With a court ruling last week, Colorado is set to enter the battlefield of “adequacy” in school funding, a place dozens of other states have been before with mixed results.
But the case against the state’s school funding system ultimately could be about more than money for education, attorneys say.
It could wind up as a direct challenge to the Taxpayer’s Bill of Rights in the state constitution. TABOR limits government spending and requires that tax increases go to voters.
School finance lawsuits are not new to Colorado or indeed almost every other state. Over three decades, Colorado has faced several legal challenges to its school-funding system.
But those cases have primarily focused on “equity” in school funding — whether the money that is collected is being distributed fairly. The state won a major equity case in the early 1980s, but lawmakers rewrote the school finance system twice after that, with the most recent overhaul in 1994.
What is different about the current suit, filed in 2005, is that it challenges the “adequacy” of the state’s school funding. That is, whether the amount spent is enough to provide a “thorough and uniform” system of public schools as called for in the constitution.
The state budget this year calls for spending a total of $4.7 billion on public schools, of which $3.2 billion comes from the general fund, the state’s primary pot of money for operating expenses. Spending for public schools accounts for 43.3 percent of the general fund.
Claim of 25 successful challenges
The plaintiffs in the lawsuit — parents from around the state and school districts from the San Luis Valley — aren’t suggesting the state spend a specific dollar amount. However, a 2008 study conducted by the Colorado School Finance Project says an additional $2.9 billion per year would be needed for the state to meet its own accountability standards.
The plaintiffs argue that evidence of inadequacy is rampant. The state ranks 51st in support for special-education students, some schools have 10-year-old textbooks and the state spends only $1.50 per day for non-English speakers.
Prior to last week, courts in Colorado had ruled that it was the business of lawmakers, not the judicial branch, to decide how much money for schools is enough. But the 4-3 ruling from the Colorado Supreme Court last week said plaintiffs could go forward in district court to argue the state isn’t spending enough.
As of September, plaintiffs in 25 states successfully challenged school funding on equity or adequacy grounds, according to the National Access Network, an organization based at Columbia University that supports adequacy lawsuits. In 20 states, the school funding claims failed.
Michael Rebell, executive director of the organization, said states traditionally have never tried to accurately assess how much it costs to educate kids, and school funding is usually decided through backroom politics. When rulings favor adequacy claims, states must conduct studies to determine these costs, he said.
Some adequacy studies use a “professional judgment” model that essentially asks educators how much they think it costs to meet standards. Other models look at “successful schools” that have met standards and then try to find an average level of spending.
“These studies and methods are far from perfect, but if you compare what lawmakers do without these studies, it’s light years ahead,” Rebell said.
“So where do we get the money?”
But critics like Josh Dunn, a professor of political science at the University of Colorado-Colorado Springs who has studied school-finance lawsuits, says adequacy suits are all wet.
“Everyone recognizes that money is necessary, but how much is almost impossible to say,” Dunn said. “You can spend the same amount but get wildly different results.”
He added, “I have real concerns that these cases violate the separation of powers and also that courts are not structurally equipped to handle these cases.”
And even if plaintiffs win and courts were to declare that Colorado’s level of school funding is inadequate, there’s a nagging question after that, said Sen. Moe Keller, D-Wheat Ridge, the chairwoman of the state’s Joint Budget Committee: “So where do we get the money?”
The state is facing its worst budget crisis since the Great Depression, and is preparing to cut funding to public schools, a prospect that could prompt a lawsuit by education organizations who say such a cut might violate the constitution.
Kathy Gebhardt, an attorney for the plaintiffs in the school-funding suit, said that if a court ruled the state’s funding for schools inadequate, and if the state did not have enough revenue to adequately fund education, “then I think we have the makings of a serious constitutional conflict.”
Essentially, she said, courts would have to determine whether the right to a “thorough and uniform” education funding system outweighs the right of citizens to vote on taxes, instead of lawmakers voting on them.
“One is a substantive right, which is education, and the other is a procedural right, which is TABOR,” Gebhardt said.
Tim Hoover: 303-954-1626 or thoover@denverpost.com