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Lobato Case Returns: We Need School Finance Reform, Not Constitutional Crisis

Yesterday, some attorneys got up and argued an important case affecting K-12 education before the Colorado Supreme Court. The hearing was about an appeal of the Denver district court’s Lobato decision, previously referred to by the Denver Post as the “Super Bowl of school funding litigation.” Judge Sheila Rappaport granted judgment for the plaintiffs, contending that an additional $2 billion-plus a year would be needed to fund the K-12 system.

Where the money is supposed to come from, who knows? Before the state’s highest court, the lawyer for the State of Colorado questioned one of Rappaport’s key findings:

[Jonathan] Fero, an assistant attorney general, repeatedly argued that having a thorough and uniform educational system doesn’t mean creating a system where every child is equally successful.

Yet that’s what Denver District Judge Sheila Rappaport concluded in her December 2011 decision – that “if any students aren’t making it the whole system is irrational,” Fero said.

“Universal achievement cannot be what the constitution requires,” he added.

What a great point challenging some mixed up logic. As much as we want all kids to reach their highest possible potential, no one knows how to get every student to a proficient level of learning. Different kids have different potential. For some, proficiency is an easy bar to clear. For others, it poses a very difficult challenge.

Further, simply pouring more money into the system offers no promise of success. Another $5 billion a year would put Colorado’s per-pupil spending on par with states like Wyoming, Alaska, and Rhode Island — states with similar or lower achievement rates.

As I’ve been told, the Colorado Supreme Court works on its own schedule, so there’s no telling for sure how long we might expect to wait for a ruling. As Clear The Bench Colorado inferred several months ago, co-defendant Governor John Hickenlooper “clearly expects to win on appeal, since the alternative would plunge the state into a constitutional crisis.” (That includes managing the fine line of overstepping the elected legislature’s authority, not to mention the district court’s overlooked conflict with taxpayer rights.)

But the State of Colorado will need four votes from the Supremes (no, not those Supremes!) to overturn the district court judgment. Even though one of the seven justices has to sit out and recuse herself, a 3-3 tie would go to uphold the initial ruling.

Meanwhile, it remains as true now as it was last summer when I wrote it in response to the latest legal filings in the Lobato case: What we need is Real School Finance Reform, not a constitutional crisis.