Who Is In Charge

Lawyers make last Lobato case pitches

Debate over what makes a constitutionally adequate education dominated the Lobato v. State oral arguments before the Colorado Supreme Court on Thursday morning.

Lawyers David Hinojosa and Kathleen Gebhardt, along with plaintiff Taylor Lobato, met with reporters after Colorado Supreme Court arguments on March 7, 2013.
Lawyer Kathleen Gebhardt, along with plaintiff Taylor Lobato, met with reporters after Colorado Supreme Court arguments on March 7, 2013.

The high court is considering the state’s appeal of the 2011 ruling by a Denver district judge that the state’s school funding system isn’t “rationally related” to the state constitution’s requirement for a “thorough and uniform” public education system.

Potentially at stake in the case are billions of dollars in education spending and the shape of the state’s K-12 system.

The three lawyers who spoke faced the challenge of squeezing into 60 minutes the evidence, arguments and legal intricacies of a case that has stretched over eight years, took five weeks at trial and has produced hundreds of thousands of documents.

And the justices’ questions cut into the lawyers’ time.

The historic session drew a full crowd to the court’s new chambers in the Ralph Carr Judicial Center, and listeners spilled into two overflow rooms where the proceedings were broadcast live.

Do your homework
  • Learn more about the history, issues and parties involved in the Lobato case from the articles in the EdNews Lobato archive.

Many of the observers were looking for hints of the justices’ leanings in the questions they asked of lawyers Jonathan Fero, representing the state, and Terry Miller, representing the plaintiff parents and school districts. David Hinojosa of the Mexican American Legal Defense and Education Fund, who represents a separate group of clients, also spoke to the court.

One important fact about the case was revealed when the justices walked onto the bench and Justice Monica Marquez was not in the group.

Chief Justice Michael Bender then announced that Marquez would not be participating in the case. Appointed to the high court in 2010, Marquez worked on earlier parts of the Lobato case as an assistant attorney general, and there has been speculation about whether she would participate. That leaves an even number of justices – six – to decide one of the most important public policy cases in decades, creating the possibility of a tie on the court. In that case the district court decision would stand.

What the lawyers said

Jonathan Fero
Jonathan Fero / File photo

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.

Fero also repeated a central state argument, that if the court defines the meaning of “thorough and uniform” it will be stepping on the legislature’s authority and violating the separation of powers among branches of government.

Fero called the current finance structure “a very well thought-out system.”

Miller, one of the many volunteer lawyers on the plaintiffs’ legal team, argued that the question of the court’s role was settled in 2009, when the high court resurrected the original Lobato lawsuit and ruled it could be heard in district court.

“At the end of the day it’s this court that decides what a thorough and uniform system looks like. … Just declare a broken system unconstitutional and let the legislature do its job” to come up with a new system, Miller said.

Both he and Hinojosa disagreed that they want a “perfect” system or that Rappaport ordered the creation of one.

What the justices asked

Five of the six justices questioned the lawyers, with Chief Justice Michael Bender and Justice Gregory Hobbs taking the lead.

Hobbs seemed the most sympathetic to the plaintiffs.

Referring to the legislature, Hobbs said, “They’re setting all these [education] requirements and not backing it up” with funding.

“I’m very concerned that the state’s argument here is we don’t have any duty and should give up” trying to improve the system.

Bender noted that the court routinely rules on constitutional questions and asked Fero whether this case “different from other constitutional matters.”

The chief justice also asked if the state disagreed with the facts uncovered at trial about graduation rates, test scores and other achievement issues.

“We’re not challenging any of the factual findings, just the conclusions of law,” Fero said.

Justice Nathan Coats asked Fero about the state’s definition of “thorough and uniform education.”

“I don’t have a very helpful answer,” Fero said, adding that those three words are “extremely bare” in the constitution as to their meaning.

Terry Miller
Terry Miller

Bender asked Miller about “the balance between the role of the court and the role of the legislature.”

Miller replied, “Give the legislature the chance to do its job” and come up with “some rational determination of the cost” of standards-based education.

Bender asked how much time that might take.

“The legislature has a wide array of tools to use including time,” Miller said. “It doesn’t have to happen in one year.”

The only justice to ask no questions was Brian Boatright, who wasn’t on the court when it first considered the Lobato case in 2009 and voted 4-3 to revive it. (Two of the justices who voted on the prevailing side have since left the court.)

After the arguments wrapped up, Bender praised the “very lengthy, very articulate briefs. We have a lot of advice.”

What’s next

The Supreme Court has no deadline to rule in the case. Kathleen Gebhardt, lead attorney for the plaintiffs, told EdNews, “I’m hoping for three or four months.” The court has a variety of options ranging from upholding Rappaport’s ruling to sending the case back to her for further deliberations.

the one to watch

Inside the three-candidate battle for northeast Denver’s school board seat

File photo of student at Marrama Elementary School in northeast Denver. (The Denver Post)

Of the Denver school board races on the November ballot, none packs more intrigue than the fight for District 4.

The three-person slate of candidates features an appointed incumbent who’s never run for office and supports the district’s current path, an outspoken recent high school graduate who sharply disagrees, and a former charter school educator with a more nuanced view and — in what on its surface may seem surprising — the endorsement of the teachers union.

The seat represents a large swath of northeast Denver with a wide range of income levels, including areas that are gentrifying quickly and others that have been home to some of the district’s most aggressive school improvement strategies.

The Nov. 7 election is high stakes. Four of the seven seats on the Denver school board are up for grabs. If candidates who disagree with Denver Public Schools’ direction win all four races, they’ll have the political power to change key policies in the state’s largest school district and one nationally recognized for its embrace of school choice and autonomy.

Tay Anderson is one of those candidates. The 19-year-old graduated from Denver’s Manual High School last year and is now a student at Metropolitan State University. On the campaign trail, he has doggedly criticized the district for what he describes as weak community engagement efforts and a move to “privatize” public education by approving more charter schools, which are publicly funded but independently run (in Denver, by nonprofit operators).

He also has led the charge in attempting to tie the current school board and the incumbent candidates to U.S. Education Secretary Betsy DeVos, whose stance on school choice — and especially private school vouchers, which DPS does not support — have made her a controversial figure.

    This is the first of a series of articles profiling this year’s Denver school board races. You can read about where candidates in all the DPS races stand on issues here, in Chalkbeat’s candidate questionnaire. Check out our coverage of the campaign’s first campaign finance reports here.

When DeVos came to Denver in July to give a speech to a group of conservative lawmakers from across the United States, Anderson organized a protest against her. In front of a crowd of hundreds, he called out the current Denver school board members.

“We can tell them, ‘Screw you. You’re fired in November!’” he said.

Anderson has a compelling personal story. The teenager struggled in high school before becoming a leader at Denver’s Manual High. He was student body president, chairman of the Colorado High School Democrats and a member of the Student Board of Education.

Anderson was also homeless for a time and has said his own challenges give him valuable insight into the lives of other Denver students living in difficult situations. About two-thirds of the district’s 92,000 students qualify for subsidized lunches, a proxy for poverty.

“I have had nobody in my corner when I was a homeless student and when I was in and out of foster care,” Anderson said at a recent televised candidate debate. “And now it is my turn to turn to our students and say, ‘I am going to be your champion.’”

His candidacy has attracted more local and national press attention than is usual for a school board race. But while Anderson has said his young age would bring a fresh perspective to the board, his opponents have questioned whether he has the experience to serve.

“It’s one thing to swing a hammer at a frustration, but it’s another to know where to swing it,” said candidate Jennifer Bacon, one of Anderson’s two opponents.

Anderson is running against Bacon, 35, and incumbent Rachele Espiritu, 48. Espiritu was appointed to fill a vacancy on the board in May 2016. The appointment process was long and marked by controversy. The first appointee, MiDian Holmes, stepped aside after details about a misdemeanor child abuse conviction and her mischaracterization of it came to light.

Both Espiritu and Bacon were among the finalists for the position. But Bacon withdrew, explaining at the time it was “in consideration of my need for growth and readiness for this position, as well as my interests in supporting the board.”

Asked recently to elaborate, Bacon said she withdrew because she sensed she wasn’t going to be appointed. She said she, too, had an arrest in her background: for stealing a necklace from Macy’s when she was in college. Bacon said the charge was dropped and she was not convicted. (No charges showed up in a background check done by Chalkbeat.)

Bacon, who attended college in Louisiana, said the arrest was a turning point at a time when she was struggling to find her purpose. She went on to join the Teach for America corps, teaching for a year in New Orleans and a year in Miami.

After teaching, she went to law school and then moved in 2010 to Denver, where she worked first as a dean for the city’s largest charter school network, DSST, and then in alumni affairs for Teach for America. She is now a regional director with Leadership for Educational Equity, a nonprofit organization that trains educators to advocate for policy changes.

Bacon said she wondered whether her positions on key issues also made her an unlikely appointee. For instance, she has said she’s not opposed to charter schools but believes Denver has reached its threshold and should focus on shoring up its traditional schools.

“People ask me if I’m pro-charter,” Bacon said in an interview. “I’m pro-community.”

Since Espiritu was appointed, she has largely voted in line with the rest of the school board. But she chafes at the idea that the board is monolithic or a rubber stamp for the administration. Much back-and-forth occurs before a decision, she said in an interview, and each board member brings a unique background and set of life experiences to the table.

Espiritu often says on the campaign trail that she’s the only immigrant to serve on the board in the last century. She was born in the Philippines and came to the United States as a toddler. She holds a PhD in clinical psychology from the University of Colorado Boulder and helped found a small business called Change Matrix that assists organizations with planning, putting into place and monitoring change. She and her family moved to Denver in 2012.

Espiritu has two sons. Her oldest goes to DSST: Stapleton High, a charter school. Her youngest goes to William (Bill) Roberts School, a K-8 district-run school. She has said that in choosing schools for her children, she focused on quality and not on type.

As a member of the board, Espiritu has paid particular attention to efforts to improve student mental health. She recently encouraged DPS to become a “trauma-informed school district.”

“I want us to be a district that addresses student and educator trauma in a proactive or preventative way that’s culturally sensitive and systematic in fashion,” she said at a September board meeting. “…We need to shift our thinking from asking what is wrong with a child to what happened with a child.”

Parts of northeast Denver have struggled academically. The region is home to the district’s biggest-ever school turnaround effort, as well as two of three schools the board voted unanimously last year to close due to poor performance.

The candidates’ disparate views on school closure offer a window into what differentiates them. Espiritu voted for the closures, though she noted at a subsequent board meeting that doing so was “a painful process … and such a difficult decision.”

Anderson has said he opposes closing any more traditional, district-run schools. Bacon, meanwhile, has said that while she doesn’t believe in “trapping kids in failing schools,” ideas about how to turn things around should originate with affected families.

Two local groups that traditionally endorse candidates and contribute large sums of money struggled this year with who to support in District 4. The Denver Classroom Teachers Association endorsed Bacon, but a progressive caucus of the union chose to separately support Anderson. The pro-reform group Stand for Children did not endorse any candidate, explaining that both Bacon and Espiritu surpassed its “threshold for endorsement.”

Of the three candidates, Espiritu had raised the most money — $73,847 — as of Oct. 11, when the first campaign finance filing period ended. Bacon had raised $59,302, including $10,000 from the teachers union, while Anderson had raised $16,331.

Espiritu and Bacon have also benefitted from the support of independent expenditure committees. A union-funded group called Brighter Futures for Denver spent $139,000 on Bacon. Two other groups, Students for Education Reform and Raising Colorado, which is associated with Democrats for Education Reform, spent a total of $73,229 on Espiritu.

Sorting the Students

As Nashville heads to court over sharing student information with the state, here’s why Memphis probably won’t

PHOTO: Grace Tatter
Nashville's Davidson County Chancery Court building where the state filed against Metro Nashville Public Schools over sharing contact information with charter schools.

Tennessee’s two largest school districts are often in lockstep on key issues. But in a recent tiff with the state about sharing student information with charter schools, the two districts are poised to part ways.

Leaders of Nashville’s school district have repeatedly defied an order from Tennessee’s education commissioner to share student addresses, phone numbers, and other information with the state’s controversial turnaround district, as required by a new state law. The state filed a lawsuit this week in response.

Meanwhile, leaders of the Memphis district have spoken out about the rule — but are preparing to comply. The district has given parents until Sunday, Oct. 22 to opt out of sharing their contact information with charter schools.

Instead of outright rejecting McQueen’s deadline last month like Nashville did, Superintendent Dorsey Hopson sought a compromise and the district has indicated contact information after the opt out window could be shared.

“… we respectfully request you extend your deadline until October 23, 2017 to allow our families the opportunity to make an informed decision regarding their rights and to give our board an opportunity to vote on the release of the data,” Hopson said in a letter to McQueen.

The state education department says it is holding off filing a similar suit against that district, for now. The Memphis district “is still deciding whether to comply, whereas Metro [Nashville] has made its decision already,” state spokeswoman Sara Gast said. “Given that, it is appropriate to file here and then review Shelby’s decision to decide if litigation is necessary.”

Shelby County Schools declined to share how many parents have chosen to opt out so far, but said it plans to share information with its board about the effort next week.

The fight has ignited long-simmering tensions around enrollment and the state’s influence in local schools, and comes on the heels of Metro Nashville Public Schools board voting to join Shelby County Schools in its landmark funding lawsuit against the state.

Memphis leaders have also said that the issue at hand is student privacy, though a robocall to Memphis parents indicated that the main goal of the opt-out process was not to lose students to charter schools.

Memphis’ compromise stance will be good news to groups like parent advocacy organization Memphis Lift, which says it has gathered about 1,200 parent signatures urging Shelby County Schools to release the contact information.

What Memphis parents should know about how schools share student information

The legal questions at stake are the first challenge to a slight, but significant, amendment to federal rules

The Nashville school board cited two reasons for defying the state’s order in late August: One is U.S. Department of Education rule that allows districts to have discretion on who gets student directory information. The second was that when state lawmakers crafted the law that requires school districts to share student information, they did not intend for that information to be used for recruitment.

According to Frank LoMonte, a First Amendment lawyer and director of The Brechner Center at the University of Florida, said the lawsuit could have national implications.

“What we’re about to see is the first test of whether the U.S. Department of Education amended rules in 2011 are enforceable or not,” he said. What it comes down to, he said, is if a federal rule can give local districts the permission to violate state law.

The Nashville board’s second justification reflects concerns from State Rep. John Forgety, who chairs a key House education committee. He says the state is misinterpreting the law he helped create.

The state said in a statement that Commissioner Candice McQueen is seeking to confirm her interpretation of the new state law, “ensuring that families can be informed of all public education opportunities available to them.”

Below is a copy of the state’s court filing: