The University of Colorado will file a friend-of-the-court brief in the Lobato v. State school funding lawsuit, siding with the state, the Board of Regents decided Friday.

Lobato v. State illustrationThe board voted 6-2 to direct legal staff to file the brief, which had been requested by Gov. John Hickenlooper, a defendant in the case, and Attorney General John Suthers, who is leading the state’s case in the appeal pending before the Colorado Supreme Court.

The move is seen as an effort to buttress the state’s argument that the high court should keep in mind all state funding needs when it considers the December 2011 Lobato ruling by Denver District Judge Sheila Rappaport. She concluded that the state’s spending formula for K-12 schools does not meet constitutional requirements for a “thorough and uniform” school system and ordered the legislature to come up with a new system.

Before the five-week trial last summer, Rappaport ruled that she wouldn’t consider the state’s overall budget needs but only the legal question of whether school funding was sufficient to meet the requirements of the state constitution and legislation to implement those mandates.

Estimates of what it might cost to meet the ruling run between $2 and $4 billion a year on top of the roughly $5.2 billion the state and districts now spend for basic school operating costs. The governor and attorney general have long argued that school spending can’t be considered outside the context of all state spending needs.

Kathleen Gebhardt, lead lawyer for the plaintiffs, said state officials, through CU, are “trying to introduce evidence that they couldn’t get in at trial.” She said the state could have offered evidence about overall budget challenges, despite the limits set by Rappaport, in order to create a record for appeal. But, she said, state lawyers chose not to do that.

Gebhardt said she expects other friend-of-the-court briefs – known as amicus curiae briefs in court language – to be filed, including at least one by health care advocates.

Vinny Badolato of the Colorado League of Charter Schools confirmed Friday that his organization is considering filing a “neutral” amicus brief but won’t decide until Monday, after the league’s board has signed off.

Suthers and his staff are expected to flesh out their arguments in the state’s formal appeal brief, due to be filed with the court Wednesday after two delays.

Kathleen Gebhardt
Plaintiffs’ lead attorney Kathleen Gebhardt / File photo

Amicus briefs supporting the state have to meet the same deadline, according to Gebhardt. She said the plaintiffs are considering soliciting amicus briefs that support their side. The plaintiffs’ reply to the state filing will be due next month.

The regents’ resolution reads, “The filing of the amicus curiae brief will provide the opportunity for the Board of Regents to address funding of higher education and the State of Colorado’s constitutional obligation to support the University of Colorado when ruling upon constitutional questions of education finance.”

“We want a seat at the table,” said CU President Bruce Benson after the vote. He said higher education and other state programs are subject to cuts if Rappaport’s ruling stands.

Jennifer Bezoza, another member of the plaintiffs’ legal team, said they don’t want that to happen. “Our goal is to increase the pie.”

The Lobato plaintiffs made no claims or arguments about higher education funding, and Rappaport’s ruling doesn’t address that issue. Direct state support of colleges and universities has been dramatically cut in recent years as the legislature struggled to balance state budgets in the face of revenue losses.

Only brief discussion before the vote

Voting for the resolution were Republicans Tillie Bishop, Steve Bosley, Jim Geddes, Kyle Hybl and Sue Sharkey, plus Democrat Stephen Ludwig. Democrats Irene Griego and Joe Neguse voted no. Chair Michael Carrigan, also a Democrat, chose not to vote, as is allowed under regents’ procedures.

Other than a few regents, there was little discussion of the resolution.

Neguse explained his opposition by saying K-12 schools are underfunded and “We should be doing everything we can to help the plaintiffs.”

Ludwig, the lone Democrat to support the resolution, said the fact that the governor and attorney general requested CU’s involvement “influenced my decision about this a great deal.” Ludwig is running for reelection.

At Geddes’ request, two “whereas” paragraphs in the resolution’s original draft were removed. They made specific reference to CU’s growing enrollment and declining state support in recent years. Geddes said he couldn’t vote for the resolution with those paragraphs in it.

The regents voted during a brief public meeting that followed an hour-long executive session with CU lawyers and top administrators.

University of Colorado President Bruce Benson
University of Colorado President Bruce Benson / File photo

Benson said CU was approached by Hickenlooper and Suthers in early June, and CU spokesman Ken McConnellogue said no other boards were contacted. CU is established in the state constitution, and the board is the state’s only elected university governing body. Trustees for all other state college boards are appointed by the governor and confirmed by the state Senate so they have less autonomy than the regents.

A representative of Hickenlooper’s office said because the governor is a party to the case he wouldn’t comment on why he approached CU or if he was seeking briefs from other entities.

At the end of this year’s legislative session, Republican lawmakers introduced a resolution that would have authorized the General Assembly to file a friend-of-the-court brief in the Lobato case. That measure never came to a vote.

Rob McCallum, spokesman for the Judicial Department, said parties seeking to submit amicus curiae or friend-of-the-court briefs must file for court permission to do so. Courts also can request that parties file such briefs, but the supreme court hasn’t done so in the Lobato case.

Gebhardt noted that the plaintiffs have the right to object to filing of friend-of-the-court briefs.

Many voices already in the debate

The Lobato plaintiffs include 26 parents representing 40 children from across the state, plus 21 school districts. Many of the districts are small, rural ones in the impoverished San Luis Valley but Aurora, Colorado Springs District 11, Jefferson County and Pueblo City also are among the group.

A second group of plaintiffs, nine parents of 21 children in four other districts including Greeley, are represented by the Mexican American Legal Defense and Educational Fund and entered the case in 2010 as “intervenors.”

Some 100 school boards have passed resolutions supporting the lawsuit, and roughly half of the state’s 178 districts have contributed money for legal costs.

Various stages of the case have drawn formal involvement by other groups. Before the supreme court ruled in 2009 that the case should go to trial, the Colorado Association of School Boards, the Colorado Association of School Executives, the Colorado Education Association, the Colorado Lawyers Committee, the Colorado Center on Law and Policy, the Colorado League of Charter Schools and Padres Unidos all filed briefs with the court.

The elected State Board of Education is a defendant in the case. After Rappaport’s ruling, the board met twice to discuss what to do. On Dec. 26, 2011, the board voted 4-3 to appeal. At that point, Hickenlooper had already decided he’d take the case to the high court. 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 Schroeder voted no.