AGO 86-12.

Case Date:August 29, 1986
Colorado Attorney General Opinions 1986. AGO 86-12. August 29, 1986Department of Law Attorney General Opinion FORMAL OPINION of DUANE WOODARD Attorney General Opinion No. 86-12 AG Alpha No. ED AD AGAPM Calvin M. Frazier Commissioner of Education Colorado Department of Education 201 E. Colfax Avenue Denver, Colorado 80203 RE: Legality of expending school district funds to finance litigation challenging the Public School Finance ActDear Commissioner Frazier: This opinion letter is in response to your July 14, 1986 letter, in which you inquired whether local school districts could expend funds to support litigation asserting the unconstitutionality of the statute under which they receive state funding for public education, i.e., the Public School Finance Act, sections 22-50-101 to 117, C.R.S. (1973 & 1985 Supp.) (hereinafter "the PSFA.") QUESTION PRESENTED AND CONCLUSION Your request for an attorney general's opinion presents the following question: Can local school districts expend funds to support litigation asserting the unconstitutionality of the PSFA? I find no authority under current Colorado law for such expenditures by school districts. ANALYSIS Your request for an attorney general's opinion arises in part from legislative inaction following the supreme court's decision in Lujan v. Colorado State Board of Education, 649 P.2d 1005 (Colo. 1982). In Lujan, a bare majority of the court upheld the constitutionality of the PSFA against attack on equal protection grounds. In a special concurrence, however, Justice Erickson noted: As the majority opinion implies, the Colorado school finance system is not without fault and should be revised by the General Assembly to correct the disparity in the educational opportunities which are available in the different counties and school districts in Colorado.... Both dissenting opinions fairly and accurately detail valid reasons for the General Assembly to formulate amendments to the school financing plan to correct its deficiencies.... I would not, {however}, under the rational basis test for equal protection, substitute our judgment for that of the legislature in this difficult area without giving it an opportunity to correct the deficiencies presently inherent in the system. Id. at 1025-26. Since Lujan, the legislature has not amended the PSFA in any substantial...

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