Legal Updates

Colorado Supreme Court holds that adequacy claims are justiciable

Re-affirming the state courts’ “responsibility to review whether the actions of the legislature are consistent with its obligation to provide a thorough and uniform public school system,” the Colorado Supreme Court held last month that plaintiffs’ claims that the state’s public school financing system is severely under funded are justiciable. Lobato v. State The Court noted the importance of the three branches of government acting as “checks and balances against one another” and stated that:

A ruling that the plaintiffs’ claims are nonjusticiable would give the legislative branch unchecked power, potentially allowing it to ignore its constitutional responsibility to fashion and fund a “thorough and uniform” system of public education.

The lower court had held that there were “no judicially manageable standards” for determining whether the state was meeting its constitutional obligation to provide a “thorough and uniform” education. The Colorado Supreme Court held, however, that the state’s “education reform statutes with proficiency targets and content standards” as well as “other courts’ interpretations of similar state education clauses, can assist the court in assessing whether the General Assembly has adequately implemented the ‘thorough and uniform’ mandate of the education clause.” A substantial majority of state courts have agreed that adequacy claims are justiciable, although, especially in recent years, a number of state courts have held otherwise. ( See, Michael A. Rebell, Courts and Kids: Pursuing Educational Equity Through the State Courts, pp 22-29 ( 2009).

The case has now been remanded for a trial to determine whether the state’s current educational finance system is “rationally related to the Generally Assembly’s constitutional mandate to provide a “thorough and uniform system of public education.” Although the trial court “must give substantial deference to the legislature’s fiscal and policy judgments,” it may “appropriately rely on the legislature’s own pronouncements concerning the meaning of a “thorough and uniform” system of education.

In 1982, the Colorado Supreme Court rejected an “equity” claim of the plaintiffs in Lujan v. Colorado State Board of Education, 649 P.2d 1005. The current Lobato case is the first broad based adequacy claim to be tried in the state.

Washington Supreme court defines “uniform system”

Under the State of Washington’s unique “Basic Education Act,” state aid for salaries and other major schooling costs is determined in accordance with staff allocation units established by the legislature. Although school districts are not required to limit the actual salaries paid to administrators, teachers and other personnel to the state-aided amounts, their basic state aid is determined in accordance with these units.

The system was initially based on school district salaries actually paid by school districts in 1976-77. Since that time the legislature has periodically adjusted the amounts to take into account inflation, cost of living and equity considerations. The gaps between the highest and lowest funded districts has narrowed substantially over time, but currently, the teacher staff unit allocation received by the Federal Way school district is still 4.9% lower than that of the higher funded districts. (The gap regarding administrator salaries is 45%.)

Federal Way asked the state courts to declare this system unconstitutional, arguing that these continuing disparities violate the requirement for a “general and uniform system of public schools” in Art. IX, sec. 2 of the state constitution. Although this position prevailed in the trial court, the Washington Supreme Court held last week that a “uniform system” requires uniform educational content, teacher certification, instructional hour requirements and a statewide assessment system, but not uniform funding of staff salaries. Federal Way School District, No. 210 v. State of Washington The Court did not, however, decide whether Federal Way or any other school districts were being denied “ample” funds to provide appropriate educational opportunities to its students as required by Art IX sec 1 of the state constitution. That issue was litigated in McCleary, et al. v. State of Washington. The trial ended in mid-October, and King County Superior Court Judge John Erlick’s decision could be handed down in weeks.

Appellate impasse on NCLB funding

In an en banc decision issued last month, eight of the justices of the Sixth Circuit federal Court of Appeals voted to reverse the trial court’s dismissal of a challenge to the federal government’s funding of the No Child Left Behind Act ( “NCLB), but another eight justices voted to affirm the lower court’s ruling. School District of the City of Pontiac, et al. v. Duncan As a result of the impasse, the trial court’s order of dismissal stands.

Plaintiffs, nine school districts from three different states and ten teachers unions from ten different states, argued that NCLB’s “unfunded mandates provision” ( 20 U.S.C. § 7907(a)) absolves states and school districts from complying with any requirement of the Act that would require increased costs not covered by the additional federal funds the state is receiving under the Act. The trial court interpreted the language at issue to preclude only additional costs that might result from federal officials imposing regulatory requirements beyond those required by the statute, and which are unfunded. That meant that any costs the state might incur to meet the specific statutory requirements, like complying with the Adequate Yearly Progress mandates, must be borne by the state, even if these costs are not fully re-imbursed by the federal government. Last year, a three- judge panel of the Sixth Circuit reversed the trial court decision, holding that Congress had not clearly put states and school districts on notice that by accepting NCLB funding they were also obligating themselves to spend their own funds in order to comply with the Act. However, the full court decided shortly thereafter to re-hear the case en banc and then vacated the Panel’s decision.

The lengthy opinions issued by the full Court last month could constitute a primer for a law school civil procedure class. Fine points regarding justiciability, administrative exhaustion, joinder of necessary parties, statutory interpretation, and application of the spending clause of the U.S. Constitution are argued with great erudition. The bottom line is, however, that unless plaintiffs choose to petition the U.S. Supreme Court to hear the case, and the Court agrees to do so, the regulations of the Secretary of Education that require states to expend their own funds to comply with the Act will stand. (Another challenge to the NCLB’s unfunded mandates filed by the State of Connecticut was also dismissed by the federal district court in Connecticut last year.) Whether the states will have the funds to do so in light of the continuing large deficits most of them face as a result of the on-going recession must, therefore, be a major concern.

As Judge Sutton noted in his opinion concurring in the order affirming the district court’s judgment, “each year appropriations have not been linked to, or premised on, any effort to ascertain the funds needed to make adequate yearly progress.” (Sl..op. at 58). Congress should rectify that shortcoming by calling for a cost study as part of the re-authorization of the Act, which is likely to take place next year, and making a fair determination, given current economic conditions, of what proportion of the necessary increased costs should be borne by the states and what proportion should be borne by the federal government. See Michael A. Rebell and Jessica R. Wolff, Moving Every Child Ahead: From NCLB Hype to Meaningful Educational Opportunity, pp. 99-108.