A Colorado court order calling for massive education funding increases has roiled constitutional scholars and set the stage for state Supreme Court ruling after the governor, state education commissioner, and state Board of Education have announced their appeal.
Denver District Court Judge Sheila Rappaport declared Colorado’s school finance system was “not rationally related” to its constitution’s “thorough and uniform” Education Clause. Her ruling in Lobato v. State requires legislators to spend an additional $2 billion a year above its current $9 billion on K-12 education.
Attorney General John Suthers “was disappointed in the decision, but frankly not surprised,” said his spokesman, Mike Saccone. “It clearly was tempting for the judge to wade into this public policy debate.”
Rappaport’s acceptance of the “professional judgment” and “successful schools” criteria to devise a total spending figure drew strong criticism from University of Colorado-Colorado Springs political science professor Joshua Dunn.
“There are fundamental problems with both methods, and the court relied on both of these flawed methods,” said Dunn.
In 2005, a group of school districts in Colorado’s rural San Luis Valley and some parents, including the family of Taylor Lobato, then age 14, filed the initial lawsuit in the case, claiming the state did not spend enough money on education to ensure an adequate education. In another October 2009 case, the Colorado Supreme Court narrowly overturned two lower court judgments that school finance was a “political question” for elected representatives to decide.
Dunn says the judiciary should not write policy, because it is free to ignore competing demands for state-budgeted services.
“Courts don’t have to consider opportunity costs. That’s why God gave us legislatures,” he said.
Five weeks of proceedings in Rappaport’s courtroom concluded in early September 2011. Large sections of her 189-page ruling, released Dec. 9, were lifted directly from the plaintiffs’ official arguments.
Having surveyed and analyzed hundreds of school-finance court rulings, Dunn identifies a uniquely disturbing quality in the Lobato order. Rappaport asserted she did not have to reconcile her decision with the Taxpayer’s Bill of Rights and the Gallagher Amendment, voter-approved tax-and-spending limitations in the state constitution.
“I’ve seen decisions where the judge has obviously played fast and loose with the constitutional text,” he said. “I’ve never actually seen a decision where the judge said they could disregard inconvenient portions of the constitutional text.”
If allowed to stand, the decision would compel the state legislature to increase education spending after the 2012 legislative session. Dunn says lawmakers could instead consider removing the judge based on her disregard for the state constitution.
“The judge’s decision provided little practical guidance on how the state should fund a ‘thorough and uniform’ system of public education,” Gov. John Hickenlooper (R) said in announcing his appeal. “Moreover, she did not reconcile this issue with other very relevant provisions of the Constitution.”
“Judge Sets Constitution Aside in School Finance Ruling,” Ben DeGrow, Independence Institute podcast, December 2011.
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