Colorado’s Supreme Court Fails to Negate the Negative Factor

For years Colorado policymakers have been between the proverbial rock and a hard place due to amendments added to the state constitution. Indulge me as I offer an overly simplistic summary of these constitutional amendments, presented in chronological order:

Gallagher Amendment – Amended in 1982, the purpose of the Gallagher Amendment was to stabilize mill rates levied on personal property owners. In short, the ratio between tax revenue generated by residential and non-residential properties was frozen in 1982 (the ratio was and still is 45:55 with 45% of all the revenue raised through property tax coming from residential properties and 55% coming from non-residential properties). However, over time, the sheer volume of residential properties and the individual value of each property have significantly increased since 1982. As a result, the taxable portion of residential properties has decreased from 30% in 1982 to 7.96% in 2015 and a greater tax burden is placed on non-residential properties.

The Taxpayer Bill of Rights (TABOR) – TABOR was amended to the state constitution in 1992 and requires that all voters approve proposed tax increases as opposed to allowing elected officials to enact tax hikes. TABOR’s purpose was to starve the beast, or restrict the flow of money to state government. It has been estimated that TABOR and Gallagher, working together, have resulted in an annual loss of $1.5 to $2.2 billion of public education dollars.

Amendment 23 – Amended in 2000, Amendment 23 was designed to ensure that public education in Colorado would always receive an increase to the base funding level equal to the rate of inflation plus 1%. Ironically, when Amendment 23 was added to the state constitution, Colorado was roughly $700 below the national average in per pupil funding. Today, Colorado is over $1,400 below the national average.

These three amendments seemed to peacefully co-exist from 2000 to 2010. However, with the Great Recession of 2008 and its subsequent decline in state revenue, the state legislature discovered in 2010 that it could no longer fund all of the social programs with the existing revenue streams. TABOR presented significant barriers to policymakers passing a tax increase to address the loss of revenues since any tax increase would have to be approved by Colorado voters. As a result, Colorado policymakers were left with one option – cut the state budget.

Amendment 23 proved to be a major obstacle in balancing the budget and ensuring other state obligations were sufficiently funded in 2010. Policymakers analyzed the wording of Amendment 23, which guaranteed an increase in funding for public education of inflation plus 1% to the current base funding level. Base became the focus as elected officials desperately looked for ways to make the state budget work despite the reduction in revenues.

The solution was dubbed the negative factor. The negative factor drew a line of distinction between the base funding and the factors incorporated in the state funding formula. The decision was made to only apply Amendment 23 to the base funding and exclude the factors from the constitutional guarantee of a funding increase of inflation plus 1%. In Colorado there is an identical per-student funding level for all 178 school districts and this figure continues to increase by inflation plus 1% even after the negative factor was instituted in 2010. However, factors that were no longer subject to the increase due to the negative factor included the different weights in the state funding formula for at-risk student populations, cost of living, and size of the school district. In addition, local contributions to a school district were also excluded from the inflation plus 1% increase.

In effect, the negative factor works in the following fashion. The state provides local school districts with full funding in accordance with Amendment 23 and then implements the negative factor, which requires school districts to return a portion of that full funding to the state. Over the years, the negative factor has resulted in over $5 billion dollars being redirected from school districts back to the state. For the current 2015-2016 school year the negative factor will reallocate $855 million dollars.

On September 21 the Colorado Supreme Court handed down a 4-3 decision rejecting a claim contending the negative factor was unconstitutional. The lawsuit, Dwyer v. State of Colorado, sought to end the use of the negative factor and restore public education in Colorado to the perceived proper levels of funding. However, the state supreme court interpreted the wording of Amendment 23 to only require the predetermined increased to the base per pupil funding as opposed to the total per pupil funding. The state supreme court interpreted base in the most restrictive manner possible, thus validating the practice of the negative factor.

This ruling is a disappointment for advocates of public education in Colorado given the fact that the state supreme court also ruled in favor of the state in the recent school finance lawsuit (Lobato). However, I am of the opinion that both Lobato and Dwyer are, ultimately, missing the mark. To illustrate this point I would like to stress that if the state supreme court had ruled that the negative factor was unconstitutional then policymakers would have faced a different dilemma. Instead of underfunding public education, policymakers would have had to cut other aspects of the state budget in order to properly fund public education. In short, there is not a cache of money sitting in some account that state policymakers could access to fund the negative factor. Instead, there is insufficient revenue in Colorado to properly fund all of the social programs throughout the state.

The proper solution for the state of Colorado is to tackle the issue of TABOR and the Gallagher Amendments. These two anti-tax amendments have successfully starved the beast and are now beginning to restrict the state revenue sources to a dangerous point. In public education across the state vital programs are being reduced or eliminated. In addition, class sizes are on the rise throughout the state. Despite all of these cuts, Colorado educators continue to do amazing work in the classroom. However, in order to truly have a “world class” system of education in Colorado policymakers and voters must be willing to add revenue to the state coffers.

My Concern for the Future of Public Education

I love public education. I am honored to have worked as a teacher and an administrator in public schools for 15 years in two different states. I am an unabashed proponent of public education and I genuinely believe that public education provides most (I wish I could write all) students with the opportunity to reach their potential.

It is with that backdrop that I wish to recount the following experience I had a couple of weeks ago in a course I teach to aspiring educational leaders. The curriculum of the course provides students the opportunity to explore external influences on the governance of public education and one of the assignments requires students to work in small groups to develop a mutually beneficial partnership between a school and an outside agency. One of the partnership proposals called for a union between an elementary school and a series of museums within a particular town. The net result of this partnership would produce greater exposure for the local museums and provide the students with the opportunity to study, in depth, various historical figures. The students would even dress up as the historical figures and create a living museum experience one evening (much like the movie Night at the Museum).

As a former US history teacher, I loved this idea. In fact, I have actually seen the school that my own children attend do this very activity and I have witnessed, first hand, the benefits it had on them. My children will never forget about Temple Grandin and Walt Disney because they got to be these historical characters for a night. So, I was genuinely surprised when, at the end of the presentation on this innovative idea to help history come alive for elementary students, the first two questions that other students asked were:

How many standards will be covered in this activity?

You are going to dedicate four months to this activity and you will only be able to cover how many standards?

I was shocked by these questions and I left this class genuinely concerned for the future of public education. Since this is a legal blog, I will now attempt to articulate my concerns and link those concerns to existing statutes. Why am I concerned for public education? My fear is that accountability and assessment, both essential components of public education, have succeeded in limiting the scope of creativity within educators. I have the privilege to work with an amazing group of aspiring educators each year – literally the best of the best. And, yet, these questions were asked by students in one of the more impressive cohorts I have ever worked with to date. Why? Are these students opposed to creative ideas? No. Instead, they have worked in a system of education that has become too focused on checklist or quantifiable items (how many teacher are highly qualified or how many standards will be addressed by a particular lesson) and have, possibly, lost sight of sound educational practices.

I am not advocating for a return to a time when teachers taught whatever they felt like with no regard to standards. Instead, I am trying to raise a voice of caution against statutes, such as No Child Left Behind, that rely exclusively on measureable outcomes. My fear is that an overreliance on measureable outcomes leads to different forms of corruption, including what I witnessed in my class. These amazing educators in my class do not care more about standards than authentic learning experiences for all children. Rather, they are a part of a system that has become too focused on measurements and, as a result, the system is beginning to lose sight of the ultimate goal – to help a child discover the joy of learning. In addition, those within the system are personifying the values of the system – that is what I think I witnessed.

Standards, accountability, and assessment all have a vital role in public education, but an “advanced” or “proficient” score on a standardized test is not the end goal for public education.

Race to the Top, Teacher Evaluations, and Families Opting Out

In 2010, the Colorado General Assembly passed Senate Bill 10-191, now known as the Educator Effectiveness Act. The purpose of the Educator Effectiveness Act was two-fold: first, the act served to enhance Colorado’s third application to access federal Race to the Top dollars (this application was approved), and second, the act attempted to improve the teacher evaluation process.

There has been a lot written about the merits and demerits of teacher evaluations and I feel no need to revisit this lengthy debate and discussion. Instead, I would like to provide the reader with an overview of the Educator Effectiveness Act. This act made the following changes to the teacher evaluation process in Colorado:

Non-tenure teachers: historically, non-tenured teachers (in Colorado vernacular these teachers are referred to as probationary) needed to receive three years of favorable evaluations in order to receive tenure (or to become non-probationary teachers in Colorado). Under the Educator Effectiveness Act this process was changed. A non-tenured teacher now must receive three favorable evaluations in consecutive years in order to become tenured and there is no time limit for a non-tenured teacher to become tenured. In other words, an effective teacher could spend his or her entire career as a non-tenured teacher if the evaluators of this teacher made sure that every third year the individual was marked down to the point that the overall evaluation was less than favorable.

Tenured teachers: again, prior to the Educator Effectiveness Act tenured teachers could only lose the protections afforded them from tenure as a result of egregious acts. Now, if a tenured teacher in Colorado receives two consecutive unfavorable evaluations then that teacher loses his or her tenure and reverts back to non-tenure status. It should be noted that the state has been slow and purposeful in rolling out the implementation portion of the Educator Effectiveness Act, so, to date, no teacher has actually had his or her tenure status revoked. However, when this happens it stands to reason that there will be a lawsuit to follow.

Teacher evaluation criteria: finally, the Educator Effectiveness Act required that the school district created evaluation tool base 50% of a teacher’s evaluation on student growth. Each school district is able to determine acceptable evidence to document student growth, but the results from the PARCC testing are used by most Colorado school districts as a portion of growth indicators related to teachers’ evaluations.

It is under this backdrop that I wish to share a fact that I recently came across. As per Colorado state law, parents have the right to opt out of standardized testing. In fact, the state legislature has spent a fair amount of time this session debating the amount of testing Colorado public school students are subjected to and was looking at reducing these requirements (the effort, despite enjoying bipartisan support, is stalled out currently). So, the legal question that requires greater exploration is focused on parents opting out of testing. What happens if the percent of students opting out of end-of-year testing balloons to a majority of the student body?

This is what I discovered a few weeks ago while visiting an intern-I was informed that at this particular high school over 40% of students opted out of PARCC testing. I was shocked by the number so I checked with other administrators throughout the state and only found one other high school where the percent of students opting out exceeded 30% of the entire student population (this was a sample of convenience and is not scientifically defensible).

I feel we can make some gross generalizations about the parents and students that are opting out of testing – more educated parents, higher socio-economic status, etc. Again, these are generalizations, but if they are accurate generalizations then what will happen to a school’s testing results? It stands to reason that the results will decline, in general. And, here is what I find interesting about this situation –can school district administrators use PARCC testing results to quantifiably establish that a teacher in negatively impacting student growth if 40% of students are opting out of the testing?

In my opinion, the answer to the question is yes – administrators can use the PARCC data, but to rely exclusively on incomplete data (given the percent of students opting out of testing) will prove problematic. I feel there is a double standard at place in Colorado – testing is essential for accountability standards, but not all students need to be tested. Ultimately, this double standard will possibly prove the demise of the Educator Effectiveness Act and tie up limited public funds in litigation surrounding teacher evaluations.

A pre-litigation remedy would be for policymakers to determine if testing is vital for accountability reasons. If testing is deemed vital then all students should be required to test – if it is good for one student then it is good for all students. If, on the other hand, testing is not essential for accountability then do away with it. Why require school districts administer testing and, at the same time, allow certain (educated) parents opt their children out of testing?

What’s Eating Johnny(‘s Brain)? The Walking Dead and Educating Children

As I begin this blog post, I have to confess that I love watching The Walking Dead. My appreciation for the show begins with the inclusion of zombies (I am into zombies…), but this appreciation in enhanced because in virtually every episode I find myself wrestling with ethical issues, many of which could have legal implications, and that is what I find the most compelling aspect of The Walking Dead. Although I do not envision a situation where the dead will actually begin walking down my street – if that were to happen I would want to link up with Daryl Dixon – a more plausible scenario recently presented itself in the American psyche when Thomas Eric Duncan, a Liberian visiting family members in Texas, was diagnosed and eventually died from the Ebola virus. Today it was reported that a US soldier sent to assist with the Ebola crisis in western Africa has died.

As the mere threat of an Ebola outbreak was reported in all news outlets, I found the reaction of certain school officials curious. Consider the following examples:

• ·      In October, the same month that Duncan died, an elementary school in Connecticut requested that a student quarantine herself for 21 days after she returned from Nigeria, a country declared by the World Health Organization free of the Ebola virus. This student was in Nigeria to attend a family wedding. The family decided to sue the school district for the actions taken against this third grade student.
• ·      Two students from a Texas school district were on the same returning flight with the nurse, Amber Joy Vinson, who helped treat Mr. Duncan, then traveled to Ohio to visit family, and then was diagnosed with Ebola. When the superintendent of that school district learned of this fact, three schools in the school district were closed for a week so they could be thoroughly cleaned and disinfected (along with the buses serving these three schools). In addition, despite being deemed cleared by state health officials, the parents of these two students unilaterally decided to keep them home from school for the 21-day incubation period.
• ·      Finally, in Ohio a school district shut down two schools because two teachers flew on possibly the same plane, albeit a different and later flight, as Amber Joy Vinson.

Did school officials overreact in these three situations? Obviously, with hindsight, it is easy to answer that question in the affirmative. However, when school officials are in the throes of a potentially dangerous situation, such as the threat of a pandemic, what is the right course of action? Or, stated differently: Do school officials err on the side of caution at the risk of violating the rights of an individual or do they risk exposing more people to a potentially fatal disease by minimizing the dangers? And, ultimately, what are the personal, legal, and financial costs of either decision?

Another question related to the threat of a pandemic is when do school officials err on the side of caution? For example, during the height of the Ebola scare I informed my family that if there was a reported case of the disease in Colorado that we would cease interacting with others to ensure that we were not exposed to the disease. On a macro-scale, when do school officials deem the threat to be too great to keep schools open? And, if left to their own judgment, will some school officials wait too long before closing schools?

I am not certain if there are clear answers to the questions I pose here. One of the reasons for this statement is that each situation has its own particulars and a general policy or guideline may not appropriately apply to all situations. However, I also feel the Ebola scare should serve as a “wake-up call” to educators across the nation to think through all of the nuances associated with the threat of a pandemic before such a situation actually arises. And, where possible, hire Rick Grimes to be the school resource officer.

School Boards, Political Agendas, and Student Resistance

School boards, historically, have been, for the most part, a necessary democratic entity charged with representing the public’s interest related to the governance of public education and rubber-stamping a majority of the decisions made by professional educators. It seems the importance of the local school board has increased in certain political circles. As a result, the overall make-up of school boards has changed in a number of school districts throughout Colorado.

 One local school board to experience a change in its make-up after the November 2013 elections was the Jefferson County School Board (JeffCo). The Denver Post reported on September 25, 2014 that a majority of the JeffCo Board was elected after running as a slate of conservative, reform-minded candidates. On September 18, 2014 the JeffCo School Board tabled a vote on the formation of a proposed curriculum committee. The proposed committee would be responsible for reviewing curricular choices for conformity to JeffCo academic standards, accuracy, and omissions. Also, the 9-person committee, whose members would be appointed by the school board, would ensure curricular information was presented accurately and objectively. Specifically, the proposal favors instructional materials that “promote citizenship, patriotism, essential and benefits of the free enterprise system, respect for authority and respect for individual rights.” In addition, instructional materials could not “encourage or condone civil disorder, social strife or disregard of the law.”

Those concerned by the formation of the curriculum committee claim that its sole purpose is to bar the revised US History advanced placement (AP) curriculum from being implemented in JeffCo schools. As possible evidence that partisan politics are exerting a greater influence in public education, the Republican Nation Committee issued a statement last month calling for delays in the implementation of the new US History AP curriculum because it was viewed as revisionist history that stressed negative aspects of US history.

At the board meeting when a vote on the curriculum committee was table, the JeffCo School Board was accused of censorship and shifting the focus of instruction from teaching students how to think to teaching them what to think. In response to the concerns articulated at the meeting last week, one of the conservative JeffCo Board members has suggested adjusting the wording related to the curriculum committee that would make its charge less directive.

What I have found most interesting about this situation is that students from at least 13 of the school district’s 19 high schools have walked out of classes each day starting on September 19, 2014 in protest against the proposed curriculum committee. And, these student activists are considering an organized walkout during the October 1 student count school day. There has been a lot of political posturing from both sides of issue concerning the student walkouts and rallies, but it appears the student actions are producing the desired results. The JeffCo School Board is experiencing pressure nationally and within the state and it remains to be seen if the board will stay the course.

Taking a step back from the current events unfolding in JeffCo, I am fascinated by the impact student walkouts can have on school boards. As stated above, a number of school districts in Colorado have recently, or in the last five years, experienced a shift in the make-up of their school board members due to the election of individuals with specific political agendas. Some of these political agendas have disrupted the governance process within school districts and, unfortunately, taken resources away from educating children. What recourse do people have when they elect an individual to a school board who is failing to appropriately represent them? In Colorado the answer to that question is, “no much.”

School boards may censure one of its members if deemed necessary, but a censure amounts to little more than a statement being posted in each school within the school district. There is also the option of a recall, but the laws around recalling an elected official place the burden on those seeking the recall. For example, in Colorado a recall election must be preceded by a petition signed by at least 40% of the people who voted in the election when the individual in question was elected. In addition, if the recall fails, then the costs accrued by the incumbent for the recall election are assumed by the school district. In short, there is little oversight or accountability for elected school board members.

Enter student walkouts. The actions of the students in JeffCo appear to be an effective means to bring attention to the antics of school board members that may not be in the best interest of students. These walkouts seem to be shedding a national spotlight on the JeffCo School Board and that spotlight may be proving a bit blinding for some. I anticipate the JeffCo School Board to back down from the curriculum committee based on the public outcry, led by the students. So, in the end, kudos to the JeffCo School Board for providing its high school students with an authentic opportunity to practice civil disobedience and for teaching others how to effectively challenge partisan school board actions.

Thoughts on Compulsory Attendance Laws

I recently read about Commerce City, Colorado mulling over the possibility of enacting a daytime curfew, from the hours of 9 am to 2:30 pm. Teenagers on the streets during this daytime curfew would be transported to their schools and levied a $499 fine. The city’s police chief and the two superintendents of the school districts serving Commerce City all support this proposal. One superintendent stated, “We know if we get them in our building, we can reach them, but we can’t do anything when they’re standing behind 7-eleven.”

I will contrast that effort in Commerce City with a view articulated by a colleague of mine when I taught at a high school in Utah. He desired to place a sign above the high school’s main entrance that read, “Only enter if you want to learn.” He felt a frustration with having to teach some students that had no interest in learning. His educational utopian was to work exclusively with students that wanted to take advantage of all that the high school had to offer. What about those who did not want to learn? He did not want to concern himself with these students.

Obviously, there are quite a few flaws in limiting access to education to those who want to learn – not the least of which is that such a policy would only serve to widen the opportunity gap between students. However, just forcing students to attend schools seems antiquated. So, what is the answer?

I believe that all students, regardless of background or ability, have an innate thirst for knowledge. All schools need to do is tap into that thirst and students will want to come to school each day (assuming the learning environment is safe – a plug for the video on bullying that was posted earlier on this site). However, to tap into that innate thirst requires resources. If I am at-risk of ending up behind 7-eleven then “business as usual,” or traditional public education with 30 students in one class listening to a teacher lecture, is going to fail to tap into my thirst.

Education must be allowed to become more attentive to the individual needs of each student if society desires all students to fully realize their potential. Specifically, a more individualized system of education would have to be defined by local education agencies. Just imagine a system where educators can identify the particulars of every student and each student has a genuine advocate. In addition, instruction is tailored to the needs and interests of each student. In such a system students would want to come every day not because of a law, but because adults cared about them and the learning was meaningful.

Such a system takes a significant infusion of resources and, given the political climate nationally, seems unlikely. It is significantly less expensive to just force students to attend school, albeit ineffective. I will end this entry with a quote from Richard Rothstein. In his book Class and Schools, Rothstein (2004) proposed widespread social changes to address the achievement gap. He then quantified the social changes at $156 billion, and recognized that it is politically unlikely that such changes will occur due to political apathy. He then offered the following explanation related to this price tag, which I feel applies to the idea of creating a more individualized system of education, “to say that this spending is not politically realistic is not the same as to say that it is unaffordable. An average annual spending increase of $156 billion is only about two-thirds of the average annual cost of federal tax cuts enacted since 2001” (p. 145).

The Need for a Test to Help Courts Make Sense of Off-campus Student Speech

I have recently begun preparing for a paper I will co-author and present with Dr. Amy Dagley at Education Law Association's annual conference in San Diego where we examine trends in adjudicated free speech lawsuits involving off-campus communication resulting in on-campus discipline. This preparation included reading Benjamin L. Ellison’s opinion published in 2010 (85 Notre Dame L. Rev. 809). What struck me in Ellison’s piece was the following statement, “A test is needed to mark the boundaries of free speech protection from school discipline over speech that originates off campus.”

Ellison reviewed what other scholars have written on the subject of a test and then offered his own ideas. I would like to summarize the tests Ellison included in his opinion:

Tuneski advocated for an intent-focused test that would permit on-campus discipline if the student’s off-campus communication was directed toward the school, students at school, or school officials. The obvious challenge with this test is proving intent.

Adamovich argued that the standard for government employee speech should be applied to students’ off-campus communications. Specifically, Adamovich identified four points in determining if a student can be punished for off-campus communication: 1) intent, 2) “the number of listeners, 3) the nexus between the student speech and school operations; 4) the level of disruption” caused by the speech. Brenton and Servance also argued for nexus-based tests.

Pike differentiates between active and passive student communication. Active communications include email, text messaging, tweets, and phone calls. Passive communications are web pages, blogs, and social networking profiles. Ultimately, Pike argued that school officials should only be able to limit active forms of student off-campus communication.

Finally, Ellison offered a test that focused on pure intent and location. By pure intent, Ellison suggested that if school officials can prove that the student told others about the off-campus communication or showed others at school a website then intent has been established.  This definition of off-campus speech could be applied to all types of communication – electronic, print, etc.  With location, Ellison suggested that once school officials establish intent then the location transfers from off-campus to on-campus.

With that superficial summary of the different tests, I am interested in hearing what EdJurists bloggers and readers think on this topic. In effect, I am wanting to transition from one-way communication to a more interactive two-way discussion. I am also a bit of a dreamer and I think it would be commendable if this community of legal scholars were to develop its own test that appropriately differentiated between off-campus speech that is completely protected by the First Amendment and off-campus speech that should result in on-campus consequences. I am of the opinion that, ultimately, a test related to off-campus communication must adhere to the guidelines established in the student speech trilogy (Tinker, Fraser, and Hazelwood).

I look forward to reading what others think on this subject.

Title IX and Teen Parents

Title IX of the Education Amendments of 1972 states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Since the passage of Title IX, school officials have been scrambling to ensure a documentable degree of equity between genders in every aspect of public school governance.

With that backdrop, I would like to summarize a conversation I recently had with a doctoral student. This female student was a teen parent who gave birth to her first child while in high school. She is now a principal of a school for students that are either pregnant or caring for their own children while completing the requirements for graduation (often referred to as “mothers school”). Students that attend her school, all of whom are female, choose this alternative setting for a number of reasons: access to free childcare while in school, specific emotional support provided to teen mothers from both the staff and the other students, and a learning environment that validates teen mothers’ adjusted priorities.

However, a majority of those who choose attend alternative schools for teen mothers also choose to loose access to a number of services found at traditional secondary schools. For example, most schools for teen mothers do not provide their students access to advanced curriculum such as honors or advanced placement courses. In addition, those attending mother schools seldom have access to transportation services through the school district.

As I have processed these facts, I have come to the conclusion that teen mothers are being forced to choose between access to an advanced curriculum and childcare. For some teen mothers, there is no choice – childcare will always win out over other factors. The irony, and potential legal pitfall, is that the teen fathers are not being asked to make similar choices. I recall a situation when I taught high school in Utah where two juniors had a relationship that resulted in the female student becoming pregnant. She gave birth over the summer and finished her schooling in an alternative setting her senior year while raising her newborn. The father, on the other hand, was the starting fullback for the football team in the fall and graduated with his peers. The differences in how these two students were treated stemmed exclusively from their gender.

I feel like teen mothers are being excluded from participating in advanced curriculum options based on their gender and this practice appears to violate Title IX. The evidence for the claim of discrimination based on gender lies in the fact that teen fathers are not facing the same difficult choices – childcare versus AP calculus.

Election Results in Colorado

In May 2013 Governor John Hickenlooper signed into law Senate Bill 13-213, which replaced the School Finance Act of 1994 in Colorado and provided the state with a new funding formula. However, due to state constitutional restrictions around tax increases, the bill could not fully take effect until voters approved additional revenues for public education. The author of the bill, Senator Mike Johnston, likened the bill to a brand new car with no gasoline in the tank. You own it but, unless you get the fuel for it, the car will just sit in the garage. The gasoline for the new state funding formula was Amendment 66 – a $950 million proposed tax increase for public education. Colorado voters overwhelming rejected this tax increase (64% of the voters rejected the Amendment). The outcome was extremely disappointing for proponents of public education and have some worried about the end of schools as we know them.

Myron Lieberman wrote a book in 1993 entitled Public Education: An Autopsy. Given the fact that Lieberman’s prediction that public education would die has not come to fruition suggests that this vital entity to the fabric of American society has staying power and value. The temptation to overreact to election results must be tempered. There are countless examples of doomsday-esque predictions regarding the demise of public education, but all, up until now, have proven baseless (computers and the internet will replace teachers, the charter school movement, No Child Left Behind – to mention just a few).

As I have processed the results of Tuesday’s elections, I find my thoughts settling on a small school district in Colorado. This school district placed a sunset on a proposed mill levy override in order to garner the sufficient support for the override to pass. This school district has already gone through one sunset and then approached its voters for a second override, once again with a sunset (it too passed). The voters in this small community value education and value a degree of accountability. I feel like the voters of Colorado were not making a sweeping comment on public education, rather they were collectively expressing reservation with giving such a large amount of money to education. Perhaps they want greater accountability associated with the additional revenues?

There will be additional efforts to fund SB 13-213 and these future efforts (hopefully just effort) must ascertain the collective sentiment of the 64% of voters that rejected Amendment 66 to better meet their needs. Perhaps the tax increases must come with a sunset. Or, perhaps the total dollar amount was the biggest issue.

I see a connection between the election results in Colorado and the government shutdown in October. The connection is the need for collaboration. Regardless of my personal political views, I must realize that I need the other side of the aisle to support my proposed legislation in order for it to pass. The lack of collaboration in politics throughout the nation reminds me of the playground expectation that I get my way or I am going to take my ball and go home. Compromise appears to be a lost art in politics. I am calling for a return to compromise to ensure all views are represented in the formation of a solution. A compromise beats having a brand new car sitting in a garage unable to run due to a lack of gasoline.

Making Sense of Evaluations in Higher Education

The University of Northern Colorado, where I am privileged to work, along with countless other institutions of higher learning recently (within the last five years) transitioned from paper and pencil evaluations to web-based ones. The utilization of technology for course evaluations offers a multitude of benefits: significant reduction in the use of paper, easier to compile data and run reports, less intrusive to instructional time, and students can complete the evaluation on their time. However, there is one significant problem – students are not completing course evaluations, at least those attending the University of Northern Colorado.

The last 15 courses I have taught produced an average return rate of 19%. The highest return rate I received was 53% and the lowest was 0% (twice). I realize the importance of teaching related to an individual’s job status varies from institution to institution. However, at the University of Northern Colorado teaching is typically weighted at 60% of an employee’s contract and all professors are expected to excel in the classroom.

Assuming the trends observed at the University of Northern Colorado are indicative of return rate trends at other institutions, I await a wrongful termination lawsuit claiming a professor was dismissed for poor teaching when only 20% of the enrolled students completed evaluations. Clearly, there are a number of issues associated with such a low return rate:

•  To ensure the validity of the findings, researchers will either strive to document the views of the entire population or employ a proven sampling procedure to survey a portion of the population. The current practice at the University of Northern Colorado is failing to capture the voice of the entire population and is not employing any defensible sampling method. Instead, it is conceivable that only extreme viewpoints are represented in an evaluation (“He is the worst/best professor I have ever worked with”).
• Regardless of the professor’s overall rating, the evaluations lack validity due to low return rate. If I had a 10% return rate and all of the completed evaluations rated me as an outstanding professor I am unable to make any conclusions from this feedback. What did the other 90% think?

I could continue that list of issues associated with a low return rate, but I prefer focus on the legal questions. Can a university legally defend a position that a professor is ineffective in the classroom if that conclusion is based solely upon student evaluations and the return rate is below 50%? What if an assistant professor is denied tenure and promotion by her colleagues due a lack of evidence of solid teaching when a vast majority of the evaluations are not being completed by students? I look forward to hearing what other institutions are doing to increase evaluation return rates and I will be interested to see the outcome of this eventually unavoidable lawsuit.

The Lobato Ruling in Colorado

On May 28, 2013 the Colorado Supreme Court overturned a trial court’s ruling that deemed the state’s funding formula unconstitutional for failing to comply with the “thorough and uniform” constitutional standard. In fact, the trial judge referred to the state funding formula as “irrational.” The state Supreme Court, on a 4-2 vote (one justice recused herself due to potential conflict of interests), offered an extensive analysis of “thorough and uniform” and adequacy. Based on this analysis, the state Supreme Court ruled that the current funding formula meets the “thorough and uniform” standard and provides all students with an adequate educational opportunity in the state of Colorado.

Although I was extremely disappointed by this ruling – I had hopes that a more favorable ruling would have resulted in a repeal of the restrictive Taxpayers Bill of Rights (TABOR) – legally, I do not disagree with the state Supreme Court. The justices offered a defensible definition of thorough and uniform (“describes a free public school system that is of a quality marked by completeness, is comprehensive, and is consistent across the state”), and then applied that definition to the state’s funding formula. Despite extensive evidence supporting the plaintiffs’ claim that the funding formula is inadequate, the state Supreme Court’s definition of thorough and uniform required a decision that the state funding formula is constitutional.

However, the fact that the state funding formula meets a minimal constitutional standard is not to imply that it even approximates the state’s moral obligation to its students. Colorado is currently shackled by two regressive constitutional amendments – the Gallagher Amendment and TABOR – that have resulted in an alarming disparity between local and state dollars supporting public education. Despite the goal of 50-50 between local and state funds supporting public education, the current distribution is 35-65 with the state shouldering the greater burden. My research findings have estimated that the state is failing to collect between $1.7 and $2.2 billion in property taxes because of the unintended consequences of the Gallagher Amendment and TABOR. As a result, the state coffers are being used to backfill these lost revenues.

So, what is our moral obligation to children in Colorado (or any other state)? I feel the answer to that question should be driven by policy makers in Denver but my point here is that there needs to be a shift in thinking. Ensuring all children have access to an adequate education should be a political agenda that unites policy makers on both sides of the aisle. Why only political party is viewed as a friend to public education is a mystery to me (or I am incredibly naïve). If you value a stronger economy then you have to value public education. If you value stronger communities then you have to value public education. If you value people pulling themselves up by the bootstraps then you have to value public education. In fact, even if the only thing you value is your own well being then you have to value public education given all the benefits associated with an educated populace.

If the discussion related to school finance operated in the moral arena, as opposed to the legal one, then children would benefit. I guess it comes down to how the question is crafted – does public education need more money (politically unpopular) or do America’s children require additional resources to be able to complete in the 21^st Century? Advocates for better funding ought to take a page from Bush’s No Child Left Behind. If you had voted against that it would have appeared like you were voting for some children being left behind. A similar catch phrase is needed to encapsulate the need for greater funding in Colorado and the nation.

I will end my commentary on this ruling by stating that the state Supreme Court failed in one key aspect of Lobato. State statute requires school districts to work toward providing students with a world-class education. In other words, the standards and expectations are fairly high for educators throughout the state. However, what are the standards and expectations for the state to fund a world-class system of education? According to the state Supreme Court, there are no such standards or expectations.  

Legal Obligation or Moral Imperative?

I am not completely certain the following thoughts perfectly align with a blog devoted to school law topics (probably better suited in a school finance blog – but, then again, there is a degree of overlap between the two disciplines). I recently received the following thought from Dr. Dan Maas, the chief information officer for a school district in the Denver area:

If you restrict the fuel into an engine, you should not be surprised when the car seems to struggle and under perform.

Dr. Maas used that fact as a metaphor to explain what is occurring in a vast majority of school districts across the nation. As a result of the 2008 recession, state funding for public education has declined over the last four years. These cuts have come with a cost. Public school officials are being asked to do more to ensure that the organization provides the same services at a reduced expense. However, there are not more hours in the day and educational leaders put in additional effort and time to the point of overwhelming fatigue. Eventually these overworked educators will either say “no” to additional work, and the work will not get done, or they will burn out. Neither option is ideal.

The question that Dr. Maas wanted answered was how do educators effectively communicate the current plight of public education to state legislators? This question has generated a few thoughts in my mind that I would like to share here.

As the nation’s economy slowly recovers from the recession there is a danger that some elected officials will be hesitant to provide public education with the requisite dollars to return to pre-recession funding levels since public education has functioned sufficiently well on the reduced budget over the last four years. State legislatures must work to restore pre-recession funding levels for public education and such efforts should garner widespread popular support. So, once again, how do those who are committed to ensuring that all students receive access to an adequate educational experience inform policymakers on the needs of public education?

The overly simplistic answer focuses on helping the community understand the fiscal realities of the current budget. Programs and services could be cut due to budget constraints. The problem with cutting programs or services is that it goes contrary to the core beliefs of most educators – to do no harm to children. Educators constantly work to insulate children from the financial side of public education. But, when children and, by extension, parents do not feel the impact of budget cuts then public education loses its most powerful group of lobbyist.

I have worked with a chief financial officer who once purchased the most dilapidated portable classrooms he could find the summer before the school district was to approach its voters about a bond issue. He then had the portable classrooms placed in the most prominent location on campus. The net effect of these efforts was that parents were appalled at the conditions and overwhelmingly supported the ballot measure in November. I feel like the same thing must happen to help public education return to pre-recession funding levels. Parents must become aware of the cuts school districts have implemented and appreciate the burden these cuts have had on the system. Just like the engine with restricted fuel, if the funding issue continues to go unaddressed then public education will begin to sputter and under perform.

A coalition of advocates for public education, including parents, business owners, and city officials (to mention just a few), could prove the catalyst to help policymakers shift the discussion from constitutional obligation related to funding public education to moral imperative. Only when elected officials view funding public education in the latter light will all children realize the Brown ideal of equal access to education for all children.

From Athletics to RFIDs: Have Schools Gone Too Far?

As I read the lively discussion related to the use of radio frequency identification (RFID) in a Texas magnet school I feel a need to stress one point that is possibly being overlooked. A vast majority of the reactions to the RFID synopsis center on the correctness of the practice from either a legal or ethical perspective. I feel there are inherit inequities embedded in the practice.

The US Supreme Court established the notion that not all students are equal when it handed down the Vernonia School District 47J v. Acton ruling in 1995. Part of the justification for allowing random urinalysis for interscholastic athletes recognized that these students had less expectation to privacy as a result of their participation in athletics. In the end, students who desired to use illicit drugs were not being denied access to an education, they were merely excluded from participation in interscholastic athletics.

My fear is that the concept of treating certain students different than other students, as a result of the choices they make, is being applied too broadly. I co-authored a paper that was presented at the Education Law Association’s 2009 conference and relates to the point I am trying to establish. The paper analyzed the actions of a Colorado charter school and its chartering school district toward a student who qualified for free lunch. The charter school lacked a sufficient kitchen to run a lunch program internally, so charter officials were required to contract with outside vendors to provide lunch services. One year the outside vendor informed the charter school that it would offer its lunches at both a regular price and a reduced price, for those who qualified, but not at the free rate. The one student attending this charter school who qualified for free lunch (that is another issue) was forced to chose to attend the charter school and receive a reduced lunch or attend the neighborhood traditional public school and receive a free lunch. In effect, the student was being denied access to a desired pedagogy due to his parents’ socioeconomic status. I think that sounds like discrimination…

The magnet school in Texas appears to be heading down a similar path related to the use of RFID. Students have an option – chose to use the RFID and attend the magnet school or refuse the RFID and obtain an education elsewhere. I see this either-or approach as dangerous and I fear it will result in denying students access to the magnet curriculum. I am not certain that students attending magnet schools are in the same boat as interscholastic athletes when it comes to a decreased expectation to privacy.

My final observation related to the use of RFID attempts to take the practice to the logical extreme. Let’s suppose the student refuse to comply with the RFID expectations and returns to the neighborhood school. What happens when the neighborhood school decides it, too, is losing money due to students missing classes during the school day and moves to implement the RFID practice? Will the student be forced to comply with the policy in order to remain in public education? Is that a desirable learning environment?

No public school, be it a charter or a magnet school, should ever be allowed to justify discrimination by arguing that if a student does not like the practice then he or she can go elsewhere to learn. Public schools are charged with serving all students and if some public schools are allowed to exclude certain students (by imposing RFID or counseling some students out) then the entire system is in jeopardy.

I Wasn’t Trained For This…

I have enjoyed perusing the various Edjurist blogs and, for that reason, I am slightly awed by my affiliation with such a prestigious group of legal scholars. However, I will do my best to add to the various micro and macro discussions on school law topics. 

I strive to keep channels of communication open between former students and myself, especially as they enter into formal leadership positions, since this conduit proves a valuable gauge of current legal issues. One student, currently in his first year as an administration – he was hired as a middle school principal, had questions surrounding his work with a struggling teacher. At the end of our conversation he mentioned, almost in passing, that he appreciated all that he learned in school law but nothing done in that course prepared him for the myriad of issues he has faced in the first few months as principal in the arena of family law.

I asked him to document these experiences and here is a brief synopsis of some of the challenges this first year principal has faced:

• There is a pending divorce between the parents of one student. The student is struggling with attendance issues, to the point that a judge has ordered her to return to school. Mother claims daughter is afraid of father and both parents request notification of any absences or early releases for the daughter.
• A student’s mother died a number of years ago in a car accident. Since that time the student has lived with his maternal grandparents. His biological father was completely absent so the custodians of this minor were only able to obtain temporary legal rights related to his care. The biological father has recently returned to the area. There is a pending custodial hearing, but the biological father took the student into his custody and transferred him to a different school.
• Two siblings are caught in the middle of grandparents fighting for custodial rights since the parents recently died. The attendance secretary is asked to testify in a custody hearing about the attendance patterns of the students when they stay with each set of grandparents.
• A mother and a stepmother, both of who have legal access to the educational information related to a student, have restraining orders against one another. The restraining orders dictate that the two are not to know the home address of the other person and, yet, the student lives with one of the two ladies.

I do not address family law issues directly when teaching school law, but perhaps I need to do so. However, at what expense? There is only so much time in a semester and school law is littered with essential topics. This conundrum is at the heart of Levine’s 2005 scathing commentary on the declining quality of educational leadership programs – do those engaged in preparing educational leaders structure programs that are financially viable (reduce the number of credits required for graduation and consolidate curricula) or create comprehensive educational experiences that genuinely empower graduates to become educational leaders? The answer for too many educational leadership programs is more along the lines of the former option.

I could justify my efforts in school law by stressing that a graduate of an educational leadership program qualifies for a principal license, which signifies nothing more than an entry-level skillset (Adams & Copland, 2007, p. 160). Clearly, the process of developing effective school leaders must be continued by school districts in the form of induction and mentoring programs. Perhaps the family law issues enumerated above are of a unique nature that any principal would seek direction from central office personnel. And yet, I am left wondering and I will definitely revisit the importance of family law issues the next time I teach school law.