DENVER BOARD v. Booth, 97SC609.

• Decision Date: 13 September 1999
• Docket Number: No. 97SC609.,97SC609.
• Citation: 984 P.2d 639
• Parties: The BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 1 in the CITY AND COUNTY OF DENVER; 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; and Sharon Eastlund, Petitioners/Cross-Respondents, v. Cordia BOOTH, James Stamper, Eugene Copeland, and Bill King, on behalf of the proposed Thurgood Marshall Charter Middle School, Respondents/Cross-Petitioners, and The Colorado State Board of Education, Respondent.
• Court: Colorado Supreme Court

984 P.2d 639

The BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 1 in the CITY AND COUNTY OF DENVER; 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; and Sharon Eastlund, Petitioners/Cross-Respondents, v. Cordia BOOTH, James Stamper, Eugene Copeland, and Bill King, on behalf of the proposed Thurgood Marshall Charter Middle School, Respondents/Cross-Petitioners, and The Colorado State Board of Education, Respondent.

No. 97SC609.

Supreme Court of Colorado, En Banc.

September 13, 1999.

Semple, Miller, DeLay & Mooney, P.C., Patrick B. Mooney, Martin Semple, Michael H. Jackson, General Counsel, Denver Public Schools, Denver, Colorado, Attorneys for Petitioner/Cross-Respondent Board of Education of School District # 1.

Collins & Pringle, Dwight L. Pringle, Denver, Colorado, Attorneys for Petitioner/Cross-Respondent Sharon Eastlund.

Rothgerber, Appel, Powers & Johnson, LLP, Gregory B. Kanan, Denver, Colorado, Dimanna & Jackson, Daniel A. Sweetser, Denver, Colorado, Parcel, Mauro, Hultin & Spaanstra, P.C., Gwen J. Young, Susan J. Keller, Denver, Colorado, Attorneys for Respondents/Cross-Petitioners Cordia Booth, James Stamper, Eugene Copeland and Bill King.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Antony B. Dyl, First Assistant Attorney General, State Services Section, Denver, Colorado, Attorneys for Respondent Colorado State Bd. of Education.

Miller & DeLay, P.C., Kenneth A. DeLay, Westminster, Colorado, Attorneys for Amici Curiae School District No. 12, Adams County La Veta Re-2 School District.

Caplan and Earnest, LLC, Susan S. Schermerhorn, W. Stuart Stuller, Boulder, Colorado, Attorneys for Amici Curiae Telluride School District R-1 Moffat School District 2.

James W. Griffin, Lakewood, Colorado, Attorney for Amicus Curiae Colorado League of Charter Schools.

Kutz & Bethke, William P. Bethke, Lakewood, Colorado, Attorneys for Amici Curiae Crestone Charter School, Jefferson Academy, Laurent Clerc Educational Fund of Colorado d/b/a Magnet School of the Deaf, and Summit Middle School.

Julie Murphy Seavy, Lauren B. Kingsbery, Denver, Colorado, Attorneys for Amicus Curiae Colorado Association of School Boards.

Chief Justice MULLARKEY delivered the Opinion of the Court.

This case involves a challenge to the constitutionality of the second-appeal provision of the Charter Schools Act. See § 22-30.5-108(3), 7 C.R.S. (1998). The question is whether the General Assembly constitutionally may authorize the State Board of Education to order a local school board to approve a charter school application that the local board has rejected when the State Board finds approval to be in the best interests of the pupils, school district, or community. We hold that the second-appeal provision is constitutional.

Both the petitioners/cross-respondents, Sharon Eastlund and the Board of Education of School District No. 1 in the City and County of Denver (Denver Board), and the respondents/cross-petitioners, the Thurgood Marshall Charter Middle School applicants, appeal the judgment in Booth v. Board of Education of School District Number 1, 950 P.2d 601 (Colo.App.1997). The Colorado State Board of Education intervened as plaintiffs before the district court and is a respondent on appeal. We granted certiorari to resolve the following issues: 1) whether the Charter Schools Act's second-appeal provision, section 22-30.5-108(3), 7 C.R.S. (1998), violates the Colorado Constitution insofar as it purports to authorize the State Board to direct a local board of education to approve a specific charter school; 2) whether, on a second appeal under section 22-30.5-108(3), the State Board must order approval of the specific pending charter school application where it finds that the final decision of the local board of education was contrary to the best interests of the pupils, school district, or community; and 3) whether the court of appeals erred in holding that the question of the constitutionality of the Charter Schools Act second-appeal provision is not ripe for determination. For clarity and simplicity we will refer collectively to the petitioners/cross-respondents as "the Denver Board" and to the respondents/cross-petitioners as "the charter applicants."

I. FACTS AND PRIOR PROCEEDINGS

In 1993 the General Assembly enacted legislation providing for the creation of charter schools in Colorado. See §§ 22-30.5-101 to -115, 7 C.R.S. (1998) (Charter Schools Act). The Charter Schools Act establishes a process by which individuals or groups may apply to a local school board for a charter, see § 22-30.5-107, and a process for any interested party to appeal to the State Board from an adverse decision denying the application, see § 22-30.5-108.

Individuals or groups wishing to open a charter school apply to the local board in the school district where the school would operate. An application must detail the proposed school's structure including, among other things, its mission, goals, program, curriculum, governance, economic plan, transportation plan, enrollment policy, and legal obligations. See § 22-30.5-106. The application receives a preliminary review from the district accountability committee, then a decision by the local board. See § 22-30.5-107. An approved application "shall serve as the basis for a contract between the charter school and the local board of education." § 22-30.5-105(1).

Any interested party can appeal an adverse decision of a local board regarding a charter application. See § 22-30.5-107 & -108. If a local board denies an application, it must specify the grounds for the denial. See § 22-30.5-107(4). An appeal is limited to the grounds that the local board specifies. See § 22-30.5-108(2). On a first appeal, the State Board either affirms the local board's decision or remands with specific recommendations for reconsideration. See § 22-30.5-108(3)(a). If, after a remand, the local board again denies the application, a charter school applicant can make a second appeal to the State Board. See § 22-30.5-108(3)(c). For each appeal, the State Board considers whether the local board's decision was "contrary to the best interests of the pupils, school district, or community." § 22-30.5-108(3)(a), (d). On a second appeal if the State Board finds the local board's decision was "contrary to the best interests," it remands the decision "with instructions to approve the charter application." § 22-30.5-108(3)(d) (second-appeal provision).¹

On December 21, 1993, members of the Denver Public Schools (DPS) community submitted an application for the Thurgood Marshall Charter Middle School (Thurgood Marshall School). The charter applicants proposed implementing a core DPS curriculum in a nontraditional manner. The application describes a school that operates on a "limited resource model." Four or five teachers are assigned to "teams" of approximately seventy-two students. Students learn in integrated "blocks" according to their learning needs. In addition, small class sizes would permit students with a range of backgrounds and abilities to learn together. This structure anticipates addressing both special education and gifted and talented learning needs within the regular classroom rather than through separate programs.

The DPS improvement and accountability council, evaluating conceptual merit, ranked Thurgood Marshall School second among the charter applications submitted in 1993. Nevertheless, on February 17, 1994, the Denver Board denied Thurgood Marshall School's application. The Denver Board's concerns included the lack of an appropriate site for the school, inadequacies in the budget, "excessive per pupil funding requests," and inconsistencies in the proposed teacher grievance procedure.

The charter applicants appealed the Denver Board's decision to the State Board pursuant to section 22-30.5-108(1). On April 6, 1994, the State Board reversed the Denver Board's decision and remanded for reconsideration. The remand included instructions for the parties to reevaluate and negotiate several issues related primarily to the proposed school's site and its financial relationship with the district.

After the first State Board appeal, the charter applicants worked primarily to address the issue of site. DPS informed them that, among other possibilities, Slavens Elementary School (Slavens) might become available. At the time, Slavens housed administrative offices.

In their application submitted for reconsideration, the charter applicants proposed using Slavens. On May 19, the Denver Board issued a resolution recognizing "the community support of and interest in the education philosophy" of the proposed school, but denying the application for the 1994-95 school year because the Denver Board's initial concerns had not been resolved. The Denver Board encouraged the charter applicants to reapply for the following school year.

The charter applicants filed a second appeal with the State Board. See § 22-30.5-108(3)(c). On July 18, 1994, the State Board found the Denver Board's decision to be contrary to the best interests of the pupils, school district, or local community; ordered approval of the Thurgood Marshall School charter application; and directed the parties "to submit a status report outlining their progress with respect to budget, site, enrollment, and employment on or before December 1, 1994."

The parties filed at least one joint status report before the charter applicants filed a mandamus action in Denver District Court seeking injunctive relief. They sought to compel the Denver Board's compliance with the State Board's order to approve the charter application. On March 27, 1995, the district court issued a preliminary injunction enjoining the Denver Board "from taking any action contrary to the July 1994...