Demonstrating that K-12 School Funding is Lacking

By Bruce Caughey, executive director, Colorado Association of School Executives

Aug. 5, 2011

Finally, the public is getting the message that school funding is at a breaking point. We cannot continue to do “more with less” and get better results along the way. Two significant efforts are underway to help address the problem: 1) the Lobato School Adequacy Lawsuit; and, 2) Senator Rollie Heath’s Bright Colorado Initiative.

The double opportunities that come from communicating the issues raised in the Lobato Lawsuit paired with the partial revenue fix proposed in the Bright Colorado Initiative are finally focusing on the resource problem in a way that hopefully will break through the media noise. We need to make a lasting impression on the public. The much anticipated five-week “Lobato v. State of Colorado” trial started on Monday, Aug. 1, and Senator Heath turned in more than 142,000 signatures on the very same day, which should assure the Bright Colorado question on the ballot this November.

Here are some initial thoughts on the first week of the “Lobato” case.

Commonly referred to as “Lobato,” due to the name of the lead plaintiffs, Anthony Lobato and his family who reside in the San Luis Valley, this case is built upon the idea that we must fund our schools according to a constitutional promise of a “thorough and uniform” public education. The Lobato School Adequacy Lawsuit has been making headlines across the state, as a strong lineup of witnesses articulate the many problems faced by small, medium-sized and large districts across Colorado.

This legal case has taken a five-year path to get to the courtroom of Denver District Judge Sheila Rappaport. Along the way the Colorado Supreme Court needed to determine that school districts had the ability to bring a lawsuit against the state, and that the courts had the ability to determine a remedy in this case. Judge Rappaport will decide if Colorado’s constitution has been violated; an appeal to the Colorado Supreme Court is a given regardless of which side prevails in the planned five-week trial.

(The drama is taking place in Courtroom #424 of the Denver City and County Building at 1437 Bannock Street in downtown Denver).

Many CASE leaders have taken the stand for the plaintiffs in an effort to articulate that the current funding environment cannot support the expectations for all students to be college and workforce ready. The trial opened with CASE President and Center School District Superintendent George Welsh taking the stand for more than three hours. Welsh’s district is comprised of 90 percent of students who receive free and reduced lunch assistance. Voters recently approved a BEST election, but he still faces ill-functioning school computers, locker doors that come off their hinges and teachers who are unqualified to teach advanced placement courses.

Welsh was followed by former CASE Executive Director John Hefty, who provided a detailed explanation of the organization of the 178 school districts in the state, the way our finance system works and an explanation of what standards-based education means. Former Superintendent of Littleton Public Schools Scott Murphy testified, as well as Colorado Springs School District 11 Deputy Superintendent Glenn Gustafson. To read a quick summary of their comments, go to

Here are some other notable witnesses who have already testified or who will testify for the plaintiffs this week:

  • Tom Romero, Associate Professor and Legal Historian at the Sturm College of Law at Denver University
  • Edwin Steinbrecher, Executive Director Emeritus at the American Education Finance Association
  • Monte Moses, former Cherry Creek School District Superintendent and National Superintendent of the Year
  • Elliott Asp, Deputy Superintendent for Cherry Creek School District
  • Taylor Lobato, student from Center
  • Miguel Cendejas, Center individual
  • Kevin Edgar, Superintendent of Sanford School District
  • Michael Poore, former Deputy Superintendent of District 11 in Colorado Springs
  • Cynthia Stevenson, Superintendent in Jefferson County School District
  • Carol Eaton, Director for Assessment and Instructional Services, Jefferson County Schools
  • Bruce Baker, Associate Professor at Rutgers University
  • Dan Maas, Chief Information Officer, Littleton Public Schools

More than 100 school districts across Colorado have signed resolutions of support and many have contributed financially to help offset the legal expenses, including depositions, transcripts and expert witnesses. In addition, top law firms have put some of their top legal minds to work on the case on a pro bono basis.  The legal team is led by Kathy Gebhardt, Alex Halpern and Kenzo Kawanabe.

Extensive trial coverage can also be found at


Lobato Trial Impressions

By George Welsh


I am writing this note to report to you on the early progress of the Lobato v Colorado lawsuit.

I think Ed News Colorado has done the best work of putting balanced information out about what the issues in the case are.  I have attached a link to their major preview story here:

On Sunday afternoon Children’s Voices, the organization we have all been contributing to in support of the case, conducted a press conference to kick off public relations information about the case.  I have attached some YouTube video links showing the full picture of what occurred at this event (not just the blurbs that made it on TV).

You can follow the case in various ways.  You can visit for daily updates and connections to blogs.  You can also subscribe to @TheLobatoCase on Twitter for daily updates as to progress.

I will also be happy to send you updates as I learn about the progress of the case.

Opening arguments took place on Monday morning and I must offer congratulations to Alamosa Schools for producing the fine young man, Kenzo Kawanabe, who presented the Lobato opening arguments.

It appears the goal of the case will come down to defining what a “thorough and uniform system of education for all” is, whether or not the state has set up a system of finance that is “rationally related” to funding such an education, and whether or not school districts have any local control left because of all the state education requirements established by the legislature.

The plaintiffs are asking for relief in the form of declaring the current education finance act unconstitutional and ordering the state legislature to remedy this with a constitutionally acceptable and rational system of finance.

The state’s main defense seems to be that a thorough and uniform system of education for all means that schools must simply exist, that most of the major requirements that are placed on districts are the fault of the federal government, that having “discussed” the reasons they are financing education in the way they currently do makes the system rational, and that local control does exist because, though few districts do so, all could ask the Colorado State Board of Education for “waivers” from many of the state regulations for which we are concerned about being underfunded.

In opening arguments the state also kicked around the plaintiff districts from the San Luis Valley regarding new schools built by the BEST grant program, insinuating that such projects point out that there is plenty of money for operating schools.  It appears the Plaintiff lawyers will not contest the facts surrounding the BEST program but will point to it as a great example of how an education funding problem has been addressed, and somewhat solved, at the state level.

After opening arguments on Monday, testified on the many challenges we in Center, and districts in the San Luis Valley, face in achieving proficiency in our standards based system for ALL students.

My testimony was followed by John Hefty, retired CASE Executive Director, who explained the intricate details of the current school finance act.  John’s testimony encompassed the remainder of the day on Monday and wrapped up on Tuesday morning.

Here is an Ed News Colorado article about the results of the first day of testimony:

Educating the Judge

Testimony on Tuesday focused on helping Judge Rappaport gain an understanding of our school finance system including how the state has arrived at its base per pupil funding level and how that effects total per pupil funding based on at-risk categories.

Scott Murphy, Superintendent of Littleton Schools, followed Dr. Hefty’s testimony on Tuesday with an explanation of the rationale behind the 1994 School Finance Act.

Murphy was followed on the witness stand by Glenn Gustafson, CFO of Colorado Springs District 11.  Gustafson’s testimony continued to build on the intricacies of the school finance formula and Glenn was able to clearly express how District 11 has faced many financial challenges because of declining enrollment and increasing numbers of at-risk students.

The day ended on Tuesday with Dr. Tony Romo from Denver University explaining how the language “Thorough and Uniform” and how the “local control” clause ended up in the state constitution.

This link will take you to an Ed News Colorado story about Day 2 proceedings.

Wednesday put the focus back on finance with Dr. Ed Steinbrecher testifying as an expert regarding the history of the decision making process that led, once again, to the current school finance formula and the base per pupil funding amount.  Steinbrecher testified that there was never any attempt made to set the base per pupil funding level in a manner in which it would be known to cover the actual costs of teaching kids.

Dr. Monte Moses, former Superintendent of Schools in Cherry Creek, transitioned the testimony from how schools are funded to the effect transitioning to a standards-based education model has had on the way school districts now operate.  He described how the focus went from required universal access to education to universal expectations of student achievement.  He explained the intricate interplay that exists between the direction Colorado was heading before NCLB came into play and how the state embraced NCLB requirements in its accountability systems.

Dr. Elliot Asp, current Deputy Superintendent of Assessment in Cherry Creek, then explained in detail the effort that goes into developing an assessment system to measure standards and the many resources, both human and financial, that districts need to employ in order to make such a system of standards based education work, especially in light of NCLB and our state accountability system.

Going back to telling the story of the many challenges schools that lack adequate resources face, Taylor Lobato, 2010 graduate from Center High School and current DU Sophomore, told a compelling tale of the opportunities she and her classmates missed out on when she was in school.  It appears Taylor’s testimony captured the complete attention of the judge as she clearly described the opportunities she was not offered and how Center’s education system was even more challenging for her classmates who did not have the kind of family support that she had.   The state strategically chose not to cross-examine Ms. Lobato.

Channel 9 News shot footage of Taylor’s testimony and interviewed her when she left the courtroom.  Follow this link to a story on these happenings:

Taylor was followed on the stand by Center School Board Secretary Miguel Cendejas who shared his story about growing up in Center, graduating from Center High School, and now experiencing his children’s progress through the Center school system.  Mr. Cendejas was vigorously cross examined about his role on the school board, whether or not Center has asked it’s community for a mill levy override, and whether he has ever considered enrolling his children in other area school districts or not.

Day 3 ended with Kevin Edgar, Superintendent of Schools in Sanford, skillfully testifying about the many challenges Sanford and other San Luis Valley school districts face because of inadequate funding, including the challenges he faces in keeping a highly qualified staff and meeting the needs of ELL, low income, and Special Education.  Mr. Edgar’s quote about a recent high school student pointing out to him that she was using the same high school physics book as he did when he attended high school has to be the statement of the trial to this point.  He also did an admirable job of fighting off a very aggressive cross examination that challenged him on Sanford’s acquiring a BEST grant and receiving funding for “more students than Sanford actually has” because of the district uses the 5 year average formula for declining enrollment districts.

One Response to Columns

  1. Pingback: Day 4 – Thursday, August 4 | The Lobato Case

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