The Colorado Supreme Court hears a case tomorrow that will determine whether the state has to come up with a lot more money to fund schools - in the billions. The lawsuit, Lobato versus the state of Colorado, charges that education funding here favors richer communities, leaving students in poor communities far behind. A Denver court has already agreed, calling the funding system unconstitutional and directing the legislature to devise a new one. Now the state Supreme Court will decide it. Colorado isn’t the only state where school funding is facing a legal challenge. CPR education reporter Jenny Brundin explains why these cases are being fought and what makes Colorado’s case distinct.

Reporter Jenny Brundin: Over the past few decades, forty-five states have gone to court over how they fund public schools. Forty-five! What’s going on? Michael Rebell has been tracking these lawsuits for years. He’s head of the National Education Access Network. He says the U.S. is unique in basing a large chunk of school funding on local taxes, especially property taxes.

Michael Rebell: So it means that the system has a bias toward being unequal and unfair, since some counties, some school districts obviously have more property wealth than others so even if people tax themselves at the same rate, those who live in the poorer districts are never going to be able to raise enough money.

Reporter: So why the march into state courts over the past 40 years? Well, early school funding lawsuits did focus on the federal constitution - the equal protection clause of the 14th Amendment. The idea was, the wealth, or poverty, of the area you live in shouldn’t dictate how good your school is. But in 1973 – on a 5 to 4 decision - the Supreme Court ruled that education is not a fundamental right guaranteed by the U.S. constitution.

Daniel Thatcher: However in a fiery dissent, Justice Thurgood Marshall disagreed with the five other justices.

Reporter: Daniel Thatcher studies school finance cases at the National Conference of State Legislatures based in Denver. He says Justice Marshall, in footnote number 100, wrote something that changed the path of finance cases.

Thatcher: He says this does not mean that plaintiffs cannot look to their state constitutions for a remedy.

Reporter: Education clauses in state constitutions eventually came under the spotlight. In Colorado the state shall provide “a thorough and uniform system of free public schools.” In 2005, a group of parents from the San Luis Valley filed the Lobato suit alleging Colorado’s system doesn’t do this. Last year, a Denver district court agreed. Daniel Thatcher says all these cases are seeking the same thing: 

Thatcher: More money in the system, and more equity in the system.

Reporter: Thatcher says Colorado is distinct in that it's one of a handful of states exploring legal theory on how to measure equity and adequacy.  In short, the district court judge ruled that the school finance system must be “rationally related” to what the state expects schools to produce.

Thatcher: That is saying that the state has set, defined standards that it expects all students in the state to meet. And if the state is failing students in meeting those standards, then the state is failing its constitutional duty.

Reporter: And that’s what the trial court found -- that there is no rational connection between spending and what the legislature is asking of schools. The state Supreme Court will also rule on whether this is even a matter for the courts. The state argues it isn’t. Nationally, plaintiffs have tended to win these cases. And how have legislatures responded? Michael Rebell:

Rebell: In some states like Vermont - when the court came down with a really strong order literally within a few days -the legislature passed an extensive reform bill that made dramatic changes. In other states like Ohio, they made a series of changes that never satisfied the court and the system is still way out of kilter. Sometimes like in Kansas, it’s a long bloody battle between the legislature and the court.

Reporter: But does winning a lawsuit improve the quality of education? Researchers are locked in a long battle over that question. Research does show that many of the cases result in more money for schools. One study found that in 27 cases where courts ruled against the school funding systems, states went on to inject an extra $34 billion into schools. Daniel Thatcher of the National Conference on State Legislatures cites a recent study:

Thatcher: Those districts that have students with the highest needs tend to benefit the most from successful school finance litigation.

Reporter: Lobato plaintiffs hope that will be the case for Colorado’s impoverished districts. But state leaders - including Governor John Hickenlooper- hope the high court leaves things as they are. Whatever the Justices rule – tomorrow’s oral arguments will add to the 40-year tableau of state cases – each one slightly different from the other. 

[Photo: CPR]

Denver district court ruling in Lobato case
 

 

National Conference of State Legislatures – School Finance Cases
 

National Education Access Network (map of school finance cases)
 

Lobato case documents on plaintiff website
 

 

Lobato case documents on defendant website