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.
09/02/2011 11:03 PM EDT
Closing Statements Wrap Up, and Judge Sheila Rappaport Says A Ruling Will Be Made In 45 Days
Plaintiff lawyer Kathy Gebhardt continues the closing arguments.
MALDEF Plaintiff Attorney Hinojosa continues:
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.
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.
09/02/2011 10:44 PM EDT
The State Makes Their Closing Arguments
"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."
09/02/2011 10:10 PM EDT
MALDEF Makes Their Closing Argument
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?"
09/02/2011 9:13 PM EDT
Continuation of Plaintiff Attorney Kenzo Kawanabe's Closing Statement
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.
09/02/2011 5:39 PM EDT
Closing Statements begin with Plaintiff Attorney Kenzo Kawanabe
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...."
09/02/2011 2:49 PM EDT
Closing Arguments Are Now On Their Way
Closing statements will be made in approximately half an hour.
09/02/2011 2:15 PM EDT
The State Of (Or And) Education in Pueblo City Schools and the final witness
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.
09/02/2011 1:46 PM EDT
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
09/02/2011 1:29 PM EDT
SB 191, The Teacher Effectiveness Bill
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".
09/02/2011 12:53 PM EDT
The Colorado Paradox and the State's At-Risk Student Calculations
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 kidsPlaintiff 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.