- The Washington Times - Monday, December 19, 2011

DENVER — That sound you don’t hear is Colorado lawmakers holding their breath over a court case that could upend the cash-strapped state’s budget and tax structure.

Denver District Court Judge Sheila Rappaport ruled in Lobato v. Colorado that the state’s funding system fails to provide the “thorough and uniform” education required by the constitution. She called the system “significantly underfunded,” even though Colorado now spends $3.2 billion, or about 45 percent of the $7 billion annual state budget, on K-12 education.

“There is not enough money in the system to permit school districts across the state to properly implement standards-based education and to meet the requirements of state law and regulation,” Judge Rappaport wrote in her Dec. 9 opinion. “There is not one school district that is sufficiently funded. This is an obvious hallmark of an irrational system.”

How much would it take to fund the state education system? The judge declined to name a dollar figure, but in her 189-page decision she cited a study introduced by the plaintiffs that called for an additional $2 billion to $4 billion per year.

That would require the state to devote 89 percent of the general fund to K-12 education, according to estimates by the attorney general’s office. The judge stayed her own ruling until the end of the 2012 legislative session, expected next summer.

Attorney General John Suthers is expected to appeal the decision to the state Supreme Court, which is the only reason state budget crunchers are not yet in full-fledged panic mode.

“I suppose you could basically shut down every other discretionary thing in the state budget,” said Independence Institute research director David Kopel on Friday’s edition of “Colorado Inside Out” on Colorado Public Television.

“We could get rid of higher education, get rid of the Colorado state patrol, get rid of every social service program we have in order to throw money into this sinkhole that Judge Rappaport pretends is mandatory under the constitution,” he said.

The alternative would be to raise taxes, but that’s no surefire fix. Under Colorado’s Taxpayer Bill of Rights, tax increases must be approved by the voters, something they’ve shown no inclination to do in recent elections.

In November, voters shot down a school-funding ballot initiative by a margin of 64 percent to 36 percent. Even that measure, Proposition 103, would have increased taxes by just $1.3 billion over five years, far short of the figures under discussion in the Lobato case.

The conflict has raised the scenario of Colorado voters refusing to approve a court-ordered tax increase, potentially leading to a constitutional crisis.

“What are you going to do, order five million Coloradans to vote for higher taxes?” said Colorado State University political-science professor John Straayer.

Colorado legal analysts have been watching the Lobato case since 2005, when the lawsuit was filed on behalf of rural parents and school districts. The Mexican American Legal Defense and Education Fund was added as an intervener in 2010 on behalf of at-risk and non-English-speaking students.

The case appeared to be dead after two lower courts ruled that education-funding decisions should be left to the legislature. But the Colorado Supreme Court resurrected the case in 2009 by ruling 4-3 that the parents, students and school districts can challenge the state’s school funding system in court.

Since then, however, the composition of the court has changed. In October, Justice Alex Martinez, who had voted in favor of Lobato, stepped down to take a position with the city of Denver, allowing Gov. John Hickenlooper to fill the vacancy.

Mr. Hickenlooper, a Democrat, surprised some by naming a Republican, Brian Boatright, to the high court. The move was widely viewed as an effort to swing the court away from a pro-Lobato decision and enable the governor to avoid either an unpopular tax increase or a massive budget cut on his watch.

Still, analysts point out that a ruling against Lobato would require the court to reverse itself on a decision that’s less than three years old.

Judge’s Rappaport’s decision “is a very strongly worded, very overwhelming decision on behalf of the plaintiffs,” said Kevin Welner, professor at the University of Colorado Boulder School of Education. “As a legal matter, I guess I would expect the [state supreme] court to uphold.”

Others worry that such a ruling would allow the courts essentially to dictate school funding, the situation now facing New Jersey. Earlier this year, the New Jersey Supreme Court ordered the governor to increase school funding by $500 million.

“The whole practical impact, even more than the shocking dollar amount, is that this would effectively hand over budget authority to the courts and unelected judges,” said Colorado Board of Education Chairman Bob Schaffer, a former Republican congressman. “The concept of ‘thorough and uniform’ is a definition for the legislature to meet and they do so by majority vote. I think it’s a question that the court should not even take up.”

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