Booth v. Board of Educ. of School Dist. No. 1 in the City and County of Denver
| Decision Date | 17 April 1997 |
| Docket Number | No. 96CA0348,96CA0348 |
| Parties | 123 Ed. Law Rep. 923, 21 Colorado Journal 559 Cordia BOOTH, James Stamper, Eugene Copeland, and Bill King, on behalf of the proposed Thurgood Marshall Charter Middle School, Plaintiffs-Appellees, and The Colorado State Board of Education, Intervenor-Appellee and Cross-Appellant, v. The BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 1 IN THE CITY AND COUNTY OF DENVER, and Thomas M. Mauro, Sharon R. Bailey, Lynn D. Coleman, Aaron M. Gray, J.P. Hemming, Carole R. McCotter, and Marcia M. Johnson in their official capacities as members of the Board of Education, Defendants-Appellants and Cross-Appellees, and Sharon Eastlund, Intervenor-Appellant and Cross-Appellee. . II |
| Court | Colorado Court of Appeals |
Rothgerber, Appel, Powers & Johnson, Gregory B. Kanan, Parcel, Mauro, Hultin & Spaanstra, P.C., Gwen J. Young, Susan J. Keller, DiManna & Jackson, Daniel A. Sweetser, Denver, for Plaintiffs-Appellees.
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, William E. Thro, Assistant Attorney General, Denver, for Intervenor-Appellee and Cross-Appellant.
Semple & Mooney, P.C., Patrick B. Mooney, Michael H. Jackson, Denver, for Defendants-Appellants and Cross-Appellees.
Collins & Pringle, Dwight L. Pringle, Denver, for Intervenor-Appellant and Cross-Appellee.
Miller, DeLay & Crabb, P.C., Kenneth A. DeLay, Christopher E. Gdowski, Westminster, Amicus Curiae for School District No. 12 in the County of Adams.
James W. Griffin, Lakewood, Amicus Curiae for the Colorado League of Charter Schools.
Opinion by Judge CRISWELL.
Plaintiffs were applicants for a charter for the proposed Thurgood Marshall Charter Middle School (Charter School) pursuant to the Charter Schools Act (the Act), § 22-30.5-101, et seq., C.R.S. (1995 Repl.Vol. 9). They instituted this action against the Board of Education of School District No. 1 in the City and County of Denver (Denver Board), seeking judicial enforcement of an order entered by the Colorado State Board of Education (State Board). The trial court, after allowing intervention both by the State Board and by Sharon Eastlund, a Denver taxpayer, entered its judgment enforcing the State Board's order. Both the Denver Board and the intervening taxpayer appeal, and the State Board cross-appeals. We reverse.
In late 1993, plaintiffs submitted an application to the Denver Board to establish the Charter School for the 1994-1995 school year. The Denver Board denied the application, and plaintiffs appealed that denial to the State Board. The State Board remanded the application to the Denver Board with instructions to reconsider certain disputed issues relating to the site to be used by the Charter School, the facilities to be provided by the Denver Board, the costs to be paid by the Charter School, and the revenues to be provided to it. All these issues were required to be resolved before the Charter School could become operational.
Thereafter, plaintiffs and the Denver Board entered into discussions upon all these subjects, but they were unable to agree upon any of them. Hence, the Denver Board adopted a resolution again denying the revised application for the Charter School.
The applicants again appealed to the State Board. A public hearing was held by that tribunal, at the end of which it adopted the following motion:
[We] find that the decision of the local board was contrary to the best interest of the pupils, the school district or community and [we] order the establishment of the Thurgood Marshall Middle Charter School.
Having ordered the establishment of the Thurgood Marshall Middle School, this Board has a responsibility for ensuring that its order is carried out for the 1995-96 school year. At the same time, the Board is mindful and respectful of the local board's responsibilities. In similar situations, courts require status reports. The Board believes this to be appropriate in this situation. Therefore, the parties are jointly directed to submit a status report outlining their progress with respect to budget, site, enrollment, and employment on or before December 1, 1994. (emphasis supplied)
Following the public hearing, the staff of the State Board prepared a written decision which was signed by the members of the State Board some time after the public hearing was adjourned. However, the wording of the written decision modified the motion adopted at the meeting by requiring that the Denver Board "approve the charter" for the Charter School, rather than merely ordering the "establishment" of that school. In all other respects, this written order repeated the provisions of the motion adopted at the hearing.
In late February 1995, after the failure of further negotiations between plaintiffs and the Denver Board, plaintiffs instituted this action, in which they sought a writ of mandamus to require the Denver Board to grant a charter consistent with the terms of their amended application. The Denver Board counterclaimed challenging the enforceability of the State Board's order as well as the constitutional validity of the Act itself. The State Board, acting as an intervening defendant, responded to those counterclaims.
The district court granted a preliminary injunction, concluding that there were no substantial differences between the State Board's initial motion and its later written order and determining that its order complied with the terms of the Act and that the Act was constitutional.
Later, the district court issued a permanent injunction that required the Denver Board to "grant the charter to the Thurgood Marshall Charter Middle School in the basic form of the application as it was submitted in July 1994." (emphasis supplied) However, on motion of the State Board, that order was amended to read: "[T]he Denver School Board must obey the Order of the State Board of Education and grant the Charter for the Thurgood Marshall Charter Middle School."
The Act at issue here was adopted in 1993. Colo. Sess. Laws 1993, ch. 227 at 1051-1061. By its express terms, it will remain in effect only until July 1, 1998, when it will be repealed. Section 22-30.5-114, C.R.S. (1996 Cum.Supp.). We note that, more recently, the Act has been amended, Colo. Sess. Laws 1996, ch. 140, at 667-668, and the creation of charter school districts has been authorized. Colo. Sess. Laws 1996, ch. 140, at 663-667. However, neither of these later enactments is applicable to this controversy, and we do not consider their effect here. In addition, the Sixty-First General Assembly has adopted, and the Governor has signed, Senate Bill 97-018, but that legislation will not become effective until August 6, 1997.
Under the Act, a charter school is "a public, nonsectarian, nonreligious, non-home-based school which operates within a school district." Section 22-30.5-104(1), C.R.S. (1995 Repl.Vol. 9). Once established, the charter school exercises a considerable degree of self-autonomy. Hence, it is to be "administered and governed by a governing body in a manner agreed to by the charter school applicant and the local board of education." Section 22-30.5-104(4), C.R.S. (1995 Repl.Vol. 9). In addition, "pursuant to contract," the charter school may operate free from any local school district policy or state regulation. And, any charter school is to be responsible for its "own operation including, but not limited to, preparation of a budget, contracting for services, and personnel matters." Section 22-30.5-104(7)(a), C.R.S. (1995 Repl.Vol. 9).
For purposes of the Public School Finance Act of 1994, § 22-54-101, et seq., C.R.S. (1995 Repl.Vol. 9), pupils enrolled in the charter school are to be included in the public enrollment of the school district in which the charter school is situate. Section 22-30.5-112(1), C.R.S. (1995 Repl.Vol. 9). The charter school and the school district are to agree upon the funding and services to be provided by the district to the charter school. Section 22-30.5-112(2), C.R.S. (1995 Repl.Vol. 9).
To establish a charter school, an application, which shall be a "proposed agreement," must be submitted to the local board of education. Section 22-30.5-106(1), C.R.S. (1995 Repl.Vol. 9). This application must contain numerous items including a mission statement, a description of the goals, objectives, and pupil standards to be achieved, a description of the school's educational program and curriculum, a plan for evaluating pupil performance and progress, and a demonstration of the need and support for the establishment of the school. Sections 22-30.5-106(1)(a) through 22-30.5-106(1)(f), C.R.S. (1995 Repl.Vol. 9).
In addition, the application must provide:
Evidence that the plan for the charter school is economically sound for both the charter school and the school district, a proposed budget for the term of the charter, a description of the manner in which an annual audit of the financial and administrative operations of the charter school, including any services provided by the school district, is to be conducted, and a plan for displacement of pupils, teachers, and other employees who will not attend or be employed in the charter school.
Section 22-30.5-106(1)(g), C.R.S. (1995 Repl.Vol. 9).
The local board must hold a public hearing and take action upon the application within 60 days. Section 22-30.5-107(2), C.R.S. (1995 Repl.Vol. 9). If the application is approved, it:
shall constitute an agreement, and the terms thereof shall be the terms of a contract between the charter school and the local board of education.
Section 22-30.5-105(1), C.R.S. (1995 Repl.Vol. 9).
If a charter application is denied, the charter applicant may appeal to the State Board, § 22-30.5-107(3), C.R.S. (1995 Repl.Vol. 9), or the State Board may, upon its own motion, review the local board's decision. Section 2...
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