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  • Writer's pictureMario Nicolais

Dwyer ruling won’t resolve K-12 funding debate

Earlier this week, the Colorado Supreme Court waded into the political battlefield of K-12 education funding.

Long the domain of complex legislative fights, the interplay between the state’s budgeting process and education funding mandates always seemed destined to end in court. Beginning with passage of Amendment 23 in 2000, the state has an obligation to increase “statewide base per pupil funding” every year, regardless of economic reality or budget constraints.

In a vacuum, the stated goal of Amendment 23 — to “increase per pupil funding for public schools” — is both worthy and right. But in the sausage-making factory of the Legislature, where funds are both coveted and limited, such a mandate necessarily created conflict. Working in conjunction with TABOR restrictions and the “ratchet effect” that tightened state budgets during the recession, Amendment 23 ensured the overall percentage of state funds directed to K-12 education continued to grow at a cost to other programs and services. Those programs saw budgets stripped and withered. And the hands of legislators were tied. After a decade of Amendment 23 increases and two years of economic collapse, the Court noted that the Legislature “determined that stabilization of the state budget requires a reduction in the amount of the annual appropriation to fund the state’s share of education funding.” Other programs already cut to the bone or eliminated entirely, the Legislature wanted to re-balance. It did so by employing a “negative factor.”

School funding prior to and after Amendment 23 consists of (1) base funding and (2) factor funding. “Base funding” sets an equal amount per pupil to be spent across the state. To adjust for geographic, income, personnel, and school size differences, the state adds “factor funding” to each district. The sum is a district’s total funding. Because the mandate in Amendment 23 only addressed base funding, total funding per pupil could be reduced. Effectively, if not technically, as base funding increased, the Legislature decreased factor funding by an even larger amount, the “negative factor.” The Dwyer plaintiffs believed this legislative loophole violated the intent of Amendment 23 and sued.

The Supreme Court majority disagreed. According to Chief Justice Nancy Rice, who wrote the opinion, “By its plain language, Amendment 23 only requires increase to statewide base per pupil funding, not to total per pupil funding. We therefore hold that the negative factor does not violate Amendment 23.”

But even the Supreme Court isn’t immune to the sharp divides that characterize education-funding debates. Joined by two other justices, Justice Monica Marquez dissented with sharp criticism for the majority ending its analysis prematurely, ignoring the context of Amendment 23’s passage, and allowing the Legislature to “eliminate the school finance formula entirely so long as each district receives the statewide base per pupil amount.”

That divide almost certainly ensures that, while the Dwyer case has ended, the debate will continue.

Mario Nicolais is an attorney and legal scholar at the Denver law firm of Hackstaff & Snow LLC.

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