High court's power grab may backfire

In an audacious power grab, the Colorado Supreme Court recently embraced, by a 4-3 decision, a judicial doctrine that would relegate the other two branches of government — and the voters — to a perfunctory role. The high court's activist majority used Lobato vs. State not only to intrude on the legislature's constitutional authority to determine funding for public schools; it also self-servingly suggested that no policy decision is off-limits to judicial review.

So much for separation of powers, consent of the governed, or checks and balances. In fact, the Lobato ruling leads to the obvious question: "What's left to check or balance the court?"

The majority opinion, written by Justice Michael Bender, represented such a stark — and sometimes disingenuous — departure from established precedent that Justice Nancy Rice, who frequently sides with the activist majority, instead joined two originalist justices in dissent.

A collection of school boards and parents initiated the lawsuit in 2005, contending the legislature should increase K-12 education spending by as much as $500 million a year — as if the state could find $500 million under the couch cushions.

Two lower courts dismissed their claims, finding that the state constitution provides no quantifiable standard — other Amendment 23, which the legislature has thus far implemented — to determine funding sufficiency. Thus, the courts ruled that K-12 spending is a "political question" which the constitution specifically places within the authority of the legislature and beyond the court's purview.

However, the supreme court's majority selectively quoted and distorted the law and its own precedent. Even more significantly, the majority argued that courts can render judgments even when the law is silent, provides no quantifiable standard or confers specific authority to another branch of government.

Bender's decision devotes five pages mostly to quote law school textbooks and journals — which have no force of law — to argue that the "political question doctrine … should be abolished."

Incredibly, Bender — joined by Chief Justice Mary Mullarkey and Justices Alex Martinez and Gregory Hobbs — reasons that failure to hear the plaintiffs' claims would "give the legislative branch unchecked power." Is the majority so infatuated by judicial supremacy as to forget that the legislature is routinely checked by the governor's veto and by citizens' initiatives?

In her dissent, Justice Rice demonstrates that a judge can be liberal in applying the law while still acknowledging that even the courts must be constrained: "Chief Justice Marshall noted that without the restraints imposed by the political question doctrine . . . the other departments would be swallowed up by the judiciary."

Rice — joined by Justices Nathan Coats and Allison Eid — argues that, when the constitution says "the general assembly shall . . . provide for . . . a thorough and uniform system of free public schools," authority is clearly conferred upon the legislature and not the courts.

She also scolds the majority for twice distorting the court's 1982 Lujan ruling on school finance.

Bender asserts that Lujan explicitly established the court's authority to review public school finance. Rice corrects the record to show that the Lujan court said, "[O]ur sole function is to rule on the constitutionality of our state's system" (emphasis added) not "whether a better financing system could be devised."

Rice goes one better in dismantling the majority's argument that "the Lujan court engaged in a rational basis review of whether the state's system violated the 'thorough and uniform' mandate." She retorts: "This is simply untrue – the Lujan court never references any test for 'thorough and uniform,' uses the words 'rational basis,' or posits any standard of review."

In fact, the Lujan court left those determinations to the legislature because it was "unable to find any historical background to glean guidance regarding the intention of the framers."

That's the important distinction between originalist judges — who believe their job is to apply the laws as written and to seek guidance from those who authored them — and activist judges — who believe their job is to twist the law to suit their own political agenda and to consult unelected, unaccountable academics for inspiration.

Ironically, Bender, Mullarkey and Martinez stand for retention in November 2010. Perhaps then voters will exercise their own "checks and balances."

Mark Hillman served as senate majority leader and state treasurer. To read more or comment, go to www.MarkHillman.com.

Teacher's Desk: We Don't Just Teach

Thank goodness for B12, or I might’ve collapsed last Friday. My principal and I both discovered that the right hand doesn’t know what the left hand is doing; the state and local bureaucracies have no clue what it’s like to work a school building or classroom, so deadlines are mounted on top of each other. At a small charter school, there just aren’t enough hands and minds to go around sometimes! The Colorado Department of Education asked my principals to provide them with specific accountability material for an audit by October 1st. Between September 24 and October 8, my principals were busy checking and double checking attendance records, so that we may be paid by the school district for the students we have enrolled. With many students out sick and many students in and out (not regular attendees) it is a chore to determine who qualifies and who does not. Fortunately, the state acquiesced and allowed us to provide the audit data by November 1st instead.

At the same time, Denver Public Schools requires that all Individual Education Plans due before December 1st be locked in the program by November 1st (actually they changed it to November 6). We are on vacation the week of October 26, so the special education team was busy writing reports and holding meetings. It is a phenomenon in organization to get these meetings scheduled because many of our students have not had meetings held in two or more years and much of their previous records are not adaptable, so new testing is needed.

Just as I was about to see the light at the end of the tunnel, Friday, October 23, right before our break, the Department of Student Services for Denver Public Schools sent me an email requesting that I change the wording from a spring 2009 IEP in one section that I had written, and the wording for a section from the winter of 2009 that was written by someone else at the student’s previous school, because the Colorado Department of Education was performing an audit, randomly pulled these two IEPs, and would be examining them October 29 when Denver Public Schools, as well as, my school were out on Fall break.

It was either squeeze it in on Friday’s to-do list or do it on my birthday, on my vacation. It was completed on Friday, October 23rd! Like I said before, thank goodness for my B12 every morning! Kathleen Kullback is a licensed special educator with an MA in Educational Leadership at Colorado High School Charter and is a former candidate for the State Board of Education.

The Case for TABOR

By Bill Moloney States with constitutional and/or statutory restraints on taxing and spending have strong financial foundations because those restraints greatly militate toward the positive business climate and robust economy that invariably generate increased revenues across the board. Colorado, which has had such restraints since 1992, is a prime example of their great benefits. California -- today having the nation’s most disastrous state economy -- once had such restraints but cast them aside some years ago and consequently has become the poster child for what happens to states that fall into the trap of unrestrained taxing and spending. Editor: Last week, contributor Bill Moloney took the TABOR success story on a speaking tour of Maine, where taxpayer advocates are fighting for passage of a similar amendment on Nov. 3. Here is the rest of his message from that trip:

Prior to my decade as Colorado’s Education Commissioner I served as a senior school administrator in five other states-Massachusetts, Rhode Island, New York, Pennsylvania, and Maryland- and in all of them had extensive experience regarding the interplay of taxation and spending and how they impacted the financial health of my district, and the state as a whole. These experiences over thirty years in rural, suburban, and urban settings led me to the firm convictions stated above.

In a nation wracked by recession, ballooning budget deficits and soaring public debt the issue of fiscal restraint has an urgency greater than at any time in our history.

Attempts to promote fiscal restraint through constitutional or statutory means however have been a guarantee of bitter political conflict in every state they have occurred.

An ordinary citizen might ask: “Who would be against fiscal restraint, particularly in these perilous economic times?”

The answer is: All special interests that profit greatly from unchecked taxing and spending, most prominently giant labor unions like the National Education Association (NEA), and the Service Employees International Union (SEIU).

The main tactics of these special interests opposing efforts at fiscal restraint are always the same i.e. Predict devastating hardship if voters or legislators irresponsibly support mechanisms of fiscal restraint, and flood the state with money from their national organizations to be spent on saturation media advertising, direct mail etc. aimed at scaring people about the dire consequences of any legal barriers to unchecked taxing and spending.

The dire consequences are skillfully invented and invariably include impoverished schools (“This will hurt the little children”) and the disappearance of critical public services like Meals on Wheels (“This will hurt the poor senior citizens”).

These tactics are the equivalent of resisting restraints on a local school budget by threatening the abolition of the band and the football team. Amazingly when citizens restrain the budget anyways the band and the football team somehow survive thus exposing the scare tactics as just that.

In 1992 when Colorado voters were presented with a constitutional amendment- Taxpayers Bill of Rights(TABOR)- to limit the growth of state revenue and spending to the sum of inflation plus population growth they were bombarded with special interest media advertisements predicting a doom and gloom economic future if TABOR passed.

When the voters went ahead and passed TABOR not only did the “dire consequences” fail to occur but instead Colorado entered a period of economic growth and prosperity unequalled in its history.

Since 1992 Colorado has gone from a boom-and- bust-prone economy overly dependent on the energy industry to one that is much more stable, balanced, and diversified. This rapid transformation derived from the state’s growing reputation as a low tax business and investment friendly environment that was generating economic opportunity for companies and citizens alike. A particular success story was the burgeoning high tech industry that ironically owed much of its rapid growth to companies fleeing Silicon Valley owing to California’s steady undermining of those very same fiscal restraints that had been a model for Colorado’s TABOR law.

Among the principal beneficiaries of this new prosperity were the schools of Colorado which had known wide spread hardship during the energy industry bust of the nineteen eighties. After 1992 school district revenues surged owing to the growth and job creation fueling local and state prosperity in the wake of TABOR.

Today following the national economic meltdown of 2008 Colorado is facing the same kind of severe challenges as every other state. However, absolutely none of those challenges are traceable to TABOR.

On the contrary because of the enduring benefits of TABOR Colorado’s economic challenges are markedly less than most other states, and disproportionally less than those states-like California- which have ignored the clear track record and economic wisdom of fiscal restraint.

William Moloney was Colorado Education Commissioner,1997-2007, and is now an international education consultant as well as a Centennial Institute Fellow. His columns have appeared in the Wall Street Journal, USA Today, Washington Post, Philadelphia Inquirer, Baltimore Sun, Rocky Mountain News and the Denver Post. His e-mail address is moloneyvision@aol.com

Boggs & Rush for Jeffco Schools

Jefferson County Schools, large and influential, are electing three board members this month. Laura Boggs and Rick Rush deserve your vote if you think education should be more competitive and less unionized, says our friend Ben DeGrow, policy analyst for the Independence Institute. Candidates run from districts, but all voters in the county can vote for any candidate.

The teacher union is supporting Sue Marinelli over Boggs and Paula Noonan over Rush, along with the unopposed incumbent Robin Johnson.

Here's the official election rundown from district website.

Teacher's Desk: Support Seawell for DPS

IEP meetings continue, and I may soon turn into a pumpkin. Meanwhile, Denver Public Schools are holding a school board election and I have an endorsement for the at-large seat: Mary Seawell. The reason I am endorsing Mary is simple. She supports doing whatever it takes to ensure student academic success. This includes programs and process in regular district schools, charter schools, magnets and innovation schools. That is the fair-minded philosophy that the Denver School Board needs. This is the attitude that is needed for someone who will be making the decision of our charter schools’ renewals and the charters of new charter schools.

Her opposition is clearly anti-charter school without results-based plans to improve student achievement. He regurgitates trite, worn-out arguments.

I like Mary for another reason. She was part of the team that built the Denver University’s new MBA in educational leadership. The program is a much needed resource and is a combination of traditional school leadership training coupled with marketing and entrepreneurship. Other states’ universities have “charter school principal programs,” and I am thrilled that Colorado now does too!

Kathleen Kullback is a licensed special educator at Colorado High School Charter, a Denver alternative high school, and a former candidate for the State Board of Education.