January 24, 2012 08:53 PM UTC

AG's Lobato Appeal Pits Positive Rights Against Negative Rights

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• by: eestidaisy

( – promoted by Colorado Pols)

I recently opined that Judge Rappaport’s Lobato ruling was a yawner. I still think the long run outcome and analysis will demonstrate that it is a yawner, especially given the storied history of education finance litigation nationally. Nevertheless, elements of this litigation hit upon an utterly fascinating question of law, especially after Attorney General John Suthers’ appeal. In particular, how do positive rights rank against negative rights? And, does there exist a hierarchy among Colorado’s constitutional guarantees?

AG Suthers’ appeal to the Colorado Supreme Court specifically targets Judge Rappaport’s decision to exclude evidence of “the General Assembly’s non-educational constitutional mandates and appropriations, as well as TABOR’s revenue restrictions.” His appeal questions Judge Rappaport’s order to exclude this evidence because of her determination that “while fiscal pressure [i.e., TABOR, etc.] may explain why students’ rights have been violated, it has no bearing on the issue whether  students’ rights have been violated.”

With his appeal, the Attorney General asks the Supreme Court to pit a positive right against a negative right: a state constitutional guarantee to a “thorough and uniform” system of public schools (positive right) versus TABOR, i.e., the right against excessive state taxation (negative right). Here, it is worth noting that the positive right in question accrues generally to society, while the negative right protects individuals against taxation above a specified limit. (Note: I focus here on TABOR as opposed to the other “non-educational constitutional mandates” because in the absence of TABOR many of these mandates would become moot.)

So, what right trumps in this instance? Will the Supreme Court consider “why” and not just “whether” students’ rights have been violated? If so, what hierarchy of rights will it choose?

I would argue that because of public education’s broad societal benefits that accrue to all Coloradans young and old, taxpaying and non-taxpaying alike, a legal determination should imbue this powerfully positive right with greater heft than the right to save a few dollars or cents on a tax bill.