The Colorado Supreme Court ruled Monday against a group of parents that had argued in a lawsuit that the Legislature’s use of the “negative factor” to cut school funding violated the voters’ wishes as expressed in Amendment 23.
The lawsuit was risky and for Colorado schools, probably a mistake. Now its consequences could spill over beyond education. By a 4-3 vote, the court, in essence, said that lawmakers can ignore the voters if they do so cleverly enough.
Amendment 23 was approved by Colorado voters in 2000. It mandated that state spending on education increase by the rate of inflation plus 1 percentage point for 10 years and by the rate of inflation every year after that. The vote was 53 percent to 47 percent.
But then the recession hit and the state was faced with radically decreased revenue. Something had to give and K-12 education is the second largest component of the state’s overall budget and the largest item in the General Fund.
To balance the budget without completely gutting other critical programs, our legislators apparently felt they had to get around Amendment 23. Their answer was the “negative factor,” a gimmick that played off the difference between base per-pupil funding and total per-pupil funding.
Under a complex formula, a number of variables such as school district size, cost-of-living and the number of children eligible for free lunches are applied to base funding to arrive at total funding. Called “factors,” these variables greatly increase total per pupil funding received by school districts.
In 2009, the Legislature decided Amendment 23 did not apply to the factors. Instead, it added a new “budget stabilization” or “negative factor” to the formula. With that, in the words of the Great Education Colorado website, “In effect, the Legislature now decides how much it wants to spend on school finance, and then adjusts the negative factor to meet that funding target.”
This year alone, as The Associated Press reported, a legislative analysis says the “negative factor” let the Legislature cut $894 million from overall state education spending.
Nonetheless, the state maintains it has been in compliance with Amendment 23 because it has continually increased base per-pupil funding – even though it has repeatedly cut total per-pupil funding.
And the court’s majority agreed, writing, “If voters had wished to increase ‘total’ per-pupil spending rather than ‘base’ per-pupil funding, they would have said so.”
Perhaps. But, as Justice Monica Marquez wrote in dissent, using the majority’s thinking lawmakers could do away with the state’s entire school funding formula as long as the “base” funding increased.
“Voters surely did not intend the annual increases to statewide base per pupil funding to be pointless,” Marquez wrote.
Exactly. And neither should votes of the people.
To say the voters understood the distinction between base per-pupil funding and total per-pupil funding is farfetched. What is well understood is the difference between more and less. And Colorado voters clearly said to spend more money on schools, not less.
That the recession put our lawmakers in a tough spot is true and Amendment 23 played a role in that. But if they can get around it with a wink and a made-up term – as the court apparently said they could – why not with other voter-approved measures? The state had to get its budget under control. But neither the “negative factor” nor Monday’s ruling represent good government.