January 07, 2012 12:18 AM UTC

Lobato Ruling a Yawner

• 4 Comments
• by: eestidaisy

Pundits and advocates alike are abuzz over Judge Sheila Rappaport’s ruling in Lobato v. Colorado. Judge Rappaport, a Republican appointee (Governor Bill Owens), ruled that the state has failed in its constitutional duty to provide a “thorough and uniform” system of public education across Colorado. Any exasperation, perspiration or celebration over the Lobato ruling is both premature and ill-placed. Here are five reasons the Lobato ruling will prove to be an historical afterthought:

First, this is only just the beginning. The Lobato ruling is just that: a trial court determination of facts as applied to existing law. (Note: the state performed a dismal job of presenting evidence during the trial. Oddly, the state decided not to hire Sutherland Asbill & Brennan, a Georgia law firm with a national reputation for successfully defending states in school finance litigation, and instead called its own fringe witnesses.) Because Judge Rappaport’s ruling remains subject to appellate review, the Colorado Supreme Court may very well reject her application of the law and put the kibosh on any further proceedings in the Lobato litigation. End of story.

Alternatively, if the Colorado Supreme Court upholds the ruling, the state legislature must attempt to remedy, with little guidance from the judiciary (see the fourth reason below), the constitutional defects in the current system. Experiences from across the country demonstrate that plaintiffs typically challenge legislatures’ first attempts at these remedies, thus beginning the legal wrangling all over again. New Jersey’s school finance litigation has gone on for over 25 years, undergoing a constant volley (at least ten times) between the legislature and the state’s supreme court. New Hampshire and Texas offer similar cautionary tales. This volleying is certainly nothing to get to excited about.

Second, a fully implemented remedy is impracticable. Assuming the Colorado Supreme Court does uphold the Lobato ruling, the $2 to $4 billion price tag is so costly as to render it economically and politically impracticable. Again, experiences from around the nation demonstrate that some recalcitrant state legislatures have simply refused to comply with these types of far-reaching orders, leaving the appellate courts powerless to enforce compliance, even with the aid of the executive branch. Ohio, for instance, has operated on an unconstitutional school finance system for a decade. What’s more, governments can have a difficult time protecting and enforcing positive rights (e.g., a right to an adequate education). President Eisenhower needed to deploy the National Guard to enforce court-ordered desegregation, for instance. It would behoove Colorado stakeholders to avoid a separation of powers standoff.

Third, a broader injustice is at play. Inequitable and inadequate school funding remain systemically rooted in deeper economic, social and political ills not addressed in Judge Rappaport’s Lobato ruling. Minus any major corrections to these fundamental ills, any state response to the Lobato ruling will prove unsustainable and will fail to correct the harms cited in the ruling. A separate school finance case that addresses the same level of inadequate funding may very well crop up five, ten or twenty years from now.

Fourth, Lobato is a dialogical ruling (i.e., it rules on the factual and legal merits of the case yet abstains from articulating a clear remedy or way forward). Judge Rappaport’s ruling only gives judicial cognition to the inadequate funding of public schools, something already recognized by Coloradans with children in the public school system. Furthermore, and as mentioned above, the ruling only gives cognition to a symptom of an underlying illness: that of greater social and economic inequality throughout the state and the reticence of the body political to invest in the state’s economic, social and civic infrastructure.

Fifth, Lobato ignores intra-district inequalities. The Lobato plaintiffs relied on an outdated legal strategy: challenging the “adequacy” of state funding for public schools. Albeit a successful strategy, adequacy challenges ignore inequities that occur within school districts (e.g., Colorado’s best teachers often end up teaching Colorado’s most capable students). Judge Rappaport rightfully cites a need for increased funding for public schools but remains silent on the fact that school districts often deploy resources where they are least needed. The way forward will come through a more logical deployment of enhanced school resources.

Pundits and advocates need to take a deep breath before reacting with such gusto to the Lobato ruling. Too many variables and defects exist in the ruling in its current form to expect systemic change. The ruling does provide an opportunity, however, for the governor’s office, whether the Colorado Supreme Court upholds Judge Rappaport’s ruling or not, to take the lead and initiate a statewide campaign to coalesce public support for systemic changes to how and how much Colorado funds public education. The legislature then needs to listen and act on this public sentiment. As the U.S. Supreme Court opined almost forty years ago regarding school finance litigation:

[T]he ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.

–San Antonio v. Rodriguez, 411 U.S. 1, 59 (1973).