A Colorado trial court has explained the educational needs of students who
are "English language learners" (ELLs) and the significant achievement gaps
resulting from underfunding of ELL programs in Colorado. State funds barely
cover the cost of administering the English learner test.
In evaluating the constitutionality of Colorado's school funding system pursuant
to the Colorado Supreme Court's 2009 decision in Lobato
v. State, the trial court on remand undertook a thorough study of six
types of "special student populations," including children learning English.
Court Findings: Legal Requirements and Educational Needs of ELL Students
Colorado has over 100,000 ELL students in grades K-12. ELLs represent 12%
of the student population and are served by 156 of Colorado's 178 school districts.
The ELL population in Colorado has grown by 250% since 1995 while the overall
K-12 population has grown by only 12%.
Colorado law requires districts to identify, track and annually assess ELL
students and to implement a research-based program to serve such students.
The federal No Child Left Behind (NCLB) law likewise requires school districts
to use scientifically-researched best methods and approaches for teaching ELLs.
Under NCLB, school districts must have programs to ensure that ELLs not only
attain English language proficiency but also develop high levels of academic
content knowledge and meet state achievement standards.
Research establishes that the most effective programs for ELLs make use of
children's native languages. Teaching children to read in their native languages
enhances subsequent acquisition of literacy in English; ELLs should have access
to core academic subjects while they are still learning English.
It takes ELL children between four and seven years to fully develop "academic
English." Research shows that intermediate-level ELLs, that is, students who
know the basics of English but have not mastered the more complex aspects of
the language, need the most instructional support. These students, also known
as LEP (limited-English proficient) students, are additionally challenged by
core academic content that is increasingly more difficult at higher grade levels.
Bringing all ELL students in Colorado up to mandated proficiency levels "requires
comprehensive programs across many grade levels; in-school and out-of-school
experiences, trained teachers, a good curriculum, instructional materials,
and good parent involvement," in the words of the Lobato court.
ELL Education in Colorado
Although certification in bilingual education or English as a second language
is important for teachers of ELL students, Colorado does not require school
districts to hire teachers with such certification. Nor does Colorado widely
implement the dual language programs that are shown to accelerate and enhance
academic achievement of ELLs. Colorado has approximately 2000 certified ELL
teachers to serve 100,000 ELL students in the state.
The majority of Colorado ELL programs are targeted at beginning-level ELLs,
with less support for the LEP students who actually need the most support.
Not surprisingly, achievement gaps between ELLs and native English speakers
in Colorado tend to widen as students get older and progress into the higher
grades. Achievement test scores of Colorado LEP students decline significantly
across grade levels in reading, writing, and mathematics and are significantly
lower than average scores statewide. In middle and high school, fewer than
twenty percent of LEP students score at proficient levels in reading; only
five to eight percent are proficient in writing, and less than ten percent
are proficient in math. The graduation rate of ELL students in Colorado for
the year 2009 was 53% as compared to the state average graduation rate of 75%.
The Colorado English Language Proficiency Act (ELPA) and NCLB provide funding
for ELLs in addition to the regular per pupil expenditures available to all
children in the state. Even taking all funding sources into account, however,
the court found "insufficient funding in Colorado to provide the types of effective
instructional and support programs for ELLs mandated by NCLB, supported by
research, and recommended by [the Colorado Department of Education] in its
own guidebook ... State funds barely cover the costs of administering the Colorado
English Language Assessment..."
State ELPA money is only available to a student for the first two years he
or she is in Colorado, a time limit "far short of the four to seven years that
research has established for acquisition of full proficiency" as well as "arbitrary
and irrational," in the court's words. The current funding level provided for
ELLs in Colorado bears "no relationship" to the cost of meeting the state's
own standards and requirements and makes it unlikely that the achievement gap
between ELL students and native English speakers will close in the foreseeable
Court's Analysis and Holding
The Education Clause of the Colorado Constitution makes the General Assembly
responsible for providing "a thorough and uniform system of free public schools" throughout
As explained by the court, beginning in 1993, the General Assembly began a
series of legislative reforms ultimately resulting in a "pervasive system of
content standards, assessments, school and school district accreditation and
accountability, and teacher effectiveness standards" for Colorado schools.
The elements of this "standards-based education system," according to the court, "constitute
the current legislative specification of the thorough and uniform system of
public education mandated by the Education Clause."
Following the Colorado Supreme Court's 2009 holding in Lobato v. State,
the court set out to determine whether Colorado's public school financing system
was "rationally related to accomplishing the mandates of the standards-based
education system." The court found such a rational relationship lacking, as "no
effort has been made" to determine the resources needed to accomplish standards-based
education goals or to institute and fund a system that provides the necessary
When Colorado enacted its Public School Finance Act (PFSA), the court explained,
the statewide base funding amount was determined "by working backwards from
the total funding that [the General Assembly] intended to appropriate," with "no
effort to analyze the relationship to the actual costs to provide an education
of any particular quality." In blunt language, the court noted that "[t]he
PFSA was adopted before the implementation of the standards-based education
system. If only for that reason, it cannot possibly relate to funding the costs
of that system. ... the PSFA funding levels are now and have since inception
been completely disconnected from the real, knowable funding needs of a thorough
and uniform system of public education."
The court further found that Colorado's "irrational and inadequate school
funding system" violates the Local Control Clause of the Colorado Constitution,
which gives local boards of education control of instruction in the public
schools of their respective districts. Without adequate funding, school districts
are prevented from implementing the mandate of standards-based education at
the local level.
Having concluded that "the entire system of public school finance" in Colorado
is unconstitutional, the court directs the state to revise the system to assure
that "adequate, necessary, and sufficient funds are available in a manner rationally
related to accomplish the purposes of the Education Clause and the Local Control
Clause." Recognizing the limitations of its own role, the court specifically
notes that such revisions "are appropriately legislative and executive functions
in the first instance." The decision allows Colorado to keep its current financing
system in effect so as to give the State "a reasonable time" to create and
implement a system of public school finance that meets Constitutional standards.
It remains to be seen how the Colorado General Assembly will respond to the
court order in the area of ELL education funding. The trial
court decision offers a clear guiding light in the process of education
funding reform in Colorado.