October 26, 2009
Colorado’s top judges have opened the door to re-crafting our school finance system from the bench when they should have avoided the possibility altogether.
On Oct. 19, a 4-3 majority of the Colorado Supreme Court overturned two lower court decisions that said school finance policies were the realm of the elected legislature rather than unelected judges.
The Lobato case has been shipped back to the district court level, where lawyers representing parents, school districts and lobbying organizations will seek to prove that Colorado’s school funding system is irrational and inadequately funded. After dragging on for a few more years, the 2005 complaint may make its way back to the Supreme Court.
As observed in Justice Nancy Rice’s dissent, though, the state Supreme Court itself ruled in 2003 that it should “refrain from reviewing controversies concerning policy choices and value determinations that are constitutionally committed for resolution to the legislative or executive branch.” We elect our representatives and senators to make tough decisions about funding priorities within the various functions of government.
Ultimately the authority rests with the people of Colorado.
The four-member majority in last week’s ruling showed a token amount of concern about overstepping their bounds into legislative turf. The justices said they just want to ensure a “rational basis” exists for the current system.
Nevertheless, Coloradans should have very little confidence in restraint from the Colorado Supreme Court. Earlier this year in upholding the governor’s unauthorized property tax hike, the court ignored the plain constitutional text and fabricated an artificially high standard for taxpayers to prove a violation of the Taxpayer’s Bill of Rights (TABOR).
As a result, the right of citizens to vote on tax increases has been weakened.
The latest ruling in the Lobato case thus similarly raises fears that the high court ultimately may rewrite school finance policies. Insofar as the experience of other states can serve as a guide, such an outcome would prove to be costly and ineffective.
In fact, the Colorado Supreme Court has placed itself out of step with a prudent national trend. The results of judges tampering with school finance systems have been ambiguous at best. Fewer states are willing even to hear the complaints anymore.
Among many others, courts in Arizona, Kentucky and New Jersey that previously ordered significant funding increases in recent years have declined to intervene further. In 2007, both the supreme courts of Oklahoma and Nebraska cited separation of powers and left the policies in legislators’ hands.
Among the states where judges have backed away from school finance entanglements, Colorado ranks in the middle in terms of spending per pupil on K-12 education.
Since TABOR was enacted in 1992, the amount of dollars Colorado spends per student has grown by 18 percent above inflation. Over the same time, measured math performance has improved modestly while graduation rates have stayed flat.
Some states that have made bigger spending increases have even less to show for it. Meanwhile, Florida — a state without judicial interventions or large spending increases — has achieved greater growth in reading scores and in closing the achievement gap between white and minority students.
Courts will not improve student outcomes by ordering spending hikes. Judges are no better equipped than the average citizen to determine what amount of spending is “adequate” under our current system. If judges could overhaul inefficient compensation policies and enact a transparent system that evaluates the return on investment into various programs, they might have a chance.
But that’s beside the point. The judges’ role is not to make the tough political decisions. Our state constitution gives the responsibility to our elected legislators.
There is room to improve Colorado’s school funding system. But judges should realize that entangling themselves in the debate is likelier to make things worse rather than better.
This article originally appeared in the Colorado Daily, October 25th, 2009.