Constitutional Warfare: Can you Spot the Victor?


There’s no polite way to say it: Colorado’s Constitution is simply at war with itself.  It’s been on a collision course for some time, but the Great Recession of 2008-10 hastened the inevitable train wreck.

How is Colorado currently violating the Constitution?  Let us count the ways.

1) “Thorough and uniform.” In the Lobato case, after a five-week trial, Denver District Court Judge Sheila Rappaport found that our current school funding system fails to provide the “thorough and uniform” system of free public schools promised by the constitution.  Calling the status quo “unconscionable,” Judge Rappaport found that there is no “rational relationship” between what is being required of schools and students on one hand, and the way we fund schools on the other.

2) Local Control. Judge Rappaport also found in Lobato that state funding was so inadequate that school districts have effectively lost their ability to use local dollars for local priorities, as the Constitution requires.

3) Amendment 23. For the last three years, the legislature has spent less dollars on education than the year before, even though Amendment 23 requires annual increases.  The way they’ve done it is by creatively (and, we believe, incorrectly) reinterpreting this provision of the constitution.  They added a “negative factor” to the school finance formula; each year they expand that negative factor to make whatever cuts are necessary to balance the state budget.  This year’s budget proposal would spend $1.1 billion — that’s an average $1,278 per pupil or 17.6% — less than Amendment 23 actually requires.

4) State lands. The Constitution requires that all dollars earned off the lands set aside in 1876 for the benefit of public schools be used to supplement — not to replace — general fund dollars for K-12.  Right now, those earnings are going right into the School Finance Act to relieve pressure on the general fund.

5) The Gallagher Amendment. Passed in 1982, the Gallagher Amendment was passed to maintain a specified balance between the total amount of property taxes that residential and non-residential property owners pay.  Residential owners are to pay about 45% of the total, and non-residential (business) owners are to pay 55%.  In order to maintain that balance, the state adjusts the “assessment rate” (the percent of the value of a home that is subject to tax) of residential property.  Because the value of residential property rose so much more quickly than non–residential in the 90s especially, the residential assessment rate dropped precipitously.

Here’s the constitutional violation: because of changes in the value of property, in order to be in compliance with the constitutionally mandated 45%-55% split, the legislature would have to increase the residential assessment rate from 7.96 to 8.85%.  The legislature has not done so, and as a result school districts are receiving less property revenues and businesses are paying a larger share of property taxes than the Constitution requires.

That’s five constitutional violations. To a large extent, these continuing violations have been caused by another constitutional amendment that is not being violated.  Can you name it?

If you know, go to our Douglas, Arapahoe, or Jeffco Facebook page and post the name of the constitutional amendment that’s currently prevailing over all the others.  

*Extra credit: Tell us who is paying the price.


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