenges all aspects of Colorado’s school funding system, including the Public School Finance Act (PSFA), categorical programs, and capital construction.  The challenge is based on two clauses in the Education Article of the Colorado Constitution.  The Education Clause directs the General Assembly to “establish and maintain a thorough and uniform system of free public schools throughout the state . . .”  The Local Control Clause empowers local boards of education with “control of instruction in . . . their respective districts.”

Plaintiffs argue that the Education Clause requires the legislature to provide every school age child in the state with the opportunity to obtain a quality education.  A quality education is, at a minimum, one that prepares children for post-secondary options and life within the civic, economic, and cultural world in which they will participate as adults.  When the state fails to implement a school finance system that provides sufficient funding to assure a quality education, we contend that it has failed to fulfill its constitutional obligation to maintain a “thorough and uniform” education system.

Plaintiffs additionally argue that the Local Control Clause empowers local boards of education with the decision-making authority to implement and manage the educational programs for which they are ultimately responsible.  When the legislature prevents school districts from obtaining sufficient funding to provide children with a quality education, it violates the constitutional right of the local school board to control instruction in their schools.

Q:  Who are the parties in the Lobato litigation?

A: The case was brought in 2005 by the fourteen school districts in the San Luis Valley and parents and students from around the State.  The complaint was amended in 2010 to add the following additional school districts:  Jeffco, Colorado Springs D11, Aurora, Pueblo, Bethune, Montezuma-Cortez, and Moffat County (Craig).  Parents and students from Denver were also added, joining the families from Boulder, Pueblo 70, Woodlin, Center, and Adams 14 as Individual Plaintiffs.  Together the School District Plaintiffs and Individual Plaintiffs represent a diversity of communities– urban, suburban and rural; affluent to low-income; various demographic and cultural backgrounds; special needs, gifted & talented, at-risk, and English Language Learners.  The Defendants are the State of Colorado, the Colorado State Board of Education, the Commissioner of Education, and Governor John Hickenlooper.

Also in 2010, the Mexican American Legal Defense and Educational Fund (MALDEF) intervened in the case on behalf of families in another four school districts – Greeley, Rocky Ford, Mapleton, and Sheridan.  The Plaintiff-Intervenors’ claims are similar to those of the Plaintiffs, with a focus on English-language learning, at-risk programs, capital construction, and early childhood education.

Q:  What is the status of the Lobato litigation?


A: The case was filed in 2005.  Shortly thereafter, the State asked the court to dismiss the case on the grounds that decisions regarding education funding should be made by the General Assembly rather than the courts.  The district court and court of appeals agreed with the State, dismissing the case as non-justiciable (or not proper for resolution by the courts).  In October 2009, the Colorado Supreme Court reversed those decisions and ruled that the courts do indeed have a role to play in how the state funds K-12 education.  The Supreme Court stated, “It is the responsibility of the judiciary to determine whether the state’s public school financing system is rationally related to the constitutional mandate that the General Assembly provide a ‘thorough and uniform’ system of public education.”  The case was then remanded (or sent back) to the district court for trial.

A five-week trial was held in August and early September 2011.  On December 9, 2011, Denver District Court Judge Sheila Rappaport ruled in favor of Plaintiffs, holding Colorado’s school finance system is unconstitutional because it is severely underfunded and not rationally related to the constitutional mandate of a thorough and uniform system of free public education.  The State has appealed the district court’s decision to the Colorado Supreme Court.  Declaratory and injunctive relief is therefore stayed (or suspended) until final resolution by the Colorado Supreme Court.


Q:  What did the district court find regarding Colorado’s school finance system?


A: In a 183-page decision, Judge Sheila Rappaport ruled that Colorado’s school funding system is “irrational, arbitrary, and severely underfunded,” and therefore violates the state constitutional mandate of a “thorough and uniform” system of public education.  The Court recognized that, due to significant underfunding, school districts across the State are unable to provide the educational programs, services, instructional materials, equipment, technology, and facilities necessary to assure all children an education that meets the mandates of the Constitution and the State’s standards-based education system.  Rural and urban districts alike are unable to hire, compensate, and retain effective, highly qualified teachers and administrators; to provide the curriculum, technology, textbooks, and other instructional materials necessary to meet student performance expectations; and to construct, maintain, and renovate school buildings and facilities.  Many school districts are relegated to obsolete textbooks and materials, lack of necessary computers and Internet connectivity, and dilapidated and unsafe classrooms and other facilities.  The Court also found that school districts are unable to provide the classroom time, professional training, and interventions critical to the education of under-served student populations, including students at-risk of academic failure, non-English speaking students, students with disabilities, students of minority racial and ethnic heritages, students of low-income families, and gifted and talented students.  As a result of the irrational and inadequate school finance system, hundreds of thousands of Colorado students are not reaching proficiency in reading, writing, mathematics, and science, and are not ready for postsecondary education or the workforce upon high school graduation.  The Court additionally found that school districts are being denied their constitutional right to exercise local control over instruction because of insufficient funding.

Q:  What did the district court order the State to do to remedy the constitutional violations?

A: The Court enjoined the State from enforcing any laws that fail to establish or fund a “thorough and uniform” system of free public schools and ordered the State to design, fund, and implement a system of public school finance that enables all students in the State to graduate with the knowledge and skills necessary for citizenship, post-secondary education, and participation in the workforce.

Q:  Did the district court determine the amount of funding needed to bring Colorado’s school finance system into constitutional compliance?

A: No.  The Court specifically stated it is not its function at this time to determine the amount necessary to provide adequate funding for public education.  However, the Court did find that public education is very significantly underfunded and that any legislative response must address the level of funding necessary to meet the mandate of the Education Clause and the standards-based system and should provide funding consistent with that standard.

Q:  What is the time frame for implementation of the district court’s order?

A: The Court stayed the enforcement of injunctive relief to provide the State with a reasonable time to create and implement a system of public school finance that meets the mandates of the Education Clause and the Local Control Clause.  This stay is in effect until final action by the Colorado Supreme Court upon appeal of the district court’s decision.  While the stay is in place, the current financing formula and funding levels remain in effect.

Plaintiffs urged the General Assembly to use the stay period productively to create a new system of public school finance that comports with constitutional requirements, as intended by Judge Rappaport.  Unfortunately, the General Assembly passed no legislation in the 2012 legislative session to address any of Judge Rappaport’s findings.

Q:  What is the time frame for an appeal?

A: The State filed its Notice of Appeal on January 23, 2012 and provided the Supreme Court with the trial record in April 2012.  The State requested two extensions to file its opening brief.  Its opening brief was filed on July 18, 2012.  Plaintiffs filed their response brief on September 26, 2012.  Defendants have until October 17, 2012 to file their reply, assuming no extensions.  It will then take another few months until oral argument is heard and another couple months for the appellate court to issue a decision.


Q:  What are the issues on appeal?


A: The Defendants have raised three issues on appeal:  1) whether Plaintiffs present a political question foreclosing judicial review; 2) whether the trial court misapprehended the rational basis test enunciated by the Supreme Court in Lobato 1; and 3) whether it is irrational for the state to require local districts to share the cost of public education.


Q:  What will happen if the State wins the appeal?


A: It is impossible to answer this question fully without knowing the State’s arguments on appeal and the relief it will seek in the appeal.  Some possible outcomes, if the State wins the appeal, are the case is remanded to the district court for a new decision based on different legal standards or there is a new trial.

Q:  How much revenue do Plaintiffs believe is needed for Colorado’s school finance system to be constitutional?


A: Plaintiffs are not demanding a specific dollar amount.  Plaintiffs instead demand that the amount of funding provided to school districts by the State be rationally related to the standards and requirements placed on districts and the mandates of the Education Clause.  In order to determine that amount, the State must calculate how much it will cost to implement all of the educational programs and reforms required by statute and regulation.  For that calculation, Plaintiffs urge the State to adopt the costing out study performed by Augenblick, Palaich and Associates in March 2011 or to conduct its own costing out study.


Q:  How do Plaintiffs propose the State fund the new school finance system?


A: Plaintiffs believe reform of Colorado’s school funding system will undoubtedly require additional state revenue and do not support taking money from other government services, such as roads, prisons, or Medicaid, to more adequately fund education.  Plaintiffs do not advocate one particular approach to raising additional state revenue for education.  Plaintiffs instead have identified a number of potential options for raising additional revenue that merit additional study and exploration, such as adjustments to tax credits and exemptions and legislative tax increases using the TABOR exceptions for emergency taxes and payment of final court judgments.


Q:  What are the State’s obligations, if any, if the legislature refers a ballot measure to increase revenue for public education and it does not pass?


A: If the legislature refers a ballot measure that would increase taxes for education and it does not ultimately pass, the General Assembly would not be absolved of its responsibility to create and implement a constitutional school finance system.  The people of Colorado do not get to decide whether the State complies with the Constitution.  It is the responsibility of the State Defendants to comply with the court’s orders and all applicable laws and regulations.  The State is legally obligated to remedy the constitutional violations identified by the court regardless of how the public votes.  Plaintiffs therefore urge the General Assembly to avoid any delay tactics and to begin developing now a solution to the school funding crisis in our state that is not subject to the whims of the electorate.

Q:  What could happen if the State fails to comply with the courts’ orders?

A: Plaintiffs have the right to bring an enforcement action or additional litigation should the legislature fail to implement a constitutional school finance system in compliance with the courts’ orders.  Plaintiffs hope such action will never become necessary.  If the court finds the State is not complying with its orders, there are a number of options available to the court by which to compel compliance.

Q: Could the State comply with the court’s orders by lowering state standards and requirements?

A: If the legislature were to lower state standards and requirements in an effort to lower education costs, there would be a number of very negative consequences, making this is a highly unlikely scenario.  First, children in our state would graduate unprepared for post secondary education and the workforce, making them less competitive with children from other states, where the trend has been to increase standards and accountability.  Second, the State would likely lose its waiver from the federal No Child Left Behind requirements because the waiver was based on Colorado’s high standards and accountability system.  Third, the State would no longer be competitive in federal competitions for education funding, such as Race to the Top, because those competitions value high standards.