Lead Opinion
delivered the Opinion of the Court.
1 1 The public school financing system enacted by the General Assembly complies with the Colorado Constitution. It is rationally related to the constitutional mandate that the General Assembly provide a "thorough and uniform" system of public education. Colo. Const. art. IX, § 2 (the "Education Clause"). It also affords local school districts control over locally-raised funds and therefore over "instruction in the public schools." Colo. Const. art. IX, § 15 (the "Local Control Clause"). As such, the trial court erred when it declared the public school financing system unconstitutional. We accordingly reverse.
I. Facts and Procedural History
1 2 Respondent Plaintiffs, Anthony Lobato, et al. (the "Plaintiffs"), initiated this action for declaratory and injunctive relief in 2005. They claimed that the current public school financing system violates the Education Clause because the system fails to provide sufficient funding to support a "thorough and uniform" system of free public schools. Plaintiffs also claimed that local school dis-triets' lack of sufficient financial resources, coupled with the public school financing system's restrictions on spending, prevents the districts from exerting meaningful control over educational instruction and quality in violation of the Local Control Clause.
3 Petitioner Defendants, the State of Colorado, et al. (the "Defendants", moved to dismiss the complaint. Without taking evidence, the trial court granted the Defendants' motion to dismiss on both standing and - non-justiciable - political - question grounds. Plaintiffs appealed the trial court's ruling to the court of appeals. The court of appeals affirmed the trial court's standing and political question conclusions and upheld the trial court's decision to dismiss Plaintiffs' complaint. Lobato v. State,
« 4 We granted certiorari and reversed the court of appeals. Lobato v. State,
15 With respect to the political question issue, the Court interpreted its decision in Lujan v. Colorado State Board of Education,
T6 The case proceeded to trial. Plaintiffs and Defendants presented extensive evidence addressing the constitutionality of the public school financing system. Adopting the Plaintiffs' proposed findings of fact and conclusions of law almost verbatim, the trial court held that Colorado'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 free public schools. The trial court also held that the "irrational" public school financing system violates the Local Control Clause because it deprives individual school districts of the opportunity to implement the Education Clause's "thorough and uniform" mandate. Accordingly, the trial court enjoined Defendants from continuing to execute the current public school financing system. The trial court stayed enforcement of this injunction to provide the state reasonable time to create and implement a system of public school financing that complies with the Colorado Constitution.
{7 Defendants appealed the trial court's order directly to this Court pursuant to seetion 13-4-102(1)(b), C.R.S. (2012). This appeal presents three issues for our review: (1) whether the Plaintiffs' claims present a non-justiciable political question; (2) whether the public school financing system satisfies the rational basis test articulated in Lobato I and therefore complies with the Education Clause; and (8) whether the public school financing system is constitutional under the Local Control Clause.
II. Analysis
T8 As a threshold matter, and consistent with this Court's decision in Lobato I, we hold that Plaintiffs' claims are justiciable. Addressing the substance of this appeal, we hold that the current public school financing system is rationally related to the constitutional mandate that the General Assembly provide a "thorough and uniform" system of public education. We also hold that the dual-funded public school financing system complies with the Local Control Clause because it affords local school districts control over locally-raised funds and therefore over "instruction in the public schools." As such, the trial court reversibly erred when it declared the public school financing system unconstitutional.
19 We first describe this Court's jurisdiction and the applicable standard of review. We then discuss the three substantive issues in turn.
A. Jurisdiction and Standard of Review
110 The court of appeals typically maintains "initial jurisdiction over appeals from final judgments of ... the district courts." § 13-4-102(1). We invoke our jurisdiction over this direct appeal, however, because the trial court declared the statutes that delineate the public school financing system unconstitutional. § 13-4-102(1)(b); see Town of Telluride v. San Miguel Valley Corp.,
%11 This case requires us to interpret relevant portions of the Colorado Constitution, assess the trial court's application of the
B. Justiciability
112 The questions presented in this appeal are justiciable pursuant to the law of the case doctrine. Giampapa v. Am. Family Mut. Ins. Co.,
13 This Court held in Lobato I that the Plaintiffs' claims were justiciable. Lobato I,
C. The Public School Financing System is Rationally Related to the "Thorough and Uniform" Mandate
14 The Education Clause of 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." Colo. Const. art. IX, § 2. This mandate requires the General Assembly to enact education policy that furnishes a "thorough and uniform" free education to "all residents of the state, between the ages of six and twenty-one years." Id. We held in Lobato I that the legislative scheme that makes up Colorado's public school financing system must be "rationally related to the constitutional mandate that the General Assembly provide a 'thorough and uniform' system of public education" to comply with the Education Clause. 218 P.8d at 863.
115 Despite articulating this custom-tailored rational basis test, this Court did not expressly interpret the Education Clause or define the phrase "thorough and uniform" in Lobato I. Therefore, before addressing the public school financing system, we interpret the plain meaning of "thorough and uniform" as it appears in the Education Clause. We then briefly discuss the unique type of rational basis review set out in Lobato I in light of our definition of "thorough and uniform." Finally, we apply the Lobato I test and conclude that the public school financing system is "rationally related to the constitutional mandate that the General Assembly provide a 'thorough and uniform' system of public education." See id.
1. Thorough and Uniform
{16 We hold that the phrase "thorough and uniform" in the Education Clause describes a free public school system that is of a quality marked by completeness, is comprehensive, and is consistent across the state.
117 The Colorado Constitution tasks the judicial branch with construing the meaning of constitutional language. See Colo. Const. art. VI, § 1. "In giving effect to a constitutional provision, we employ the same set of construction rules applicable to statutes." Danielson v. Dennis,
118 Although this Court has discussed the "thorough and uniform" mandate on many occasions, we have not explicitly interpreted
19 Reading the "thorough and uniform" mandate in context supports our plain language construction. First, the Education Clause requires the state to provide public school opportunities to "all residents of the state, between the ages of six and twenty-one years." Colo. Const. art. IX, § 2. This language supports our interpretation of "thorough and uniform" because a public school system that serves all Colorado residents between the ages of six and twenty-one is of a quality marked by completeness, is comprehensive, and is consistent across the state by providing educational opportunities to all Colorado residents within a broad age-range. In addition, the Education Clause provides that "[olne or more public schools" be open "at least three months in each year" in each school district to receive state funding. Id. This minimal requirement also supports our interpretation of the phrase "thorough and uniform" because it, together with the "thorough and uniform" mandate, simply establishes the constitutional floor upon which the General Assembly must build its education policy.
120 Our interpretation of "thorough and uniform" is consistent with this Court's previous treatment of the "thorough and uniform" mandate. For example, instead of affirmatively defining "through and uniform" in Lwjan, this Court described what a "thorough and uniform" system of public schools does not require.
121 Having defined the phrase "thorough and uniform," we now discuss the rational basis test delineated in Lobato I.
2. The Lobato I Rational Basis Test
22 This Court held in Lobato I that the judiciary must "determine whether the state's public school financing system is rationally related to the constitutional mandate that the General Assembly provide a 'thorough and uniform' system of public education." 218 P.8d at 8368. Inserting our interpretation of "thorough and uniform" into this test and clarifying the meaning of "rationally related" in this unique context, we hold that Colorado's public school financing system is rationally related to the "thorough and uniform" mandate of the Education Clause if it funds a public school system that is of a quality marked by completeness, is comprehensive, and is consistent across the state.
123 As this Court stated in Lo-bato I, our custom-tailored form of rational basis review "satisfies the judiciary's obligation to evaluate the constitutionality of the state's public school financing system without unduly infringing on the legislature's policy-making authority." Id. In applying this test
3. Application
The current public school financing system is rationally related to the "thorough and uniform" mandate because it funds a system of free public schools that is of a quality marked by completeness, is comprehensive, and is consistent across the state. Therefore, the financing system satisfies the Lobato I rational basis test and complies with the Education Clause. We describe the basic components of the public school financing system and then analyze its rational relationship to the "thorough and uniform" mandate in the following subsections.
a. Colorado's Public School Financing System
125 The public school financing system combines local taxes, state appropriations, and federal monies to fund the statewide standards-based public education system. The Public School Financing Act of 1994 ("PSEA") governs the majority of state and local funding for education. §§ 22-54-101 to -185, C.R.S. (2012). The PSFA sets out a uniform per-pupil formula that the state uses to calculate the amount of education funding each school district shall receive in a given year. § 22-54-104(1)(a); see, eg., § 22-54-104(5)(XIX). This formula requires the state to multiply a statutory per-pupil base level of funding by the number of students enrolled in the subject school district § 22-54-104(1)(a). The state then adjusts the resulting product to account for district-specific "factors" such as personnel costs, cost of living, concentrations of at-risk students, online education enrollment, and the number of fifth-year high school pupils enrolled in the district. § 22-54-104(2)-(4). The money each school district receives as a result of these calculations is called the district's "total program." § 22-54-104(1)(a). In response to the reality of statewide budget reductions in recent years, the state now uniformly reduces each district's total program by a "negative factor" that reflects statewide funding cuts. § 22-54-104(5)(g)(1).
26 The PSFA also defines the contours of the dual-funded public school financing system by describing the sources of revenue needed to ensure that each school district receives its total program. The "local share" of a school district's total program consists of proceeds from a mill levy upon the assessed valuation of the taxable property within a school district's boundaries and, to a lesser degree, a "specific ownership tax." See § 22-54-106(1)(a)(I). Although the statutes restrict the amount of money school districts may raise using mill levies, see § 22-54-106(2)(a), the PSFA permits school districts to supplement their total programs with additional local revenues by asking their electorates to approve additional mill levies for education purposes, see § 22-54-108. This supplemental form of local revenue for education is known as a "mill levy override." See id.
1 27 The "state share" of a school district's allocated funding is derived by subtracting the district's "local share" from its total program. § 22-54-106(1)(b)(I). The money for each school district's "state share" comes from the state general fund, the Education Fund, and from a portion of the rents generated by state school lands and federal mineral leases. See § 22-55-105, C.R.S. (2012) (general fund appropriation requirements for education).
1 28 In addition to the total program funding provided by the PSFA, the public school financing system provides "categorical" funding to serve particular groups of students and particular student needs. § 22-55-102(4), CRS. (2012) (defining "categorical programs"); § 22-55-107, CRS. (2012) (describing funding for categorical programs).
b. The System is Rationally Related to the "Thorough and Uniform" Mandate
29 The public school financing system is rationally related to the "thorough and uniform" mandate because it funds a system of free public schools that is of a quality marked by completeness, is comprehensive, and is consistent across the state. It does so using a multifaceted statutory approach that applies uniformly to all of the school districts in Colorado.
30 The primary component of the public school finance system, the PSFA, uses a standard formula that incorporates enrollment numbers, a per-pupil base amount of money, and applicable statutory factors to calculate an amount of money each district will receive in a given year from a combination of state and local sources. By supplying the single statutory framework whereby the state may calculate every district's total program, and by describing the sources of state and local revenue that make up the calculated amounts, the PSFA applies uniformly to all of Colorado's school districts and serves as the cornerstone of a public school finane-ing system that funds a public education system that is of a quality marked by completeness, is comprehensive, and is consistent across the state.
1 31 In addition, the public school financing system's "categorical" funding for particular groups of students-for example, English language learners, at-risk students, and children with disabilities-also contributes to the public school financing systern's rational relationship to the "thorough and uniform" mandate. Categorical funding allocates money beyond the base PSFA amount for children that require supplemental resources. It therefore assists in providing every child in Colorado, including children with greater needs than the general student population, with educational opportunities. Thus, categorical funding contributes to the public school financing system's rational relationship to the "thorough and uniform" mandate by helping fund a statewide public school system that is more complete and comprehensive.
132 Furthermore, the public school financing system provides a mechanism-contracting for bonded indebtedness-whereby individual school districts may ask their constituents to fund capital improvements or the construction of new school facilities. This mechanism contributes to the rational relationship between the public school financing system and the "thorough and uniform" mandate because bonded indebtedness gives local school districts the authority to generate funding for capital improvements that help facilitate the implementation of a public school system that is of a quality marked by completeness, is comprehensive, and is consistent across the state.
133 In sum, our de novo review of the relevant legislation reveals that the public school financing system is rationally related to the "thorough and uniform" mandate. The Plaintiffs did not establish beyond a reasonable doubt that the system fails to pass constitutional muster under the Lobato I rational basis test. While we sympathize with the Plaintiffs and recognize that the public school financing system might not provide an optimal amount of money to the public schools, the statutory public school financing system itself is constitutional. Accordingly, we reverse the trial court's holding that "the entire system of public school financing is not rationally related to the mandate of the Education Clause."
D. Local Control
134 The dual-funded public school financing system complies with the Local Control Clause because it affords local school districts control over locally-raised funds and therefore over "instruction in the public schools."
135 We presume that the statutes that make up the public school financing system
1836 We first describe the historic importance of local control to Colorado's public education system, and highlight the role that local control plays in the constitutionality of dual-funded state programs. We then discuss how this Court applied local control principles in Lujan,
1. Local Control Principles and Precedent
37 The Local Control Clause of the Colorado Constitution provides:
The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Satd directors shall have control of instruction in the public schools of their respective districts.
Colo. Const. art. IX, $ 15 (emphasis added).
1 38 " [T]he historical development of public education in Colorado has been centered on the philosophy of local control'" due to the freedom and flexibility local control provides. Owens,
1 39 This Court recently discussed the importance of local control to the modern dual-funded public school financing system during its review of the 2007 amendments to the PSFA. See Mesa Cnty. Bd. of Cnty. Comm'rs v. State,
140 Reflecting the Court's propensity to uphold dual-funded programs that comply with this principle, the Lyjan Court held during its equal protection analysis that an earlier version of the PSFA was "constitutional as rationally related to [the] legitimate state purpose" of promoting local control over instruction because "utilizing local property taxation to partly finance Colorado's schools is rationally related to effectuating local control over public schools."
{41 Unlike its decision to uphold the PSFA on equal protection grounds in Lyjon, this Court held in Owens that a statewide pilot program violated the Local Control Clause.
2. Application
4 42 The dual-funded public school finane-ing system at issue in this case complies with the Local Control Clause because it affords local school districts control over locally-raised funds and therefore over instruction in the public schools. As it did when this Court decided Lyjan and Mesa County, the PSFA permissibly requires that the money comprising the total program for each school district in a given year come from a combination of state and local revenues, with the local districts retaining responsibility for imposing, collecting, and expending local property taxes collected for education purposes. See § 22-54-106.
€ 43 Unlike the unconstitutional pilot program in Owens, however, the public school financing system does not affirmatively require school districts to use their locally-raised revenue in any particular manner. Even if school districts use a substantial portion of their locally-raised funds to help their students achieve state standards-as the trial court found they do-nothing in the public school financing system itself requires a particular allocation of local funds.
144 The system also provides mill levy override and bonded indebtedness mechanisms which authorize school districts to raise additional revenue beyond their total programs. These mechanisms afford school districts the opportunity to exert additional local control over instruction by generating and using supplemental local funds. While we recognize that "disparities in wealth" may impair a low-wealth district's ability to pass mill levy overrides and bonded indebtedness, such a "result, by itself, does not strike down the entire school finance system" on Local Control grounds, just as the same result did not strike down the entire school finance system for equal protection purposes in Lujan.
III. Conclusion
T 45 We have held that "courts must avoid making decisions that are intrinsically legis
Our holding today that the current public school financing system complies with the Education and Local Control Clauses of the Colorado Constitution satisfies this Court's duty "to say what the law is," see Marbury v. Madison,
Dissenting Opinion
dissenting.
149 Today, the majority abdicates this court's responsibility to give meaningful ef-feet to the Education Clause's guarantee that all Colorado students receive a thorough and uniform education. In my view, a thorough and uniform system of education must include the availability of qualified teachers, up-to-date textbooks, access to modern technology, and safe and healthy facilities in which to learn. The record, however, reveals an education system that is fundamentally broken. It is plagued by underfunding and marked by gross funding disparities among districts. Colorado's school-age population has exploded, with dramatic increases in the number of Hispanic students, low-income students, English language learners, and students with special needs. The General Assembly has failed to recognize these changes and to fund the increased costs necessary to educate these children. Colorado's education system is, beyond any reasonable doubt, neither thorough nor uniform. I would hold that Colorado's method for financing public education is not rationally related to the General Assembly's affirmative duty to provide and to maintain a thorough and uniform system of free public schools. This affirmative obligation requires the General Assembly to implement a finance system that provides Colorado's students the education system to which they are constitutionally entitled. Hence, I respectfully dissent.
I.
"50 Since statehood, the Colorado Constitution has required the General Assembly to "provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state." Colo. Const. art. IX, § 2. This Education Clause reflected the framers deeply held belief that an educated citizenry was essential to Colorado's success as a democratic society and as a state. Professor Tom Romero, an expert in Colorado constitutional history, testified that one of the provision's authors stated that the Education Clause was intended to "erect a superstructure upon a solid footing and lasting foundation, a system of education as high as our snowcapped mountains, as broad as our boundless prairies, and as free to all as the air of heaven."
{51 Then, as now, this affirmative constitutional right to public education in Colorado is of paramount importance.
T 52 These aspirational sentiments, however, do not correspond to the reality of public education in Colorado at the time of trial in August 2011. The following facts are taken from the extensive record of that 25-day trial-during which more than 80 witnesses testified, more than 2,000 exhibits were admitted, and almost 7,000 pages of transeribed testimony were produced-and from the trial court's 183-page order summarizing this ree-ord. On appeal, the defendants do not contest these facts. | >
53 Since the late 197083, education funding in Colorado has been in steady decline:
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Cary Kennedy, former treasurer for the State of Colorado, laid the foundation for admission of the above exhibit. Kennedy testified that, although the graph represented the most up-to-date data then available, Colorado has continued to make "significant cuts in education funding since 2008."
T54 Colorado is one of the wealthiest states in the nation, but it ranks 49th in the country in per-pupil spending per $1,000 of personal income. Colorado ranks 45th in the country for the amount of taxable resources dedicated to public education. In one national study, Colorado received an "F" for funding "effort"-a measure of whether a state takes advantage of its fiscal capacity to fund public education-because Colorado spends such a small percentage of its gross state product on public schools. By almost any measure, Colorado ranks in the bottom third nationally in education spending.
55 And the cost of educating Colorado's changing population continues to increase. Colorado's population of students requiring more expensive education services-such as English language learners (ELL), low-income children, and special education students-has exploded. Since 1995, Colorado's ELL population has grown 250%. In some districts, the ELL population has grown by as much as 800% in the last decade. Colorado has the fastest growing rate of childhood poverty in the nation. Across the state, 30% of students are eligible for the federal free lunch program. In the last 20 years, the percentage of "majority low income" schools has risen from 7% to 25%. In Cherry Creek School District, assistant superintendent El-ot Asp testified that nearly 80% of his stu
156 Meanwhile, the General Assembly continues to promulgate new education standards. These standards require all Colorado students to attain proficiency in a broad range of subjects and be ready for postsec-ondary education or entry into the "twenty-first-century - workforee" by - graduation. They stress "information technology application" and other modern skills. To conform to these new standards, school districts must develop updated curricula, buy new instructional materials, train teachers, and have access to modern technology. Monte Moses, the former deputy superintendent of the Cherry Creek School District, testified that his district's ability to serve its students had been "compromised dramatically" by the state's implementation of unfunded education standards. He testified that these standards require more funding, but the General Assembly has provided school districts with less.
157 These historical developments have not occurred in a vacuum. Student performance rates continue to decline. Colorado ranks 46th in the nation in the rate of high school completion. For those students who do graduate high school, 29% are not college-ready, meaning they must take remedial classes before taking college-level courses. In some districts, over 50% of students are not college-ready by graduation. According to Lieutenant Governor Joe Garcia, who testified as an expert in Colorado education policy, these percentages significantly increase for African-American and Hispanic students and for low-income students. White students are 36% more likely to complete college than Hispanic students. This is the largest "degree attainment gap" in the country and twice the national average. Additional funding is required to close these achievement gaps, but, according to John Barry, superintendent of Aurora Public Schools, "we have been on a steady decline on our resources available to move student achievement and close the achievement gap." Despite these gaps, Colorado boasts one of the most college-educated populations in the country, but most of Colorado's college graduates are from other states. According to former state Senator Keith King, this "Colorado Paradox" shows that Colorado has not prepared its own students for college. Dr. Steven Murdock, an expert in demographics, stated the problem in stark terms: "[Wle're looking at the potential for Colorado to be a poorer and less competitive state in the future than it is today."
158 This failure to educate our students has real economic and social costs. Every year, about 11,500 Colorado students drop out of high school. In some districts, Hispanic students drop out at a rate of over 50%. Studies show that high school dropouts pay fewer taxes, have higher health care costs, and are more likely to engage in criminal activity. Taking these factors into account, they result in an economic burden to the state, by conservative estimates, of $6 billion. By contrast, each college graduate represents a $44,346 benefit to the state. According to Dr. Henry Levin, an expert in the economic consequences of inadequate education, these numbers present a clear choice between investing in education now and facing heavier debt in the future. As of now, "Colorado is trading off short run budget savings for potentially much larger long run economic burdens."
159 Having reviewed the extensive record in this case, I reach a conclusion that is, in my view, inescapable: Colorado's method of financing public education is not rationally related to providing the thorough and uniform education guaranteed by the Education Clause of the Colorado Constitution. Hence, I would affirm the order of the trial court
T60 The majority holds that Colorado's public school finance system is rationally related to the thorough and uniform mandate because it "funds a system of free public schools that is of a quality marked by completeness, is comprehensive, and is consistent across the state." Maj. op. 129. The record belies this conclusion.
I 61 Many of Colorado's students lack safe and healthy school buildings. Mary Wickers-ham, who worked for Governors Ritter and Hickenlooper as an education policy advisor, testified that "the literature was uniform in its finding that [school] facilities had a direct impact on student achievement." A 2010 study found that Colorado's schools needed just under $18 billion in repairs and upgrades. The average school building is nearly 40 years old, and many have architectural problems and inadequate heating, lighting, and plumbing systems. Several witnesses testified to leaking roofs and falling ceiling tiles. The ceiling at the K-12 school in Sanford School District in the San Luis Valley caved in during standardized testing. Two schools in the Greeley area require new roofs. Many of the ceilings in that district are coated with asbestos and when parts of these asbestos-coated ceilings collapse, the school must close entire hallways to conduct air testing. A water main broke under Sheridan High School in the southwest Denver metro area, and the high school is sinking. Former state Speaker of the House Andrew Romanoff reported seeing classrooms where children "had worn a dent in the floorboards around a heater they had to huddle around during the cold of winter." - Some schools are infested with mice, bats, or rattlesnakes.
I 62 Many schools do not comply with the Americans with Disabilities Act and are largely inaccessible to students with special needs. Keila Barish, a recent graduate of Pueblo West High School, has a form of dwarfism, is three feet tall, and uses a seooter to move from place to place. She could not reach, let alone open, many of the doors at school. She could not reach bathroom sinks to wash her hands. When the elevator was broken, which happened several times a week, she relied on fellow students to carry her to second-floor classrooms.
T63 Students lack books and basic supplies. Schools in Adams County, Boulder, Colorado Springs, Greeley, Pueblo, and rural areas do not have enough textbooks for each student to have one. Some schools allow students to take books home only on a first-come, first-served basis. Other schools employ strict no-take-home policies because if a student loses or damages a book, they do not have money to replace it. Like many teachers who testified, Anastasia Campbell, a teacher at Nikola Tesla High School in Colorado Springs, buys school supplies for her students with her own money. She also collects half-used notebooks and other slightly used supplies for her students. Jefferson High School in Greeley stocks its school library using community donations. In the Boulder Valley School District, Fairview High School has to, in the words of principal Donald L. Stensrud, "choose desks or choose books."
[ 64 The textbooks that districts do have are often out of date. Kevin Edgar, the superintendent of Sanford, testified that a high school student approached him with a physics book and said, "I'm using the same book you did." Edgar had used that same book as a junior in 1980. Justine Bayles, a teacher at Cortez Middle School in southwestern Colorado, found a student's drawing of an airplane on a picture of the World Trade Center twin towers in a textbook predating the September 11 terrorist attacks. She left the drawing in the book as an "update." The history textbooks at Nikola Tesla High School identify Bill Clinton as the current president. In the Boulder Valley School District, the math textbooks are ten years old.
T 65 In the opinion of Daniel Maas, a technology expert with the Littleton School District, Colorado's education standards require every student, from 4th grade on, to have access to a computer all day, but many schools lack current technology. Teachers at Sheridan Middle School have an unofficial "try twice" rule to deal with their aging
1 66 Students who require additional support, such as ELL students, special education students, and gifted and talented students, do not receive it. At best, Colorado funds two years of English-language instruction despite expert testimony that ELL students need between four and seven years of instruction to become proficient. Several parents testified that their children, who did not speak English when they began school, received only one or two years of English-language instruction and still struggle to speak English in high school. One Aurora high school has one full-time and one part-time teacher to serve about 800 ELL students. In Aurora Public Schools, however, ELL students speak almost 100 different languages. In some schools in Colorado Springs, students speak more than 100. The chief accountability officer for Aurora Public Schools, Lisa Escarcega, testified that, in her expert opinion, no district in Colorado is capable of meeting the needs of its ELL students.
T 67 Colorado ranks 51st, or last, among all states and the District of Columbia in state spending on special education students. The reading and math seores for Colorado's special education students have remained flat and are starting to decline. Parents in the Boulder and Denver school districts testified that their special-needs children were shunted from school to school and had to leave programs that were working because the programs were deemed too expensive. One plaintiff was not identified as a special education student until 10th grade, at which time she read at a 2nd-grade level. At first, she received five hours a week of specialized instruction, but her time was reduced to one hour a week in 11th grade and a half-hour a week in 12th grade. Her grades did not improve. She scored an 11 on the ACT,
1 68 Colorado's director for gifted and talented programs, Jacquelin Medina, testified to a lack of funding for gifted and talented programs. Two Boulder elementary schools rely on parent volunteers to help with gifted and talented programming because the schools do not have money to hire enough teachers. Many rural districts do not offer advanced placement classes because they do not have the teachers to teach them. At one rural school, 8th graders identified as gifted and talented in math were given a CD and sent to the library to teach themselves algebra. Taylor Lobato, the named plaintiff in this case, graduated first in her class and was, according to Superintendent George Welsh, one of the best students he had ever seen. Still, as a freshman at the University of Denver, her professors sent her to the grammar center because she lacked grammar skills. Whereas her college roommate received 45 college credits for advanced placement classes she took in high school, Lobato took no advanced placement classes because her district, like many others, could not afford to offer them.
IIL.
T 69 The majority interprets "thorough" to mean "complete" and "comprehensive" and "uniform" to mean "consistent," holding that
T 70 Colorado could achieve a constitutionally thorough system of education with adequate funding. Colorado could achieve a constitutionally uniform system of education with an equitable method to distribute available funds. Having reviewed the extensive trial record, the Public School Finance Act (PSFA), and the other funding statutes, I am convinced that Colorado has done neither.
A. Thorough
T71 Since the inception of the PSFA, the base amount of per-pupil funding has never been determined in relation to the costs nee-essary to educate Colorado's students. It was born out of political compromise and budgetary wrangling. The PSFA has never been significantly revised. No adjustments have been made to account for Colorado's changing demographics, the increased costs associated with educating Colorado's changing student population, or the increased funds necessary to implement the new state-mandated education standards. The funding provided by the PSFA bears no rational relationship to the actual cost of providing a thorough and uniform education.
T72 The PSFA contains weighted factors that are intended to address disparities in education costs among districts based on cost of living, personnel, size, and the concentration of at-risk students. But, as the majority notes, the PSFA also employs a "negative factor" that reduces each district's total program by a certain percentage. In operation, the negative factor acts as a reduction of other existing factors. It does not affect the base per-pupil amount. Applying the negative factor thus largely counteracts the
T73 On its face, use of the negative factor is also an acknowledgement of the General Assembly's conscious choice to underfund public schools. In 2012, the negative factor cut nearly $1 billion from the education budget. All school districts, irrespective of location, size, or student population, have been affected by these cuts. Jefferson County Sehool District, Colorado's largest, has cut its budget by $58 million, closed three schools, and laid off 480 employees. In Colorado Springs, School District 11 has closed nine schools. Aurora Public Schools has cut its budget every year for the last six years. As the majority acknowledges, the negative factor reflects fiscal constraints, not education policy. According to David Hart, chief financial officer of the Denver Public Schools, the negative factor makes it impossible for the General Assembly to honor the "original intent" of the PSFA. The negative factor bears no relationship-let alone a rational one-to the General Assembly's thorough and uniform mandate.
T74 The majority points to categorical funding as a reason that the finance system bears a rational relationship to the thorough and uniform mandate. As the majority notes, categorical funding provides additional funding outside of the PSFA for particular groups of students requiring additional services, such as ELL students, gifted and talented students, and special education students. But the record shows that categorical funding is so inadequate that it fails to serve these students in any meaningful way. State support for ELL students is about $127 per pupil, per year. This funding barely covers the cost of administering the state-mandated Colorado English Language Assessment test, let alone the cost of teaching a child English. Gifted and talented students receive about $150 in additional support. For its financial contribution to special education, Colorado ranks last in the nation. According to Vody Herrmann, formerly with the Colorado Department of Education, this lack of state funding means that school districts are spending "much more in these various programs than what they're receiving in revenue, and that's coming out of their total program funding."
1 75 Perhaps most striking, however, is the finance system's method of funding capital construction. Unlike most states, capital construction in Colorado is funded exelusively at the local level. As the majority notes, school districts may contract for bonded indebtedness to fund capital improvements or the construction of new schools. By statute, however, bonded debt is capped at 20% of the district's total assessed property value. For 70 school districts, this means that they cannot raise enough money to build one new K-8 school building. For most others, this means that the districts cannot raise enough money to provide a safe and healthy learning environment for students. In Pueblo School District No. 60, the average age of a school building is over 50 years old. The Sanford school building, which houses all K-12 students, has elevated carbon dioxide levels and high concentrations of mold. The roof is partially collapsed. Several school districts, including Aurora Public Schools and District 11 in Colorado Springs, require hundreds of millions of dollars to address unmet capital needs. Mary Wickersham said it best when she testified: "I don't see a logical interpretation of a thorough and uniform system of free public schools that doesn't include sehools."
B. Uniform
T76 Students at Vail's Battle Mountain High School enjoy state-of-the-art video editing labs, a culinary arts studio, and top-end Apple computers. Students at schools in the San Luis Valley attend buildings with crumbling foundations, partially collapsed roofs, caved-in ceilings, ancient heating systems, and inadequate plumbing. Some of these students receive only 40 minutes of computer time per week. Some computers still in use only take 5i-inch floppy disks. Taylor Loba-to testified that, at Center High School, a single webpage took 20 minutes to load during an online assessment test. Former state Representative Jack Pommer testified that, under the current finance system, there are "some districts that could build educational palaces, and others that couldn't repair their
T77 Along with only a handful of other states, Colorado employs a regressive finance system, meaning districts with higher concentrations of poverty receive less funding. According to Dr. Bruce Baker, an expert in Colorado school finance, this problem is "built into the way the weighting scheme is structured." In one national study, Colorado received a "D" for "funding fairness" because per-pupil state and local revenues decrease as district poverty rates increase. Because districts with higher concentrations of poverty typically have higher education costs, districts with low property values get trapped in a cycle of poverty from which there is little opportunity to free themselves.
178 As the majority notes, the PSFA allows school districts to raise additional funding by asking their electorates to approve a "mill levy override" for education purposes. However, because the amount of funding generated by a mill levy override is tied to local property values, districts with higher property values will always generate more money per mill than districts with lower property values. To generate revenues comparable to those generated by wealthier districts, districts with lower property values must assess more mills and, in effect, tax themselves at higher rates to generate less money. According to former state Senator Susan Windels, "one district could pass a mill . and raise a million dollars and another district coming from a poor rural area could raise a mill and raise $13,000." Because a district's ability to raise additional mills is capped by statute, the inherent inequity built into the system will continue to exist. Districts willing to tax themselves at higher rates are statutorily prohibited from doing so.
T79 Like the mill levy override, the finance system's method of funding capital construction not only exacerbates massive disparities among districts-it creates them. As noted, the finance system caps a district's ability to contract for bonded indebtedness at 20% of assessed property value. Thus, the total amount of capital funds a district is permitted to raise is purely a function of the district's property wealth. This means that, in Aspen School District, the per-pupil assessed property value is more than $1 million. In Sanford School District, in the San Luis Valley, the per-pupil assessed property value is less than $20,000. In operation, this means that the wealthiest district can raise $219,000 per pupil and the poorest only $1,100-a difference of nearly 20,000%. In Colorado, where affluent resort communities and counties with some of the highest poverty rates in the nation co-exist, a finance system that funds capital construction based entirely on assessed property values, in Mary Wickersham's words, "drives a lot of inequities across the state." Under any conceivable definition of "uniform," a 20,000% disparity among districts in ability to fund capital construction rises to the level of a constitutional violation.
T 80 For the reasons stated, I respectfully dissent.
I am authorized to state that Justice HOBBS joins in this dissent.
Notes
. See Lobato v. State,
. Although not significant to the thrust of this dissent, I note that I would supplement the trial court's order by granting the General Assembly five years to change the finance system so it complies with the Colorado Constitution. See Lobato I,
. The ACT, a standardized test that all Colorado students must take, is required by many colleges for admission. In Colorado, the average score is 19. Most colleges require a score in the mid-20s. At the University of Colorado-Boulder, the middle 50% of admitted students scored in the 24-30 range for most majors.
. Other states have interpreted similar constitutional provisions in various ways. See, eg., Roosevelt Elementary Sch. Dist. No. 66 v. Bishop,
Dissenting Opinion
dissenting.
T81 I respectfully dissent. I join the Chief Justice's dissent, and I also write separately to address the context, intent, and purpose of the Colorado Constitution's Education Clause. The drafters of the Colorado Constitution entrusted to future generations the critical responsibility of educating each generation of the state's children. They adopted the Education Clause to ensure that each Colorado child has the opportunity to become an educated person equipped to participate in life's many challenges, opportunities, and responsibilities.
T 82 The founders did not intend that any area of our state would suffer in the future from substandard and unequal access to educational opportunity. Living in the current complex age requires more, not less, innovative ways to develop fundamental critical thinking, problem-solving, and content-based skills. - Today's learners are tomorrow's doers. Each of us fondly recalls a teacher or coach who inspired the expectations we set for ourselves and our communities. The creation of capable and conducive learning envi
[83 Yet, as Chief Justice Bender adeptly explains, based on the extensive trial record in this case, the current finance scheme for public school education through the twelfth grade does not promote a "thorough and uniform" system, contrary to the Education Clause. Instead, the currently unbalanced system of school finance systematically maintains and exacerbates educational deficien-cles-leaving our public school system "so crippled by underfunding and so marked by gross disparities among districts that access to educational opportunities is determined not by a student's interests or abilities but by where he or she happens to live." Dis. op. T 69.
I. The Education Clause's Mandate
The Education Clause directs the General Assembly to "provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously." Colo. Const. art. IX, § 2.
185 The majority relies on Webster's Third New International Dictionary to conclude that a "thorough and uniform" system of public education "is of a quality marked by completeness, is comprehensive, and is consistent across the state." Maj. op. 118. Although completeness, comprehensiveness, and consistency are certainly elements of a thorough and uniform system of public education, these terms alone fail to adequately capture the intent of the framers in regard to the actual operation and effect of the public schools in each generation.
86 A "thorough" system is one "marked by completeness," as in "carried through to completion esplecially] with full attention to details" or "marked by attention to many details, especially] by sound systematic attention to all aspects and details." Webster's Third New Int'l Dictionary 2880 (1971) (emphasis added) (providing the example of a "thorough" course in mathematics). A system is "uniform" when it is "marked by lack of variation, diversity, change in form, manner, worth, or degree," "consistent in ... character[ ] or effect," or lacks "variation, deviation, or unequal or dissimilar operation." Id. at 2498 (emphasis added). Therefore, I would begin with the presumption that the drafters intended the General Assembly to establish and maintain a system of free public education marked by completeness, comprehensiveness, and consistency in character and effect across the state.
T87 Examination of the "thorough and uniform" mandate must also take into account the context in which the drafters adopted the Education Clause. See, e.g., People v. Rodriguezs,
1188 In 1859, Colorado experienced a gold rush that initially spawned small settlements of mostly white males, accompanied by few women and children, in mining camps. See Edwin Grant Dexter, A History of Education in the United States 144 (1919); see also State Historical & Natural History Soc'y of Colo., History of Colorado 1150 (James H. Baker & LeRoy R. Hafen eds., 1927). "[ Wlhat few families there were, were ready to set out at a moment's notice for more promising fields, schools were few, and in many instances those that existed were hardly worthy of the name." Dexter, supra, at 142.
189 As farmers arrived to help feed the miners and commerce gave rise to villages, the first school in the Denver area (and,
T90 On September 10, 1861, Territorial Governor William Gilpin addressed the first territorial assembly, "dedicat[ing] a significant portion of his speech to a discussion of the 'pre-eminent' importance of education." Tom I. Romero, II, "Of Greater Value than the Gold of Our Mountains": The Right to Education in Colorado's Nineteenth-Century Constitution, 88 U. Colo. L.Rev. 781, 819 (2012). Gilpin articulated the widely held "belief that an educated electorate was the strongest safeguard of the nation's republican institutions" and "called upon the legislature to establish schools where all the children of the territory would 'receive generous instruction, uniform and thorough in its character"" Id.; see also House Journal of the Legislative Assembly of the Territory of Colorado 10 (1861) (reproducing Gilpin's full speech).
« 91 Less than two months later, the legislature authorized "An Act to Establish the Common School System," requiring the territorial superintendent to "see that the school system is, as early as practicable, put into uniform operation." An Act to Establish the Common School System, § 8, General Laws, Joint Resolutions, Memorials, and Private Acts, Passed at the First Session of the Legislative Assembly of the Territory of Colorado 154 (1861). The act provided for a territorial superintendent, county superintendents, education taxes, and a permanent school fund. Colorado's first tax-supported schools opened in Denver in 1862. See History of Colorado, supra, at 1155; Junius Henderson, Colorado: Short Stories of Its Past and Present 125 (1927). "The significance of this public school legislation|,] enacted but three years after the first discovery of gold in the territory," is hard to overstate:
Demands for the organization of a stable government, for the establishment of courts of law, for an orderly procedure in the determination of mining rights were insistent and engrossing, yet the vision of these Colorado pioneers was not impaired by the pressure of material things. Not only in breadth of view but in practical provisions for the detailed management of a school system at once adequate for immediate requirements and flexible for adjustment to the needs of future years, are evident the sterling qualities of these men and the sound American traditions which they followed.
Henderson, supra, at 125-26 (emphasis added).
T 92 In practice, Colorado's education system fell well below the mark of "uniform operation" initially envisioned by the territorial legislature,
T 94 Between 1870 and 1880, the percentage of 5- to 19-year-olds enrolled in schools in the United States grew from 48.4 percent to 57.8 percent. See Nat'l Ctr. for Educ. Statistics, U.S. Dep't of Educ., 120 Years of American Education: A Statistical Portrait 14 thl.2 (1998). Colorado fared better than average, with 65 percent of the new state's school-aged population enrolled in 1876. See History of Colorado, supra, at 1156. By 1876, "there were 313 school districts ... and 219 school houses" which served 14,085 enrolled students within its boundaries. Id.
195 Still, many school-aged children did not attend school regularly. See First Biennial Report, supra, at 22. In 1872, the Colorado Territory's Superintendent of Schools worried that "want of regular attendance" greatly hindered "the success of our schools." Id. at 15. Although the average length of the public school term during the decade hovered around 130 days nationally,
€96 Notably, in the run-up to statehood, Colorado's educational leaders expressed a strong desire to avoid sacrificing educational quality for educational quantity. For example, in 1872, the Superintendent of Schools explicitly identified the problem of "[dlistrict officers too frequently employing] teachers of mediocre qualifications, who, 'work cheap,' that thereby the current expenses may be lessened, and they be enabled to continue the school for a longer term." First Bienmial Report, supra, at 10. Foreshadowing the Education - Clause's - one-school-for-three-months-per-year requirement for a school district to receive funding, see Colo. Const. art. IX, § 2, the Superintendent emphasized that "it is far better that [a] school be taught but three months [a yearl by a first class teacher, than six months by one unfitted for the position," First Bienmial Report, supra, at 10 (emphasis added).
197 Against this backdrop, from late December of 1875 to March of 1876, Colorado held its Constitutional Convention. See gen-eraily Proceedings of the Constitutional Convention Held in Denver, December 20, 1875, to Frame a Constitution for the State of Colorado (1907) [hereinafter Proceedings]. Most of the work of developing constitutional provisions fell to the twenty-four standing committees. See id. at 24-25.
198 On January 5, 1876, the convention referred a multi-part education resolution to the five-member Committee on Education and Educational Institutions. See Proceedings, supra, at 48. Among other things, the resolution called for the legislature to "provide for the establishment and maintenance of a thorough and efficient system of free schools, whereby all children of the State between the ages of six and twenty-one years, irrespective of color, birthplace or religion, shall be afforded a good common school education." Id. (emphasis added). Three
The nature of our free institutions presupposed a high degree of intelligence of the people, and as the permanence ... and effectiveness of those institutions become the more secure and productive of good, the more this intelligence is promoted and spread; and ... [tlhe constant growth of our common country in number, as well as in its commercial, industrial and political relations, admonishes us not to neglect to progress according to the demands of our times.
Id. (emphasis added). Although these words did not expressly address elementary education, the principles apply in that context with equal force.
T99 Other state constitutions incorporating an affirmative right to education loomed large in the committee members' minds. Public education had "emerged as an essential issue in responding to important changes in social, political, and economie life for many Americans," and the states responded in kind. While "many of the original states ... scarcely mentioned education in their constitutional documents, between 1800 and the adoption of the Colorado Constitution in 1876, thirty-two out of thirty-seven state constitutions [adopted] (exeluding Colorado['s]) contained detailed provisions for education." Romero, supra, at 796. The notion that public education is "essential to republican government" was "[slo settled ... that in the late nineteenth century Congress required several territories to create free, nonsectarian public schools as a precondition for statehood." David Tyack & Thomas James, State Government and American Public Education: Exploring the "Primeval Forest," 26 Hist. Educ. Q. 89, 59 (1986) (emphasis added); see also Ordinance of 1787: The Northwest Territorial Government, §§ 13-14, art. III. While most constitutional provisions developed during this time period limited state authority "as a way to correct abuses or to protect against the power of special interests," state education articles reflected "a strong and evolving sense of [affirmative] governmental responsibility" for education. Tyack & James, supra, at 48, 58.
1100 Two of the five members of the Colorado Constitutional Convention's Committee on Education and Educational Institutions had previously been high-profile ed-ueators in Illinois, which had adopted a constitutional mandate for a "thorough and efficient" system of public education a few years earlier. Romero, supra, at 808-04, 826-27 (emphasis added). Delegates to the Illinois convention had intended-at minimum-for that state's system of free public schools to provide a general education that would "enable one to perform his dutics as a good citizen." 2 Debates and Proceedings of the Constitutional Convention of the State of Illinois 1788 (1870). Although they "disagreed over the scope and specific content" of a thorough and efficient system of public education, most Illinois delegates "indicated that some level of education was necessary to achieve societal goals of extending civic education, virtue, and socially desirable skills to all of the state's residents." Romero, supra, at 809.
«[ 101 While the contemporaneous record of discussion about education at the Colorado Constitutional Convention is slim,
102 By contrast, the central mandate of the Education Clause appears to have elicited no public debate at the convention.
1 103 Addressing the people of Colorado at the convention's close, the framers summarized the Education Article as "forever guarantee[ing]" the existence and "maintenance of free public schools" for Colorado's children. Proceedings, supra, at 727. The full article summary reads as follows:
By the provisions of this article the general supervision of the public schools is vested in a Board of Education.
The maintenance of free public schools, and the gratuitous instruction therein for all children between the ages of six and twenty-one years, is forever guaranteed.
It is declared that the public school fund shall forever remain inviolate and intact; that neither the State, nor any county, city, town or school district shall ever make any appropriation, nor pay from any public fund any thing in aid of, or to help support, any school or institution of learning of any kind controlled by any church or sectarian denomination whatsoever; that no religious test shall ever be required as a condition for admission into any of the public schools, either as pupil or teacher; that no religious or sectarian dogmas shall ever be taught in any of the schools under the patronage of the State.
The General Assembly is required to pass suitable laws to husband, to the fullest extent, the several grants of land donated by the General Government to this State for school purposes. It is provided that the several institutions of learning and charity now fostered by the Territory shall be perpetuated and cared for by the State.
Id. (emphasis added).
T104 Examining the Education Clause in its context reveals that, from the time of the First Territorial Legislature, Coloradans strove to provide a system of free public education directed at achieving an informed and productive populace. This overarching commitment to the goals of education cannot fairly be extricated from the meaning of "thorough and uniform" while maintaining fidelity to the framers' intent. In creating the "thorough and uniform" requirement, the framers intended that the legislature would establish and maintain a complete and comprehensive system of public education that consistently affords Colorado children the opportunity to develop the skills and knowledge necessary to participate fully in the opportunities and challenges of a dynamically growing state.
1 106 The drafters were acutely aware that the knowledge and skills necessary for citizenship and productive participation in the workforee would change drastically from 1876 onwards. They lived in a rapidly evoly-ing era of great social, political, and technological change. They understood that a thorough and uniform system of public schools could not remain static, divorced from practical realities. They contemplated changing conditions that would shape what maintaining a thorough and uniform system of public education actually requires. Although the Education Clause itself required the operation of one school in each district, open for at least three months per year, no one can seriously argue that such a system would qualify today as "thorough and uniform" under any definition.
II. - The General Assembly's Standards for Public School Education Are Relevant to Construing the Education Clause
{107 The General Assembly's own pronouncements regarding the level of education expected under the Education Clause are relevant to constitutional interpretation. See, eg., Lobato v. State (Lobato I),
{108 In 1998, the General Assembly adopted H.B. 98-1313 as Part 4 ("Education
1 109 In 2008, the General Assembly enact, ed the Preschool to Postsecondary Education Alignment Act (the "Colorado Achievement Plan for Kids," or "CAP4K") as the "next generation of standards-based education." § 22-7-1002(1)(d), C.R.S. (2012). The legislature declared that, "[from the inception of the nation, public education was intended both to prepare students for the workforce and to prepare them to take their place in society as informed, active citizens who are ready to both participate and lead in citizenship." § 22-7-1002(1)(c), CRS. (2012). CAPA4K required the state Board of Education and the Colorado Commission on Higher Education to ensure that Colorado's education standards "are sufficiently relevant and rigorous to ensure that each student who receives a public education in Colorado is prepared to compete academically and economically within the state or anywhere in the nation or the world." § 22-7-1002(1)(e), C.R.S. (2012).
1110 In 2009, in order to assure accomplishment of the goals of CAP4K, the General Assembly enacted the Education Accountability Act. The Act expanded on preexisting law by further defining the parameters of an "effective system of statewide education accountability" and emphasizing the importance of "maximizing every student's progress toward postsecondary and workforce readiness and postgraduation success." § 22-11-102(1), (1)(a), C.R.S. (2012).
{ 111 Thus, the General Assembly has consistently identified the purpose of its educational policies as enabling Colorado students to be effective citizens of Colorado and the United States, productive members of the labor force, and successful lifelong learners. It has plainly recognized what the drafters intended by the phrase "thorough and uniform."
The majority cites the existence of uniformly applicable laws to support its conclusion that the school finance system is thorough and uniform. See maj. op. 1% 25-32. However, the Education Clause requires
III. Disparity and Remedy
[113 In Lobato I, we determined that the plaintiffs alleged appropriate claims that "the state's public school financing system is unconstitutional because it is underfunded and disburses funds on an irrational and arbitrary basis" and held that, in order to sue-ceed in the lawsuit, the plaintiffs "must demonstrate that the school finance scheme is not rationally related to the constitutional mandate of a 'thorough and uniform' system of public education."
{114 Colorado is not achieving the thor- © ough and uniform system of public education our constitution's framers envisioned. The existence of uniformly applicable laws may be necessary, but it is not sufficient, to fulfill the "thorough and uniform" mandate set forth in the Education Clause. The current school finance scheme does not adequately support the General Assembly's standards-based education system.
1 115 For these and the additional reasons set forth in his dissent, I agree with the
1 116 Accordingly, I respectfully dissent.
I am authorized to state that Chief Justice BENDER joins in the dissent.
. See also Bd. of Educ. of Sch. Dist. No. 1 in City & Cnty. of Denver v. Booth,
. For example, in the chaotic environment that preceded statehood, it was not uncommon for county or school district officers to misappropriate, or neglect to raise, school funds. See Horace Morrison Hale, Colo. State Teachers' Ass'n, Education in Colorado: a Brief History of the Early Educational Interests of Colorado, Together with the History of the State Teachers' Association, and Short Sketches of Private and Denominational Institutions 21 (1885); see also Dexter, supra, at 144 (noting that "school funds were frequently misappropriated" before 1870).
. By comparison, today most states require 180 days of instruction per school year; Colorado requires 160. See Educ. Comm. of the States, Number of Instructional Days/Hours in the School Year 1, 2 thl. (2013), http:;//www.ecs.org/ clearinghouse/01/06/68/10668.pdf; see also § 22-32-109(1)(n)(I), C.R.S. (2012).
. See Romero, supra, at 835 n.266.
. At the time of the Colorado Constitutional Convention, the education articles of six states' constitutions included a "thorough and efficient" mandate. See IIL. Const. of 1870, art. VIII, § 1; Minn. Const. of 1857, art. VIII, § 3; Neb. Const. of 1866, art. VII, § 1; N.J. Const. of 1844, art. IV, § 7(6) (adding the mandate with the amendments of 1875); Ohio Const. of 1851, art. VI, § 2; W. Va. Const. of 1863, art. X, § 2.
. This broad standard reflects both deference to the legislature's primary role in providing for the establishment and maintenance of a thorough and uniform system of free public schools and "recognition of the fact that the specific educational inputs or instrumenialities suitable to achieve this minimum level of education may well change over time, as a 'constitutionally adequate public education is not a static concept removed from the demands of an evolving
. As I described above in paragraph 86, the words "thorough" and "uniform," themselves, encompass operation and effect.
. - The framers likely included the secondary mandate for maintenance of "[olue or more public schools ... in each school district within the state, at least three months in each year," Colo. Const. art. IX, § 2, to serve several purposes-vitally important at the time-which are, today, subsumed by the Education Clause's primary ''thorough and uniform" mandate. First, this mandate avoids the perceived false-economy of requiring school districts to hire mediocre teachers "cheap" for longer periods of time than they could feasibly afford to pay superior teachers. Furthermore, tying school district fulfillment of the mandate to receipt of state funding functioned as a check on misappropriation of state school funds by local officials in districts not adequately serving the state's youth. In essence, in 1876, a "thorough and uniform" system of public education that provided the requisite opportunity to develop the skills and knowledge necessary to be a good citizen and a productive member of society reasonably contemplated a single school operating three months per year in a school district. However, given the changed circumstances we face in the world today, the primary mandate subsumes the secondary and forms the constitutionally acceptable floor.
. Other states have drawn similar conclusions about the meaning of similar constitutional mandates. For example, the Supreme Court of Ohio examined its constitutional education clause, which contains a "thorough and efficient" mandate, and determined
[the operation of the appellant school districts conflicts with the historical notion that the education of our youth is of utmost concern and that Ohio children should be educated adequately so that they are able to participate fully in society. Our state Constitution was drafted with the importance of education in mind.
DeRolph v. State,
. As an example, the Public School Finance Act attempts to account for a number of variables-such as cost of living, personnel costs, pupil numbers, and at-risk student population-in reaching the "total program" funding level for each school district. However, noticeably absent from this calculation is an explanation of how the base per-pupil funding amount relates to implementing the General Assembly's standards-based system. Since 2006, statewide base per-pupil funding has remained essentially constant (with an annual adjustment for inflation), despite significant changes related to beginning CAP4K implementation. See § 22-54-104(5)(a) (XIHM)-(XIX) (listing statewide base per-pupil funding for each budget year between 2006-07 and 2010-13); Analysis of the Costs of Colorado's Achievement Plan for Kids (CAP4K), First Interim Report 22-25 (2010) (estimating new costs to school districts associated with implementing several components of CAP4K). Even assuming, for the sake of argument, the funding formula used to calculate districts' total programs adequately accounts for the costs they actually face in carrying out state statutory mandates, the "negative factor" pays no heed to that accounting. Instead, this across-the-board reduction slashes every school district's total program by the same percentage in order to balance the state budget. See § 22-54-104(5)(g)(II), C.R.S. (2012). Therefore, even if district funding at total program levels would be consistent with the Education Clause's mandate, district funding subject to the negative factor would not be.
. Although disparities between school districts will always exist, suggesting that local districts have a greater amount of control over their schools by way of bonded indebtedness and mill levy overrides ensures that many Colorado schools will never have funding sufficient to meet the General Assembly's educational mandates or the flexibility to tailor local education to local needs.