Owens v. Congress of Parents, Teachers, 03SA364.

• Decision Date: 28 June 2004
• Docket Number: No. 03SA364.,03SA364.
• Citation: 92 P.3d 933
• Parties: Bill OWENS, in his official capacity as Governor of Colorado; and the State of Colorado, Defendants-Appellants and Kimble Breazell, in her own behalf and as next friend of her children, Devon Breazell, Desire Breazell, and Demetrik Breazell; Tracy A. Dominguez, in her own behalf and as next friend of her children, Manuel Thomas Dominguez, Steven Victor Dominguez, and Marissa Anne Dominguez; Patsy Hill, in her own behalf and as next friend of her children, Jonathan Hill and Antonio Hill; Charlene Howard, in her own behalf and as next friend of her children, Charles Howard and Carson Howard; Laura Huckabey, in her own behalf and as next friend of her grandchildren, Starlite McGuire and William Hodge; Bette Kelso, in her own behalf and as next friend of her grandchild, Amber Kelso; Kenya Knezevich, in her own behalf and as next friend of her children, Brian Walk and Andrew Walk; Rosa Morales, in her own behalf and as next friend of her children, Ray Morales and Joseph Morales; Angelia Teague, in her own behalf and as next friend of her children, Denise Teague and Danielle Teague; Lisa Trujillo, in her own behalf and as next friend of her child, Dejerae Trujillo; Yvonne Trujillo, in her own behalf and as next friend of her children, Jacob Rodriguez and Kaitlyn Rodriguez; and Troylynn Yellow Wood, in her own behalf and as next friend of her child, Kimimila Irving Means, Intervenors/Defendants-Appellants, v. COLORADO CONGRESS OF PARENTS, TEACHERS AND STUDENTS; The Interfaith Alliance of Colorado; League of United Latin American Citizens; Colorado State Conference of Branches of the NAACP; Deborah A. Brennan and Alan J. Delollis, on Behalf of themselves and their minor child, Cameron Brennan; Carolyn Bartels and Howard Bartels, on behalf of themselves and their minor child, Hannah Bartels; Senator Patricia Hill Pascoe; Senator Dorothy S. Wham; Rabbi Joel R. Schwartzman; Reverend Dr. Cynthia Cearley; Francisco Cortez; Beverly J. Ausfahl; Theresa Solis; Danielle L. Waagmeester and William J. Waagmeester, on behalf of themselves and their minor children, Rachael Waagmeester, Madison Waagmeester, and Dane Waagmeester; Janet Tanner, on behalf of herself and her minor child, Benjamin Tanner; and Pamela Weber, on behalf of herself and her minor child, Kenneth Weber, Plaintiffs-Appellees.
• Court: Colorado Supreme Court

92 P.3d 933

Bill OWENS, in his official capacity as Governor of Colorado; and the State of Colorado, Defendants-Appellants and Kimble Breazell, in her own behalf and as next friend of her children, Devon Breazell, Desire Breazell, and Demetrik Breazell; Tracy A. Dominguez, in her own behalf and as next friend of her children, Manuel Thomas Dominguez, Steven Victor Dominguez, and Marissa Anne Dominguez; Patsy Hill, in her own behalf and as next friend of her children, Jonathan Hill and Antonio Hill; Charlene Howard, in her own behalf and as next friend of her children, Charles Howard and Carson Howard; Laura Huckabey, in her own behalf and as next friend of her grandchildren, Starlite McGuire and William Hodge; Bette Kelso, in her own behalf and as next friend of her grandchild, Amber Kelso; Kenya Knezevich, in her own behalf and as next friend of her children, Brian Walk and Andrew Walk; Rosa Morales, in her own behalf and as next friend of her children, Ray Morales and Joseph Morales; Angelia Teague, in her own behalf and as next friend of her children, Denise Teague and Danielle Teague; Lisa Trujillo, in her own behalf and as next friend of her child, Dejerae Trujillo; Yvonne Trujillo, in her own behalf and as next friend of her children, Jacob Rodriguez and Kaitlyn Rodriguez; and Troylynn Yellow Wood, in her own behalf and as next friend of her child, Kimimila Irving Means, Intervenors/Defendants-Appellants, v. COLORADO CONGRESS OF PARENTS, TEACHERS AND STUDENTS; The Interfaith Alliance of Colorado; League of United Latin American Citizens; Colorado State Conference of Branches of the NAACP; Deborah A. Brennan and Alan J. Delollis, on Behalf of themselves and their minor child, Cameron Brennan; Carolyn Bartels and Howard Bartels, on behalf of themselves and their minor child, Hannah Bartels; Senator Patricia Hill Pascoe; Senator Dorothy S. Wham; Rabbi Joel R. Schwartzman; Reverend Dr. Cynthia Cearley; Francisco Cortez; Beverly J. Ausfahl; Theresa Solis; Danielle L. Waagmeester and William J. Waagmeester, on behalf of themselves and their minor children, Rachael Waagmeester, Madison Waagmeester, and Dane Waagmeester; Janet Tanner, on behalf of herself and her minor child, Benjamin Tanner; and Pamela Weber, on behalf of herself and her minor child, Kenneth Weber, Plaintiffs-Appellees.

No. 03SA364.

Supreme Court of Colorado, En Banc.

June 28, 2004.

Ken Salazar, Attorney General, Renny Fagan, Deputy Attorney General, John R. Sleeman, Jr., First Assistant Attorney General, Antony B. Dyl, Assistant Attorney General, Denver, Colorado, Attorneys for Defendants-Appellants.

Institute for Justice, William Mellor, Washington, DC, Hale Hackstaff Friesen, LLP, Richard A. Westfall, Denver, Colorado, Attorneys for Intervenors/Defendants-Appellants.

Colorado Education Association, Martha R. Houser, Charles F. Kaiser, Sharyn E. Dreyer, Gregory J. Lawler, Cathy L. Cooper, Denver, Colorado, Bredhoff & Kaiser, P.L.L.C., Robert H. Chanin, John M. West, Maryann Parker, Washington, DC, People for the American Way Foundation, Elliot M. Mincberg, Judith E. Schaeffer, Washington, DC, Americans United for Separation of Church and State, Ayesha N. Khan, Washington, DC, American Civil Liberties Union Foundation of Colorado, Mark Silverstein, Denver, Colorado, American Jewish Congress, Marc D. Stern, New York, New York, American Federation of Teachers, David Strom, Washington, DC, American Jewish Committee, Alan S. Jaffe, Jeffrey P. Sinensky, Kara H. Stein, New York, New York, Anti-Defamation League, Steven M. Freeman, New York, New York, Attorneys for Plaintiffs-Appellees.

Caplan and Earnest LLC, W. Stuart Stuller, Boulder, Colorado, Colorado Association of School Boards, Lauren Kingsbery, Denver, Colorado, Attorneys for Amicus Curiae Colorado Association of School Boards.

Justice BENDER delivered the Opinion of the Court.

In this case, we consider whether the Colorado Opportunity Contract Pilot Program ("Pilot Program" or "the program"), sections 22-56-101 to -110, 7A C.R.S. (2003), violates the local control provisions of article IX, section 15 of the Colorado Constitution. The program was challenged in the district court by eight parents on behalf of their children as well as several concerned individuals and institutions (collectively "plaintiffs"). They are supported on this appeal by the Colorado Association of School Boards as amicus curiae. The program was defended by Bill Owens in his official capacity as Governor and twelve parents who intervened because they wanted their children to participate in the program (collectively "defendants").

The trial court found the Pilot Program interferes with the local school districts' discretion to allocate their funding, and therefore violates the local control requirement of article IX, section 15. The trial court also concluded that it could not interpret the program in a constitutional manner without effectively reading section 15 out of the constitution. Accordingly, the trial court concluded that the program was unconstitutional beyond a reasonable doubt.

The defendants appeal to this Court, arguing that the General Assembly has plenary authority to guide and implement educational policy.¹ Pursuant to this authority, the General Assembly has determined that the Pilot Program best serves the needs of children who "simply are not succeeding in the traditional school district setting."

The defendants contend that the local control provisions of article IX, section 15 do not place any impediment in the way of the General Assembly's power to enact the Pilot Program. First, the defendants argue that the program does not disturb the districts' authority over instruction in any way because students who participate in the program leave the district. Thus, the district retains control over instruction of those students who remain in the district.

Second, the defendants argue that school finance and educational policy have evolved significantly since this Court was first called upon to construe article IX, section 15. Today, the state provides the majority of funding to the public schools and regulates education far more comprehensively than it did when article IX was adopted. These changes in the practical management of the public schools, the defendants argue, have rendered the meaning of local control flexible enough to admit a program such as the Pilot Program into the management of the public schools.

Our task is to assess the constitutionality of the Pilot Program. We question neither the merits nor the wisdom of the policy decisions made by the General Assembly and embodied in this legislation. The defendants are correct that funding of the public schools has changed dramatically since article IX was adopted, and that the General Assembly has significant authority to guide and implement educational policy. However, article IX, section 15 creates and requires a structure of school governance that has remained unchanged since statehood despite these changes in school funding, and the Pilot Program does not comport with this constitutional structure.

Through article IX, section 15, the framers created a representative body to govern instruction in the public schools. The qualified electors of each district elect local school boards, who in turn "shall have control of instruction in the public schools of their respective districts." Beginning with Belier v. Wilson, 59 Colo. 96, 147 P. 355 (1915), this Court has consistently construed this provision to mean that local school districts must retain control over any instruction paid for with locally-raised funds. Indeed, more recently, in Lujan v. Colorado State Board of Education, 649 P.2d 1005 (Colo.1982), we held that our state-wide system of school finance is designed to preserve local control over locally-raised tax revenues, and that control over these funds is essential to maintain the democratic framework created by our state constitution. Control over locally-raised funds allows local electors to tailor educational policy to suit the needs of the individual districts, free from state intrusion. Without control over locally raised funds, the representative body mandated by our state constitution loses any power over the management of public education.

Given the mandates of article IX, section 15, we hold that the Pilot Program violates the local control requirements of our state constitution because it directs the school districts to turn over a portion of their locally-raised funds to nonpublic schools over whose instruction the districts have no control. Irrespective of the fact that the goals of the program and the policy considerations underlying it are laudable, we see no way to reconcile the structure of the program with the requirements of the Colorado Constitution. To hold otherwise would render the local control provisions of article IX, section 15 meaningless.

Accordingly, we affirm the judgment of the trial court.

Facts and Proceedings Below

The Colorado Opportunity Contract Pilot Program is designed to meet the "educational needs of high-poverty, low-achieving children in [Colorado's] highest-poverty public schools." § 22-56-102(1)(a), 7A C.R.S. (2003). Participation in the program is mandatory for any school district that, "for the 2001-02 school year, had at least eight schools that received an academic performance rating of `low' or `unsatisfactory' pursuant to section 22-7-604(5), and which ... continues to operate said schools in the 2003-04 school year."² § 22-56-103(10)(a)(I). Other school districts may voluntarily participate in the program. § 22-56-104(1)(b).

The program is available to low-income, low-achieving children who attend public school in a participating school district. Only those children who are eligible to receive free or low-cost lunch under the National School Lunch Act may participate. § 22-56-104(2)(a). Academic criteria vary according to the child's age. A child in grades...