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By William Moloney, Contributing Editor

Following Franklin Roosevelt’s landslide re-election victory in 1936 the U.S. Supreme Court’s decisions regarding the President’s New Deal legislation became noticeably friendlier.  Noting this trend the great jurist Louis Brandeis famously remarked that “even judges read the newspapers”.

That may be true in other places and times, but not in Colorado of late where the will of the people as democratically expressed in their resounding 2 to 1 defeat of Proposition 103 collided head-on just a month later with the will of a judge as expressed in the recently decided Lobato lawsuit on education finance.

This Colorado conflict has gained wide attention because in almost perfect textbook fashion it illustrates the main issues in the long running national controversy of judicial vs. popular will in the matter of education finance.

Going back almost forty years to landmark cases in New Jersey and California there have been no less than thirty-nine education finance lawsuits in twenty-seven states.  Colorado has had two in the last decade.

Though there has been considerable local variation in these cases they have nonetheless been very similar in broad outline.  Basically all have involved education interests supporting lawsuits against their state over perceived inadequacies in K-12 funding.

What is dramatically different in recent cases like Lobato is that the sums of money involved have increased exponentially and have the potential of overthrowing the financial structure of entire states.

Colorado’s last K-12 lawsuit- Giordino, 2001 cost taxpayers a “mere” $500 million dollars and a relatively prosperous state with a robust economy was able to absorb this cost.

In Lobato the plaintiffs boldly asserted that K-12 public schools required an increase of two to four billion dollars annually to adequately fund the State’s 178 school districts.  The judges’ ruling strongly supported the plaintiff’s case.  Though no specific financial remedy was included in the decision the judge declared the state funding system unconstitutional and “unconscionable”, and further stated that “every single” school district in the state was underfunded.

So, what would be the effect of a $2 to $4 billion dollar per year increase in education funding?

Consider the following: Between 1970 and 2008 K-12 education spending in Colorado has already been increased by 96% in inflation adjusted dollars.  At present K-12 spending equals 45% of the state’s General Fund.  A $ 2 billion dollar per year increase would lift that figure to 66 %.  A $4 billion dollar per year increase would give K-12  86%  of the General Fund.

Given that these numbers are clearly untenable the alternative scenario is dramatic increases in taxation.

Interestingly the people and organizations who supported the Lobato plaintiffs are the same ones who backed Proposition 103.  Yet even if the voters had approved Proposition 103 which required $3 billion dollars in new taxes over five years, those increases would have fallen far short of the amounts sought in Lobato. ($10 to $20 billion over five years)

Democratic Governor John Hickenlooper vigorously supported the state’s defense in the Lobato  case because he like Governors all across the country struggling to contain runaway education costs realizes that the long-term trajectory of K-12 spending is simply unsustainable and if left unchecked it can threaten the fiscal integrity of the entire state.  He also sees that while Social Security and Medicare may be the eight hundred pound gorillas of the entitlement crisis in Washington, at the state level it is the  education entitlement that cries out for the kind of  structural reform that can save both our schools and our state.

Such viewpoints are, of course, heresy to those who believe that education reform begins and ends with a dollar sign, and that judicial fiat is a clever way to circumvent recession weary voters grown skeptical about education’s seemingly limitless appetite for more money.

William Moloney was Colorado’s Education Commissioner from 1997 to 2007.