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  • School funding case hits state court

    Did underfunding violate Colorado’s Constitution?

    DENVER – Billions of dollars and the future of public education in Colorado now rest on the shoulders of six state Supreme Court justices.

    The court held oral arguments in a landmark school-funding case Thursday, the last step before it renders a judgment in one of the biggest civil cases in state history.

    The Lobato v. Hickenlooper case originated in the San Luis Valley in 2005, but it grew to include parents and school districts across the state who claim the Legislature has underfunded schools for decades, in violation of the state constitution.

    If the plaintiffs win, the Legislature would have to come up with a better way to fund public schools, possibly costing up to $4 billion a year more.

    Minority and poor students are suffering in the current system, said Terry Miller, who argued the plaintiffs’ case Thursday.

    “We have one of the widest achievement gaps in the country,” Miller said. “There’s no way the system can be thorough and uniform when it’s leaving out the students who need it the most.”

    Those words – thorough and uniform – lie at the heart of the case. The state constitution guarantees a thorough and uniform education to every child in the state, and at the Lobato case’s trial in 2011, the Denver District Judge Sheila Rappaport ruled that the Legislature had failed its constitutional duty.

    Legislators had set standards for schools through all the education-reform laws they have passed, but they never provided the funding to execute the reforms, Rappaport ruled.

    Assistant Attorney General Jonathan Fero said it was the plaintiffs’ job, not the state’s, to define what counts as a thorough and uniform education.

    “How do you measure it? How much performance, what level is enough?” Fero said.

    The Legislature has worked diligently to create a good system, he said.

    “Money is not the only way to establish or maintain a thorough and uniform system of schools,” Fero said.

    Justice Gregory Hobbs made the toughest statements against the state’s case, dismissing Fero’s argument that the Legislature is already doing all it can.

    “I’m concerned that the argument is, ‘We can’t do it,’ and therefore it becomes an excuse for, ‘We won’t do it,’” Hobbs said.

    Hobbs said the court’s role might be to hold the Legislature to its own standards.

    “They’re setting all these requirements, and they’re not backing it up with a rational investment of funds to bring our young people up to where we want them,” Hobbs said.

    Thursday was the Lobato case’s second trip to the Supreme Court. In 2009, the court ruled against the state and said that judges could get involved in the question of school finance.

    However, lawyers from the attorney general’s office continued to argue throughout the trial and Thursday’s appeal hearing that the courts have no business deciding on school funding.

    The 2009 decision was 4-3 in favor of letting the case go forward. All three dissenting justices are still on the court, but two of the justices who voted for the plaintiffs have retired.

    One of the new justices, Monica Marquez, recused herself from the case because she worked on it when she was a lawyer at the attorney general’s office.

    That leaves the court’s newest justice, Brian Boatright, as the swing vote. If Boatright votes with the plaintiffs and no other justices change their votes from four years ago, the resulting tie would uphold the lower court ruling.

    Boatright didn’t tip his hand during Thursday’s hearing. He listened intently, with his hands folded in front of his face, but he was the only justice who did not ask questions.

    The justices will make their decision based not just on the one-hour oral argument, but also the tens of thousands of pages in the case’s written record.

    They do not have a deadline to issue a ruling.

    jhanel@durangoherald.com

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