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Lobato v. State Of Colorado Case: LiveBlog From The Courtroom (LIVE UPDATES)

Lobato Case Colorado

The Huffington Post   First Posted: 08/17/11 01:25 PM ET Updated: 10/17/11 06:12 AM ET

Lobato v. State of Colorado may be one of Colorado's most provocative education lawsuits in history. It raises the question: Is the state's system of public education funding constitutional?

And it is anticipated that the answer will only raise more provocative questions.

The lawsuit argues that Colorado is flunking its own constitution, and by extension, its own students. The state's constitution calls for a "thorough and uniform system of free public schools throughout the state" but, plaintiffs argue, students are not receiving that throughout the state. The lawsuit therefore seeks more money for public education, but lawyers representing the plaintiffs say they aren't looking for a specific number.

The state however is already spending about 40 percent of its $7 billion General Fund budget on education. Allocating more money may cost the state elsewhere, and redistributing funds may cause more claims of inequality from taxpayers.

The court then is charged with making a careful interpretation of what the constitution's drafters meant by the "thorough and uniform" clause, and whether or not it's the court's role to declare a ruling about it being constitutional or not.

We'll be updating the blog live from courtroom 424 in Denver District Court as the five-week trial progresses.

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Plaintiff lawyer Kathy Gebhardt continues the closing arguments.

This is not an equity case, this is an adequacy case. Not one district meets the state's level of adequacy. Mike Miles is the only superintendent that testified for the State, among the many that testified for the Plaintiffs. Harrison's budget allows it to pay teachers $90,000 while other make much less than half of that...

It's important to remember that while there isn't a silver bullet, that does not mean that we don't know what works. Achievement improves when there is more funding, and achievement suffers when budgets are cut, because they affect everyone. What we currently have is a system that ratchets up the standards and diminishes the resources...

We can only move forward if we move back to the standards set by Colorado's constitution.

MALDEF Plaintiff Attorney Hinojosa continues:

The Defendants might not want to believe the testimony they've heard over the past five weeks...but no matter what they want to believe, the evidence is overwhelming that school districts do not have the resources to provide for English language learners and low-income students. The want to tell this court that there is no definition of "thorough and uniform". But schools are not able to meet the standards the state has put in place.

The State has said we can expect some students to fail. That some kids are meant to fail, because of problems at home, etc. running contrary to their own claims that (with the status quo) they can succeed. And the Defense's position is that the status quo is good enough.

The same standards apply whether the students are homeless, whether they are English language learners, at-risk students, special education, or not.

Graphs were then shown of several school districts' wide achievement gaps, and while the gaps stayed fairly consistent, the achievement plots still appeared to generally trend downward.

"When you undercut these (English language) programs and strangle these districts, you end up having students stay in them longer," which costs the State more money too, Hinojosa said.

Graduation requirements are only growing higher, and the graphs indicate that the trends are only going to get worse, Hinojosa said.

And besides, kids who proved proficient on the CSAP are not necessarily graduating ready for college. What we have here your Honor is evidence of an irrational system. Whether or not the (various committees of the State) match up to the "thorough and uniform" system that they, the State, have created themselves.

The court will reconvene with a ruling in 45 days.

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"Behind all of this testimony, there is a debate about the fundamental question of whether more money will improve (achievement rate) of schools," the Defense began, arguing that they plaintiffs didn't get the funding they want, "so they've come to your courtroom".

The Defense argued that Colorado's constitution does not require the best possible education scenario for public school finance. That it, like the Constitution drafted by the Founding Fathers, is meant to be a flexible document that leaves many specific issues like funding up to the Legislature.

The one concise theme that you've heard is that what plaintiffs want...is a utopia. A perfect outcome for all students. That the education system cannot be rational without solving societal problems first. If a student fails to reach proficiency, then that system has failed.

But what about students with multiple needs and multiple gifts? Where does it end?

If you believe that the human potential is unlimited then it never ends...there will always be more innovative technology, more that needs to be taught, and (a need for) newer buildings.

Lt. Gov. Joe Garcia told you that education was paramount to the state of Colorado but the Colorado Constitution does not require a system that can be fully seen or fully realized. We all may aspire to this utopia, but the constitution simply does not require it.

The court's role in this case, the State argued, is to determine whether the system passes "Constitutional muster", not whether a better system could be realized. More money may lead to better education, but, the State cited Harrison School District's ability to make progress despite spending cuts. They argued that the majority of school districts are meeting the state's requirements to be academically proficient, including many plaintiffs in this case.

"Districts, not the State, are responsible for how they want to educate their children...North Conejos School District built a $300,000 building instead of implementing new programs...that wasn't the State's choice, that was the district's choice."

The State also cannot mandate an English language program, the Defense argued, and it is the districts who decide how much to pay their teachers.

"Harrison Superintendent (Mike) Miles treats his teachers like true professionals. He expects them to continue their training while employed."

The districts also have the ability to ask their leaders to do something about the mill-levy overrides, the Defense argued.

In discussing Boulder Valley School District, the State pointed out that they exceed the State's requirement in proficiency but that their achievement gap (achievement levels between minorities and white students) is one of the worst in the State. The State said that during testimony, it was admitted that that achievement gap "was not because of a financial problem".

The State then pointed to ineffective education funding increases in Wyoming and New Jersey saying that more money there "just hasn't worked" and that "there's no reason to think this will play out any differently in Colorado."

The Legislature functions to serve districts' concerns, and they devote time to doing so, the Defense argued. The courtroom is not the appropriate place for this argument, the Defense argued.

"Sen. King said that education gets .45 of every dollar. If it's more state funding that Plaintiffs and Plaintiff-Intervenors want, then that's what they've got. The school finance system is reasonable and rational...What you've heard is a public policy debate--a debate the Legislature has already heard and continues to hear. The Plaintiffs just don't like their answer."

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MALDEF, the Latino legal voice for civil rights, made their closing arguments next.

Attorney David Hinojosa stressed that the Lobato case was about lost opportunities and challenges many minorities have had to face alone--a prospect, Hinojosa argued, that isn't just detrimental to the individual student but also to the state at large.

"You heard no testimony from the parents or superintendents saying they didn't want their children to be challenged (in school with the state requirements)," Hinojosa said. "The piece that's missing is funding."

Likening Colorado's lack of public school funding and educational expectations to "building a house to withstand 100 miles per hour winds" with straw, Hinojosa argued that the current educational finance structure cannot be sustained.

Hinojosa also argued that Colorado's Legislature has already defined what a "thorough and uniform" education means in its Department of Education's postsecondary and workforce readiness report.

Sheridan School District, Hinojosa said, has a growing population of homeless children.

"These children don't look forward to the holidays because they'll be without a roof over their heads and without two meals a day...Greeley has a growing immigrant and refugee population and is faced with a dilema: do they try to further the education of their gifted and talented students? Or help the English language learning students? That's a decision that no superintendent should face."

English language learners have to become academically proficient in that language, not just learn it, Hinojosa said. According to earlier testimony, it takes English language learners four to seven years to become academically proficient despite the fact the the state expects them to catch up in two.

"It makes absolutely no sense that you can increase standards, make them more rigorous and challenge teachers with those standards--because they have to master those standards too--but the state doesn't want to provide the money necessary."

Furthermore, Hinojosa argued, the state caps at-risk students (aka students who qualify for free or reduced lunch) to 20,160 "for no explainable reason (and) meaning that at least 13,000 students are being denied".

Hinojosa then showed the courtroom photos of some Colorado school buildings in disrepair and asked, "How can any definition of a good system of public schools not include the schools themselves?"

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Adams 14, Aurora, Pueblo County and more have all testified about the falling growth and achievement levels, and insufficient funding for the State's requirements, Kawanbe said.

Adams 14 is failing the State standards, by not meeting the four levels of proficiency status.

Henry Levin (a previous plaintiff witness from Teachers College, Columbia University who produced a study entitled, "The Fiscal and Social Burden of Inadequate Education in Colorado") said in his testimony that there are economic consequences felt by everyone--and especially taxpayers--when students are given an inadequate education. High school dropouts have a greater probability of going to prison--though it also affects victims of crime, being on welfare, being uninsured, and making less money in their lifetime.

From Henry Levin's Plaintiff-commissioned study:

High school graduates receive almost exactly half as much and college graduates less than one-tenth that amount...These differences in earnings by education level mean that there will be differences in tax contributions at both the state and federal level. As the largest proportion of taxes are paid to the federal government, the main fiscal benefit of having a more highly educated population is accrued nationally, not in Colorado.

Jefferson County, another Plaintiff in this case, has over 80,000 students and has had to consistently cut staff, Kawanabe said.

If we want higher achievement we need more class time and more funds. As Cindy Stevenson (Superintendent of Jefferson County) said, because 'Everything touches the classroom'...

Defendants have brought two examples of success, but they are islands of success.

Your honor, there is a consensus, and it's the vital importance of education...We know what works. Our superintendents in our schools know what works but they can't afford to implement them because of a lack of resources. Our system does have its successes, but it's because of heroes.

"Heroes" like teachers who have bought their students school supplies out of their own pockets, Kawanabe said, cautioning that those "heroes" might not stick around if resources continue to be cut. Kawanabe re-stated testimony from a witness in Cherry Creek who said that, "increased standards mean increased costs".

The state has requirements, not aspirations, Plaintiffs argued, adding that the court has heard former members of the Legislature admit that "they have never conducted a study to determine the costs of education mandated in the Legislature," that "there is no basis for the base per pupil funding, (and) it was simply an afterthought."

Attorney Kawanabe said:

We are not asking the court to enforce (exact per pupil funding) amounts, we are asking the court to declare the system of funding unconstitutional and require the Legislature to do its job.

Going through the various education bills mentioned throughout the five week trial (SB 163, SB 212 and SB 191, etc.) Kawanabe said it is estimated that they would cost over $100 million to implement, but that there is no funding for their implementation. Instead, he asserts, school districts are left holding the bag.

Plaintiffs seek "declaratory relief," Kawanabe said, urging Judge Sheila Rappaport to consider the "thousands of kids" being lost every day.

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The courtroom is completely packed for closing statements with a 7 News camera crew, and the Lobato family.

Over 100 witnesses and thousands of hours in legal work later, the arguments begin with Plaintiff Attorney Kenzo Kawanabe.

Kawanabe argued in his closing remarks that Colorado does not establish a rational relationship between its funds and education requirements. Providing a public education, Kawanabe said, was a requirement for Colorado to establish its very statehood.

"Over these past five weeks, the plaintiffs have proved their Constitutional claims...(Thorough and uniform) are constitutional mandates," Kawanabe said.

He continued, reviewing testimony from over the past five weeks:
Professor Bruce Baker from Rutgers University gives Colorado an "F" for funding fairness.

The result includes 70-75 percent graduation rates, 29 percent remediation rates (not ready for college), and 30 percent achievement gaps.

In fourth grade reading, Colorado students are 40 percent proficient, but if you're hispanic it's 17 percent, and 18 percent if you're black...if you are a special education student or if you are poor, you have a 50 percent chance of graduating from the state of Colorado.

Our superintendents consistently describe a lack of resources to implement state requirements, and must use local funds to try and fill in the gaps.

Dr. Linda Darling-Hammond from Stanford University states that effective teachers are most important...

Rural school district teaching salaries are $30,000-50,000.

Districts are not able to meet state standards.

In middle school in Center Colorado, all proficiency levels were below 50 percent.

We are failing our students...we are using textbooks that are 10, 20, 30 years old.

Kawanabe then recalled Sheila Adolf of Bethune who serves as superintendent, principal district assesor, Prof Development, Curriculum Director, and Teacher Evaluator.

"That is what has happened. Our superintendents must wear many hats," Kawanabe said.

"Their budget is only $1.2 million and she educates needy kids in oversized closets. But it's not just about our needy or poor school districts...."

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Closing statements will be made in approximately half an hour.

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The Plaintiffs have called Dr. Brenda Krage Assistant Superintendent of Pueblo City Schools as the final witness.

Pueblo City Schools is in the bottom five percent of accreditation. Colorado's accreditation law is into its second year.

"Growth is where we decreased the most...growth and the growth gap," Dr. Krage said.

Q: To what do you attribute that to?

A: Over time having a decrease in funds, we've had to cut teachers and decrease class size. We've had some interventions we've had to carry out for students identified as at-risk. We have a very high minority and very low socioeconomic background...

Our achievement is very low, as you can see. And we have more cuts coming with the state.

Q: What did the district do to address its first round of turnaround schools

A: We began following the (Colorado Department of Education) rules with turnaround, and what we did in that first round was bring new leadership into the building and replace 50 percent of our teachers...which was very difficult and very interesting in our district which has difficulty retaining.

Pueblo used the federal tiered-intervention grants (in $4.2 million additional that are allocated to the bottom five percent of schools) to fund their turnaround schools program.

Q: As a turnaround district, what are you required to do with the Colorado Department of Education?

A: That has yet to be determined...we certainly could look at things like chartering in the district...

CDE can structure the district or it can close the district.

"Our superintendent calls (the ability to retain effective teachers) brain surgery. It's very very complex," Dr. Krage said.

This will be the fourth year Pueblo won't be able to provide salary increases for their teachers, Dr. Krage testified, adding that she doesn't believe they have the money to fund all of the CAP4K requirements.

The textbooks too, are 12 years old.

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Plaintiffs have now called Scott Murphy, the Superintendent of Littleton Public Schools.

Superintendent Murphy is discussing mill-levy overrides Murphy said:

It's intent was to still go to the voters (for increases)...the loss had already come in property values and (in Brighton) they were trying to recoup.

Essentially to stop the bleeding. We are just trying to hold on to what we have, we're not asking for increases, just to keep what we have as other districts I'm sure, want.

Under cross-examination Murphy was asked about current mill-levy overrides.

Q: In Littleton, with these current mill-levy overrides, are you able to educate your students?

A: [pause, answering hesitantly]...yes

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Plaintiffs are now discussing SB 191, the teacher effectiveness bill with Carol Eaton, communications research specialist with Jeffco public schools.

"It's very difficult...you want to be sure that the test is valid, reliable and defensible. You don't want to have someone get fired (based off of an invalid test)."

Teachers teach outside of the concentration areas of CSAP tests, and the question becomes how do schools evaluate teacher effectiveness. CSAP couldn't measure the effectiveness of a high school economics teacher, for instance, Eaton testified.

"We actually don't have any state (teacher effectiveness data in Kindergarten and second grade),"

..The data is not reliable enough at that grade level and there aren't enough growth models at that level. I would assume that if you're judging the effectiveness of teachers, you want something that's consistent across all districts," Eaton said.

Under the CAP4K bill, the Colorado Department of Education will be developing more assessment models. If you want a true indicator (so and so said) you want multiple forms of that test so you don't have a teacher--even inadvertantly--teaching to that test.

Plaintiffs have now called former State House Speaker Andrew Romanoff to the stand.

Q: Do you have an opinion as to whether or not the state is meeting its constitutional obligations of a "thorough and uniform" education? A: I do have an opinion. My opinion is that we have not met our constitutional obligation in that regard...I have visited schools across the state and have seen conditions that no one in this courtroom would want to send their child into.

...I've seen the results of our failure to meet that obligation. To meet any other conclusion is to me, inexcusable.

Former Speaker Romanoff is now being cross-examined by the Defense.

The Defense asked Speaker Romanoff about several education bills he voted on while in the Legislature, and asked if he believed they were effective. He said yes.

Plaintiffs then asked if that changed his opinion about the state meeting a thorough and uniform standard, to which he answered "no".

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Prompted by the Plaintiffs lawyers, Sen. King is describing a statewide phenomenon known as the "Colorado Paradox," meaning that Colorado has attracts some of the highest numbers of college-prepared students for higher education but has some of the lowest numbers of high school students in Colorado who go on to receive college degrees.

Plaintiffs then went over Sen. King's budget sheet for the college prep charter school he most recently founded called Colorado Springs Early Colleges where plaintiffs stated that his school is receiving most of its funds from grants and donations.

Special Education in Colorado

Discussing special education (IDEA) funding, Sen. King says it is his belief that the state is discriminating against boys as a result of "overstaffing boys 2 to 1 in Colorado."

Sen. King is now being questioned by MALDEF about at-risk students, who are commonly identified by whether or not they qualify for free and reduced lunch.

Q: Would you agree that it takes more resources to adequately educate students who qualify for free and reduced lunch?

A: I think that's a fair statement to make as a result of population...as far as the (funding) formula goes, I think the formula picks the most at-risk kids

Plaintiff Attorney Kathy Gebhardt asked Sen. King about at-risk student funding. Q: Are you aware that Colorado identifies fewer at-risk students than the national average? We identify 10.2 percent and the national average is 13.3

A: Does it break it down by sex?

"No," Gebhardt answered.

Sen. King then agreed that the numbers appeared correct.

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Closing arguments are expected to be made later today, the Defense has called State Sen. Keith King, R-Colorado Springs, to the stand. His website states that Sen. King has created three charter schools in Colorado Springs, including one called Colorado Springs Early Colleges. The college prep school is tuition-free and provides college courses while students are in high school. Sen. King currently serves on the School Finance Interim Committee.

"The fundamental thing that's changed is Amendment 23," Sen. King said. "Amendment 23 has an impact on how we do it, the School Finance Act."

Amendment 23 in Colorado requires that the state legislature increase K-12, special education and transportation funding by inflation +1 percent every year. The funds are exempt from TABOR restrictions. According to non-partisan organization Great Education Colorado, "as a result of the continuing economic and budget crisis, school funding levels fell below Amendment 23 minimums starting in the 2009-10 fiscal year."

Q: Do you have an opinion of what a "thorough and uniform" education means?

A: Yes I have an opinion. I think first of all, that sentence says the General Assembly should maintain a thorough and uniform system of schools. We talk about opportunity, having an opportunity to access education. And I think that's a good thing to maintain...

Q: Do you think the General Assembly has done that?

A: I do. Because I think the General Assembly has worked diligently...no I don't think the system is perfect, but I think the system has worked diligently to provide quality education.

The court has taken a brief morning recess.

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The State has now called Loris Bowers, whose background is primarily in early child education (children 3-5 years old) and she is also a member of the Colorado Department of Education. Bowers is being regarded as an expert in her testimony.

In discussing the Colorado Preschool Program (which serves over 20,000 children), Bowers said that it does not serve all preschool-aged children, but the state does allow them to be included in it's per pupil funding formula.

From the CDE website:

In 1988, the Colorado General Assembly created the Colorado Preschool Program (CPP) to serve the young children in Colorado who were most vulnerable to starting grade school unprepared. The legislature responsibly recognized that providing quality early childhood education would ultimately curb dropout rates, help children achieve their full potential, reduce dependence on public assistance, and decrease susceptibility to criminal activities (22-28-102 C.R.S.).

Since 1988, Bowers says the program has grown from 2,000 slots to 20,000 today.

National research, Bowers said, confirms that early childhood education makes all the difference in later achievement gaps.

According to Bowers, Colorado ranks 10 out of the nation in our ability to serve three-year-olds in early childhood education.

Q: Do you believe that teachers need a bachelor's degree in order to be effective in early childhood education?

A: I don't...I think there is some evidence that that might not be critical.

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Commissioner Hammond is now being cross-examined by MALDEF.

"Many school districts are struggling," Hammond said, declining to call those struggles "unfair" when prompted by MALDEF.

Asking Hammond to comment on the "hard decisions" being made by poorer districts--and the specific example used was Greeley--that have had to "reallocate resources in order to serve their public school students" Hammond said he wasn't sure.

Q: CDE employees are not paid based on performance, correct?

A: Not yet

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The Commissioner of the Colorado Department of Education, Robert Hammond, is called to the stand.

The purpose of the deparment, Hammond says, is to carry out the State Board of Education as mandated by the Legislature. Hammond also says that he initially supported the Lobato lawsuit but that his views have changed.

Hammond is now being cross-examined by Attorney Kathy Gebhardt. Gebhardt quotes the mission of the Colorado Department of Education:
(To) Provide all Colorado children equal access to quality, thorough, uniform, well-rounded educational opportunities in a safe, civil environment.

In citing a legislative staff budget brief between the Colorado Department of Education to the Joint Budget Committee, the determination was that CAP4K would cost approximately five times the amount the State had assessed and needed to be reevaluated.

In addition, the process of launching a new testing system--one that would help the state compete for Race to the Top funding--would cost the state $80 million. The state did not receive last year's Race to the Top grant, but it is competing for it again this year.

Conclusions from Colorado's TELL Survey was also cited as stating, "How is the state going to find funding for implementing (the new evaluation system) when they can't fund the status quo?"

Commissioner Hammond also agreed that different school districts have different abilities to pass mill-levy overrides--often influenced by the demographics of that district.

Commissioner Hammond also agreed in his testimony that districts in the San Luis Valley (plaintiffs in the Lobato v. State of Colorado case) have almost three times the free and reduced lunch rates than the top 12 districts accredited with distinction (and with higher property values). They also have 10 times the number of minorities.

Q: $1.8 million is all that's been allocated to closing the state achievement gap, correct?

A: Yes

Just before the court took a short recess, Gebhardt also pulled up the 2011 Staff Budget of the Legislature. The conclusion there suggests that in 2012 the new formula ought to provide for the "thorough and uniform" education clause.

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Dr. Lisa Escarcega, Aurora Public Schools Chief Accountability and Resource Officer, is called to testify. She previously testified on day seven of the Lobato v. State of Colorado case on Aug. 9.

"The majority of (Colorado) students are not workforce ready, if we use benchmarks like ACT scores," Dr. Escarcega said.

Academic growth, Dr. Escarcega testified, compares a student's state assessment test scores against their peers. So having a majority of students in Aurora who are non-proficient, means there needs to be a very high and nearly out-of-reach level of growth for any student to reach proficiency.

Approximately 77 percent of Aurora's students are currently not reaching levels of proficiency, according to Dr. Escarcega's testimony. That puts anywhere from 1300 to 1700 students are in the catch-up group.

"If you are not proficient by third grade, the odds that you will be are very low," Dr. Escarcega said. She says that Aurora has learned that extra help outside of the normal school year and school day helps students become proficient, but that they cannot provide that without additional funding.

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Dr. Gianneschi's questioning has now been handed back to the Defense.

"For students seeking entry into post-secondary, whether or not it's simple...this is why we have CAP4K is because we have no uniform qualifiers. There are students who have met all the requirements, and still need remediation because they've forgotten how to do logarithms. That happens, and has happened before," Dr. Gianneschi said.

"Right now all we have are general guidance."

The Colorado Department of Education describes the intent of CAP4K:

Eliminates the current Colorado Student Assessment Program (CSAP) and replaces it with new state content standards applicable to a broad array of subjects and skills; the bill specifies that the standards for grades nine through twelve are aligned with postsecondary and workforce planning, preparation and readiness assessments adopted by the state board and CCHE (Colorado Commission on Higher Education). Standards and testing are designed to meet federal law.

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Next witness for the state is Dr. Matt Gianneschi, the Deputy Executive Director for the Colorado Department of Higher Education. He also served as the senior policy advisor for education to Gov. Bill Ritter and co-chaired of the education transition team for Gov. Hickenlooper and Lt. Governor Garcia with State Board of Education Chairman Bob Schaffer. Dr. Gianneschi also graduated from Manuel High School, a Denver inner-city public school that has been shut down and faced additional shutdowns for poor performance.

Dr. Gianneschi describes ASCENT in Colorado, a statewide so-called fifth year option that six school districts have participated in to help students reach higher education.

Dr. Gianneschi is now being cross-examined by MALDEF.

MALDEF spent time talking Dr. Gianneschi throught the 2010 Legislative Report on Education Remediation report from the Colorado Commission on Higher Education. In reviewing the report, Dr. Gianneschi took great care to be as specific as possible in distinguishing the difference between education correlations and causations on the stand.

The achievement gap, MALDEF said, between majority-white students and Colorado's largest minority-hispanic students is about 30 percent. Dr. Gianneschi explained that included all students, including those who moved to Colorado but may not have necessarily been educated here.

A state report MALDEF cited said that "Colorado is 46th in the U.S. in the rate of high school completion," and described the major disparities among different ethnicities in achievement gaps.

Last year the report showed that Colorado had the largest achievement gap in the nation between white students and the largest group of minority students. Dr. Gianneschi then said that that data had was no longer accurate, and that California is the state with the largest achievement gap.

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Former State Senator John Andrews is called to the stand for the Defense, a former Nixon staffer and speech writer, and self-professed education advocate. Sen. Andrews served on the education committee while in office, and founded the Independence Institute.

Talking about the Public School Finance Act of 1994, Sen. Andrews said "I was impressed with the intricacy, the balance, and the subtlety of the state to attend to the needs of five million people."

Q: What does "thorough and uniform" mean to you? A: I think that uniformity is easier to define than thoroughness...the aspiration that a child from any corner of colorado given any background, would have pretty much the same opportunities and be provided the same resources. I think that would be uniformity. ....

On thoroughness, again, I would define it as more outcomes than input...If the learner hasn't learned, the teacher cannot claim that she has taught.

To me it means that Colorado has provided a learning system that provides the three "R's" and has not only lead the proverbial horse to water but makes them drink it, that is the knowledge.

Sen. Andrews is now being cross-examined by Attorney Kenzo Kawanabe.

Q: Is is fair to state that the state never reflected on the costs of their acts to education?

A: Yes

Kawanabe asked Sen. Andrews about a statement he'd previously made: "I proclaim publicly that I favor ending government involvement in education"

A: Education can and should be provided....without government. Maybe in 50 or 60 years we'll get there.

Q: But you believe that we still require funding for education now, correct?

A: Yes

Q: Sen. Andrews did you know that providing a fiscal system for public schools was required for statehood of Colorado?

A: I did not know that.

Sen. Andrews is now being cross examined by MALDEF

Q: It is correct that you believe students should be able to be taught exclusively in English, correct?

A: To the extent possible

Q: And it is your belief that they should be able to transition to English within two years?

A: Yes

MALDEF then cited a study commissioned by the state that said English language learners require more time to learn, and more effort on behalf of all their teachers. Sen. Andrews stated he was not aware of this study.

Next, MALDEF brought up an opinion article Sen. Andrews recently submitted to the Denver Post entitled:

Andrews: Who Says Colorado Has A Revenue Problem?

After discussing other studies that have concluded Colorado has an education system that's tanking, Sen. Andrews's questioning has been turned back over to the state.

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NOTE: Apologies for the gap in coverage, laptop power went out temporarily.

Defendants continue questioning Lt. Gov. Joe Garcia, asking if it would take additional resources alone to solve the achievement gap.

Garcia shook his head, "It's using those resources and it takes innovative approaches."

MALDEF cross-examines Garcia again.

"There are significant gaps that exist between hispanic and white students," Garcia admits under oath.

MALDEF attorney David Hinojosa asks, "One in three hispanic won't graduate. That's 60 percent. Which school district is satisfying the state requirements of graduation and can you tell me how many hispanics they are graduating?

Garcia answers, "I can't, no."

Q: The state has graduation requirements of 80 percents or above?

A: The state has high standards and appropriately so.

A new witness is called on by the state to testify as a non-expert, Rich Wenning. Wenning is a former staff member of the Colorado Department of Education.

Defendants question Wenning about the process of school accreditation. Accreditation in Colorado is dependent upon on four categories: academic achievement, academic growth, academic growth gaps, and post-secondary and workforce readiness over a three-year time period. The Colorado growth model requires proficiency by 10th grade.

Wenning testified that a district can have its accreditation revoked by the school board, but that he was not aware of the state ever having done so.

Wenning testified:

The evidence particularly shows that Aurora has improved and they are one of the state's largest districts...the growth gap in reading declined over time meaning that the difference in black and white growth rates were 1 percent. That's a good story for the state...

In Aurora kids are more likely to...graduate than Pueblo kids. English language learners are more inclined to grow slowly.

One hundred percent proficiency is impossible mathematically because we always have new kids coming in who are below proficient. It is possible however to be on track for growth.

Upon being cross-examined by Plaintiff lawyers, Wenner admitted that he had not visited every school district in Colorado, or even one in the San Luis Valley who are plaintiffs in this case.

Q: In 2011 more than 100,000 students are behind and won't be able to catch up?

A: ...That's a hypothetical, I don't know that they won't catch up.

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Kawanabe continues his cross-examination of Lt. Gov. Joe Garcia.

Q: Do you believe Colorado has a uniform public education system?

A: If by uniform you mean that everybody gets the same things, then no

In his testimony, Garcia conceded that he does not know specific costs of implementing education requirements, adding "I see certain districts doing it effectively while other districts cannot."

Kawanabe asks Garcia about their earlier deposition, "You cannot state that Colorado funds the costs of education, and you stated that that was a fair statement."

A P-20 education report recommended that the state increase its funding of its education requirements. Though the final amount needed, was never determined.

Q: You agree that there are not adequate enough resources for rural school districts

A: I believe it's not always equal resources, yet you see underfunded districts like Alamosa producing successful graduates like you.

Kawanabe: Well thank you for the compliment.

Q: The state of colorado cannot simply give up and say...we can't support our kids because we simply don't have enough funding. Would you agree with that?

A: Yes I would agree with that.

Questioning is turned back over to the Defendants.

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After a brief recess, Lt. Gov. Joe Garcia is now answering questions from plaintiff lawyer Kenzo Kawanabe.

Q: How many students have to be successful in order to meet "thorough and uniform"? What percentage?

A: I don't know the answer to that. I don't know what the specific number would be. I would say 40% would be a disappointing figure.

Q: Do you believe it is the role of the court to determine whether constitutional rights are being violated? A: I do Q: Do you believe it is the role of the court to determine if civil rights are being violated? A: I do Q: A did you testify that education is a civil right?

A: Yes

Q: You have a passion for education?

A: I do, despite being a bad student

The questions have now shifted to Native American education in Colorado.

Q: Only about half of the Native American population graduate from high school, correct?

A: Yes

Kawanabe continued to ask Garcia about the provided education for Native Americans in Montezuma and elsewhere with heavy Ute populations before shifting quickly into child poverty in Colorado.

Q: Are you aware of teacher testimony in this case from Montezuma that they have to purchase basic supplies out of their own pockets for their students?

A: I have not heard that testimony

Q: Approximately 38% of our students qualify for free and reduced lunch in our schools?

A: Yes that's about right

Q: Do you know that the state has seen an approximately 84% increase in our homeless students?

A: I did not know that.

Q: Do you believe Colorado is losing ground compared to education in other states and other countries?

A: Definitely to other countries, yes

Q: We have to not just look at white suburban kids, we have to look at all students of color and at-risk, who are the fastest growing population, yes?

A: Yes, that has been my testimony before

Q: Minority students were less likely to earn a high school diploma, minority students were more likely to perform lower on standardized tests...there was roughly a 36 percent achievement gap?

A: I believe that's correct.

"We have one of the biggest gaps, surpassed by California," Garcia said.

Q: The Hispanic population is a significant portion of the population, correct?

A: It gets more significant every day

2005-2007, based on NAEP (National Assessment of Educational Progress) test results, Kawanabe shows that less than 40 percent of Colorado students reached proficiency, while it was just at 40 percent by 2009.

Q: Over 80 percent of our hispanic students are not proficient at reading by fourth grade, correct?

A: According to NAEP, not according to our CSAP results

Q: If you are a student of color, black, hispanic, at-risk, your graduation rates are lowered, correct?

A: It's true in most states

Q: Colorado lowered its funding levels, it lowered its own standards, correct?

A: I believe that's correct yes.

Q: Students from high-income districts need less remediation than students from low-income, correct?

A: That is generally correct, yes

Citing state data: Q: If you are black, hispanic or Native American, you have approximately a 40-50 percent chance of needing to take remediation classes because you're not ready for college, correct?

A: Correct

Discussing the ACT Profile Report: State of Colorado:

Kawanabe: In Colorado we test 100 percent, all Colorado juniors take the ACT. According to the ACT, 61% of blacks are not college ready, 64% of hispanics are not college ready. In math, 84% of blacks are not college ready, 80% of hispanics are not college ready.

Levels for overall Colorado students in lack of college preparedness was also high.

Discussing Fort Carson as a district that Garcia cited as being successful, Kawanabe pointed out that Fort Carson has a military base and so receives additional federal funding.

Yet in Fort Carson, Kawanabe says, graduation rates are declining, and ACT scores average about 18 or 19. The University of Colorado requires at least a 22, according to Kawanabe.

Q: You cannot provide a free public education without somebody paying for it, correct?

A: Yes, correct.

Q: Are you aware that some of our textbooks still show President Clinton as our president and show the twin towers still standing?

A: I wouldn't dispute that

Q: You do not believe that additional funding will necessarily improve K-12?

A: Correct

Q: Yet if additional money were spent appropriately, you believe it would improve K-12 education?

A: Yes

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Lt. Gov. Joe Garcia is called to testify as an expert, which is contested by MALDEF attorneys because of Garcia's limited experience in K-12 education. However, Judge Sheila Rappaport disagreed and admitted him as an expert. Garcia served as a former president of Colorado State University at Pueblo for four years just before taking office and states on his website that "Education is the key to a prosperous Colorado economy."

Most of Garcia's testimony as a Defendant witness, focuses on questions surrounding the achievement gap and the ability to close it with the available funding.

More people are present in the courtroom today, almost 20 people showed to listen to Lt. Gov. Joe Garcia's testimony.

Lt. Gov. Garcia said that he believes education is important because, he says, "the only difference (between myself and certain cousins, family members) has been an education."

"If we want to be economically successful, we need to have an educated workforce," Garcia said.

As the Defendants' witness: Q: Does the state have the authority to direct how resources are spent in a particular district?

A: No

On methods of closing the achievement gap, Garcia said:

"Mostly it's giving the same quality education to every student...I believe that money is one factor that can help districts, but it's not necessarily sufficient in and of itself to closing the achievement gap because we've seen some districts address the issue without funding. (Particularly) Fort Carson School District."

Asked to comment on the Educator effectiveness bill:

"The most important element of determining whether a student is successful is the effectiveness of the teacher in the classroom," Garcia said.

Asked to commet on Rollie Heath's initiative:

"I think it is always important to ask the citizens to play a role in increased funding, I have always been supportive of such initiatives in the past," Garcia said. "We want school boards, we want school systems to provide the best opportunities, that's why they exist."

Q: Are you sympathetic with the plaintiffs?

A: ....Yes.

Q: What does "thorough and uniform" mean to you?

A: I believe it means we have an obligation from the state to ...provide quality education to every kid in the school district, and every student should have access to a quality education.

"I believe that we have met our minimal constitutional obligation to make thorough and uniform, though I am not saying it's the best," Garcia said.

Cross-examination from MALDEF:

Asked to comment on the achievement gap and state requirements for all students, whether they be at-risk, English language learners, or non at-risk:

"I think the record is pretty clear that the education system has not been very good at reaching (English language learning) students...I think it's inconsistent when it comes to those students," Garcia said. "Some of those students do go on to success, but at a rate lower than other students."

Asked to comment on the variance of local funding (aka property taxes) among school districts, Garcia said:

"I agree that (the school districts) face challenges with regards to local funding...I agree that their ability to generate funding is more difficult than wealthier districts."

About public school success rates of students, Garcia answered questions vaguely, prompting many "non-responsive" claims from MALDEF Regional Counsel David Hinojosa. Q: You're telling the court that successful outcomes differ from "thorough and uniform"?

A: That's a legal conclusion I am not prepared to respond to.

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During the cross-examination of former state representative Jack Pommer (D-Boulder), the defense team reminded the courtroom that Colorado has a Preschool Program established in 1988 that is funded by the state.

Questioning redoubled back to the school finance formula.

"If you have more students increasing, adding money, you're not exactly adding additional money, you're keeping it the same," Pommer said.

Q: You would agree that one nice thing about our system is that property tax keeps it stable, that there's dependence on property tax?

A: I think it's good that there's at least some dependency on that.

Q: You don't think that its fair to expect every student to be proficient on the CSAP because some can't?

A: I have always expected people to be about proficient on the CSAP. (One hundred percent) is the goal.

Plaintiffs question Pommer again.

Q: What would the consequence have been of voting down the school finance formula? A: All hell broke loose. To leave the schools with, either no funding or prior years funding that would have much less than what they should have been getting... (but) in a political climate you have to compromise, so things don't always go the way you want them to.

In my view, (the funding) was unconstitutional, but there was no ruling, so I'm just not sure.

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Former state representative (2003-2010) Jack Pommer, D-Boulder, was former chair of appropriations committee and former member of the joint budget committee, education and transportation. He was admitted as an expert to testify.

Q: What in your opinion did "thorough and uniform" education mean?

A: I thought that thorough meant really two things, one philosophical-- that everyone should be able to go throughout the public education to college....and by thorough, that one district shouldn't differ very much from another.

Pommer was also present during the Task Force report, mentioned in an earlier update in former Sen. Windels's testimony.

"[Education] wasn't uniform. We had some districts that could build educational palaces, and others that couldn't fix their roofs...we tried to rectify that, but with capitol, it was increasingly becoming a problem."

On categorical funding:

"We also had uniform problems with that," Pommer said. "Special education funding...had never been updated in some districts. So some districts were getting a lot of special education funding, and others weren't getting enough because they'd gotten more students."

Pommer says he was shocked how little Referendum C affected the funding levels.

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"There were no bills that came out of that interim committee with regards to capitol at all," Windels said, though the committee was very concerned about K-12 funding, especially as it pertained to at-risk students. Special education students were identified as the "highest need" category.

In education-related bills, Windels said, the financial impact to the district is not considered, and that is why a bill seeking full-day kindergarten can say it will have "no state impact".

Plaintiffs went through a long list of public education services such as Talented and Gifted programs (TAG), parent involvement programs, closing the achievement gap programs, etc. that were almost all funded by "gifts, grants and donations" rather than the state.

Q: Did you support the policy behind them?

A: "I did. All of them went through testimony explaining why they were important to our program," Windels said, clarifying that the Legislature found the various programs to be important for schools but nonetheless had to rely on gifts, grants and donations.

"I've had hours of testimony and conversations with people who are in the education system who say that it is not thorough and uniform, it is not fair and it is not accurate," Windels said.

During the cross-examination of former Sen. Windels, the defense questioned her about the bill asking voters if they would want to increase taxes, rather than the mill-levy override, to fund full-day kindergarten.

The cost of some things can be easily identified, like the costs of a new prison, yes? A: Yes Q: But a state system of education is more complex than that?

A: Yes

Asked why she didn't introduce better legislation for education during her time in the Legislature, Windels said:

"Given the choice between doing nothing for children and doing something for children, I had to do something even if it was inadequate...if you do nothing you slide backwards and I didn't want to see that happen to our public education...Hindsight is always good, in hindsight I wish I'd tried."

Q: Do you believe that its ultimately up to the voters to support education?

A: It doesn't take a vote to support public education.

Q: Is it ultimately up to the voters to decide whether they are going to support the Legislature's definition of "thorough and uniform" education?

A: The Legislature is not going to ask voters this is our package of "thorough and uniform education, do you support it?"

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Windels is currently an education advocate in democratic Congressmen Jared Polis's administration. She served on and chaired the Education Committee while in the senate, and currently serves on the board of Great Education Colorado. She is testifying as an expert in education finance in Colorado.

Plaintiff's are questioning Windels first.

Q: Why did you run for office?

A: I ran for office first as a teacher and then as a parent. It seemed that the Legislature was balancing the budget on the backs of students...I realized that bake sales weren't going to solve this problem, of chronic underfunding.

Citing a task force report submitted to the Legislature:

An adequate foundation of spending should be established through a higher amount of statewide base per pupil spending that reflects the academic accountability requirements of publics schools..

Neither the 1988 nor 1994 Acts established a base level of per pupil funding prior to addressing other school finance adjustments that were meant to achieve funding equity...

The Task Force believes identifying an adequate level of base per pupil funding should be the first priority in a new state school finance formula.

Citing the Interim Committee on School Finance to the General Assembly: The state was charged with:

to ensure that all students in public schools in the state are receiving a throughout and uniform education in a safe and effective learning environment..

As a result of its study the task force recommended revising the current school finance act, increasing education spending, and examining adjustments to basse per pupil funding...

Members of the task force and school district representatives testified that any school funding formula must continue to take into account school district services for special populations such as special edu students, english language learners, and at-risk population.

"I remember that conversation so well because we'd estimated that the capitol needs were around $4.7 billion and some of my colleagues said 'No way, no how.' We later found, when we did a needs assessment that it was almost double that."

In summary, the report determined that the state's current public education funds, as they were, were inadequate--though there was disagreement about how much would be sufficient.

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The title of the report quoted in previous updates is: "The Fiscal and Social Burden of Inadequate Education in Colorado".

The court is at recess for lunch and will be back at 1:45 p.m.

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MALDEF is described on its own website as the "nation’s leading Latino legal civil rights organization." They are also plaintiffs in this case.

New Jersey has the highest graduation rate in the country, Dr. Levin says, and they have a very varied population.

In response to a question about districts' role, posited by defendants:

"May I add something here? I am often puzzled why the state blames districts because districts are part of the state, are they not? So I am curious about the 'us' versus 'them' portion of the discussion. But then again, I am not a lawyer"

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The Defendants' (State of Colorado's) legal team is now questioning Dr. Levin about the Accelerated Schools Project, a project Dr. Levin championed for research on improving student learning.

Q: In addition to resources, it also required the community to think differently, correct?

A: To think and to act differently, yes.

From Dr. Levin's report:

Annually, the state of Colorado spends $7.04 billion on K-12 education or $9,050 per student. Our analysis cannot determine what the optimal level of spending should be (nor does it preclude the possibility that some expenditures are spent inefficiently.

"Our analysis suggests more (spending)," Dr. Levin said in response to questioning about specific amounts of education spending.

Dr. Levin's report determines "adequate levels of education" to mean high school graduates. "But, of course this bears discussion," Dr. Levin says, adding that that metric is more a function of statistical analysis.

The testimony got a little testy when the Defendants asked Dr. Levin about a line in his report saying that Colorado's education ranked "fair to middling" among U.S. education. Dr. Levin clarified, "yes, but among the greater universe it's low."

"That wasn't my question," the Defendants stated. "Didn't you say 'fair to middling' (among other states)?"

"Yes."

...

Q: You would agree that the reforms suggested in your report, must be applied with local knowledge, local functioning, and state law?

A: Yes

The Defense is now discussing the successes ofHead Start, a federally-funded program with Dr. Levin who acknowledges their effectiveness as "varied".

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All education spending is not equal, Dr. Levin says. Allocation of the spending has a very real effect.

U.S. results in education spending are overall "about average," according to Dr. Levin.

"European high schools, typically do not have sports teams. They have more community teams. So we need to compare oranges to oranges, not oranges to a fruit salad when it comes to spending. For whatever reason, we in the U.S. seem to think that extra curricular activities are very important. "

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