Suit Seeks to Lobato-mize Colorado’s Constitution

The following article by Linn and Ari Armstrong originally was published March 2 by Grand Junction Free Press.

Do “we the people” have a say in how politicians spend our money, or not? That is the basic issue at stake in a legal case currently winding its way through the courts.

Lobato vs. State of Colorado seeks to overturn Constitutional restraints on government spending so that judges can compel legislators to spend tax dollars on government schools to the teachers unions’ satisfaction.

First some context: In 1992, the majority of Colorado voters passed the Taxpayer’s Bill of Rights (TABOR) to restrain government spending and better protect people’s rights to keep and use the fruits of their labor. Last fall, an astounding 64 percent of voters rejected Prop. 103, a tax hike loosely tied to education funding.

On December 9 of last year, Denver District Judge Sheila Rappaport spit in the faces of Colorado voters by essentially throwing out the fall vote and reinterpreting the state Constitution—throwing out the parts she doesn’t like—to suit her own political agenda.

Colorado’s Constitution (Article IX, Section 2) states: “The general assembly shall . . . provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state. . . . One or more public schools shall be maintained in each school district within the state, at least three months in each year. . . .”

Judge Rappaport fixated on the phrase “thorough and uniform” and ruled she gets to unilaterally decide what that means, the rest of the Constitution be damned. Of course she decided that the legislature must spend more tax dollars on education, regardless of what the people earning that money may think about it, and regardless of the fact that Colorado’s government schools already spent $8.7 billion in 2009-10 for over $10,000 per student (as Ben DeGrow reports for the Independence Institute).

Obviously the context of the phrase grants wide latitude to the legislature to decide what constitutes a “thorough and uniform” education. The language explicitly says three months of school each year would be perfectly fine; obviously the legislature provides far more than that.

But of course the Constitution contains not just that one section, but many others as well, including TABOR and other spending restraints. As is obvious to everyone except, apparently, Judge Rappaport, one must interpret each Constitutional provision in the light of the others.

For example, while the U.S. Constitution grants Congress the power to “regulate commerce . . . among the several states,” the First Amendment explicitly prohibits Congress from doing so in a way that abridges “the freedom of speech, or of the press.” Likewise, Colorado’s Constitutional language regarding education must be interpreted in light of the provisions concerning other legislative responsibilities and spending restraints.

Judge Rappaport’s biases showed through clearly in her viciously dishonest attack on John Andrews, the former state senator and now the director of the Centennial Institute. Andrews testified as to the meaning of the Constitutional language; Rappaport’s decision summarizes that Andrews believes “a ‘uniform’ education means that any child in Colorado, regardless of his or her family background or geographic location, receives the same learning opportunities and is within reach of the same educational outcomes as any other child in the state.” Fair enough, so far.

But then consider Rappaport’s snarky editorializing: “Some of the State’s witnesses hold extreme views on education. . . . Senator Andrews’ vision for the future is a separation of schools and state similar to the separation of church and state in our nation. . . . He reveres the educational system we had in this country in the 1700s because there were few government operated schools. He fails to mention that our schools did not educate whole segments of the population, including women and people of color, at that time.”

It is true that Andrews advocates the ultimate separation of school and state. So do we (and the comparison to the separation of church and state is apt). But that has no bearing on the meaning of the Constitutional phrase in question. Obviously Andrews recognizes that the Constitution imposes particular requirements that the legislature and the courts must meet. Obviously he wants every child to enjoy a superb education. For Rappaport to essentially call Andrews a sexist and a racist, despite his explicit comments to the contrary, is quite contemptible—and it illustrates the tenor of her politicized ruling.

Thankfully, on January 23, Colorado Attorney General John Suthers announced his office’s intent to appeal the ruling. He correctly said “the constitution, including TABOR, really is under attack in this case” (as DeGrow reports). He further said, “We are going to suggest… the question of what’s thorough and uniform has to be looked at in the context of subsequent constitutional amendments.”

Let us hope that the next judge to hear the case puts Colorado’s voters and Constitution ahead of the judge’s personal political agenda.

Linn Armstrong is a local political activist and firearms instructor with the Grand Valley Training Club. His son, Ari, edits FreeColorado.com from the Denver area.

See also Spending Limits Protect Against Factions, regarding Kerr vs. State of Colorado.

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