The most important government official in Colorado this year is not the governor, chief justice, or a legislative leader. It’s not the president of CU or the new Denver mayor.
The most important official is Sheila Rappaport. She’s a district judge in Denver, and next month she will function as a one-woman legislature when she presides over a trial to determine whether Colorado provides a “thorough and uniform system of free public schools” as required by its constitution.
“Thorough and uniform” is a mighty vague term, but the plaintiffs who’ve sued the state — and who are supported by every powerful educational interest group — think they know its meaning. It means a system, they say, that spends a great deal more money than Colorado does. And so Rappaport will consider their argument that the schools are so grossly underfunded and the quality of education so below par that the state is a constitutional outlaw.
And who will define what a “thorough” education involves? Rappaport, of course, even though no generally accepted definition exists that rises above platitudes. Then, if she concludes that the state falls short of whatever standard she selects, she would have to determine how much such an education costs — even though the relationship between funding and educational quality is a matter of furious political and professional disagreement — and then order lawmakers to come up with the additional cash.
No wonder another district judge, five years ago, declined to take the bait. “The Colorado Constitution clearly commits power of appropriations and the determination of educational adequacy to the legislature,” Judge Michael Martinez correctly maintained. The state appeals court reached a similar conclusion, but in a depressing display of judicial hubris, the state Supreme Court reversed that ruling.
According to the high court, judges have every right to assume the role of education czars and dictate spending.
So don’t blame Rappaport for becoming the most important official this year. It wasn’t her idea.
That’s not to say she must rule for the plaintiffs. The attorney general’s office, which is defending the state, should have a strong case. After all, it doesn’t have to pretend that funding is immaterial to educational quality. Money clearly matters, and more money is usually better than less. Instead, the state will try to demonstrate — and this shouldn’t be hard — that other factors are equally important and that you can provide a good education with available funds.
Moreover, as even the Supreme Court admitted in its dreadful decision, the court’s job is not to mandate the ideal system or even to determine “whether a better financing system could be devised.” Its job is merely “to determine whether the state’s public school system is rationally related to the constitutional mandate” for a “thorough and uniform” system. That’s hardly an insurmountable hurdle, you’d think.
Or at least it wasn’t until Rappaport issued a ruling this week excluding evidence “concerning non-educational appropriations by the General Assembly and the TABOR revenue restrictions.” How do you prove the state had a rational basis for creating the current system if you can’t introduce evidence about the world of competing interests and duties in which lawmakers work?
Still, it’s too early to conclude that Rappaport is predisposed to mandate massive new spending. What can be predicted, based upon experience in other states, is what will happen if she does: Colorado will face years of grueling litigation and additional directives — not to mention voter backlash — as the courts micromanage education outlays and second-guess how lawmakers respond. In a similar case in New Jersey, that state’s supreme court issued at least 17 decisions.
“The landscape is littered with courts that have been bogged down in the legal quicksand of continuous litigation and challenges to their states’ school funding systems,” the Nebraska high court observed several years ago.
We stand on the edge of that same swamp — and can only hope that Rappaport doesn’t order us in.
E-mail Vincent Carroll at vcarroll@denverpost.com.
