Colorado

After a trial in Lobato v. State, the trial court issued Findings of Fact and Conclusions of Law in December 2011, holding that the State is failing to provide a “thorough and uniform” system of public schools, as required by the state constitution, and is also violating the constitution’s mandate for local control of education. The State’s appeal is before the state supreme court.

In Lujan v. Colorado State Bd. of Education (1982), the Colorado Supreme Court rejected a challenge to the state school funding system that was based on equal protection clauses in the state and federal constitutions and the state constitution’s education clause. The court found that the state constitution requires the General Assembly to provide each school age child with the opportunity to receive a free education, but does not mandate absolute equality in services or expenditures.

In Giardino v. Colorado State Bd. of Educ., plaintiffs charged that deteriorating school facilities denied children educational opportunity and violated the constitutional guarantee of a "thorough and uniform system of free public schools." In 2000, the trial court approved a settlement agreement in which the State committed $190 million, over more than a decade, to fund school repair and construction in the neediest districts.

In 2005, a group of parents and school districts filed an educational opportunity case, Lobato v. State, alleging that (1) the state’s school funding system violates the "thorough and uniform" clause because it under funds education and distributes funds in an irrational and arbitrary manner, and (2) the state is violating the constitution’s  provision requiring local control of education. In 2009, the Colorado Supreme Court denied defendants’ motion to dismiss, and discovery began. 

In 2010, the Mexican American Legal Defense & Education Fund (MALDEF) filed a Complaint in Intervention on behalf of additional plaintiffs, which was unopposed by the Lobato plaintiffs and the state defendants. MALDEF’s claims, though similar to the original plaintiffs, focus especially on English learners and students “at-risk” due to poverty.

The five-week trial ended in September 2011. The trial court ruled in favor of plaintiffs, and the State has appealed to the Colorado Supreme Court.

"The general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously."  Colo. Const. Art. IX, § 2.

"The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respective districts." Const. Art. IX, §15.

Colorado has also amended its constitution to provide that state funding for public education from preschool through the twelfth grade must grow annually at least by one percent over the rate of inflation. Colo. Const. Art. IX, § 17.

In Lujan v. Colorado State Bd. of Education, the Colorado Supreme Court wrote:

"We find that Article IX, Section 2 of the Colorado Constitution is satisfied if thorough and uniform educational opportunities are available through state action in each school district. While each school district must be given the control necessary to implement this mandate at the local level, this constitutional provision does not prevent a local school district from providing additional educational opportunities beyond this standard. In short, the requirement of a "thorough and uniform system of free public schools" does not require that educational expenditures per pupil in every school district be identical." 649 P.2d 1005 (Colo. 1982).

In Lobato v. State, on the state’s argument that the case was non-justiciable, the Colorado Supreme Court held:

“We have never applied the political question doctrine to avoid deciding a constitutional question, and we decline to do so now. We interpret this court’s decision in Lujan v. Colorado State Board of Education, 649 P.2d 1005 (Colo. 1982), to hold that it is the responsibility of the judiciary to determine whether the state’s public school financing system is rationally related to the constitutional mandate that the General Assembly provide a “thorough and uniform” system of public education.”

 The court also wrote, “As was the case in Lujan, this claim triggers the court’s responsibility to review the state’s public school funding scheme to determine whether the existing funding system is rationally related to the General Assembly’s constitutional mandate to provide a “thorough and uniform” system of public education. …we hold that plaintiffs’ constitutional challenges to Colorado’s public school financing scheme are justiciable.” 

Lobato v. State includes a claim for increased state funding for preschool. Plaintiffs argue that preschool programs are necessary to ensure all “at-risk” students the opportunity for a constitutionally adequate education. They allege that, although the state provides some preschool funding, the level of funding provided is arbitrary and inadequate to provide enough quality preschool programs. The State’s witness on preschool did not substantially disagree with plaintiffs’ allegations or their expert witness.

The trial court provided a detailed articulation of the importance of preschool education, especially for economically disadvantaged and minority children, and the significant unmet needs for access and quality in the Colorado Preschool Program. The court found that "high-quality intensive preschool education increases achievement test scores; decreases special education and grade repetition; increases high school graduation; decreases behavior problems, delinquency, and crime; increases employment ... decreases risky behaviors like smoking and drug use; and has positive impacts on mental health, thereby reducing problems like depression." The positive effects of high-quality preschool education result in economic benefits that can "far exceed the costs to taxpayers of providing such programs as part of public education," the court wrote.

Focusing on minority children and those living in poverty, the court noted that high-quality preschool education programs have been found to close as much as 70% of the achievement gaps of such children at kindergarten entry and one quarter to one third of the gaps in the long term. High-quality preschool education produces immediate increases in cognitive development scores, markedly enhancing school readiness for these children.

The effectiveness of a given preschool program depends on a number of factors, according to the court, including teacher training, class size and staff to student ratio, and the amount of services provided in terms of hours per day and number of years of preschool offered. Preschool programs are most effective when teachers have at least a four-year college degree and specialized training in early education. Additional supports should also be provided for teachers, and teacher performance should be monitored and responded to with technical assistance if needed. The staff to student ratio in preschool should not exceed one to ten.

Full-day preschool programs are preferable to half-day programs in that parents' work schedules may preclude some lower-income children from attending half-day programs. The longer the duration of preschool, the more positive its long-term gains; two years of preschool is preferable to one year, and continued intervention beyond the preschool years produces further benefits.

Although the Colorado General Assembly created the Colorado Preschool Program in recognition of the substantial number of children unprepared to learn in kindergarten and primary grades, expressed an intention to fully fund the program, and identified at least seven risk factors establishing eligibility for 3-, 4- and 5-year-old children, the court found significant unmet need for public preschool services in Colorado.

Education Justice at Education Law Center submitted an Amicus Brief to the Colorado Supreme Court in Lobato v. State regarding the state’s motion to dismiss, arguing that:

1. Colorado’s judiciary has previously declined to allow claims of the existence of political questions to prevent it from fulfilling its duty to interpret the constitution;
2. The court is capable of discerning and applying "judicially manageable standards" in this case, as courts in other states have done in similar cases; and
3. Proper separation of powers concerns compel the judiciary to interpret the constitution and determine whether defendants are in compliance.

Education Justice at Education Law Center will submit another amicus brief to the Colorado Supreme Court, this time regarding the state’s appeal of the trial court ruling in favor of the Lobato plaintiffs.

The Colorado Preschool Program (CPP) was first enacted in 1988 in the hopes that it would reduce drop out rates.  The legislation implementing CPP notes the substantial numbers of children who enter kindergarten unprepared to learn.  It also acknowledges the link between early school failure and later difficulties such as dropping out of school, becoming dependent upon public assistance, and becoming involved in criminal activities.

Districts wishing to participate in the CPP must convene a district preschool advisory council.  The duties of the advisory council include preparing a plan for identifying children who may be eligible for the program, assessing the need for a pre-k program, and submitting a request for proposals for participation in the program to local Head Start agencies and community child care agencies.

The school district may choose to contract out part, or all, of its pre-K program.  The programs must meet the same quality standards as a district-run program.

Children ages 3, 4, and 5 are eligible for CPP if they either: (1) lack overall readiness due to significant family risk factors; (2) are in need of language development; or (3) are receiving services from the state as a neglected or dependent child.

Children age 3 are only eligible if they have at least 3 significant family risk factors.  Children age 4 and 5 are required to have 1 risk factor.  The risk factors include federal free or reduced lunch eligibility, homelessness, a parent that is abusive or addicted to drugs or alcohol, a parent without a high school education, frequent relocation by the child’s family, as well as locally determined risk factors.

CPP provides funding for a half-day program four days a week, with the fifth day reserved for home visits and preparation.  Parents may be charged fees for extended services.

CPP receives funding through the Colorado school finance formula.  Funds are districted to public schools, through they may subcontract with Head Start, private child care centers, faith-based organizations without religious content, or other community-based or public agencies.  Other funding sources, such as federal Head Start money, may be used to supplement CPP services, extend the program day, or provide wrap-around care.

According to the National Institute for Early Education Research (NIEER), Colorado served 20% of all 4-year-olds and 6% of all 3-year-old sin its state preschool program in 2009-2010.

Quality Standards

CPP reached 6 out of 10 benchmarks in the 2009-2010 school year, matching its 2008-2007, and 2007-2008 statistics.  In the 2005-06 school year, the program reached only 4 benchmarks and in 2006-07 reached only 5 benchmarks.

The 6 benchmarks reached were:

• Early learning standards
• Requirement that teachers have specialized training in pre-K education
• Teacher in-service (at least 15 hours/year)
• Class size limits of 20 students
• Class ratio of 1:10 or better
• Monitoring/site visit program

The 4 benchmarks not met were:

• Teacher must have Bachelor’s degree
• Assistant teacher must have a Child Development Associate credential, or equivalent
• Screening/referral and support services
• Requirement to provide at least one meal a day

Preschool programs that participate in CPP, as well as many that do not, report outcomes on assessment systems identified in Results Matter, the state’s system for collecting and reporting child outcomes from birth to age 5 in early childhood programs as well as information on families.  Results Matters is an ongoing evaluation which, among other tasks, explores the performance of children in CPP as compared to those children whose families pay tuition for preschool. 

CPP has been evaluated for program impact/child outcomes through Results Matter in the 2008-2009 and 2009-2010 school years.

Colorado Revised Statutes

Colorado Code of Regulations

Colorado Department of Education

Colorado Preschool Program Manual