Lead Opinion
delivered the Opinion of the Court.
I. Introduction
In this appeal, we review the court of appeals' decision that the plaintiff school districts lack standing to sue the state, and that plaintiff parents, who challenge the adequacy of our public school funding system under the education clause of the Colorado Constitution, presented a nonjusticiable political question. Lobato v. State,
Plaintiffs are composed of two groups. The first group consists of parents from eight school districts across the state acting in their individual capacities and on behalf of their school age children ("plaintiff parents"). The second group consists of fourteen school districts in the San Luis Valley ("plaintiff school districts"). Plaintiffs brought suit against the State of Colorado, the Colorado State Board of Education, the Commissioner of Education, and the Governor (collectively "state defendants"), alleging constitutional deficiencies in Colorado's public school financing system. Plaintiffs claim that the system, because it is underfunded and allocates funds on an irrational and arbitrary basis, violates the education clause's mandate that the General Assembly provide a "thorough and uniform" system of public education. See Colo. Const. art. IX, § 2. Plaintiffs further claim that the local school districts have standing to challenge the adequacy of the state's public school financing system because severe underfunding and irrational disbursement of funds undermine the districts' interest in local control over educational instruction and quality. See Colo. Const. art. IX, § 15.
Without taking evidence, the trial court held that plaintiff school districts lacked standing to bring their claims, but did not address the standing of the plaintiff parents. The trial court also dismissed the plaintiffs' complaint for failure to state a claim. The
The plaintiff school districts appeal their dismissal for lack of standing. Additionally, both the plaintiff parents and the plaintiff school districts appeal the holding that their claims present a nonjusticiable political question. Because this case was dismissed before either side presented evidence, our precedent requires that we accept the plaintiffs' factual allegations as true.
As a threshold matter, we examine whether the court of appeals should have addressed the school districts' standing. Because none of the parties contest that the plaintiff parents possess standing, we hold that it was unnecessary for the court of appeals to decide this issue, and reverse the court of appeals on this issue.
Next, we examine whether the plaintiffs present a justiciable claim for relief. The education clause, article IX, section 2 of the Colorado Constitution, states in relevant part that "the general assembly shall ... provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state...." The state defendants argue that the plaintiffs raise a nonjusticiable political question in that the judiciary lacks manageable standards by which to resolve the issue. They further argue that the plaintiffs' claims are precluded by article IX, section 17 of the Colorado Constitution ("Amendment 23").
We reject both of the state defendants' arguments. We have never applied the political question doctrine to avoid deciding a constitutional question, and we decline to do so now. We interpret this court's decision in Lujan v. Colorado State Board of Education,
As was the case in Lwjan, this claim triggers the court's responsibility to review the state's public school funding scheme to determine whether the existing funding system is rationally related to the General Assembly's constitutional mandate to provide a "thorough and uniform" system of public education. Treating the plaintiffs' allegations as true, we hold that plaintiffs' constitutional challenges to Colorado's public school finane-ing scheme are justiciable.
Article IX, section 17 of the Colorado Constitution ("Amendment 23") does not affect our holding that the plaintiffs present a justi-ciable claim for relief. Amendment 23 pre-seribes minimum increases for state funding of education, but it was not intended to qualify, quantify, or modify the "thorough and uniform" mandate expressed in the education clause, which recognized as an appropriate subject for judicial review and interpretation. Amendment 23 neither relates to nor concerns the "thorough and uniform" mandate in the education clause and, therefore, does not affect our holding that the plaintiffs present a justiciable claim for relief.
Accordingly, the plaintiffs must be provided the opportunity to prove their allegations. To be successful, they must prove that the state's current public school financing system is not rationally related to the General Assembly's constitutional mandate to provide a "thorough and uniform" system of public education. On remand, 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. If the trial court finds the current system of public finance irrational and thus unconstitu
Hence, we reverse the judgment of the court of appeals We remand this case to the court of appeals to be returned to the trial court for proceedings consistent with this opinion.
II. Plaintiffs' Complaint and Proceedings Below
A. Plaintiffs' Complaint
Plaintiffs allege that Colorado's school financing system is underfunded and distributes funds on an irrational and arbitrary basis in violation of the education clause's mandate of a "thorough and uniform" system of public education. See Colo. Const. art. IX, § 2. They allege that the finance system particularly fails to provide a constitutionally adequate education to students with disabilities and to students from lower socio-eco-nomic backgrounds, ethnic and racial minorities, and non-English speaking families. Plaintiffs further claim that, because of a lack of access to sufficient financial resources and irrational restrictions on spending, local school districts lack meaningful control over educational instruction and quality, violating the districts' interest in local control and impairing their ability to implement the education clause's mandate. See Colo. Const. art. IX, §§ 2, 15.
To assist in defining and measuring whether the "thorough and uniform" mandate of the education clause has been met, plaintiffs cite the minimum public school content standards and performance objectives enacted by the legislature in furtherance of its constitutional obligations.
Plaintiffs detail specific complaints with the following components of the education funding system: the Public School Finance Act ("PSFA"), sections 22-54-1011 to-134, C.R.S. (2009); categorical program funding (non-PSFA funding for specific programs serving certain underserved student populations); and capital construction funding.
According to the complaint, the PSFA sets a base funding amount for school districts, or "total program funding," which is financed by a combination of state and local revenues. Local revenues are generated by a mill levy on the assessed valuation of the taxable property within the school district. The state's contribution amounts to the difference between the school district's total program funding and the district's local share, although every district is entitled to receive a minimum level of state funding. School districts may supplement total program funding by an override election authorizing an additional mill levy.
Plaintiffs also claim that the PSFA total program funding level is arbitrary and irrational. They allege that the base amount and statutory increases, as set by the 1994 amendment to the PSFA, were determined on the basis of "historical spending levels and political compromise ... and not upon a valid determination of the actual costs to provide every student with an opportunity for a constitutionally adequate, quality education, or to an education that meets the standards and goals mandated by education reform litigation and the Consolidated State Plan."
In addition, plaintiffs allege that supplemental funding above the PSFA total program amount, intended to meet the needs of certain underserved and minority student populations, is insufficient and irrationally distributed. Plaintiffs claim that the state arbitrarily limits supplemental funding for eligible ELL students to a maximum of two years of funding per student,
Plaintiffs also cite a 2000 study prepared for the State Board of Education, which found that the state's financial contribution to special education services was inadequate and that the funding formula relied too heavily on local taxation as a source of revenue.
Lastly, plaintiffs claim that the state fails to provide constitutionally adequate funding for capital construction, particularly harming students residing in low property wealth districts. Plaintiffs allege that the amount allocated to the capital reserve fund under the PSFA formula is significantly less than the amount of capital expenses incurred by a school district. To make up the difference, plaintiffs state that school districts must contract for bond indebtedness, which is repaid by a local tax levy on real property within the district's boundaries. According to the complaint, property taxes yield widely disparate revenues per pupil across districts, ranging from $1.1 million of assessed value per pupil in one district to $18,027 of assessed value per pupil at the Sanford School District No. 6 in the San Luis Valley. Plaintiffs allege that forty percent of Colorado's school districts do not have sufficient bonding capacity to meet their capital needs and, therefore, cannot adequately meet the educational needs of their students or effectively exercise local control over instruction.
Plaintiffs sought a declaration from the trial court that the existing system of public school finance is unconstitutional under the education clause and the local control clause. Plaintiffs also sought an injunction compelling the state defendants to establish, fund, and maintain a thorough and uniform system of free public schools throughout the state. They asked that the court retain continuing jurisdiction over the matter until the state defendants complied with their constitutional obligations.
B. The State Defendants' Response
The state defendants filed a motion to dismiss the plaintiffs' complaint pursuant to C.R.C.P. 12(b)(1) and 12(b)(5). They asserted that the plaintiff school districts, as political subdivisions of the state, lacked standing to challenge the adequacy of the education financing system on the basis of the local control clause. In addition, they argued that the plaintiffs raised a nonjusticiable political question because the adequacy of the school system and its funding mechanisms are matters committed wholly to the legislative branch, and they contend that the judiciary lacks manageable standards by which to resolve the issue. The state defendants further argued that plaintiffs' claims are precluded by Amendment 28, which the state defendants assert sets the constitutionally-minimum level of state funding required by the education clause.
C. Trial Court Order
Without taking evidence, the trial court granted the state defendants' motion to dismiss pursuant to C.R.C.P. 12(b)(5), ruling that the plaintiffs failed to state a claim upon which relief could be granted. The court determined that Amendment 28 sets the minimum standards for educational funding and that the question of whether Amendment 23 levels of funding are adequate is a nonjusticiable political question which the General Assembly has the sole authority to answer. The court also ruled that the plaintiff school districts lacked standing to challenge the constitutionality of school financing, but did not address the plaintiff parents' standing.
D. Court of Appeals' Decision
The court of appeals affirmed the trial court's ruling that the school districts lacked
Applying Baker, the court of appeals first reviewed the text of the education clause, which states in relevant part that "The general assembly shall ... provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state...." Id. at 32 (quoting Colo. Const. art. IX, § 2). Based on this language, and citing the legislature's plenary authority over appropriations, see Colo. Const. art. V, § 32, the court of appeals concluded that the Colorado Constitution commits the issue of educational adequacy and financing solely to the legislature. Lobato,
The court of appeals also reasoned that there were no judicially manageable standards to assess the constitutionality of the public school finance system. It asserted that judicial attempts to evaluate educational adequacy and financing would require excessive intrusion into questions of social policy and appropriations, both being questions constitutionally reserved for the legislature. Id. at 37-40.
Because the court found the plaintiffs' claims to be nonjusticiable under Baker, the court did not decide whether the claims were also precluded by Amendment 28. Lobato,
The plaintiffs now seek review of the court of appeals' judgment on school district standing and justiciability.
III. Standard of Review
A motion to dismiss pursuant to C.R.C.P. 12(b)(5) tests the sufficiency of the complaint. Pub. Serv. Co. of Colo. v. Van Wyk,
IV. School District Standing
We do not address the constitutional question of whether the school districts have standing. The court of appeals held sua sponte that the plaintiff parents possess standing, and neither the plaintiffs nor the defendants contest that holding on appeal.
V. Justiciability
Next, we address the court of appeals' holding that claims regarding educational quality and adequacy of the state's public school financing system brought pursuant to the education clause, article IX, section 2 of the Colorado Constitution, present nonjusticiable political questions. We reverse the court of appeals and conclude that the issue is justiciable.
As a preliminary matter, we note that when Colorado became a state, public education was an important and prominent concern. The 1875 Enabling Act, which granted Colorado statehood, required as a precondition of admission to the Union that land be set aside "for the support of common schools." See 1875 Enabling Act, §§ 7, 14. The education clause, as it is worded today, has been part of the Colorado Constitution since statehood,
The political question doctrine establishes that certain constitutional provisions may be interpreted and enforced only through the political process. Erwin Cheme-rinsky, Interpreting the Constitution 99-105 (1987). In Colorado, we have recognized that "[the judiciary's avoidance of deciding political questions finds its roots in the Colorado Constitution's provisions separating the powers of state government." Colo. Common Cause v. Bledsoe,
We note that this court has cited or applied the Baker justiciability analysis only in rare cireumstances. This court has never invoked this test to preclude judicial review of a statute's constitutionality. Seq eg., Busse v. City of Golden,
The federal political question doctrine, as articulated in Baker, has been subject to debate and criticism by leading scholars.
Scholars examining Baker also caution against mechanically applying the federal political question doctrine to state cases. Justice Brennan, who authored Baker, declared that "state courts that rest their decisions wholly or even partly on state law need not apply federal principles of standing and justi-clability that deny litigants access to the courts." William J. Brennan, State Constitutions and the Protections of Individual Rights, 90 Harvy. L.Rev. 489, 490-92 (1977); see also Helen Hershkoff, State Courts and the "Passive Virtues": Rethinking the Judicial Fumetion, 114 Harvy. LRev. 1834, 1940 ("ISltate courts, because of their differing
Important differences exist between federal and state constitutional law on judicial power and the separation of powers. The federal courts are courts of limited jurisdiction. Lujan,
In contrast to federal courts, Colorado district courts are courts of general jurisdiction. Colo. Const. art. VI, § 9. As we stated in Lujan, the Colorado Constitution is not one of limited powers where the state's authority is restricted to the four corners of the doeument. Id. at 1017. Colorado courts are common law courts and, as such, possess jurisdiction to construe the common law unless the General Assembly acts to the contrary. § 24-211, C.R.S. (2009). The common law of England, as it existed March 24, 1607, was adopted as the law of Colorado unless repealed or abrogated by the General Assembly. See, People ex rel. Attorney Gen. v. News-Times Publ'g Co.,
As such, Colorado courts have broader jurisdiction than their federal counterparts. See, e.g., Hershkoff, supra, at 1888. In Colorado and several other states, courts may render advisory opinions on questions submitted by the legislature or executive. Note, Advisory Opimions on the Constitutionality of Statutes, 69 Harvy. L.Rev. 1302, 1302-08 (1956); Colo. Const. art. VI, § 8. State courts also have a more accepted and established role in promulgating common law than federal courts. See, eg., Hershkoff, supro at 1888-89; W. Hedges Robinson, Jr., "The Growth of the Judicial System in Colorado," in 2 Colorado and Its People: A Narrative and Topical History of the Centenmial State 3869, 382-83 (Leroy R. Hafen, ed., 1948) (recognizing the significant influence of Colorado state courts in the development of water law).
Rights enumerated in the United States Constitution have often been described as negative rights, recognizing only what areas the government cannot infringe upon. Seq, e.g., DeShamey v. Winnebago County Dep't of Soc. Servs.,
Keeping in mind the debate surrounding Baker and its applicability to state claims involving affirmative constitutional rights, we now consider the approach taken in Lyjan, which recognized the authority of the judiciary to review whether the state's public school financing system that existed then was constitutional.
The Lyjan plaintiffs, like the plaintiffs here, sought a ruling that Colorado's public sehool financing system was unconstitutional, but on educational equality grounds, as opposed to adequacy grounds.
Central to Lwjan's holding was its interpretation that the education clause contains a substantive mandate to the state subject to review by the courts. Id. The Lan court found that the clause is "satisfied if thorough and uniform educational opportunities are available through state action in each school district" and "each school district must be given the control necessary to implement this mandate at the local level." Id.; see also id. at 1027 ("Stated simply, Art. IX, see. 2 is a mandate to the State through the legislature to establish a complete and uniform system of public education for Colorado elementary and secondary school students.") (Erickson, J., specially concurring).
Because the Lwjan plaintiffs challenged the system on equality grounds, not adequacy grounds, the court only briefly discussed what minimum level of educational opportunities would be necessary to meet the "thorough and uniform" standard. The court referenced a West Virginia case, Pauley v. Kelly,
Lujan thus concluded that the General Assembly's own laws and pronouncements, 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.
Despite Lyjan's explicit pronouncement that the court's "function is to rule on the constitutionality of our state's system" of public education,
Article III of the Colorado Constitution equally divides the powers of government between the executive, legislative, and judicial branches. See Pena v. Dist. Court of Second Judicial Dist.,
The court of appeals asserted that to decide the plaintiffs' case on the merits would "present a substantial risk of judicial intrusion" into the General Assembly's power of appropriations. Lobato,
As discussed, Lyjan explicitly recognized that the legislature is constitutionally mandated to implement a "thorough and uniform" system of public education.
The scope of the court's review in this area, however, is limited. As Lyjan explains, "whether a better financing system could be devised [by the legislature] is not material . as our sole function is to rule on the constitutionality of our state's system."
While our representative form of government and democratic society may benefit ... from a public school system in which each school district spends the exact [same] dollar amount per student with an eye toward providing identical education for all, these are considerations and goals which properly lie within the legislative domain. Judicial intrusion to weigh such considerations and achieve such goals must be avoided.
Id. at 1018. While the Lyjan court went on to decide the plaintiffs' claims on the merits, it applied the minimally-intrusive standard of rational basis review to the plaintiffs' equal protection claims, inquiring into whether the state's public school financing system rationally furthered a legitimate state purpose. Id. at 1022.
Applying this standard of review, the Lu-jan court found that a legitimate state purpose of the state's public school financing system was local control over educational instruction and that this purpose was rationally furthered by the use of local taxes. Id. at 1022-28. This system gave school districts the freedom to devote more money to education than the state-guaranteed minimum amount of funding. Id. The court ree-ognized that, as a consequence of the system, the lower property wealth districts had less fiscal control than the wealthier ones. That result, by itself, was not enough to render the funding scheme unconstitutionally discriminatory under the equal protection clause, as there was no requirement that the
The Lyjan court also applied rational basis scrutiny to evaluate the constitutionality of statutory provisions limiting a locality's ability to raise funds for educational purposes. These provisions, similar to the capital construction limits at issue in this case, tied the outer limit on the amount of money a municipality could raise to the taxable valuation of property within each school district. The court concluded that the provisions were rationally related to the legitimate state purpose of controlling the public debt and were constitutional. Id. at 1023-24.
When it reviewed the rationality of the state's public school financing system, taking into account the state's goals of local control and minimizing the public debt, the Lyjaon plurality satisfied its constitutional obligation to "determine what the law is," without usurping the legislature's authority over education policy.
Hence, we hold that the judiciary must similarly evaluate whether the current state's public school financing system is funded and allocated in a manner rationally related to the constitutional mandate that the General Assembly provide a "thorough and uniform" public school system. This rational basis review satisfies the judiciary's obligation to evaluate the constitutionality of the public school system without unduly infringing on the legislature's policymaking authority. The court's task is not to determine "whether a better financing system could be devised," Lyjan,
The Lyjan court engaged in rational basis review of whether the state's system, which provided for revenue differences between the districts, violated the "thorough and uniform" mandate. See id. at 1024-26. We see no reason to devise a different standard of review in this case, where the plaintiffs also assert substantive claims under the same constitutional provision. Here, plaintiffs allege that the PSFA base funding amount and statutory increases are based on "historical compromise," as opposed to a rational determination of the amount it would cost to implement the "thorough and uniform" mandate or the cost of providing an education that meets the standards and goals mandated by education reform efforts. Citing an independent cost study, plaintiffs allege that the current funding levels do not allow students the opportunity to meet the standards and objectives established in education reform legislation. In addition, plaintiffs allege that funding for underserved student populations and capital construction is insufficient and irrationally dependent on local property taxes. Plaintiffs further allege that the state's public school financing system is unconstitutionally irrational because it prevents the district from implementing the education clause mandate at a local level.
In sum, plaintiffs allege that the state's public school financing system is unconstitutional because it is underfunded and disburses funds on an irrational and arbitrary basis in violation of the "thorough and uniform" mandate. In an appropriate case, as was the case in Lyjan, our courts have the responsibility to review the state's public school funding scheme to determine whether this system is rationally related to the General Assembly's constitutional mandate to provide a "thorough and uniform" system of public education. Hence, plaintiffs' constitutional challenges to Colorado's public financing scheme present appropriate claims and are justiciable.
The plaintiffs are entitled to the opportunity to prove their allegations. To be successful, they must demonstrate that the school finance scheme is not rationally related to the constitutional mandate of a "thorough and uniform" system of public education. The trial court must give significant
VI. Amendment 23
The state defendants assert that Amendment 28, put in context, sets the constitutionally minimum level of state funding required by the education clause, and therefore, the plaintiffs do not present a justiciable question. The trial court agreed, finding that Amendment 28 "clearly mandates a minimum level of state education funding," and that the levels dictated by Amendment 28 are "consistent with the goals of the education clause." It ruled that the question of whether Amendment 28 levels of funding are adequate is a political question to be decided by the legislature and the voters. We disagree with this interpretation of Amendment 28.
When construing a constitutional amendment, the duty of the court is to "give effect to the electorate's intent in enacting the amendment." Zaner v. City of Brighton,
Amendment 28 was adopted by voter initiative in 2000. By its plain terms and as described in the Blue Book, Amendment 23 increases per-pupil funding and funding for categorical programs by a minimum rate of inflation plus one percentage point until the fiscal year 2010-11, and thereafter by at least the rate of inflation. Colo. Const. art. IX, § 17(1). Amendment 28 also requires that total state aid provided through the PSFA increase by at least five percent annually. Id. § 17(5). To finance the increased revenue demands, Amendment 23 requires that the state divert a portion of tax collections to a state education fund exempt from the revenue and spending limits of article X, section 20 of the Colorado Constitution. Id. § 17(4).
While the Blue Book accurately explains that Amendment 28 "sets a minimum increase in funding,"
As we have shown, Amendment 23 pre-seribes minimum increases for state funding of education. It was not intended to qualify, quantify, or modify the "thorough and uniform" mandate expressed in the education clause, which Lyjan recognized as an appropriate subject of judicial review. Consequently, the Amendment 23 mandate relates solely to a minimum level of funding. It neither relates to nor concerns the "thorough and uniform" mandate in the education clause and, therefore, does not affect our holding that the plaintiffs present a justicia-ble claim for relief.
VII Conclusion
For the reasons stated above, the court of appeals' judgment is reversed, and we remand this case to the court of appeals to be returned to the trial court for proceedings consistent with this opinion.
Notes
. In their complaint, plaintiffs also alleged that local school tax levies for education actually constitute state taxes subject to, and in violation of, the constitutional requirement of uniform taxation within tax districts. See Colo. Const art. I, § (1)(a). The trial court concluded that this court's decision in Lujan,
. See, eg., the Educational Accountability Act of 1971, §§ 22-7-101 to-107, C.R.S. (2009); Colorado Basic Literacy Act, §§ 22-7-501 to-507, CRS. (2009); Education Accreditation Act of 1998, §§ 22-11-101 to-105, C.R.S. (2009); Safe Schools Act, § 22-32-109.1, C.R.S. (2009); Accountability for Alternative Schools Act, § 22-7-604.5, CRS. (2009); English Language Proficiency Act, §§ 22-24-101 to-106, C.R.S. (2009); and the Colorado Commission on Higher Education, § 23-1-113, C.R.S. (2009).
. A recently released report by the United States Census Bureau, based on 2006-07 figures, found that Colorado remained ranked 49th in education expenditures per $1,000 of personal income. U.S. Census Bureau, Public Education Finances 2007 12 (2009), available at http://www 2.census.gov/govs/school/07f33pub.pdf. This same report also found that Colorado ranked 40th in overall spending per pupil in 2007. Id. at xiii; see also Burt Hubbard, "Colo. at 40th in K-12 funds per student," Denver Post, at B-1 (July 28, 2009).
. The Consolidated State Plan was adopted by the State Board of Education in order to comply with Colorado's obligations under the federal No Child Left Behind Act of 2001, 20 U.S.C. §§ 6301-6578 (2006). Like the standards-based education reform statutes recently passed by the legislature, the Consolidated State Plan adopts certain education proficiency targets, objectives, and accountability measures.
. See § 22-24-104(3), C.R.S. (2009). An amici curiae brief submitted by Padres Unidos and the Multicultural Education, Training & Advocacy, Inc. ("META") also argues that the two-year maximum for state supplemental ELL funding is arbitrary and has no basis in research. It cites to contrary evidence indicating that it takes four to seven years for ELL students to become proficient in English. See, eg., Kenji Hakuta, et al., How Long Does It Take English Learners to Attain Proficiency? The University of California Linguistic Minority Research Institute Policy Report 2000-1 (2000), available at http://caselinks. education.ucsb.edu/casetrainer/CLADContent/ Clad Language/node7/theory/HowLong.pdf.
. Plaintiffs note that, in 2004-05, the state contributed fifteen percent of the total funding for special education services. The federal government provided an additional fifteen percent, and the remaining seventy percent was paid from school district general operating funds. According to the complaint, the seventy percent contribution from the school district general operating fund is more than double the national average of 32.2 percent from local general operating funds.
Although the plaintiffs' complaint was filed in 2004, adequate funding for special education services in Colorado remains an ongoing and controversial issue. In July of this year, the Denver Post reported that complaints regarding the treatment of public school children with disabilities "may be increasing" as a result of insufficiently-trained staff and a lack of necessary funds. Karen Auge, "Without Funds, Colorado's Special Ed Often Can Fall Short," Denver Post (Jul. 13, 2009) available at http://www. denverpost.com/search/ci_12818543. According to the article, the State of Colorado ranks 51st in a field that includes the District of Columbia for its contribution to special education. Id.
. Baker phrased the factors for identifying a non-justiciable political question as follows:
Prominent on the surface of any case involving a political question is [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
. We granted certiorari on the following two issues:
1. Whether the court of appeals erred in holding that claims regarding educational quality and adequacy of school funding brought pursuant to article IX, section 2 of the Colorado Constitution (the education clause) present nonjusticiable political questions.
2. Whether the court of appeals erred in holding that the school districts do not have standing to bring suit under article IX, section 15, of the Colorado Constitution (the local control clause) challenging the constitutionality of the Colorado system of public school finance.
. We note that if the plaintiff school districts were to inject novel issues into the case or otherwise invoke the court's subject matter jurisdiction, then the school districts would have to possess independent standing, and the trial court would evaluate the school district's standing.
. See Proceedings of the Constitutional Convention for the State of Colorado 1875-1876 185 (Smith Brooks Press 1907).
. See, eg., Erwin Chemerinsky, Interpreting the Constitution 99-105 (1987) (arguing that the political question doctrine, which allows for constitutional provisions to be interpreted and enforced only through the political process, is "inconsistent with the fundamental purpose of the Constitution: safeguarding matters from majority rule"); Martin Redish, Judicial Review and the Political Question, 79 Nw. U.L.Rev. 1031, 1059 (1985) (asserting that the political question doctrine is problematic because it allows the federal government or one of its branches to breach constitutional boundaries without the check of judicial review); Linda Sandstrom Simard, Standing Alone: Do We Still Need the Political Question Doctrine?, 100 Dick. L.Rev. 303 (1996) (arguing that, due to heightened standing requirements imposed by the Supreme Court in recent cases, the political question doctrine retains little or no independent purpose, and should be abolished).
. We find the extensive criticism of the "judicially manageable standards" factor particularly relevant as the court of appeals devoted a large portion of its justiciability analysis to this factor, ultimately concluding that no such standards exist to evaluate the constitutionality of the public school finance system. See Lobato,
. Many other states examining the justiciability of education adequacy claims have also declined, although not explicitly, to apply the Baker factors. Instead, they have relied on their own education clauses, as well as state constitutional principles concerning separation of powers and judicial review, to determine the outcome of the justiciability question. See, eg., Lake View Sch. No. 25 v. Huckabee,
. In Lujan, the plaintiffs were school children residing in sixteen of 181 school districts located within the state.
. In a subsequent case, Justice Kourlis cited Lujan for the proposition that the education clause imposes a constitutional mandate. See Owens v. Colo. Cong. of Parents, Teachers & Students,
. Justice Erickson, whose concurring vote was necessary to the ultimate disposition of Lujan, also relied on out-of-state jurisdictions to define the meaning of the "thorough and uniform" clause. In doing so, he incorporated the following language from the Washington Supreme Court, whose state has a constitutional provision similar to Colorado's education clause:
A general and uniform system, we think, is, at the present time, one in which every child in the state has free access to certain minimum and reasonably standardized educational and instructional facilities and opportunities to at least the 12th grade ... and with access by each student of whatever grade to acquire those skills and training that are reasonably understood to be fundamental and basic to a sound education.
Lujan,
. Since Lujan, the General Assembly has enacted additional education reform statutes with proficiency targets and content standards, which the plaintiffs in this case assert, and we agree, may also be used to help evaluate the constitutionality . of the legislature's actions.
. A brief submitted by the Colorado Lawyers Committee and the Colorado Center on Law and Policy directs our attention to a litany of additional cases where this court has adjudicated claims implicating the General Assembly's authority over appropriations, including cases where the court ultimately required an additional expenditure of state funds. See, eg., Indus. Claim Appeals Office v. Romero,
. Other state courts deciding school funding challenges have similarly declared that "the proper scope of our review is limited to determining whether the current system meets constitutional muster." DeRolph v. State,
. We note that there have been substantial changes in the PSFA since Lujan was decided in 1982. Much of this detail is discussed in Mesa County Board of County Commissioners v. State,
. Other state courts that have found their school funding scheme constitutionally inadequate allowed the legislature time to develop the proper remedy. See, eg., DeRolph,
. An amicus curiae brief submitted by Great Education Colorado in support of plaintiffs notes that an earlier draft of the Blue Book language
Dissenting Opinion
dissents.
The Colorado Constitution directs the General Assembly to "provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state," placing discretionary education questions in Colorado squarely and solely within the legislative ambit. Colo. Const. art. IX, § 2. That language, however, does not completely foreclose any judicial review of education in Colorado, but it does implicate the political question doctrine and its constraints on justiciability. See Lujan v. Colo. State Bd. of Educ.,
Therefore, I believe this court should adopt the United States Supreme Court's framework defining the parameters of the political question doctrine and apply it to this issue. Baker v. Carr,
For that reason, I respectfully dissent from the majority opinion regarding justicia-bility and would hold this issue not appropriate for judicial review.
I. The Political Question Doctrine
The political question doctrine traces its roots to the earliest days of the judiciary, when the Court struggled to define its role and level of oversight of the executive and legislative branches. See generally Marbury v. Madison,
Such a view remains compelling today. The United States Supreme Court noted as recently as 2004 that, although Marbury,
This court too has recognized the political question doctrine, maintaining the position that "the resolution of [political questions] should be eschewed by the courts." Colo. Gen. Assembly v. Lamm,
The judiciary's avoidance of deciding political questions finds its roots in the Colorado Constitution's provisions separating the powers of state government, see e.g., Colo. Const. art III, and recognizes that certain issues are best left for resolution by the other branches of government, or 'to be fought out on the hustings and determined by the people at the polls.
Colo. Common Cause,
In 2008, we renewed our position that the political question doctrine applies in this state, declaring that "courts must refrain from reviewing controversies concerning policy choices and value determinations that are constitutionally committed for resolution to the legislative or executive branch...." Busse v. City of Golden,
Thus, our own precedent demands that this court adhere to the constraints of the political question doctrine, and it should not be ignored or minimized as applied to this case. Indeed, the political question doctrine is not some novel theory plucked from the outskirts of jurisprudence; it is a core tenet of this state's judiciary rooted directly in the Colorado Constitution.
It is for this reason that I take issue with the majority's attempt to minimize this court's history of applying the political question doctrine by stating that the doctrine has never yielded a finding of nonjusticiability when applied. It is important to differentiate between the very existence of the doctrine-and, in turn, the majority's apparent calls for abandonment of the doctrine outright-and the application of the doctrine. See maj. op. at 369 n.11, 871. Indeed, without explicitly stating its aims, the majority seems to be arguing for an absolute rejection of the political question doctrine and its self-imposed check on judicial decision-making.
It is and should remain this court's practice to consider the justiciability of questions brought before it. I would not abandon years of both federal and Colorado jurispru
II. Application of the Baker Factors
After discussing the merits of the political question doctrine, this court in Colorado Common Cause employed the Baker framework to determine justiciability. We should use the same approach in this case.
Specifically, the Baker court held that any one of the following six factors could sustain a finding of nonjusticiability:
[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [8] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker,
A. -A Demonstrable Textual Constitutional Commitment of the Issue to a Coordinate Political Department
In considering this first factor, the Supreme Court noted that:
Deciding whether a matter has in any measure been committed by the Constitution to another branch of government ... is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine.
Baker,
Therefore, in weighing the first factor we must look to both the exact constitutional language in question and to the prior cases which offer an interpretation of that language. The constitutional language controlling this issue reads: "The general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state...." Colo. Const. art. IX, § 2.
Moreover, our precedent in Lyjan strongly suggests that this issue is constitutionally committed to the General Assembly. Interpreting the same "thorough and uniform education" clause at issue today, we held:
While it is clearly the province and duty of the judiciary to determine what the law is, the fashioning of a constitutional system for financing elementary and secondary public education in Colorado is not only the proper function of the General Assembly, but this function is expressly mandated by the Colorado Constitution.
Lujan,
In short, the plain language of the constitutional provision coupled with our precedent strongly suggest that the issue before us has been constitutionally committed to the legislative branch.
B. A Lack of Judicially Discoverable and Manageable Standards for Resolving the Case
I turn now to the second Baker factor, namely whether there are any judicially manageable standards by which to resolve the issue presented. This factor is closely tied to the first, as the Supreme Court has observed that, "the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch." Nixon v. United States,
Furthermore, our holding in Lyjan offers no standards or rules that would be of assistance here because our holding in Lujan only applied to an equal protection claim. Lyjan,
The Lyjan court then turned to the purely Colorado constitutional claim that unequal per pupil spending violated the "thorough and uniform" clause. Id. at 1024-25. Lyjan, however, only defined what the constitution does not require, specifically uniform and equalized spending per pupil. In support of its ruling that only "uniform educational opportunities" must be available, the Lyjan court merely cited instances where this court had interpreted aspects of the education clause in response to discrete issues demanding "yes" or "no", "constitutional" or "unconstitutional" answers. Id. at 1025 (emphasis added).
The majority refers to "Lujan's explicit pronouncement that the court's function is to rule on the constitutionality of our state's system' of public education," but the majority fails to recognize the context surrounding
Moreover, the majority states that in Lu-jan "the court affirmed ... that [it] has the responsibility to review whether the actions of the legislature are consistent with its obligation to provide a thorough and uniform public school system." Maj. op. at 872. Again, this is a misreading of the Lyjan opinion, and it is instructive only as evidence of the majority's conflation of Lyjan's separate equal protection and "thorough and uniform" holdings.
The majority writes that "[the Lujan court engaged in rational basis review of whether the state's system ... violated the 'thorough and uniform' mandate." Maj. op. at 374. This is simply untrue-the Lujan court never references any test for "thorough and uniform," uses the words "rational basis," or posits any standard of review. See Lujan,
On the other hand, the plaintiffs today ask this court to define an "adequate" or "thorough" education in this state, but this intangible concept is ill-fitted for a judicial rule. Plaintiffs ask:
[That this Court enter judgment declaring that the education clause guarantees to each school age resident of the state the right to a public education sufficient to permit him or her to participate meaningfully in the civic, political, economic, social, and other activities of our society and the world, and to exercise the basic civil and other rights of a citizen of the State of Colorado and the United States of America. This is the "constitutionally adequate, quality education" that must be established and maintained-and must be funded in order to be more than an empty promise.
Pet'r Reply Br. 14. Plaintiffs attempt to constrain this request by directing the courts to defer all specific decisions to the General Assembly, but, as other state courts have found, such a partitioning of responsibilities is not workable in reality. Pet'r Br. at 80; See, e.g., infra n.10 (describing the New Jersey courts' attempts to manage education from the bench).
The central feature of a "judicially manageable standard" is a logical framework that can guide future courts. Vieth,
Finally, I believe that this court is not in a position to devise a judicially manageable standard on which to evaluate the adequacy or thoroughness of an education. There is no precedent to guide our hand in fashioning a standard, creating the unacceptable appearance of an arbitrary judicial decree. In Lujan, we recognized that:
We have never been called upon to interpret article IX, section 2 [the "thorough and uniform" clause] in any context which would prove helpful to this case although the provision is discussed in many cases. Also, we are unable to find any historical background to glean guidance regarding the intention of the framers.
Lujan,
The lack of any constitutional or judicial history to guide our interpretation distinguishes this case from other state cases that have created educational standards from the bench. As the court of appeals correctly observed, "the contours of a 'quality' public education cannot be ascertained by judicially discoverable or manageable standards because the education clause 'provides no principled basis for a judicial definition." Lobato,
In addition, we have already held that the education clause itself "mandates the General Assembly to provide to each school age child the opportunity to receive a free education, and to establish guidelines for a thorough and uniform system of public schools." Lujan,
C. The Impossibility of Deciding the Case Without an Initial Policy Determination of a Kind Clearly for Nonjudicial Discretion
We have consistently held that "courts must avoid making decisions that are intrinsically legislative. It is not up to the court to make policy or to weigh policy. If we determine that the issue is legitimately one over which the General Assembly has authority, then our inquiry must end." Town of Telluride v. Lot Thirty-Four Venture, L.L.C.,
Applying this general jurisprudence to the education clause, we observed in Lyjan that:
While our representative form of government and democratic society may benefit to a greater degree from a public school system in which each school district spends the exact dollar amount per student with an eye toward providing identical edu*382 cation for all, these are considerations and goals which properly lie within the legislative domain. Judicial intrusion to weigh such considerations and achieve such goals must be avoided. This is especially so in this case where the controversy, as we perceive it, is essentially directed toward what is the best public policy which can be adopted to attain quality schooling and equal educational opportunity for all children who attend our public schools.
Also, while some state courts have chosen to opine on constitutional provisions similar or identical to ours, they have offered wildly disparate conclusions. For example, New Jersey defined "thorough" as "more than simply adequate or minimal," but Montana focused on promoting "physical well-being" in order to become an asset to the state. Compare Robinson v. Cahill,
And, of course, onee courts begin to make policy, it is difficult to stop. The Nebraska Supreme Court observed: "The landscape is littered with courts that have been bogged down in the legal quicksand of continuous litigation and challenges to their states' school funding systems. Unlike those courts, we refuse to wade into that Stygian swamp." Nebraska Coal. for Educ. Equity & Adequacy,
D. The Impossibility of a Court's Undertaking Independent Resolution without Impinging Upon Coordinate Branches of Government
Turning now to the fourth Baker factor, the Supreme Court demands a finding of nonjusticiability if no decision can be rendered without impinging upon legislative authority. Baker,
Overall, the first four Baker factors each yield a conclusion that defining a "thorough" education is not a justiciable question that should be heard in this court. Baker presents an established, cogent standard for weighing political questions, and this court should adhere to its conclusion that this case demands dismissal for want of justiciability.
III. Lujan and the Proper Political Question Standard
Based on the above discussion of the Baker factors, I believe that this court should not exercise its jurisdiction to decide this case but rather should find the issues posed to be nonjusticiable. My adoption of the political question doctrine and the lack of justiciability in this case should not be interpreted, however, to impose an absolute bar on educational questions in the courts. Rather, I believe that some cases involving the education clause should be adjudicated in this court. The difficulty is deciding, in a principled way, which ones present a justiciable question and which ones a political question.
As noted previously, the political question doctrine draws from the earliest days of the judiciary, and the reasoning underlying cere-ation of the principle elucidates the difficult questions confronting this court today. Speaking of the first United States Supreme Court decisions that defined the role of the judicial branch, Rachel Barkow observed:
It was appropriate at that time for courts to engage in a threshold inquiry to determine how much interpretive room a constitutional delegation of power gave the branch receiving that power. While the courts remained responsible for declaring the boundaries, it was recognized that the Constitution contemplated room for the political actors to give substantive meaning within those boundaries.
Rachel Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 Colum. L.Rev. 237, 252 (2002) (emphasis added).
When this court found Lujan justiciable, it did so as part of the "threshold inquiry" to "give substantive meaning" to the constitutional term "uniform." In holding that "[the constitutional mandate which requires the General Assembly to establish 'a thorough and uniform system of free public schools, is not a mandate for absolute equality in educational services or expenditures," the Lwjan court defined the boundary of the General Assembly's power to lie beyond absolute equality in spending.
The Lyjan court was careful to stress that "(olur decision today declares only that [the education system at the time] is constitutionally permissible" Id. at 1025. It further emphasized that, "whether a better financing system could be devised is not material to this decision, as our sole function is to rule on the constitutionality of our state's system." Id.
Turning now to the far different question presented in this case, plaintiffs here ask the court to move beyond a threshold inquiry and actually design and implement a better financing system. Lobato, 216 P.8d at 82 (plaintiffs demand "an injunction compelling defendants to design, enact, fund, and implement a school financing system...."). This request is truly remarkable in light of Lu-jan's narrow holding. Lyjan,
I believe that it is just such a distinction between properly defining constitutional parameters and improperly determining the policy questions within those boundaries that should guide this court in the future.
I hope the General Assembly will address any educational disparities that might threaten the health of this state, but I also refuse to commit the courts to the resolution of this clearly legislative policy determination.
IV. Conclusion
"Constitutions must necessarily be interpreted to meet the needs of changing times, but the critical, constitutionally-prescribed boundary separating the executive and legislative powers must remain constant." Lamm,
For these reasons, I respectfully dissent from the majority opinion regarding justicia-bility.
I am authorized to state that Justice COATS and Justice EID join in this dissent.
. It is important to distinguish between subject matter jurisdiction and justiciability in this area. As the United States Supreme Court noted, "there is a significant difference between determining whether a ... court has "jurisdiction of the subject matter' and determining whether a cause over which a court has subject matter jurisdiction is 'justiciable.'" Powell v. McCormack,
. In addressing the doctrine, the majority never states its purpose for citing a narrow collection of scholars-but not courts-criticizing the doctrine, leaving the reader to guess at the majority's reason for inclusion. One could interpret this silence as either an abandonment of the political question doctrine writ large or a more limited refusal to apply Baker to decide political questions. The former would leave this state vulnerable to unchecked judicial decision-making in political issues, while the latter would simply cause a reversion to the "seeming disorderliness" in the doctrine that the Supreme Court remedied in Baker.
. While questioning the use of Baker, the majority cites broad statements supporting the canon that allows state courts of general jurisdiction to impose separate justiciability standards from federal standards. See, eg., William J. Brennan, State Constitutions and the Protections of Individual Rights, 90 Harv. L.Rev. 489, 490-92 (1977) courts that rest their decisions wholly or even partly on state law need not apply federal principles of standing and justiciability that deny litigants access to the courts."). The fact that this is a court of general jurisdiction that need not employ Baker is not at issue, but I believe the Baker factors represent a logical and established standard for determining justiciable political questions. This court would be wise to continue using them today.
. Because I find this question nonjusticiable based upon the constitutional commitment in article IX, I find it unnecessary to delve into the more murky interpretive argument posed by defendants regarding amendment 23.
. It is important to note that the cases cited in the Lujan decision each demanded concise answers to straightforward questions. See, eg., Marshall v. Sch. Dst. Re No. 3 Morgan County,
. Specifically, plaintiffs demand this court devise a standard of adequate funding, which they define to mean "funding sufficient to assure that every school child will have a meaningful opportunity to access a course of study designed and sufficient to fulfill the requirements of the Education Clause, supported by necessary teachers, administrators, support personnel, learning materials, and facilities." Pet'r Reply Br. 2. Such an unbound request for judicial oversight quite simply exceeds the bounds of a constitutional review by this court and instead demands a new, court-imposed financing system.
. It is assumed that the majority borrows the standard from the equal protection discussion in the immediately preceding pages; otherwise, there exists absolutely no explanation for a rational basis standard in this context.
. Specifically, when asked to define its constitutional language "high quality public educational institutions," the Illinois Supreme Court held that:
The constitution provides no principled basis for a judicial definition of high quality. It would be a transparent conceit to suggest that whatever standards of quality courts might develop would actually be derived from the constitution in any meaningful sense. Nor is education a subject within the judiciary's field of expertise, such that a judicial role in giving content to the education guarantee might be warranted. Rather, the question of educational quality is inherently one of policy involving philosophical and practical considerations that call for the exercise of legislative and administrative discretion.
Comm. For Educ. Rights, 220 II.Dec. 166,
Also, in a recent case in which the plaintiffs alleged an unconstitutional and "inadequate" public school system because of insufficient funding, the Nebraska Supreme Court held, "[wle interpret the paucity of standards in the free instruction clause as the framers' intent to commit the determination of adequate school funding solely to the Legislature's discretion, greater resources, and expertise." Nebraska Coal. for Educ. Equity & Adequacy v. Heineman,
. New Jersey's experience is instructive. The New Jersey Supreme Court oversaw education from the bench for decades, "consuming significant funds, fees, time, effort, and court attention. The volume of litigation and the extent of judicial oversight provide a chilling example of the thickets that can entrap a court that takes on the duties of a Legislature." City of Pawtucket v. Sundlun,
. I refrain from discussion of the final two Baker factors because no case has considered them in any significant depth and, more importantly, my finding that all four of the first factors auger against justiciability makes further discussion unnecessary.
. See also Chiles,
. See supra section ILB.