The Judiciary's Role in Colorado's School Finance System, 1015 COBJ, 2015, October, Pg. 51
| Author | Kenzo Kawanabe, Terry R. Miller, J. |
Special Issue: Education Law
The Judiciary's Role in Colorado's School Finance System
Kenzo Kawanabe, Terry R. Miller, J.
About the Authors
Kenzo Kawanabe and Terry R. Miller are attorneys in the trial group of Davis Graham & Stubbs LLP in Denver. They represent clients in a variety of matters relating to commercial disputes, natural resources, mass torts, and intellectual property. The authors were co-counsel for the plaintiffs in the Lobato v. State school finance case and co-authored an amicus curiae brief in support of the plaintiffs in the recent Dwyer v. State school finance lawsuit. Kawanabe is a past co-chair and Miller is the current co-chair of the Colorado Lawyers Committee Education Task Force, which monitors systemic legal issues faced by Colorado students.
The legislature has the discretion to raise and allocate funds used to maintain the state's K-12 public school system subject to mandates and limits imposed by the federal and Colorado constitutions. This article reviews the history and future of judicial enforcement of these constitutional requirements and the role of courts in shaping school finance in Colorado.
He General Assembly has broad discretion to raise and spend funds for government purposes, including funds for schools.1 Like other legislative powers, federal and state constitutional provisions impose boundaries on legislative discretion over school finance, and the judiciary defines and enforces those constitutional boundaries.2 In doing so, courts face two challenges unique to education that shape the judiciary's role when defining and enforcing legal boundaries: (1) the historic emphasis on state and local political control over public education restrains judicial review of school finance laws; and (2) the state's affirmative duty to provide schools renders the judiciary's job to define and enforce constitutional boundaries uniquely challenging in the school finance arena.
The historic emphasis on the importance of education3 and local control over school instruction dates to the adoption of the Colorado Constitution in 1876.4 While acknowledging the importance of education, the drafters distrusted centralized authority and designed the Constitution to "protect citizens from legislative misbehavior."5 At the same time, the drafters understood the importance of education and devoted an entire article to education, Article IX, [6]which reflected their effort to curtail legislative power.7
Article IX restricted legislative authority over education in two steps. It first required the legislature to establish and maintain a "thorough and uniform system of free public schools throughout the state"8 and then delegated authority over school instruction to local school districts, 9 leaving the general supervision of public schools to the independently elected state board of education.[10] Only five other state constitutions contain an express local control requirement.11 Overlaid on top of the judiciary's traditional reluctance to intrude into the political arena, the historic emphasis on the importance of education versus political and local control over schools renders the judiciary's task to define constitutional boundaries on school finance complex.
Enforcement of constitutional boundaries on school finance is also unique because the state has an affirmative duty to provide public schools. A remedy is more complicated in the school context because it is not enough for the court to order unconstitutional conduct to end or to prohibit activity a s a consequence of a constitutional violation. When the state violates the constitutional right to counsel, the judicial remedy invalidates a conviction, and courts cure a violation of the right to be free from cruel and unusual punishment due to prison overcrowding by restricting prison populations.12 Courts do not directly order the state to develop and maintain adequate defense counsel or prisons; there is not a constitutional mandate to do so. Instead, courts encourage that activity through the judicial ultimatum that prohibits the state from imprisoning its people without effective counsel and adequate prison facilities.
No similar remedy is available in the school context because the Education Clause affirmatively requires the legislature to establish and maintain adequate public schools.[13] Instead of imposing a judicial ultimatum that indirectly encourages the maintenance of public schools, courts must directly compel compliance with a specific affirmative duty. In Keyes v. School District No. 1, for example, the plaintiffs proved that Denver Public Schools intentionally maintained segregated schools in violation of the federal equal protection clause.14 The court could not simply close all schools in Denver to end disparate treatment that violated the equal protection clause. Instead, to ensure that the school district discharged its affirmative duty to desegregate its schools, the court adopted a desegregation plan that imposed affirmative obligations on the district and oversaw compliance with the plan for nearly 20 years.15
As described below, the challenges in defining constitutional boundaries and crafting remedies in the education context run throughout constitutional challenges to school finance laws. These challenges have significantly shaped the judiciary's role in school finance.
Judicial Oversight of School Finance
Students have challenged Colorado school finance laws under various federal and state constitutional provisions. Challenges asserted under state and federal Equal Protection Clauses, the Education Clause, the Local Control Clause, and Amendment 23 to the Colorado Constitution16 illustrate the judiciary's balance of legislative authority with its role to interpret and enforce the Constitution.
Equal Protection
During the 1970s and 1980s, students in many states challenged school finance laws under state and federal equal protection clauses.17 The plaintiffs in these cases argued that varying levels of education funding based on different levels of local property wealth violated state and federal equal protection clauses. The success of plaintiffs in these actions turned largely on the level of scrutiny applied to their claims.18 In San Antonio Independent School District v. Rodriguez, the U.S. Supreme Court held that a deferential, rational basis test applied to claims of unequal education funding instead of a strict judicial scrutiny test.19 Under the deferential standard, the court would uphold a school finance system if it "bears some rational relationship to a legitimate state purpose."20 The perceived difficulty of judicial intrusion into education policy shaped the decision. The Court rejected the strict scrutiny standard, which would require the state to prove that the finance system was narrowly tailored to serve legitimate objectives, in part because of the Court's lack of specialized knowledge and experience weighed against interference with education policy judgments made at the state and local levels.[21]
After Rodriguez, education advocates asserted rights set forth in state constitutions to attempt to ensure that all children had fair access to education. Here in Colorado, students challenged unequal funding in Colorado's school finance laws in Lujan v. Colorado State Board of Education, 22 The funding scheme challenged in Lujan resulted in disparate funding because the amount of funding for each district turned in part on property values in the district, which varied across the state.23 The trial court applied the strict scrutiny test and determined that the school finance system violated the equal protection clauses of the federal and Colorado constitutions.24 The Colorado Supreme Court reversed and held that the more deferential rational basis test applied under the federal and Colorado constitutions.25
Judicial deference to judgments made by political bodies at the state and local levels influenced the Court's decision in two primary respects. First, deference to political bodies influenced the Court's decision to apply the rational basis test. In doing so, the Court determined that education is not a fundamental right under the Colorado Constitution based in part on the Court's view that the wisdom and benefits of equal funding are within the legislative domain.26The Court sought to avoid judicial intrusion into a controversy over the best public policy to attain equal education opportunities and reasoned that courts are "ill-suited" to determine what constitutes an equal education opportunity.27
Second, deference to local control of schools was the basis for the Court's determination that the school finance scheme passed the rational basis test. The defendants argued that the school finance scheme that resulted in disparate funding rationally furthered the purpose of control of locally elected school boards.28 Local school boards exercise control by influencing the determination of how much money to spend.29 Although the trial court made extensive findings of fact detailing large disparities in school district funding and found that these disparities were "to a great extent the product of the random historical fortuity of local taxable wealth[, ]"[30] the Court held that the finance scheme's reliance on local funding rationally furthered local control because it provided local citizenry greater influence and participation in deciding how to spend locally raised funds.31
Analyzing a separate claim asserted under the Education Clause, the Court held that the Education Clause does not require equal funding. Instead, the Education...
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