The Colorado Supreme Court on Monday rejected a reading of state law that would enable some of the Colorado State Board of Education's decisions on charter school applications to be challenged in court, finding instead that the law renders all decisions final and unappealable.
The justices reversed a ruling from the Court of Appeals, which had believed the law treated the state board's decision-making differently depending on the stage of the process. If the state and local school boards initially disagreed on a charter school application and the appeal went for a second round before the state board, all parties agreed the state board's decision would be final. But the Court of Appeals held that if the state and local boards agreed on the first round to reject the charter school, judicial review was an option.
Not so, responded the Supreme Court.
The law "precludes judicial review of all final decisions of the State Board concerning charter school applications, whether rendered after a first or second appeal," wrote Justice Richard L. Gabriel in the March 6 opinion.
The state had argued to the Supreme Court that the Court of Appeals' interpretation of the Charter Schools Act would wreak havoc on school districts and students. The process for approving charter schools, and appealing the denial of applications, includes time limits that correlate with the school year. Allowing lawsuits to proceed, the government contended, would undermine the state board's expertise and leave parents wondering if an institution will be opened or closed in time for the school year.
"Dozens of charter contracts come up for approval or renewal each year. Each is now at risk of prolonged litigation, while the students attending or hoping to attend wait (and age out) in uncertainty," wrote the Colorado Attorney General's Office to the court.
The legislature passed the Charter Schools Act in 1993 to create a process for authorizing charter schools, which are public institutions run by outside groups according to a contract with the local district, known as a charter. Thirty years later, there are approximately 270 charter schools that enroll 15% of all students in the state.
Those who wish to open a charter school will apply with the local school board. If the board denies the application, the charter school may appeal to the state board. If the state board finds the local board's denial runs contrary to the best interests of the students and the community, it remands the case to the local board for reconsideration.
The local board then makes its own final decision. If the answer is to again deny the application, the charter school has a second review before the state board. The state board may again decide the local board's decision was incorrect on the second round.
"The decision of the state board shall be final and not subject to appeal," the Charter Schools Act notes.
But the Supreme Court had never weighed in on what happens when both the local and state boards agree to deny an application after the first round. Is that decision also final and not subject to appeal?
In 2019, the John Dewey Institute, a proposed charter school focused on autism spectrum disorder, applied to the Douglas County Board of Education. The board denied the application, which the state board upheld. The school then petitioned for judicial review, asserting procedural flaws in the decision-making.
In February 2020, then-Denver District Court Judge Morris B. Hoffman dismissed the case. If "the buck truly stops" with the state board, he wrote, it made no sense for some of the board's decisions to be final and unappealable, but not others.
"Why would a decision on which both the local and State boards agree be afforded less finality than a decision on which the State Board first wavered but then ultimately accepted the local board’s denial?" Hoffman wrote.
A three-judge panel for the Court of Appeals reached a different conclusion: that the legislature had written the Charter Schools Act to only make the second decision of the state board the final one.
"By a plain and ordinary reading, 'the decision' refers only to decisions made under the subsection in which it occurs — that is, the second-appeal subsection," wrote Judge Daniel M. Taubman in late 2021.
On appeal, lawyers for the government argued lawmakers had rightfully chosen the state board to adjudicate charter school disputes, and statements from legislators at the time showed they did not want to involve judges in the process.
"We didn't want to get this into the courts," said then-Sen. Bill Owens, who sponsored the Charter Schools Act.
The attorney general's office also observed the Court of Appeals' ruling was not limited to dissatisfied charter schools. A local school board, unhappy with the directive to allow a charter school, could conceivably sue in court to overturn the decision.
Judy A. Brannberg, a non-attorney who represented the John Dewey Institute before the Supreme Court, did not engage with the state's arguments and instead filed numerous documents accusing Douglas County schools of forgery, "white collar crimes," and not listening to her to prevent the 2019 murder of a high school student. The Supreme Court scolded her for filing "frivolous, improper, irrelevant, or voluminous documents."
Ultimately, the court concluded the law was unambiguous. The process for first and second appeals to the state board was the same, and so the state board's decision was final no matter when it occurred.
That interpretation "gives life to the General Assembly’s designation of the State Board as the final arbiter of disputes involving local boards in this area," Gabriel wrote.
Owens, the sponsor of the Charter Schools Act who later won election as a Republican governor, told Colorado Politics he did not recall lawmakers anticipating a situation in which the local and state boards would both agree at the outset to deny a charter application.
"We left an area unstated that the courts have reasonably stepped in to fill," he said. "As I read the Court of Appeals’ decision, it seemed to me to be a good-faith attempt to fill in a blank space within this statute."
The case is Colorado State Board of Education et al. v. Brannberg et al.
