12 December 2011

Lobato Case Confounds Colorado Budget Makers

A Denver trial court in the Lobato case has held that the State of Colorado has not met its state constitutional duty to provide "a thorough and uniform system of public education." In the full ruling (182 pages), the Court stated that:

It is also apparent that increased funding will be required. These are appropriately legislative and executive functions in the first instance. Thus, the Supreme Court has directed that this Court shall "provide the legislature with an appropriate period of time to change the funding system so as to bring the system in compliance with the Colorado Constitution."

The Court's mandate to the state is on the order Of $2-$4 billion. Current state education funding is on the order of $3 billion out of $7 billion. An appeal is certain, and in prior cases of this type in other states, enforcing this kind of order has proven harder than declaring the violation of a state constitutional mandate, often taken years and providing little in the way of concrete results.

Voters rejected a moderate new tax increase for public education in 2011 by a large margin, and except to the extent that this constitutional ruling overrides TABOR, which is also a part of the state constitution and is more recently adopted than the general school funding mandate upon which the judge in the Lobato case relied, any new efforts at school funding will need to overcome the same hurdle. On appeal, the Lobato decision could also be overruled on the grounds that Amendment 23 to the state constitution, which sets minimum funding levels for state education funding in specific dollar terms, covers the same subject more specifically in a more recently adopted provision.

Adequate funding of public education in accordance with the Lobato decision without new tax revenues would eat up all, or very nearly all, of the general fund budget, leaving no funds left for higher education, for prisons, or Medicaid, for mental health services, or for much of anything else.

In this case, as in past school funding cases in other states, it simply isn't obvious that a court order can change the political reality sufficiently enough to allow either the increased taxes necessary to fund education adequately, or the reduced spending on other programs needed to secure education funds, even under the pressure of a court order.

On the other hand, this isn't simply a case of judicial activism by a lone judge. The Lobato case was appealed to the Colorado Supreme Court in 2009 which set forth specific guidelines and mandates for the trial that was just completed, which it has followed:

To be successful, [Plaintiffs] must demonstrate that the school finance scheme is not rationally related to the constitutional mandate of a “thorough and uniform” system of public education. The trial court must give significant deference to the legislature’s fiscal and policy judgments. The trial court may appropriately rely on the legislature’s own pronouncements to develop the meaning of a “thorough and uniform” system of education. If the court finds that the current system of public finance is irrational, then the court must provide the legislature with an appropriate period of time to change the funding system so as to bring the system in compliance with the Colorado Constitution.

The Colorado Supreme Court also held on the first appeal that the Plaintiffs wuld prevail if they could prove that:

[T]he [Public School Finance Act] base funding amount and statutory increases are based on "historical compromise," as opposed to a rational determination of the amount it would cost to implement the "thorough and uniform" mandate or the cost of providing an education that meets the standards and goals mandated by education reform efforts. Citing an independent cost study, plaintiffs allege that the current funding levels do not allow students the opportunity to meet the standards and objectives established in education reform legislation. In addition, plaintiffs allege that funding for underserved student populations and capital construction is insufficient and irrationally dependent on local property taxes. Plaintiffs further allege that the state's public school financing system is unconstitutionally irrational because it prevents the district from implementing the education clause mandate at a local level.

Given a clear mandate from the Colorado Supreme Court regarding what they had to prove to prevail, and what remedy would result, the Plaintiffs proved their case and the judge agreed and imposed the remedy that the Colorado Supreme Court in its 2009 ruling in this case proposed. As the rulinng further explains:

Pertinent to the foregoing, in its Order dated July 14, 2011, this Court has previously ruled that:

In the name of the Education Clause, the General Assembly has established a comprehensive system of educational goals, methods, and measures, all of which it requires school districts to implement successfully. A system intended to finance a constitutional mandate cannot be rationally related to that purpose if it is created and funded without reference to the costs of providing the mandated services.

The Court further held that the “General Assembly has expressly linked its duties under the Education Clause with student performance”, and that, therefore: Under the standards-based education system adopted by the General Assembly and implemented by the Defendants, educational opportunity is defined in part by statutorily mandated academic content standards and measured by student achievement or qualitative outcomes. It is but one factor to consider in determining whether the Defendants have met their constitutional duty.

This Court has previously ruled that the following issues raised by the Defendants are not at issue in this case: (1) that public education is not the only required or important state service; (2) that it is rational for the General Assembly to “control the public debt”; (3) that it is rational for the General Assembly to “further local control over instruction” and (4) that it is rational for the General Assembly to “balance appropriations among public services.” The Court has also ruled that the TABOR and Gallagher amendments do not conflict with the mandate of the Education Clause; that TABOR was not intended to restrict the growth of government; and that TABOR should not be interpreted to cripple basic government services, such as the constitutional mandate to establish and maintain a thorough and uniform system of free public schools. Given the remedy specified by the Supreme Court, the interpretation of the Education Clause does not need to be harmonized with either TABOR or the Gallagher Amendment, nor does the Court need to reach the issue of the TABOR revenue restrictions.

Given that the trial court viewed its mandate to determine the adequacy of state school funding levels without regard to TABOR, Gallagher, or competiting budgetary constraints, or the costs of providing educationa at all, it is little wonder that the Court found that Colorado didn't spend enough on education.

In essence, the ruling requires the state to first determine what it would cost to meet the aspirational standard for education set forth in the state constitution and the statutes that interpret it, and to promise that at least that much will be spent, and then to find the funds to do so, no matter what it takes to do so. The bottom line order of the Court is that (emphasis added):

Injunctive relief enters in favor of the Plaintiffs, and all of them, and against the Defendants, and all of them, as follows:

1. Defendants are enjoined from adopting, implementing, administering, or enforcing any and all laws and regulations that fail to establish, maintain, and fund a thorough and uniform system of free public schools throughout the state that fulfills the qualitative mandate of the Education Clause and the rights guaranteed to the Plaintiffs thereunder and that is in full compliance with the requirements of the Local Control Clause; including, without limitation the Public School Finance Act of 1994 in its entirety, categorical funding programs, and capital construction funding laws and regulations;

2. Defendants are further enjoined to design, enact, fund, and implement a system of public school finance that provides and assures that adequate, necessary, and sufficient funds are available in a manner rationally related to accomplish the purposes of the Education Clause and the Local Control Clause;

3. The Court hereby stays the enforcement of the injunctive relief set forth hereinabove in order to provide the State with a reasonable time to create and implement a system of public school finance that meets the mandates of the Education Clause and the Local Control Clause. This stay shall continue in effect until final action by the Colorado Supreme Court upon appeal of the Court’s decision; provided that if appeal is not perfected to the Colorado Supreme Court, this Court shall review the stay upon application of either party submitted no earlier than the conclusion of the 2012 legislative session. While this stay is in place and until further action by the Supreme Court or this Court, the present financing formula and funding may remain in effect.

SO ORDERED this 9th day of December, 2011.
Sheila A. Rappaport
District Court Judge

From a pratical perspective, this is the straw that has broken the camel's back. The State of Colorado is now clearly overconstrained. No matter how well meaning Governor Hickenlooper and the Colorado General Assembly are in 2012, they do not have the capacity to enact a budget that does not violate one provision of the state constitution or another or one or more federal laws or constitutional provisions, without a vote of the people in favor of a state constitutional amendment or voter approval for ta tax increase, in the face of the political reality that measures similar to the ones necessary for Colorado to meet its state constitutional requirements have been soundly defeated by Colorado voters in the past, repeatedly. So, it is very hard to see what difference one more legislative session of deliberation will make as a reult of this decision.

What Colorado needs is some way to break the Gordian knot of the state constitutional and federal law barriers that stand in its way in this overconstrained environment, perhaps in the form of direction from the courts regarding which of its conflicting obligations it is allowed to breach. Federal law, when mandatory, pre-empts state law, but when it merely assigns consequences fiscally for disobedience, as is the case in the Medicaid program, the case is not so clear. Determining which state constitutional provision can be ignored isn't easy either.

But, the Courts, in depanding action from elective officials, aren't much better situated that the monarchs facing the original legislatures in England and France because they needed tax funds to meet their spending objectives. The principle that I call "sovereignty of the group" comes into play any time voters or a legislature is called upon to decided anything. They act without regard to the existence of outside constraints with impunity, and the process effectively guarantees their right to make decisions that courts or any other rational observer would find to be irrational.

In the end, I don't disagree that education is underfunded in Colorado, but I don't see a politically possible way to resolve the problem unless the Courts give the Governor and legislature the authority to ignore TABOR in order to enact a constitutional funding system for education.

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