Lobato v. State

Justice HOBBS,

dissenting.

T81 I respectfully dissent. I join the Chief Justice's dissent, and I also write separately to address the context, intent, and purpose of the Colorado Constitution's Education Clause. The drafters of the Colorado Constitution entrusted to future generations the critical responsibility of educating each generation of the state's children. They adopted the Education Clause to ensure that each Colorado child has the opportunity to become an educated person equipped to participate in life's many challenges, opportunities, and responsibilities.

T 82 The founders did not intend that any area of our state would suffer in the future from substandard and unequal access to educational opportunity. Living in the current complex age requires more, not less, innovative ways to develop fundamental critical thinking, problem-solving, and content-based skills. - Today's learners are tomorrow's doers. Each of us fondly recalls a teacher or coach who inspired the expectations we set for ourselves and our communities. The creation of capable and conducive learning envi*1152ronments in publie school classrooms throughout the state is the foundational principle of the Education Clause.

[83 Yet, as Chief Justice Bender adeptly explains, based on the extensive trial record in this case, the current finance scheme for public school education through the twelfth grade does not promote a "thorough and uniform" system, contrary to the Education Clause. Instead, the currently unbalanced system of school finance systematically maintains and exacerbates educational deficien-cles-leaving our public school system "so crippled by underfunding and so marked by gross disparities among districts that access to educational opportunities is determined not by a student's interests or abilities but by where he or she happens to live." Dis. op. T 69.

I. The Education Clause's Mandate

The Education Clause directs the General Assembly to "provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously." Colo. Const. art. IX, § 2.

185 The majority relies on Webster's Third New International Dictionary to conclude that a "thorough and uniform" system of public education "is of a quality marked by completeness, is comprehensive, and is consistent across the state." Maj. op. 118. Although completeness, comprehensiveness, and consistency are certainly elements of a thorough and uniform system of public education, these terms alone fail to adequately capture the intent of the framers in regard to the actual operation and effect of the public schools in each generation.

86 A "thorough" system is one "marked by completeness," as in "carried through to completion esplecially] with full attention to details" or "marked by attention to many details, especially] by sound systematic attention to all aspects and details." Webster's Third New Int'l Dictionary 2880 (1971) (emphasis added) (providing the example of a "thorough" course in mathematics). A system is "uniform" when it is "marked by lack of variation, diversity, change in form, manner, worth, or degree," "consistent in ... character[ ] or effect," or lacks "variation, deviation, or unequal or dissimilar operation." Id. at 2498 (emphasis added). Therefore, I would begin with the presumption that the drafters intended the General Assembly to establish and maintain a system of free public education marked by completeness, comprehensiveness, and consistency in character and effect across the state.1

T87 Examination of the "thorough and uniform" mandate must also take into account the context in which the drafters adopted the Education Clause. See, e.g., People v. Rodriguezs, 112 P.3d 693, 696 (Colo.2005) ("Our state 'constitution derives its force ... from the people who ratified it, and their understanding of it must control'" (quoting Alexander v. People, 7 Colo. 155, 167, 2 P. 894, 900 (1884))).

1188 In 1859, Colorado experienced a gold rush that initially spawned small settlements of mostly white males, accompanied by few women and children, in mining camps. See Edwin Grant Dexter, A History of Education in the United States 144 (1919); see also State Historical & Natural History Soc'y of Colo., History of Colorado 1150 (James H. Baker & LeRoy R. Hafen eds., 1927). "[ Wlhat few families there were, were ready to set out at a moment's notice for more promising fields, schools were few, and in many instances those that existed were hardly worthy of the name." Dexter, supra, at 142.

189 As farmers arrived to help feed the miners and commerce gave rise to villages, the first school in the Denver area (and, *1153likely, the state) opened in a rented room in Auraria on October 3, 1859, and, by October 20, it served twenty students. See History of Colorado, supra, at 1150. The following year, Boulder residents constructed the first known schoolhouse in the state; at the time, there were approximately forty children of school age in the immediate vicinity. See id. at 1158. "By 1861 ... the number of school children within the boundaries of the entire [Colorado] territory were hardly sufficient, had they been gathered into one district, to have formed a first-class district school." Dexter, supra, at 144. That year there were four schools-all private-operating in Denver. See History of Colorado, supra, at 1154.

T90 On September 10, 1861, Territorial Governor William Gilpin addressed the first territorial assembly, "dedicat[ing] a significant portion of his speech to a discussion of the 'pre-eminent' importance of education." Tom I. Romero, II, "Of Greater Value than the Gold of Our Mountains": The Right to Education in Colorado's Nineteenth-Century Constitution, 88 U. Colo. L.Rev. 781, 819 (2012). Gilpin articulated the widely held "belief that an educated electorate was the strongest safeguard of the nation's republican institutions" and "called upon the legislature to establish schools where all the children of the territory would 'receive generous instruction, uniform and thorough in its character"" Id.; see also House Journal of the Legislative Assembly of the Territory of Colorado 10 (1861) (reproducing Gilpin's full speech).

« 91 Less than two months later, the legislature authorized "An Act to Establish the Common School System," requiring the territorial superintendent to "see that the school system is, as early as practicable, put into uniform operation." An Act to Establish the Common School System, § 8, General Laws, Joint Resolutions, Memorials, and Private Acts, Passed at the First Session of the Legislative Assembly of the Territory of Colorado 154 (1861). The act provided for a territorial superintendent, county superintendents, education taxes, and a permanent school fund. Colorado's first tax-supported schools opened in Denver in 1862. See History of Colorado, supra, at 1155; Junius Henderson, Colorado: Short Stories of Its Past and Present 125 (1927). "The significance of this public school legislation|,] enacted but three years after the first discovery of gold in the territory," is hard to overstate:

Demands for the organization of a stable government, for the establishment of courts of law, for an orderly procedure in the determination of mining rights were insistent and engrossing, yet the vision of these Colorado pioneers was not impaired by the pressure of material things. Not only in breadth of view but in practical provisions for the detailed management of a school system at once adequate for immediate requirements and flexible for adjustment to the needs of future years, are evident the sterling qualities of these men and the sound American traditions which they followed.

Henderson, supra, at 125-26 (emphasis added).

T 92 In practice, Colorado's education system fell well below the mark of "uniform operation" initially envisioned by the territorial legislature,2 but as the territory's population grew, so did "interest in education," such that "efforts to provide for the extension of the advantages of the public school were everywhere apparent." History of Colorado, supra, at 1156; see also Third Biennial Report of the Superintendent of Public Education of the Territory of Colorado for the Two Years Ending September 30, 1875 19 (1876) ("There is such a thing attainable in our Public Schools as a comprehensive, systematic course of education. There is sufficient time for the average mind to acquire it; but to acquire it, there must be systematic instruction." - (emphasis added)).

*1154T93 People recognized that the "advantages" of public schooling did not merely accrue to the educated individual but to society at large-an educated citizenry promoted democracy and productivity. Seq eg., Romero, supra, at 819; Second Biennial Report of the Superintendent of Public Education of the Territory of Colorado for the Two Years Ending September 30, 1872, and September 30, 1878 104-05 (1874) (explaining, in the context of describing the importance of public education, that the "power of the individual, as a part of the whole, to affect the general welfare, arises not merely from his relation as a member of society; he is a witness, a voter, a juryman, he may be a judge, a legislator or an executive"); First Bienmial Report of the Superintendent of Public Education of the Territory of Colorado for the School Years Ending September 30, 1870, and September 30, 1871 25 (1872) [hereinafter First Biennial Report] (stating that "[nlo one familiar with the history of our Republic can doubt that the free school system is the safeguard of our liberties").

T 94 Between 1870 and 1880, the percentage of 5- to 19-year-olds enrolled in schools in the United States grew from 48.4 percent to 57.8 percent. See Nat'l Ctr. for Educ. Statistics, U.S. Dep't of Educ., 120 Years of American Education: A Statistical Portrait 14 thl.2 (1998). Colorado fared better than average, with 65 percent of the new state's school-aged population enrolled in 1876. See History of Colorado, supra, at 1156. By 1876, "there were 313 school districts ... and 219 school houses" which served 14,085 enrolled students within its boundaries. Id.

195 Still, many school-aged children did not attend school regularly. See First Biennial Report, supra, at 22. In 1872, the Colorado Territory's Superintendent of Schools worried that "want of regular attendance" greatly hindered "the success of our schools." Id. at 15. Although the average length of the public school term during the decade hovered around 130 days nationally,3 enrolled students attended an average of just 78.4 days of school in 1870 and 81.1 days ten years later. See Dexter, supra, thl. (reproducing a table from the 1902 report of the Federal Commissioner of Education).

€96 Notably, in the run-up to statehood, Colorado's educational leaders expressed a strong desire to avoid sacrificing educational quality for educational quantity. For example, in 1872, the Superintendent of Schools explicitly identified the problem of "[dlistrict officers too frequently employing] teachers of mediocre qualifications, who, 'work cheap,' that thereby the current expenses may be lessened, and they be enabled to continue the school for a longer term." First Bienmial Report, supra, at 10. Foreshadowing the Education - Clause's - one-school-for-three-months-per-year requirement for a school district to receive funding, see Colo. Const. art. IX, § 2, the Superintendent emphasized that "it is far better that [a] school be taught but three months [a yearl by a first class teacher, than six months by one unfitted for the position," First Bienmial Report, supra, at 10 (emphasis added).

197 Against this backdrop, from late December of 1875 to March of 1876, Colorado held its Constitutional Convention. See gen-eraily Proceedings of the Constitutional Convention Held in Denver, December 20, 1875, to Frame a Constitution for the State of Colorado (1907) [hereinafter Proceedings]. Most of the work of developing constitutional provisions fell to the twenty-four standing committees. See id. at 24-25.

198 On January 5, 1876, the convention referred a multi-part education resolution to the five-member Committee on Education and Educational Institutions. See Proceedings, supra, at 48. Among other things, the resolution called for the legislature to "provide for the establishment and maintenance of a thorough and efficient system of free schools, whereby all children of the State between the ages of six and twenty-one years, irrespective of color, birthplace or religion, shall be afforded a good common school education." Id. (emphasis added). Three *1155days later, the committee received a resolution requiring "at least one state university" so "[that our public schools shall not only embrace the elementary, but also the higher branches of school education." Id. at 84-85. A preamble framed the need for state support of higher education, explaining the state had an interest in ensuring the ongoing availability of effective educational opportunities that progressed according to the demands of the times:

The nature of our free institutions presupposed a high degree of intelligence of the people, and as the permanence ... and effectiveness of those institutions become the more secure and productive of good, the more this intelligence is promoted and spread; and ... [tlhe constant growth of our common country in number, as well as in its commercial, industrial and political relations, admonishes us not to neglect to progress according to the demands of our times.

Id. (emphasis added). Although these words did not expressly address elementary education, the principles apply in that context with equal force.

T99 Other state constitutions incorporating an affirmative right to education loomed large in the committee members' minds. Public education had "emerged as an essential issue in responding to important changes in social, political, and economie life for many Americans," and the states responded in kind. While "many of the original states ... scarcely mentioned education in their constitutional documents, between 1800 and the adoption of the Colorado Constitution in 1876, thirty-two out of thirty-seven state constitutions [adopted] (exeluding Colorado['s]) contained detailed provisions for education." Romero, supra, at 796. The notion that public education is "essential to republican government" was "[slo settled ... that in the late nineteenth century Congress required several territories to create free, nonsectarian public schools as a precondition for statehood." David Tyack & Thomas James, State Government and American Public Education: Exploring the "Primeval Forest," 26 Hist. Educ. Q. 89, 59 (1986) (emphasis added); see also Ordinance of 1787: The Northwest Territorial Government, §§ 13-14, art. III. While most constitutional provisions developed during this time period limited state authority "as a way to correct abuses or to protect against the power of special interests," state education articles reflected "a strong and evolving sense of [affirmative] governmental responsibility" for education. Tyack & James, supra, at 48, 58.

1100 Two of the five members of the Colorado Constitutional Convention's Committee on Education and Educational Institutions had previously been high-profile ed-ueators in Illinois, which had adopted a constitutional mandate for a "thorough and efficient" system of public education a few years earlier. Romero, supra, at 808-04, 826-27 (emphasis added). Delegates to the Illinois convention had intended-at minimum-for that state's system of free public schools to provide a general education that would "enable one to perform his dutics as a good citizen." 2 Debates and Proceedings of the Constitutional Convention of the State of Illinois 1788 (1870). Although they "disagreed over the scope and specific content" of a thorough and efficient system of public education, most Illinois delegates "indicated that some level of education was necessary to achieve societal goals of extending civic education, virtue, and socially desirable skills to all of the state's residents." Romero, supra, at 809.

«[ 101 While the contemporaneous record of discussion about education at the Colorado Constitutional Convention is slim,4 it does reveal that provisions "draw[ing] a sharp distinction between public and private schools" and prohibiting racial, as well as religious, discrimination proved highly controversial. Romero, supra, at 828-31; see also sources cited therein, eg., Constitutional Convention: The Petitions Still Rolling In, Rocky Mountain News, Feb. 11, 1876, at 8. Nonetheless, the delegates eventually adopted both. See Proceedings, supra, at 686-87.

102 By contrast, the central mandate of the Education Clause appears to have elicited no public debate at the convention. *1156Although the committee issued multiple revisions of the Education Article, and the convention at large discussed other proposed language within it, the final phrasing of the "thorough and uniform" mandate-"Itlhe General Assembly shall ... provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the State"-appeared in the first proposed version of the article and never varied. Compare id. at 185 (reproducing the first committee report's proposed language for the Education Article, with the Education Clause appearing in section 2, as it does today), with id. at 686 (reproducing the final Education Article, article IX). Colorado was the first state to incorporate this particular wording into a constitutional mandate for public education. See Romero, supra, at 883 n.252, 886.5 We have no record of why the committee chose the phrase "thorough and uniform" over "thorough and efficient" (the original language contained within the resolution the convention initially referred to the committee). However, the broader phrasing indicates that the framers valued maintaining a minimum, uniform level of educational quality throughout the state more highly than streamlining the educational bureaucracy.

1 103 Addressing the people of Colorado at the convention's close, the framers summarized the Education Article as "forever guarantee[ing]" the existence and "maintenance of free public schools" for Colorado's children. Proceedings, supra, at 727. The full article summary reads as follows:

By the provisions of this article the general supervision of the public schools is vested in a Board of Education.
The maintenance of free public schools, and the gratuitous instruction therein for all children between the ages of six and twenty-one years, is forever guaranteed.
It is declared that the public school fund shall forever remain inviolate and intact; that neither the State, nor any county, city, town or school district shall ever make any appropriation, nor pay from any public fund any thing in aid of, or to help support, any school or institution of learning of any kind controlled by any church or sectarian denomination whatsoever; that no religious test shall ever be required as a condition for admission into any of the public schools, either as pupil or teacher; that no religious or sectarian dogmas shall ever be taught in any of the schools under the patronage of the State.
The General Assembly is required to pass suitable laws to husband, to the fullest extent, the several grants of land donated by the General Government to this State for school purposes. It is provided that the several institutions of learning and charity now fostered by the Territory shall be perpetuated and cared for by the State.

Id. (emphasis added).

T104 Examining the Education Clause in its context reveals that, from the time of the First Territorial Legislature, Coloradans strove to provide a system of free public education directed at achieving an informed and productive populace. This overarching commitment to the goals of education cannot fairly be extricated from the meaning of "thorough and uniform" while maintaining fidelity to the framers' intent. In creating the "thorough and uniform" requirement, the framers intended that the legislature would establish and maintain a complete and comprehensive system of public education that consistently affords Colorado children the opportunity to develop the skills and knowledge necessary to participate fully in the opportunities and challenges of a dynamically growing state.6

*1157€ 105 Far from being satisfied with a bare minimum number of school houses in every school district, the framers staked our state's future on the commitment of each succeeding generation to meeting the educational needs of Coloradans border to border within our boundaries. To this end, the Education Clause mandates that the legislature provide for "establishment and maintenance" of a thorough and uniform system of public schools. "Establishment" of a system is "the act of bringing into existence, creating, founding, originating, or setting up [the system] so that a certain continuance is assured." Webster's Third New Int'l Dictio-mary, suwpro, at T8. On the other hand, "maintenance" encompasses "the labor of keeping something ... in a state of repair or efficiency" and "the action of preserving or supporting." Id. at 1862. Thus, system "maintenance" entails ongoing recognition of-and responsiveness to-the actual condition of the learning environments made available to our children to meet contemporary standards and expectations.7

1 106 The drafters were acutely aware that the knowledge and skills necessary for citizenship and productive participation in the workforee would change drastically from 1876 onwards. They lived in a rapidly evoly-ing era of great social, political, and technological change. They understood that a thorough and uniform system of public schools could not remain static, divorced from practical realities. They contemplated changing conditions that would shape what maintaining a thorough and uniform system of public education actually requires. Although the Education Clause itself required the operation of one school in each district, open for at least three months per year, no one can seriously argue that such a system would qualify today as "thorough and uniform" under any definition.8 Delimiting education to such a "system" would certainly not afford all Colorado children the opportunity to develop the knowledge and skills necessary for citizenship and productive participation in society. More importantly, as implementer of the Education Clause's intent and purpose, the General Assembly has set standards for educational achievement in the public schools throughout the state, while, at the same time, the state has failed to provide the funding necessary to achieve these standards.

II. - The General Assembly's Standards for Public School Education Are Relevant to Construing the Education Clause

{107 The General Assembly's own pronouncements regarding the level of education expected under the Education Clause are relevant to constitutional interpretation. See, eg., Lobato v. State (Lobato I), 218 P.3d 358, 375 (Colo.2009) ("The trial court. may appropriately rely on the legislature's own pronouncements to develop the meaning of a 'thorough and uniform' system of education."); Owens v. Colo. Cong. of Parents, Teachers & Students, 92 P.3d 933, 935 (Colo.2004) (stating that the General Assembly "has significant authority to guide and implement educational policy").

{108 In 1998, the General Assembly adopted H.B. 98-1313 as Part 4 ("Education *1158Reform") of the Educational Accountability Article (now located at article 7 of Title 22), directing implementation of a standards-based education system. The "ultimate goal," according to the legislature, was "to ensure that Colorado's schools have standards which will enable today's students of all cultural backgrounds to compete in a world economy in the twenty-first century." § 22-7-401, C.R.S. (2012); see also § 22-7-403(2), C.R.S. (2012) (declaring that all Colorado residents between six and twenty-one years of age have a fundamental right to education that assures each resident the opportunity to achieve the standards required by the legislation at a performance level "sufficient to allow such resident to become an effective citizen of Colorado and the United States, a productive member of the labor force, and a successful lifelong learner").

1 109 In 2008, the General Assembly enact, ed the Preschool to Postsecondary Education Alignment Act (the "Colorado Achievement Plan for Kids," or "CAP4K") as the "next generation of standards-based education." § 22-7-1002(1)(d), C.R.S. (2012). The legislature declared that, "[from the inception of the nation, public education was intended both to prepare students for the workforce and to prepare them to take their place in society as informed, active citizens who are ready to both participate and lead in citizenship." § 22-7-1002(1)(c), CRS. (2012). CAPA4K required the state Board of Education and the Colorado Commission on Higher Education to ensure that Colorado's education standards "are sufficiently relevant and rigorous to ensure that each student who receives a public education in Colorado is prepared to compete academically and economically within the state or anywhere in the nation or the world." § 22-7-1002(1)(e), C.R.S. (2012).

1110 In 2009, in order to assure accomplishment of the goals of CAP4K, the General Assembly enacted the Education Accountability Act. The Act expanded on preexisting law by further defining the parameters of an "effective system of statewide education accountability" and emphasizing the importance of "maximizing every student's progress toward postsecondary and workforce readiness and postgraduation success." § 22-11-102(1), (1)(a), C.R.S. (2012).

{ 111 Thus, the General Assembly has consistently identified the purpose of its educational policies as enabling Colorado students to be effective citizens of Colorado and the United States, productive members of the labor force, and successful lifelong learners. It has plainly recognized what the drafters intended by the phrase "thorough and uniform."9 It has passed significant legislation establishing a general school-funding formula applicable to all school districts, "categorical" funding for categories of students identified as requiring more financial assistance, and a statutory mechanism for districts to borrow money from their constituents to improve infrastructure or build new schools.

The majority cites the existence of uniformly applicable laws to support its conclusion that the school finance system is thorough and uniform. See maj. op. 1% 25-32. However, the Education Clause requires *1159more than a thorough and uniform system of laavs-it mandates "establishment and maintenance of a thorough and uniform system of free public schools" Colo. Const. art. IX, § 2 (emphasis added). The record in this case-so well analyzed by the Chief Justice-demonstrates a substantial disconnect between the purported function of the school finance system and its actual operation. Instead of maintaining a thorough and uniform system of public schools, the current system of school finance maintains and exacerbates educational deficiencies. Therefore it is not rationally related to achieving the Education Clause's mandate.

III. Disparity and Remedy

[113 In Lobato I, we determined that the plaintiffs alleged appropriate claims that "the state's public school financing system is unconstitutional because it is underfunded and disburses funds on an irrational and arbitrary basis" and held that, in order to sue-ceed in the lawsuit, the plaintiffs "must demonstrate that the school finance scheme is not rationally related to the constitutional mandate of a 'thorough and uniform' system of public education." 218 P.3d at 374. In my view, the record unequivocally establishes that the plaintiffs met this burden.

{114 Colorado is not achieving the thor- © ough and uniform system of public education our constitution's framers envisioned. The existence of uniformly applicable laws may be necessary, but it is not sufficient, to fulfill the "thorough and uniform" mandate set forth in the Education Clause. The current school finance scheme does not adequately support the General Assembly's standards-based education system.10 Student performance is declining in important ways while barely holding steady in others; only four states have a lower rate of high school completion than we do, and Colorado's achievement gaps between different demographic groups (based on race and income) are some of the widest in the nation. Dis. op. 158. The record in this case demonstrates that the quality of education students receive is highly disparate from place to place within our state, with many districts failing to provide students with adequate opportunity to develop the basic knowledge and skills necessary for citizenship and productive participation in society. Property-tax poor districts suffer from being unable to generate sufficient funds to maintain their facilities or achieve the standards the General Assembly has set, leaving them truly "starved for funds." DeRoiph v. State, 78 Ohio St.3d 193, 677 N.E.2d 733, 775 (1997) (Douglas, J., coneur-ring). In school districts across the state where property values are low, taxpayers should not have to choose between safe school facilities or safe streets, as the majority implies.11 See maj. op. 138.

1 115 For these and the additional reasons set forth in his dissent, I agree with the *1160Chief Justice that the current school finance system is not rationally related to the Education Clause's mandate for creation and maintenance of a thorough and uniform system of public schools. It is not this court's job to instruct the General Assembly how to fix the system or to pin a dollar amount on a constitutionally _ permissible - alternative. However, through a combination of legislative action, whether by the General Assembly or the voters through referendum or initiative measures, the state should provide each district with the funding necessary to meet the standards the legislature sets for educational achievement. As the record makes clear, it may take years-and significant effort-to reshape the current school finance system into one capable of supporting our rapidly growing and diversifying schools in compliance with the Education Clause's mandate. Colorado should face this critical issue head-on.

1 116 Accordingly, I respectfully dissent.

I am authorized to state that Chief Justice BENDER joins in the dissent.

. See also Bd. of Educ. of Sch. Dist. No. 1 in City & Cnty. of Denver v. Booth, 984 P.2d 639, 647-48 (Colo.1999) (consulting Webster's Third New International Dictionary to determine the plain meaning of "general supervision" in section 1 of article IX (the "Education Article") of the Colorado Constitution and proceeding to refine this definition in light of evidence of the framers' intent); see also Prior v. Noland, 68 Colo. 263, 267, 188 P. 729, 730 (1920) ("The presumption is in favor of the natural and popular meaning in which the words are usually understood by the people who have adopted them." (emphasis added)).

. For example, in the chaotic environment that preceded statehood, it was not uncommon for county or school district officers to misappropriate, or neglect to raise, school funds. See Horace Morrison Hale, Colo. State Teachers' Ass'n, Education in Colorado: a Brief History of the Early Educational Interests of Colorado, Together with the History of the State Teachers' Association, and Short Sketches of Private and Denominational Institutions 21 (1885); see also Dexter, supra, at 144 (noting that "school funds were frequently misappropriated" before 1870).

. By comparison, today most states require 180 days of instruction per school year; Colorado requires 160. See Educ. Comm. of the States, Number of Instructional Days/Hours in the School Year 1, 2 thl. (2013), http:;//www.ecs.org/ clearinghouse/01/06/68/10668.pdf; see also § 22-32-109(1)(n)(I), C.R.S. (2012).

. See Romero, supra, at 835 n.266.

. At the time of the Colorado Constitutional Convention, the education articles of six states' constitutions included a "thorough and efficient" mandate. See IIL. Const. of 1870, art. VIII, § 1; Minn. Const. of 1857, art. VIII, § 3; Neb. Const. of 1866, art. VII, § 1; N.J. Const. of 1844, art. IV, § 7(6) (adding the mandate with the amendments of 1875); Ohio Const. of 1851, art. VI, § 2; W. Va. Const. of 1863, art. X, § 2.

. This broad standard reflects both deference to the legislature's primary role in providing for the establishment and maintenance of a thorough and uniform system of free public schools and "recognition of the fact that the specific educational inputs or instrumenialities suitable to achieve this minimum level of education may well change over time, as a 'constitutionally adequate public education is not a static concept removed from the demands of an evolving *1157world.'" Conn. Coal. for Justice in Educ. Funding, Inc. v. Rell, 295 Conn. 240, 990 A.2d 206, 255 (2010).

. As I described above in paragraph 86, the words "thorough" and "uniform," themselves, encompass operation and effect.

. - The framers likely included the secondary mandate for maintenance of "[olue or more public schools ... in each school district within the state, at least three months in each year," Colo. Const. art. IX, § 2, to serve several purposes-vitally important at the time-which are, today, subsumed by the Education Clause's primary ''thorough and uniform" mandate. First, this mandate avoids the perceived false-economy of requiring school districts to hire mediocre teachers "cheap" for longer periods of time than they could feasibly afford to pay superior teachers. Furthermore, tying school district fulfillment of the mandate to receipt of state funding functioned as a check on misappropriation of state school funds by local officials in districts not adequately serving the state's youth. In essence, in 1876, a "thorough and uniform" system of public education that provided the requisite opportunity to develop the skills and knowledge necessary to be a good citizen and a productive member of society reasonably contemplated a single school operating three months per year in a school district. However, given the changed circumstances we face in the world today, the primary mandate subsumes the secondary and forms the constitutionally acceptable floor.

. Other states have drawn similar conclusions about the meaning of similar constitutional mandates. For example, the Supreme Court of Ohio examined its constitutional education clause, which contains a "thorough and efficient" mandate, and determined

[the operation of the appellant school districts conflicts with the historical notion that the education of our youth is of utmost concern and that Ohio children should be educated adequately so that they are able to participate fully in society. Our state Constitution was drafted with the importance of education in mind.

DeRolph v. State, 78 Ohio St.3d 193, 677 N.E.2d 733, 745 (1997) (concluding school funding system violated state constitution); see also Edgewood Indep. Sch. Dist. v. Kirby, 777 SW.2d 391, 397 (Tex.1989) (interpreting "an efficient system of public schools" as not allowing concentrations of resources in property-rich school districts and requiring substantially equal access to similar tax revenues per pupil at similar levels of tax effort); Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 211-13 (Ky.1989) (describing an "efficient system of common schools" as one that the state adequately funds to meet specific educational goals; that provides an adequate education with the same opportunities to all children in the state, regardless of place of residence or economic circumstances; and that the state continuously monitors to ensure it meets its constitutional mandate).

. As an example, the Public School Finance Act attempts to account for a number of variables-such as cost of living, personnel costs, pupil numbers, and at-risk student population-in reaching the "total program" funding level for each school district. However, noticeably absent from this calculation is an explanation of how the base per-pupil funding amount relates to implementing the General Assembly's standards-based system. Since 2006, statewide base per-pupil funding has remained essentially constant (with an annual adjustment for inflation), despite significant changes related to beginning CAP4K implementation. See § 22-54-104(5)(a) (XIHM)-(XIX) (listing statewide base per-pupil funding for each budget year between 2006-07 and 2010-13); Analysis of the Costs of Colorado's Achievement Plan for Kids (CAP4K), First Interim Report 22-25 (2010) (estimating new costs to school districts associated with implementing several components of CAP4K). Even assuming, for the sake of argument, the funding formula used to calculate districts' total programs adequately accounts for the costs they actually face in carrying out state statutory mandates, the "negative factor" pays no heed to that accounting. Instead, this across-the-board reduction slashes every school district's total program by the same percentage in order to balance the state budget. See § 22-54-104(5)(g)(II), C.R.S. (2012). Therefore, even if district funding at total program levels would be consistent with the Education Clause's mandate, district funding subject to the negative factor would not be.

. Although disparities between school districts will always exist, suggesting that local districts have a greater amount of control over their schools by way of bonded indebtedness and mill levy overrides ensures that many Colorado schools will never have funding sufficient to meet the General Assembly's educational mandates or the flexibility to tailor local education to local needs.