Lured by litigation, schools asked to pony up before they can cash in

Colorado school districts are fed up. They’ve been starved for funding for years, so in 2005, they took action.

A batch of strapped districts in the economically depressed San Luis Valley, as well as parents and individuals, filed a class-action lawsuit demanding more cash from the state Legislature. The list of plaintiffs has grown to include 17 school districts, with two of the state’s largest, Jefferson County public schools and Colorado Springs District 11, now on board.

“There’s a pretty big gap between what we’re expected to do and what we’re able to do, all because of funding,” said Ken DeLay, executive director of the Colorado Association of School Boards, which is spearheading the lawsuit. He said the state's schools would need at least $2 billion just to be on par with the rest of the country.

While the litigation has garnered its share of media attention, what has received little coverage is the fact that CASB has been lobbying its member school districts statewide for over a year to chip in their own resources to fund the court action.

The organization has raised nearly $245,000 to date in local taxpayer dollars from districts around the state—in support of a lawsuit that some observers say is a legal long shot, unlikely to net those districts a return on their contribution anytime soon. Josh Dunn, a political science professor at the University of Colorado at Colorado Springs, said that not only is the suit a waste of time because the state is penniless, but it’s also an “obnoxious” irony that the districts are using taxpayer money against taxpayers themselves.

“I’d tell them, ‘Don’t sue your own constituents.’ They’re suing the people of Colorado, not the state,” Dunn said.

Contributions so far have ranged from a few hundred dollars apiece from small districts to nearly $79,000 from Denver Public Schools and $50,000 from Colorado Springs District 11. Jefferson County and Littleton public school districts have ponied up $15,000 apiece. And the districts are pitching in just as a down economy and slumping revenue have forced sometimes dramatic budget cuts to basic services in many of those same districts.

The suit, Lobato v. Colorado, also is coming to a head precisely when the state is dealing with a massive budget shortfall of its own. Lawmakers have had to completely empty the state’s wallet. Simply put, there’s nothing left to fork over in the event that the suit does find a sympathetic ear on its merits in court.

“This has got potential to bankrupt the state,” said Sen. Al White, R-Hayden, who sits on the Legislature’s Joint Budget Committee. “We could say, ‘Screw you, we’re not [obeying the courts],’ but then I don’t know what happens.”

If the courts were to agree with the school districts, then billions of dollars could be on the line. A similar case in Kansas has cost the state nearly a billion dollars since 2006. Colorado's legislature could be legally required to devote more money to public education, though the precise amount would be left up to lawmakers. If the districts aren’t satisfied with the new funding, then they could re-open the case, which means this fight could possibly go on for years.

Meanwhile, the proponents are going full steam ahead. They’re asking each school district to chip in $250,000 apiece, and new districts are joining in the fight every month.

Yet, organizers of the fund-raising effort appear reluctant to talk about it publicly. School board members from all along the Front Range either declined comment or didn’t return phone calls. The defendants in the case, including the State Board of Education, the Commissioner of Education, and Gov. Bill Ritter, also either declined comment or did not return calls.

CASB’s bid to pass the hat for the suit has drawn a public rebuke in at least one community via a harshly critical editorial in The Gazette in Colorado Springs.

Alex Halpern, a lawyer with a non-profit law firm Children’s Voices, has been leading the charge since it first began. He insists that the suit isn’t a lost cause, that the Legislature can find ways to fund schools if it really wants to.

“They’re a creative bunch of people,” Halpern said of the Legislature. “There are methods of getting more money.”

Not according to majority Democrats in the Legislature, though.

“It’s true, the amount of funding school districts receive is not adequate, but… Where does the state get revenue?” said Sen. Evie Hudak, D-Westminster. “It gets revenue from taxes and fees, and that’d be the only place the money could come from if the state had to deal with that.”

Since the Legislature can’t raise taxes on its own, it would have to appeal to the voters. And Coloradans are historically suspicious of tax hikes.

DeLay said that isn't the end of it, though. He said although the state may be broke right now, the recession will likely end long before Lobato is actually decided. In all likelihood, he said, the state Supreme Court won’t even hear the case for another three years.