A win for the children of Colorado

Late on the afternoon of Friday, Dec. 9, Denver District Court Judge Sheila Rappaport issued a ruling for the plaintiffs in Lobato v. State of School, calling Colorado’s level of school funding “unconscionable.”

The strongly-worded ruling was announced during the Annual Colorado Association of School Boards convention in Colorado Springs, and the good news spread quickly throughout the gathering, which included many school board members and superintendents from across Colorado.

The decision represents a great day for the kids of Colorado!

For a seven-page summary of the 189-page ruling, click here.

The voices of the people who care about the future of public education in Colorado have been heard. We know that Colorado is not living up to the promise of our constitution, which requires the state to provide a “thorough and uniform system of free public schools.”

The state has failed to give schools the resources they need to meet the needs of all students. Inadequate funding has caused too many students to attend school in dilapidated and unsafe facilities, learn from obsolete textbooks, and miss out on critical 21st century learning opportunities.

Let’s take this opportunity to refocus our state’s attention and energy on the critical and constitutional duty of providing students with the education they need to succeed and become productive and contributing citizens.

We look forward to working with Commissioner Robert Hammond, Governor John Hickenlooper, and members of the State Board of Education and General Assembly on a remedy. Clearly this changes the conversation about the future of public education in Colorado—with the urgency of addressing this issue in the 2012 legislative session.

Some background

Since 2005, when Taylor Lobato was in 6th grade (today the DU sophomore is a very articulate spokesperson for the case), the Lobato case has moved through the courts gaining traction along the way. The Supreme Court has already ruled that school districts have a legal standing to sue the state, and that the courts have “justicibility” over this issue. The courts have the oversight to enforce our constitutional requirements, and the legislature and governor are undoubtedly responsible for finding a political solution to the problem.

For too long schools have been forced to do more with less, and those of us who work in schools also know that we cannot sustain high overall performance, close the persistent achievement gaps and raise expectations for college and career readiness without adequate funding.

This ruling clearly states that the plaintiffs provided “overwhelming evidence supporting the conclusion that with sufficient funding, school districts can meaningfully improve all students’ achievement… Unquestionably, additional financial resources appropriately applied can improve student achievement, which, under the standards-based system, is the ultimate measure of the success of a thorough and uniform system of public education.”

Judge Rappaport went on to write, “It is not this court’s function to determine at this time the amount necessary to provide adequate funding for public education…However, the court does find that public education is very significantly underfunded and that any legislative response of necessity must address the level of funding necessary to meet the mandate of the Education Clause and the standards-based system and should provide funding consistent with that standard.”

Yes, we have a system that shows many islands of excellence that are sustained by hardworking and talented educators, but we need to do more to ensure ALL kids are served. This ruling will help provide some teeth for us to push for solutions and to create dialogue that can ultimately make a difference for our kids. Especially when it comes to children from impoverished backgrounds, it will take more resources, more time in school, early childhood support and new interventions. All of these critical supports require funding.

As we have said repeatedly, this ruling is not the end of the process, but in reality it is the beginning of a new process. Now the work begins to try to find a solution and, yes, the case will undoubtedly be appealed to the Colorado Supreme Court. As you may have heard, Governor Hickenlooper just appointed John Boatright to the state’s highest court; he is a district court judge and registered Republican who is a relative unknown.

Regardless of the court actions from this point forward, this court’s very strong ruling gives us a new lever to move the dialogue forward in a direction that will ultimately support schools and kids. The attorneys for the case, in conjunction with researchers and supporters, have laid out a list of remedies that they think will help to solve the problem.

Some quotes:

“It may be too late for me, and it may be too late for my sister, but there are so many other students in the public education system.” - Taylor Lobato, daughter of Anthony Lobato, lead plaintiffs on the lawsuit

“While we don’t know the answers to many of the serious questions the ruling raises, we do know that the intensity and volume of the conversation on how the state funds its schools will be turned up for the foreseeable future. At the same time, the case will likely work its way to the state’s highest court for the next stop on its remarkable journey.” - Denver Post Editorial on Saturday, December 10

“It is…apparent that increased funding will be required.” - Judge Sheila Rappaport

“It makes a statement about the necessity of adequate school funding.” - State Senator Evie Hudak

“We’re still confronted with budget constrictions. It’s time to talk and take action and the action should benefit all children.” - Colorado Springs D-11 Superintendent Nicholas Gledich

Judge Rappaport Ruling- 12/9/11

Judge Rappaport issued a ruling: Colorado’s school funding system is not “thorough and uniform”

Here is the link to the Denver Post Article on the ruling:


More information to be posted here shortly

Day 25–Friday, Sept. 2

Kenzo Kawanabe delivered a powerful wrap up on Friday, Sept. 2:

The trial has encompassed:

  • Test scores
  • Achievement gaps
  • Graduation rates
  • Over 80 live witnesses

Educators who are brave enough, honest enough to admit their failures.

All describe a lack of adequate resources to implement state requirements.

They know what works…there are islands of success. They do not have the resources to apply what they know works.

Effective teaching makes the most differences, but we cannot pay teachers.

George Welsh (Center School District) is doing the best he can with what he has.

In schools across Colorado (due to outdated textbooks) the Soviet Union Still exists; the Twin Towers still stand.

Creede School District had to close the industrial arts program even though he knows it works for students.

A Littleton School District expert said school districts cannot implement technology standards without equipment.

All superintendents describe schools as the life of the community…community centers we call schools.

If you truly want to address achievement gaps you need more class time.

Local control is dismantled; true local control is to have funds for choices and pathways for kids.

The only superintendent to be called by the defense says money matters to student achievement.

There is a consensus about the vital importance of public education, but there are not sufficient resources to meet state requirements

Education breaks the cycle of poverty.

Three primary issues:

What is thorough and uniform?

  •  Supreme Court set the guidelines
  • Increased standards mean increased costs: materials, personnel costs, salary increases.
  • Resources have never been correlated with the mandates.
  • Accountability is a requirement; it is not aspirational

Is there a rational relationship for school funding?

  •  Is the finance system rationally related to the requirements?
  • State has set a constitutional system of bold measures without reference to the cost of providing those mandated services.
  • State has never tried to estimate the costs. There is no rational connection.
  • The formula is not fair if the amount of money going into the formula is insufficient.
  • Finance act has not responded to the increased mandates.
  • Base per pupil has changed without any calculation of the cost.
  • Base funding is an afterthought.
  • Categoricals no not rationally relate to costs.
  • ELL: research says you need 4-7 years. State caps it arbitrarily at 2.
  • State share is 17% for special education.
  • Structure of SPED is irrational.
  • Is possible to cost out the state system (Augenblick has done it)
  • Capital Construction–facilities have a direct impact on student achievement
  • BEST does not come close to meeting the state’s own estimate of capital need

Local control

  •  A myth.
  • Local communities must spend significant local dollars to meet state goals.

In summary:

We are not asking the court to determine funding at the amounts of the study. We are asking the court to determine our finance system as unconstitutional

Amendment 23 requires funding of the factors, which make our system fair. And we are not doing it.

Fiscal notes on bills rely on gifts, grants and donations.

Plaintiffs do not argue that resources = student achievement. There is no guarantee. But not funding schools guarantees failure.

Plaintiffs seek declaratory relief…not a financial amount.

System violates local control and the constitutional rights of all plaintiffs.

The system is broken, it is unconstitutional.

But we are losing thousands of kids every day.

The Colorado constitution is not about what is popular; it is about what is right.






Day 24–Thursday, Sept. 1

Robert Hammond testified today. He’s commissioner of education in Colorado and oversees the Colorado Department of Education. He was appointed in May, 2011.

He said:

  • The department (CDE) is under-staffed.
  • He first learned of Lobato vs. Colorado lawsuit when he worked for Boulder Valley School District.
  • He supported lawsuit when he was with Boulder Valley School District, but does not now.
  • Some districts are in better places than others. It’s tough at the state level and it’s tough for superintendents.
  • Our business is about students achieving.
  • Supports state board of education mission…all children will become educated and productive citizens.
  • Supports 2011 legislative priorities around improving funding for schools.
  • Had to cut back on positions to reach rural districts, due to misuse of federal funds.
  • Only two regional reps for CDE now; used to be 9.
  • Study of rural districts presented to state board recommended organizing a rural council to support rural needs.
  • But no such council has been organized.
  • Rural study showed rural superintendents feeling disconnected from reforms.
  • Rural study showed 1.5 employees needed in every district just to manage reports for CDE.
  • Rural study said it’s “sheer folly” to think two people can provide all the necessary support to rural districts.
  • Asked legislature to not pass laws that require “gifts, grants and donations” because CDE staff can’t manage any more without funding.
  • Private resources being sought now to help with work, including foundations.
  • Nearly 400,000 students in Colorado below proficiency on CSAP.
  • CAP4K (Colorado Achievement Plan for Kids) implementation takes resources for state agency and local districts.
  • CDE did not do any fiscal analysis of S.B. 191 (educator effectiveness) bill.
  • CDE presentation to state fiscal stability committee in 2009 said schools need an additional $2.8 billion.
  • Does not know how state school funding levels are set.
  • CAP4K implementation estimates have ranged up to $80 million.
  • Developing and launching new assessment system at one time thought to cost up to $80 million.
  • Cost of launching a new standards system would be “substantial,” perhaps five times current level of effort.
  • Does not know how new student assessment will be funded.
  • If school districts don’t have the ability to develop new curriculum, that’s a local district matter.
  •  State does not develop curriculum.
  • Local districts are asking for assistance to implement reforms, including standards.
  • Primary source of implementation for S.B. 191 is gifts, grants and donations.
  • So far, $9.7 million collected—but seven or eight times as much might be needed.
  • Colorado Legacy Foundation is overseeing 10 district pilots under S.B. 191.
  • Those 10 districts report to the Legacy Foundation if they are having an issue or concern.
  • There is a long list of legislation that relies on gifts, grants and donations.
  • Different districts have different abilities to raise local resources to support their schools.
  • Districts in San Luis Valley have three times the level of free-and reduced-lunch eligible students as districts accredited with distinction.
  • The districts accredited with distinction have much higher property value than those in San Luis Valley.
  • There is an economic impact for students who don’t receive an appropriate education and dropout of school.
  • Student achievement is not where it should be.
  • We all want our students college and career ready.
  • New estimates suggest new assessment will cost only $24 or $25 million.







Day 23–Wednesday, Aug. 31

Trish Boland testified today. She’s Title 1 coordinator for CDE (state dept. of education).

She said:

  • No state turns down federal funds.
  • Title 1 funds for “neediest” students.
  • 100 percent proficiency is a federal goal—that was the initial intention of the legislation.
  •  A “few” districts turn down federal funds.
  • State does not have a role in local school district decision to not accept federal funds.
  • Federal government requires that fed. employees track their time and effort on federal programs.
  • $23 million finding by US Dept. of Ed. against CDE because time not tracked correctly.
  • CDE hired for-profit WestED and D.C. law firm to help fix problem.
  • CDE needed 9 additional employees to comply with No Child Left Behind. “Theoretically.”
  • CDE needed 19 additional employees to comply with federal special education requirements.
  • State does not know how much it costs for districts to comply with federal requirements.
  • There is a federal requirement to supplement, not supplant local spending.
  • Decision on what schools to serve with federal dollars is a local decision.
  • Few CDE resources are “authentically flexible” (report from WestEd).
  • State and/or private resource increases needed (report from WestEd).
  • OMNI report (study) looked at variety of schools and how much Title 1 dollars they received.
  • The group with highest dollar amount had the highest growth rates for achievement.
  • Nothing in law prohibits the state from supplementing federal programs.
  • When more resources are added to a school, better results are seen.
  • The per-pupil amount may have a relationship to outcomes in Title I schools.
  • Districts decide whether to concentrate funds. Local control allows for flexibility with federal Title I funds.
  • It’s “always a hard decision” for local districts about how to apply federal Title I dollars.

Ed Steinberg also testified today. He’s an assistant commissioner at the state department of education (CDE) overseeing special education, among other areas.

He said:

  • Outcome rates more important that compliance for special education students.
  • Wishes federal government would focus on performance of the programs.
  • 84,300 studentsidentified in Colorado as needing special education services.
  • Autism a growing concern. Colorado state legislature has earmarked $4 million for “high cost students” and their needs.
  • There is a nationwide shortage of educators trained to serve special education students.
  • Just because state doesn’t pay all the costs, doesn’t mean students aren’t having their needs met.
  • Gifted education programs are for students who show high potential.
  • Colorado provides funding for gifted education; one of 30 or 35 states that do.
  • Achievement in reading and math across the state is flat and shows signs of declining for students needing special education services.
  • As a state, we need general ed. classroom teachers and special ed. classroom teachers who know how to teach reading.
  • We don’t need additional resources to fix literacy training for teachers.
  • We need to shift teacher colleges and their training. Need to move away from whole language approach.
  • We need to re-allocate existing resources.
  • We can’t mandate curriculum or a particular reading program. Local control issue.
  • Proficiency rates down in math and science.
  • State performance plan targets were lowered because of poor performance.
  • Wide achievement gap exists for students with disabilities
  • Have concerns about ability of special education teachers and their ability to remediate students who aren’t reading on grade level.
  • It’s the state’s obligation to ensure districts are compliant with special education regulations.
  • As recently as June 2011, federal programs determined Colorado “needs assistance” (below “meets requirements”) level.
  • 70 percent of staff time at CDE is spent on compliance.
  • CDE time is spent on compliance, not student achievement.
  • “Frustrating” CDE can’t spent time on student achievement.
  • CDE has not analyzed whether implementing RTI (Response to Intervention) is cost-efficient.
  •  RTI requires professional development to implement.
  • Charter schools serve a smaller percentage of students with disabilities than non-charters.
  • Some charters discourage enrollment for high-needs special education students.
  • Rural salaries are not high enough to retain teachers
  • In 1992-1993, state paid only 31.6 percent of approved costs for special education needs.
  •  At that time (92-93), legislative council recommended reimbursing local districts for 80 percent of approved costs.
  •  A 2000 survey, of special education directors, 74 percent of respondents said state is under-funding special education.
  • From same study, 93 percent urged more state funding for special education.
  • “I believe districts could benefit from more state funding.”
  • Colorado is the lowest or second or third-lowest in terms of identified students with disabilities. Districts are concerned about funding 60 percent of special education costs.
  • Colorado ranks low for its contribution to special education (including all states and D.C.)
  • No reason to dispute one finding that ranked Colorado 51st among all states and D.C. in special education contribution.
  • State does not provide all the funding needed for high-cost special education students.
  • CDE does not have data for the costs of educating all special education students in the state.




Day 22–Tuesday, Aug. 30

Linda Darling-Hammond returned to the stand (via teleconference) to rebut testimony of Dr. Eric Hanushek.

She said:

  • There is relationship between Hanushek’s student growth and spending.  Growth tells gain from year to year, not achievement.
  • There is a very high relationship between student achievement and spending.
  • There is a strong relationship between district spending and % proficient using same CDE data used by Hanushek.
  • NAEP 4th grade 40-year trend analysis…substantial increase in math, modest but noticeable growth in reading.
  • NAEP 8th grade 40 year trend analysis, steep increase in math, modest but noticeable growth in reading.
  • Comparing New Jersey and Colorado NAEP scores for 2003 and 2009. 2003 first year NJ students took NAEP tests.
  •  Substantial school funding reform in New Jerse – Abbott vs NJ.  NJ 45% student of color. Have risen to top 5 states in NAEP.  Reduced achievement gap.
  •  Comparing NJ and CO NAEP scores, 4th grade reading: 2003 similar scores.  2009 NJ substantially ahead of CO.  N.J. 2nd in nation.
  • Comparing NJ and CO NAEP scores, 8th grade Math: 2003 New Jersey behind Colorado. By 2009 NJ ahead of CO.
  • No evidence that firing the bottom 5% of teachers in a given year will improve student performance.
  • Finland invests in teacher education and continues to develop and invest in teachers in the classroom.  Colorado cannot “fire” its way to Finland.
  • In one year,  a teacher may be top performance rating. Value Added Method rating is highly variable.  Following year teacher could be at bottom performance.  Many variables.

Mike Miles testified today.  He’s the superintendent of Harrison School District 2, in Colorado Springs.

He said:

  • The district’s udget has been reduced “pretty significantly” in last three years.
  •  “What Harrison needed was a transformation of the system.”
  •  “Our belief system wasn’t strong.”
  •  School districts need “real consequences for failure.”
  •  Harrison School District uses an “amazing amount” of professional development.
  •  HSD2 wants to end social promotion by 2016.
  •  HSD2 uses an “action plan,” not a strategic plan.
  •  Goal of 90 percent graduation rate is going to be “pretty challenging” given budget cuts.
  •  HSD2 has a high turnover rate of teachers, up to 25 percent this year.
  •  “We’re not worried about the turnover rate.”
  • District has seen only “modest gains” in CSAP.
  •  90 percent of all HSD2 general fund would go to teacher pay if all teachers were proficient.
  •  HSD2 spent $650,000 to design and build its district assessment and scoring system.
  •  HSD2 cut $4 million from budget last year; might have to have $5 million more this coming year.
  •  HDD2 cut 70 licensed staff and 25 support staff to balance budget.
  • Cutting another 70 teachers would adversely affect student achievement.
  •  HSD2 has put off capital construction.
  •  Some students cost more than others to educate.
  •  English language learners cost more to educate.
  •  Special education students cost more to educate.
  •  HSD2 receives $6900 per pupil but English language learners cost $8500 to educate and special education students costs $9000.
  • “I believe we have significantly reduced our resources and we are going to have a hard time meeting our goals.”
  •  HSD2 graduate rate is 67 percent;  1 in 3 students failed to graduate.
  •  “While we’ve been making improvements, we have a long way to go.”
  •  “Tough choices” have been needed  to make up state deficit in funding.
  •  Counselors and assistant principals might be in jeopardy with further spending reductions.
  • Focal Point is growing.  State should be offering some of the prof. development services that Focal Point provides. (FocalPoint is a firm that Mike Miles started with three others and does work around Colorado and in New Jersey. )
  • Mike Miles #lobatocase testimony: Is paid $197,000 salary as superintendent.
  •  FocalPoint charged Center School District $85,000 for its services.
  •  Focal Point charged $80,000 (or so) to Sheridan School District.
  • “I don’t think we (Colorado) have a thorough and uniform system.”
  •  “As a whole, Colorado is not providing all students with a high-quality education.”

Bob Schaffer testified today. He is principal of Liberty Common High School, a charter school, in Fort Collins. He is chairman of the State Board of Education. He’s a former state legislator and U.S. Representative, too.

He said:

  • The 1994 School Finance Act was constitutional. “I’m certain it was…and is.”
  •  State system of school finance is “absolutely” thorough and uniform.
  •  Distribution of resources is done a “very thorough” way by a representative government that is the “envy of the world.”
  •  The state board has made improvements in the state funding for schools a priority several times.
  • Parent satisfaction tops CSAP for measuring educational outcomes.
  •  State’s definition of postsecondary and workforce readiness are “nice words  on a page.”
  • ACT scores are the best indicator of college readiness.
  •  Confirms* that 60 percent of all Colorado students not ready for college in math. (*”I see what the graph says,” he said.)
  •  Confirms 51 percent of all Colorado students are not ready for college in reading.
  •  71 percent not ready in science; 77 percent OVERALL not ready in all four subjects.
  •  State cut approx $146 million in education funding last year.
  •  Districts have sufficient funds to meet student needs.
  •  Local communities can always raise more money to meet their needs.
  •  Local districts could ask for donations.
  •  Parents should move from an ineffective school or district if they love their children.
  •  The good judgment of legislators is plenty of analysis (of dollars needed for schools).
  • Education outcomes don’t indicate whether a thorough and uniform system is being provided.
  • Closing the achievement gap is not a state obligation.
  •  If the state only had $1 million, it would be a “thorough and uniform” system if evenly distributed statewide.
  •  School funding is arbitrary because it’s based on previous year.
  • Specific amount of money allotted under school finance formula is “arbitrary.”





Day 21–Monday, Aug. 29

Ted Hughes testified today. He directs the capital construction office at CDE and the BEST grant process. BEST stands for Building Excellent Schools Today and is designed to help districts with school construction related to health and safety issues.

Ted Hughes said:

  • BEST is particularly geared to help under-funded schools.
  •  If you don’t qualify for a BEST grant, you must use local resources to meet capital construction needs.
  •  At a minimum, every school should meet basic health and safety needs.
  • There are $17.9 billion in identified in state capital construction needs under most recent study.
  • Most rural districts don’t have facility expertise.
  •  I don’t believe school districts are intentionally trying to damage their buildings or not take care of them.
  • Some schools in Rocky Ford are unsafe.
  • Sheridan School District facility needs significant.
  •  There is a gap between dollars available in BEST and needs of the entire state.

Elaine Gantz Berman also testified this afternoon. She’s a former Denver school board member and currently state board of education member.

Elaine Gantz Berman said:

  • She supports S.B. 191 and is aware that cost for implementation “will run into millions of dollars.”
  • Race to the Top (federal) application was supposed to help with implementation help.
  • The state is now turning to private dollars and grants for resources.
  • We have a state school finance formula, but we leave it up to school districts to seek additional resources.
  • Rural areas have a hard time attracting and retaining high-quality teachers. They leave for better-paying positions.
  • The state sets academic standards from dance to math, social studies to world languages.
  • There will be a cost to school districts to implement SB 191 (the educator effectiveness legislation).
  • Generally, a school district cannot waive out of state requirements.
  • There are reasonable estimates that the cost of implementing S.B. 191 will be $70 to $80 million.
  • Colorado is now on “Plan B” to raise money, far short of needed funds.
  • Colorado is among lowest states in per-pupil funding.
  • CDE (state education agency) does not have sufficient resources to do its job.
  • CDE does not support rural school districts the way it should.
  • Colorado needs to rewrite the school finance act so there is more equity among school districts.
  • Colorado needs to rewrite the school finance act “for many reasons.”
  • The 2011 legislative priorities for state board were topped by the goal of preventing further cuts to schools.
  • Increasing salaries for teachers and administrators will help attract and retain better staff.
  • Colorado has one of the widest achievement gaps in the state.
  • Colorado one of the worst achievement gaps in the country.
  • State has never conducted a study to determine costs of implementing the school system it has drawn up.
  • All school districts in Colorado should have the same high school graduation criteria.
  • Countries that have the highest level of achievement have common standards and common curriculum.
  • Local control prevents all school districts from setting the bar high.