Rationality eludes judge in school funding case

When Gov. John Hickenlooper announced that the state will appeal a Denver court’s ruling that the state inadequately funds education, he acknowledged what Judge Sheila Rappaport—and previously the Colorado Supreme Court—would not: money is a finite resource, even when it’s spent on worthy causes and when it’s spent by government.

The state legislature allocates $4.3 billion to educate more than 800,000 students—just under $6,500 each—in K–12 public schools. According to the Colorado Department of Education, other sources bring that total to a statewide average of nearly $13,000, as of 2009-10.

Over two years ago, the supreme court ruled, in a contentious 4–3 decision, that a lower court should entertain claims brought by a group of parents and school districts that the state constitution’s call for a “thorough and uniform” system of free public schools should be interpreted to require a specific funding amount.

That lawsuit, Lobato vs. Colorado, reverted back to Rappaport’s courtroom, albeit with instructions that “the trial court must give substantial deference to the legislature’s fiscal and policy judgments.”

Rappaport’s decision, however, offered no such deference. Her ruling reads like a brief for the plaintiffs—not like a judgment that gives even a modicum of respect to the legislature’s constitutional authority to fund public schools or, more broadly, to adopt a state budget.

She condescendingly dismissed the state’s arguments, while fawning over various creative claims and tendentious documents provided by the Lobato plaintiffs, leading to these incredible conclusions:

  • “[T]he entire system of public school finance … is not rationally related to the mandate of the Education Clause.”
  • “There is not one school district that is sufficiently funded.”
  • “Current economic conditions … have made an unworkable situation unconscionable. But Colorado’s history of irrational and inadequate school funding goes back over two decades.”

If irrationality is a disqualifier, then Rappaport’s decision is on thin ice.

For example, she consults the dictionary to accurately define “rational,” “irrational” and “relationship” because the Supreme Court used those terms in remanding the case. She does not, however, provide that same level of analysis to ascertain what Colorado’s founders intended when wrote, “[T]he general assembly shall … provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state …” (emphasis added).

Because “thorough” and “uniform” appear in the state constitution—unlike “rational,” “irrational” and “relationship”—a judge seeking to objectively apply the law might want to know if those terms dictate a necessary and quantifiable level of spending.

Of course, they do not. An earlier supreme court said, “We are unable to find any historical background to glean guidance regarding the intention of the framers.”

Rappaport adopts the Lobato plaintiffs’ argument that, because lawmakers have implemented a means of measuring schools’ and students’ performance against quantifiable expectations, the state is obligated to radically increase funding, perhaps to nearly double current levels.

Her ruling rests on the plaintiffs’ creative assertion that a specific funding mandate is created by the convergence of standards and assessments, the constitution’s “thorough and uniform” clause, and the constitutional stipulation that local school boards control instruction.

She never mentions “emanations and penumbras,” but clearly Judge Rappaport, like judicial activists before her, is blessed with a rare talent entrusted to only a select cadre of law school graduates—the ability to interpret words that aren’t there.

In a final flurry of irrationality, Rappaport strikes down the state’s school finance law and orders a new system of funding, but she concludes the order by allowing this “inadequate,” “irrational,” “unconscionable” finance system to continue, pending further action by the Supreme Court.

In announcing the state’s appeal, Gov. Hickenlooper observed: “There are more appropriate venues (than a courtroom) for a vigorous and informed public debate about the state’s spending priorities.”

Yes, and, more rational, too.


Mark Hillman served as Colorado treasurer and senate majority leader. He is now a Centennial Institute Fellow and Colorado’s Republican National Committeeman. To read more or comment, go to www.MarkHillman.com.

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