Constitutional Rights Are Not Political Questions

It shouldn’t be controversial that courts are supposed to interpret and apply the law — after all, that’s the essence of what courts do.  But Colorado is trying to turn this principle on its head.

September 27, 2012

It shouldn’t be controversial that courts are supposed to interpret and apply the law — after all, that’s the essence of what courts do.  But Colorado is trying to turn this principle on its head, arguing in a recent lawsuit that it is disrespectful to the state for the courts to hear a claim that the state violated its duties under the Colorado Constitution.  It’s a dangerous argument that imperils the rights of the politically powerless and strikes at the very integrity of our judicial system, and it’s one that the Colorado Supreme Court should firmly reject.

The lawsuit, Lobato v. State, was brought by students, parents, and school districts in Colorado, who argue that Colorado’s educational funding scheme violates the state Constitution.  Like most state constitutions, Colorado’s constitution imposes a duty on the state to provide adequate educational funding for its public schools.  With nearly half of all students falling below proficiency on state exams and with a funding scheme that the trial court deemed “irrational,” the trial court recently found that the state wasn’t meeting its constitutional duties, and ordered it to reform its funding system. 

The State’s response was to attack the court’s capacity to hear this case at all – claiming that educational funding decisions are a “political question” and that the judicial branch has no power to even decide if the plaintiffs’ claims have merit.  

As the Brennan Center and a group of constitutional law and civil procedure scholars argued in an amicus brief filed on Wednesday, this is a profoundly misguided argument that fundamentally misconstrues the role of the judicial branch in state constitutional systems, like Colorado’s, that require the state to adequately fund services such as education.  

By creating an “affirmative right” to an adequate education system, the people of Colorado made the decision to limit the Executive and Legislature’s discretion in how they allocate state funds.  As a result, it’s the courts’ job to interpret and apply this right to the education funding system created by the state, and to hold the government accountable when it fails to meet its duties.

The state’s argument is especially ironic because the individuals protected by the Colorado Constitution’s Education Clause – children, including vulnerable populations such as low-income and special needs students and English language learners – lack the ability to protect themselves in the political sphere.  And as Colorado’s egregious record of inadequate educational funding demonstrates, if the courts don’t step in to protect the rights of Colorado’s children, no one else will.