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Colorado Supreme Court Nixes Negative Factor Challenge

We’ve been talking a lot about the courts lately. Between the Dougco voucher decision, the ridiculous silliness going on in Thompson, and Washington’s bizarre decision that charter schools are unconstitutional, there hasn’t been much cause for celebration. I’ll admit to feeling pretty darn frustrated with the courts.

Now, many of the folks on the other side of reform aisle are also experiencing some court-driven frustration after roughly a year of waiting. Today’s 4-3 Colorado Supreme Court decision in Dwyer v. State of Colorado has cemented the legislature’s interpretation of Amendment 23 to the Colorado Constitution and the “Negative Factor” it spawned.

For those unfamiliar with the concept of the Negative Factor and how it relates to school finance in Colorado, I don’t blame you. It’s icky, complicated stuff. But here’s a quick crash course from one of my wonky writing side projects to get you up to speed:

Colorado’s school finance formula provides a “base” amount of funding for public education in all districts across the state. That base amount is then modified by a number of “factors,” which include district size, at-risk student populations, personnel costs, and other variables. There are also a number of categorical program funding considerations, such as those for special needs students, gifted and talented programs, and transportation. The Negative Factor is an additional factor applied through the school finance formula that has the effect of reducing overall funding for the state’s public schools by reducing factor-related funding instead of base funding.

Amendment 23 to the Colorado Constitution requires the legislature to annually increase statewide “base” funding for education by inflation. During the recession, the legislature interpreted this to mean that it could simultaneously increase the base and reduce factor-related funding through the application of the Negative Factor to help level off the struggling state budget. The Dwyer case challenged this interpretation, arguing in essence that the legislature had allowed public school funding to fall below constitutionally required levels.

The Colorado Supreme Court disagreed rather strongly with these assertions in its decision this morning, stating:

By its plain language, Amendment 23 only requires increases to statewide base per pupil funding, not to total per pupil funding. The Supreme Court therefore holds that the negative factor does not violate Amendment 23. Accordingly, the Supreme Court makes its rule to show cause absolute, and it remands the case to the trial court with instructions to dismiss Plaintiffs’ complaint.

In other words, the Negative Factor won’t be going away in the foreseeable future, a fact that already has a number of advocacy groups up in arms. I can’t say I blame the Supreme Court for its decision, though; the language of Amendment 23 is pretty straightforward. Despite my general frustration with the courts on recent education issues, it’s hard to argue that the Colorado Supreme Court didn’t reach the right legal conclusion on this one.

Taken in conjunction with the 2013 Colorado Supreme Court ruling in the broader Lobato v. State of Colorado case, today’s ruling seems to limit funding advocates’ options to either legislative efforts or, more likely, tax increases. Yet Colorado voters have already shown a general distaste for large tax increases—particularly when those increases are not fair or efficient uses of taxpayer funds.

That doesn’t mean that we shouldn’t be interested in finding ways to more smartly fund our public schools (though we should remember that how districts and schools spend money matters an awful lot more than how much they spend). It does mean, however, that such a decision will have to be made by the legislature and/or the voters instead of the courts. And that is precisely how it should be, if you ask me.

Now if we could just get the rest of Colorado education policy back in the hands of the legislature and elected local school boards…