Who Is In Charge

High court reverses Lobato ruling

In a 4-2 decision, the Colorado Supreme Court has overturned a district court decision in the Lobato v. State lawsuit and ruled that the state’s current school finance system is constitutional.

Lobato v. State illustrationThe ruling, officially issued this morning, ends an eight-year court effort by a large group of parents and school districts to force changes in how the state’s schools are funded.

The decision quickly refocuses the broader school finance policy debate on the new funding formula proposed in Senate Bill 13-213, recently signed into law, and the $1 billion ballot measure that will be needed to support the new system.

Asked later Tuesday if the decision effectively closes the door on further school finance cases in the courts, lead plaintiffs’ lawyer Kathy Gebhardt said, “It could.” But, she added, “Reading between the lines, that was their [the justices’] intent.”

The decision

“The public school financing system enacted by the General Assembly complies with the Colorado Constitution,” Justice Nancy Rice wrote at the beginning of the court’s 27-page ruling. “It is rationally related to the constitutional mandate that the General Assembly provide a ‘thorough and uniform’ system of public education. … It also affords local school districts control over locally-raised funds and therefore over ‘instruction in the public schools.’ … As such, the trial court erred when it declared the public school financing system unconstitutional. We accordingly reverse.”

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Later in the ruling, Rice wrote, “While the trial court’s detailed findings of fact demonstrate that the current public school financing system might not be ideal policy, this Court’s task is not to determine ‘whether a better financing system could be devised, but rather to determine whether the system passes constitutional muster.’”

Rice was joined in the ruling by justices Brian Boatwright, Allison Eid and Nathan Coats. Chief Justice Michael Bender and Justice Gregory Hobbs dissented. Justice Monica Marquez, who earlier worked on the Lobato case while a member of the attorney general’s staff, did not participate in the case.

The ruling came less than three months after the court heard oral arguments in the case.

The dissents

Bender and Hobbs each wrote dissenting opinions to the majority opinion, and each signed the other’s dissent.

In his 18-page dissent, Bender wrote, “Today, the majority abdicates this court’s responsibility to give meaningful effect to the Education Clause’s guarantee that all Colorado students receive a thorough and uniform education. In my view, a thorough and uniform system of education must include the availability of qualified teachers, up-to-date textbooks, access to modern technology, and safe and healthy facilities in which to learn. The record, however, reveals an education system that is fundamentally broken. … Colorado’s education system is, beyond any reasonable doubt, neither thorough nor uniform.”

The chief justice quoted extensively from the trial record about deficiencies in the state’s schools.

He wrote in in a footnote he would give the legislature five years to adopt a new system and would have continuing court supervision of those efforts.

Hobbs’ 20-page filing went deeply into the history of the state constitution, and he wrote, “In creating the ‘thorough and uniform’ requirement, the framers intended that the legislature would establish and maintain a complete and comprehensive system of public education that consistently affords Colorado children the opportunity to develop the skills and knowledge necessary to participate fully in the opportunities and challenges of a dynamically growing state.”

He concluded, “As the record makes clear, it may take years – and significant effort – to reshape the current school finance system into one capable of supporting our rapidly growing and diversifying schools in compliance with the Education Clause’s mandate. Colorado should face this critical issue head-on.”

Plaintiffs react

Lobato sisters
Taylor Lobato (right) speaks to reporters about the supreme court’s ruling. Her sister Alexa, also a plaintiff, is at the left.

Gebhardt called the decision “a simply devastating day for the children of Colorado.”

Taylor Lobato, a Center High School graduate who was one of the original plaintiffs in the case, said, “The door has been slammed in the faces of the children of Colorado. … It makes me sad; it makes me upset.”

George Welsh, superintendent of the Center schools, said the court’s decision means “the Legislature has permission to do more with less. … The court has decided they can’t help us … but the people can” if they elect lawmakers who support increased funding for schools. (Read more reaction here).

The issues in the case

The central issue in Lobato was whether the current school funding system was “rationally related” to the state constitution’s requirement for a “thorough and uniform” system of public schools, and with the requirements of school-reform laws passed in recent years.

Plaintiffs also argued that the current finance system violates another constitutional provision guaranteeing local control of schools.

District Judge Sheila Rappaport
Denver District Judge Sheila Rappaport

Denver District Court Judge Sheila Rappaport agreed with the plaintiffs’ arguments in her December 2011 ruling and held the finance system to be unconstitutional.

But the high court ruled, “A ‘thorough and uniform’ system of public education is of a quality marked by completeness, is comprehensive, and is consistent across the state.” That requirement “simply establishes the constitutional floor upon which the General Assembly must build its education policy,” according to the decision.

Citing its ruling in an earlier school funding case, the court held such a system “does not demand absolute equality in the state’s provision of education services, supplies, or expenditures.” The court also ruled that local control is not violated by the current system.

Attorney General John Suthers and his staff also argued consistently that school finance was the responsibility of the “political” branches of government – the legislature and the governor – and wasn’t an area of judicial review.

When it revived the Lobato case in 2009 the supreme court ruled that the courts did have jurisdiction – called “justiciability” in legal language. Monday’s majority opinion specifically stated that the court had not changed its mind on that issue.

Gebhardt said she wasn’t sure how to interpret the decision. “I don’t really know how to get in the heads of the justices. … I am a little concerned they set the bar so low,” she said, adding, “I read the opinion, and they didn’t give us any guideposts. … There’s no guidance in there as to what a thorough and uniform system is.”

She also said she was disappointed that “all of the facts and all of the evidence were completely disregarded.”

Implications of the ruling

There could have been far-reaching implications if the court had upheld Rappaport’s decision, perhaps including major changes in education laws by the legislature and years of continuing court review.

Cost estimates presented during the five-week trial in 2011 projected that the state might need as much as an additional $4 billion a year to fund an education system based on true costs.

Critics of Rappaport’s ruling, including Gov. John Hickenlooper and legislative Republicans, warned that implementation of Rappaport’s decision could squeeze state spending for programs other than education and tie the legislature’s hands when setting budget priorities.

Such concerns appear to be off the table, given the court’s ruling. Because the case is based on state constitutional issues, there are no federal appeals possible. Gebhardt said the plaintiffs could ask the Colorado high court for a rehearing, but no decision has been made on doing that.

So, attention now turns to SB 13-213 and its accompanying ballot issue. (Proponents haven’t yet decided which version of the proposed tax increase to take to voters.)

While that plan proposes a significant increase in funding and major reallocations of how K-12 support is spent, it is not based on calculations of how much funding would be required to achieve the student competency goals contained in current state education policy.

Gebhardt, who has raised concerns in the past about SB 13-213, said Tuesday, “There are some good things in Sen. Johnston’s bill … there are some concerns.” She’s primarily concerned with a variation of the yet-to-be-submitted ballot measure that would alter Amendment 23, the current constitutional formula for funding schools. The bill is sponsored by Sen. Mike Johnston, D-Denver.

Who’s who in Lobato

Lawyer Kathy Gebhardt
Lobato case plaintiffs’ lawyer Kathy Gebhardt speaks with reporters. Members of the Lobato family are behind her.

The plaintiffs included 67 individuals – parents and students – who live in six school districts, plus 21 school districts. The Lobatos, a ranching family from the San Luis Valley, gave the case its name. They were represented by Children’s Voices, a non-profit Boulder law firm led by Gebhardt, and by a variety of private lawyers. An additional 27 individuals living in four districts entered the case later as intervening plaintiffs and were represented by the Mexican American Legal Defense and Educational Fund.

The defendants were Hickenlooper, the State Board of Education and education Commissioner Robert Hammond. They were represented by Attorney General John Suthers and his staff.

The plaintiffs had support in a dozen “friend of the court” briefs representing 28 organizations or groups of people, including the Colorado Education Association, the Colorado Association of School Boards, the Colorado Association of School Executives, the ACLU of Colorado and the Bell Policy Center. A friend of the court is referred to as “amicus curiae” in legal language.

A smaller number of amicus briefs were filed in support of the state’s case. Groups filing those briefs included the University of Colorado Board of Regents, three former governors, a coalition of business groups and two health care groups.

History of the case

First filed in 2005, the case was thrown out first by a Denver District Court judge and then by the Colorado Court of Appeals. Both ruled the courts didn’t have jurisdiction over school finance.

The supreme court overturned those decisions in an October 2009 ruling, a decision that came to be know as Lobato I. A five-week trial was held starting in August 2011, followed by Rappaport’s ruling late that year.

Reactions to Lobato ruling

Gov. John Hickenlooper – “We are complying to the requirements in the constitution. It doesn’t necessarily say that we have sufficient funding in education right now, and even after working hard to add additional funding this year to the construction of school buildings and the state education fund, we — clearly, I think most people would agree that we are underfunded in education. But I think what the Supreme Court said was that this was not the right way to increase that funding.”

Attorney General John Suthers
Attorney General John Suthers / File photo

Attorney General John Suthers – “The Attorney General’s Office is pleased that, after a long and circuitous route through the courts, the Colorado Supreme Court has finally recognized that the state’s education funding system satisfies constitutional standards. The court’s ruling confirms that the Lobato case has been a distraction from the task at hand – improving our education system through meaningful, effective and efficient change.” (Full text of statement)Senate Minority Leader Bill Cadman, R-Colorado Springs – “The Colorado Supreme Court’s decision on the Lobato lawsuit is important to all of us; it affirms the constitutional authority of an elected legislative body to represent the people of this state. This is such a core tenet of our Constitution that I am surprised the court’s decision was not supported unanimously by the justices. The legislature is given the power to create a state budget for good reason – the people’s money needs to be protected from any group who would use the court system to bypass the Constitution.”

Kerrie Dallman, Colorado Education Association president – “It’s important to note the Supreme Court did not dispute that public education in Colorado would benefit from additional funding. Colorado students deserve a better-funded school system. That’s why our Legislature and Gov. Hickenlooper passed the Future School Finance Act. And that’s why our members will unite with a diverse coalition of groups dedicated to making public school investment a top priority in this state. Together, we will implore every community to do right by our kids this November and give them the resources they need to succeed.”

Thomas A. Saenz, MALDEF president – “The Colorado Supreme Court’s timorous decision today, abandoning the state to a dim future of inadequately educated citizenry, encapsulates the folly in failing to ensure, at a national level, an equitable and quality education for all. The public in Colorado can and should demand better of its public servants.”

choosing leaders

Meet one possible successor to departing Denver superintendent Tom Boasberg

PHOTO: Melanie Asmar
Denver Public Schools Deputy Superintendent Susana Cordova addresses teachers at an early literacy training session.

As Denver officials wrestle with how to pick a replacement for longtime superintendent Tom Boasberg, one insider stands out as a likely candidate.

Susana Cordova, the district’s deputy superintendent, already held her boss’s job once before, when Boasberg took an extended leave in 2016. She has a long history with the district, including as a student, graduating from Abraham Lincoln High School, and as a bilingual teacher starting her career more than 20 years ago.

When she was selected to sit in for Boasberg for six months, board members at the time cited her hard work and the many good relationships they saw she had with people. This time around, several community members are saying they want a leader who will listen to teachers and the community.

Cordova, 52, told Chalkbeat she’s waiting to see what the board decides about the selection process, but said she wants to be ready, when they are, to talk about her interest in the position.

“DPS has played an incredibly important role in every aspect of my life. I’m very committed to making sure that we continue to make progress as an organization,” Cordova said. “I believe I have both the passion and the track record to help move us forward.”

During her career, she has held positions as a teacher, principal, and first became an administrator, starting in 2002, as the district’s literacy director.

Just before taking on the role of acting superintendent in 2016, Cordova talked to Chalkbeat about how her education, at a time of desegregation, shaped her experience and about her long path to connecting with her culture.

“I didn’t grow up bilingual. I learned Spanish after I graduated from college,” Cordova, said at the time. “I grew up at a point in time where I found it more difficult to embrace my Latino culture, academically. There were, I would say, probably some negative messages around what it meant to be Latino at that point of time.”

She said she went through introspection during her senior year of college and realized that many students in her neighborhood bought into the negative messages and had not been successful.

“I didn’t want our schools to be places like that,” she said.

In her time as acting superintendent, she oversaw teacher contract negotiations and preparations for asking voters for a bond that they ultimately approved that fall. Cordova’s deputy superintendent position was created for her after Boasberg returned.

But it’s much of Cordova’s work with students of color that has earned her national recognition.

In December, Education Week, an education publication, named her a “Leader to Learn From,” pointing to her role in the district’s work on equity, specifically with English language learners, and in her advocacy to protect students under the Deferred Action for Childhood Arrivals program, or DACA.

Cordova was also named a Latino Educator Champion of Change by President Barack Obama in 2014. Locally, in 2016, the University of Denver’s Latino Leadership Institute inducted Cordova into its hall of fame.

The Denver school board met Tuesday morning, and again on Wednesday to discuss the superintendent position.

Take a look back at a Q & A Chalkbeat did with Cordova in 2016, and one in 2014.

saying goodbye

Here’s how the local and national education communities are responding to Boasberg’s exit

PHOTO: Melanie Asmar
Denver Superintendent Tom Boasberg addresses teachers at an early literacy training session.

As the news of Tom Boasberg’s departure ricocheted through the local and national education community, critics and champions of the Denver schools superintendent sounded off.

Here’s a roundup of comments from teachers, parents, school board members past and present, elected officials, and some of Boasberg’s colleagues.

Alicia Ventura, teacher

“I am shocked! I understand his decision as I have one (child) grown and out of the house and one in middle school. Time with our children is short and precious! I will always remember how fun and open-minded Tom was. He would do anything for children and truly lived the students first vision! We will miss you!”

Michael Hancock, Denver mayor and Denver Public Schools graduate

“I am saddened that DPS Superintendent Tom Boasberg will be stepping down but full of gratitude for his close partnership with the city on behalf of Denver’s kids and families. As a DPS graduate and a DPS parent, I know firsthand that Tom has led DPS with integrity and commitment. His focus on success for all kids has greatly improved our schools and provided better opportunities for all students to live their dreams.

“We have much work still to do in DPS, but we have an incredible foundation for moving forward and we are committed to continuing in partnership with the next DPS leader.”

Corey Kern, deputy executive director, Denver Classroom Teachers Association

“We were a little surprised by it ourselves. For us, we obviously wish Tom the best. The big focus for us is making sure the selection process for the next superintendent is something that is fair and transparent and open to the public; that it’s not a political appointment but talking to all stakeholders about who is the best person for the job for the students in Denver.”

Anne Rowe, president, Denver school board

“He has given … 10 years to this district as superintendent, and it is an enormous role, and he has given everything he has. … My reaction was, ‘I understand,’ gratitude, a little surprised but not shocked, certainly, and understand all the good reasons why he has made this decision.

“With change, there is always some uncertainty, and yet I look at the people here and their dedication to the kids in DPS and I have full confidence in these folks to continue driving forward while the board takes on the responsibility to select the next superintendent. We won’t miss a beat, and we have a lot of work to do for kids.”

Jeannie Kaplan, former school board member critical of the district’s direction

“I was very surprised. … I wish Tom well. I still do believe that working together is the way to get things done. I’m sorry we weren’t able to do that.

“My one hope would be that one of the primary criteria for the next leader of the district would be a belief in listening to the community – not just making the checkmark, but really listening to what communities want.”

John Hickenlooper, Colorado governor and former Denver mayor

“Tom Boasberg has invested a significant part of his life into transforming Denver Public Schools into one of the fastest-improving school districts in America. As a DPS parent, former mayor, and now governor, I am deeply grateful for the progress made under Tom’s leadership. I applaud Tom and Team DPS for driving the innovations that are creating a brighter future for tens of thousands of young people in every corner of the city.”

U.S. Senator Michael Bennet, who preceded Boasberg as Denver superintendent from 2005 to 2009 and has known him since childhood

“As a DPS parent, I thank him for his commitment, his compassion, and his extraordinary tenure. As Tom always says himself, we have a long way to go, but his transformational leadership has resulted in extraordinary progress over the past 10 years. Our student achievement has substantially increased, the number of teachers and other school personnel serving our children has grown tremendously, and the school choices available to children and their families have never been greater.”

Bennet also penned an op-ed in The Denver Post with this headline:

Ariel Taylor Smith, former Denver Public Schools teacher and co-founder of Transform Education Now, a nonprofit that focuses on improving schools through parent advocacy

“I was a teacher during Tom’s first half of his tenure at DPS and was amazed at how often he would walk the halls of North High School during our turnaround. Tom has dedicated 10 years to this work and for that I am grateful. I also believe that we have a long way to go to getting where we need to be. I believe that we are ready for new leadership who operates with the sense of urgency that we need to see in our city. There are 35,000 students who are attending ‘red’ and ‘orange’ (low-rated) schools in our city right now. One out of every three third-graders is reading on grade level. We need a new leader with a clear vision for the future and an evident sense of urgency to ensure that all our kids are receiving the education that they deserve.”

Brandon Pryor, parent and member Our Voice Our Schools, a group critical of the district

“You have a number of people he works with that are reformers. They think he’s leaving an awesome legacy and he did a lot to change and meet needs of the reformist community. You ask them and I’m sure his legacy will be great. But if you come to my community and ask some black folks what Tom Boasberg’s legacy will be, they’ll tell you something totally different.

“I think he has time with this last three months in office to follow through with some of the promises he’s made us (such as upgrades to the Montbello campus) to improve his situation.”

Jules Kelty, Denver parent

“He personally responded to an email that I sent him about my school. I appreciated that.”

Van Schoales, CEO of the pro-reform advocacy group A Plus Colorado

“On the one hand, I’m not surprised. And on the other hand, I’m surprised.

“I’m not surprised because he’s had a track record of pretty remarkable service for a decade, which is amazing. Nobody else has done that. The district has improved pretty dramatically. He deserves a great deal of credit for that. …The surprise is that we’ve all become so used to him being the superintendent, it’s just a little weird (to think of him leaving).”

Lisa Escárcega, executive director, Colorado Association of School Executives

“Tom’s longstanding commitment and service to DPS have made a significant impact on the district. He is strongly focused on ensuring student equity, and the district has seen improvement in several areas over the last 10 years under his superintendency. Tom is a strong and innovative leader, and I know he will be missed by the DPS community and his colleagues.”

John King, former U.S. Secretary of Education

“Under Tom Boasberg’s leadership for the past decade, Denver Public Schools has made remarkable academic progress and has become one of the most innovative school districts in the country. Tom has brought tremendous urgency and a deep commitment to closing both opportunity and achievement gaps for students of color and those from low-income backgrounds. For many school districts throughout the country, Denver’s innovative and collaborative approaches serve as a valuable model.”

Katy Anthes, state education commissioner

“I’ve appreciated working with Tom over the years and know that his personal commitment to students is incredibly strong. I thank Tom for his service to the students of DPS and Colorado.”

Mike Magee, CEO of Chiefs for Change, a national group of district and state superintendents 

“Tom Boasberg is an extraordinary leader who has dedicated his life to expanding opportunities for all of Denver’s children. During his tenure, the district has made remarkable gains on virtually every measure of progress. Denver Public Schools is a national model for innovation, district-charter collaboration, and teacher and school leader support. Every decision Tom has made over the course of his career has been focused on helping students succeed. No one is more respected by their peers. As a member of the Chiefs for Change board and in countless other ways Tom has supported education leaders across the nation. He leaves not just an impressive legacy but an organization of talented people committed to equity and excellence.”

David Osborne, author of the book “Reinventing America’s Schools,” which included chapters on Denver’s efforts

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