Denver School District No. 1 v. Denver Classroom Teachers Ass'n , 407 P.3d 1220 ( 2017 )

1 Opinions of the Colorado Supreme Court are available to the
2 public and can be accessed through the Judicial Branch’s homepage at
3 http://www.courts.state.co.us. Opinions are also posted on the
4 Colorado Bar Association’s homepage at http://www.cobar.org.
5
6 ADVANCE SHEET HEADNOTE
7 April 24, 2017
8
9 2017 CO 300
1 No. 15SC589, Denver School District v. Denver Classroom Teachers Association—
2 Innovation Schools Act—Innovation Plans—Public Schools.
3
4 In this case, the supreme court considers whether the Innovation Schools Act of
5 2008, §§ 22-32.5-101 to -111, C.R.S. (2016), precludes a local school board from
6 approving an innovation plan submitted by a “new” innovation school, that is, a school
7 that has not previously opened as a non-innovation school and has yet to hire teachers.
8 The supreme court concludes that the Innovation Schools Act does not preclude
9 approval of innovation plans from such “new” innovation schools. Accordingly, the
0 judgment of the court of appeals is reversed.
1 The Supreme Court of the State of Colorado
2 2 East 14th Avenue • Denver, Colorado 80203
3 2017 CO 304 Supreme Court Case No. 15SC589
5 Certiorari to the Colorado Court of Appeals
6 Court of Appeals Case No. 13CA1530
7
8 Petitioners:
9 City and County of Denver School District No. 1 in the State of Colorado and City and
0 County of Denver School District No. 1 Board of Education,
1 v.
2 Respondents:
3 Denver Classroom Teachers Association, Denver Association of Educational Office
4 Professionals, Lloyd Bourdon, Cheryl Myres, and Toni Falcon.
5
6 Judgment Reversed
7 en banc
8 April 24, 2017
9
0 Attorneys for Petitioners:
1 Zonies Law, LLC
2 Sean Connelly
3 Denver, Colorado
4
5 Denver Public Schools
6 Molly Ferrer
7 Denver, Colorado
8
9 Attorneys for Respondents:
0 Colorado Education Association
1 Sharyn E. Dreyer
2 Denver, Colorado
3
4 CHIEF JUSTICE RICE announced the judgment of the Court and delivered an opinion,
5 in which JUSTICE BOATRIGHT joins.
6 JUSTICE EID concurs in the judgment, and JUSTICE COATS joins in the concurrence
7 in the judgment.
8 JUSTICE GABRIEL dissents, and JUSTICE MÁRQUEZ and JUSTICE HOOD join in
9 the dissent.
¶1 This case requires us to determine whether the Innovation Schools Act of 2008
(“ISA”), §§ 22-32.5-101 to -111, C.R.S. (2016), precludes a local school board from
approving an innovation plan submitted by a “new” innovation school, that is, a school
that has not previously opened as a non-innovation school and has yet to hire teachers.1
We hold that the ISA does not preclude approval of innovation plans from such “new”
innovation schools. Accordingly, we reverse the judgment of the court of appeals and
remand for further proceedings consistent with this opinion.
I. Facts and Procedural History
¶2 Between 2010 and 2012, the Board of Education of School District No. 1 (“DPS
Board”) approved and implemented innovation plans at eleven schools under the ISA.
Most of these schools were created to replace failing schools within the Denver Public
Schools District (“DPS”). All of the schools were “new,” in that they had not previously
been opened as non-innovation schools and had new names, new identification
numbers, and employed only a principal and, in some cases, one or two other
administrative employees—but had no students, teachers, or other employees at the
time their innovation plans were approved.
¶3 Six of the eleven schools at issue here are in the far northeast area of Denver.
They were created to replace failing schools in that area, including the former
Montbello High School. For example, at Montbello High School, only seven percent of
1 We granted certiorari on the following issue:
Whether the Innovation Schools Act, §§ 22-32.5-101 to -111, C.R.S. (2016),
precludes new innovation schools, which were not previously opened as
non-innovation schools, because section 104(3)(f) of the Act requires that
innovation plans include information regarding teacher support.
2
entering freshmen graduated four years later with the ability to enroll in higher
education without remediation, while a thousand students from the area opted for very
long bus rides so they could attend DPS high schools outside the area.
¶4 In November 2010, after ten public meetings and a final hearing lasting until
2 a.m., pursuant to its authority to close schools, the DPS Board voted for phased-out
closures of Montbello High School and the area’s middle and elementary schools. See
§ 22-32-110(1)(l), C.R.S. (2016); Hawkins v. Cline, 420 P.2d 400, 403 (Colo. 1966). In their
place, five new innovation schools were created to serve high school and middle school
students: Denver Center for International Studies at Montbello 6–12, Collegiate Prep
Academy, High Tech Early College, Vista Academy (focused on high-risk youth), and
Noel Community Arts Program 6–12. A sixth innovation school, the Denver Center for
International Studies at Ford, was created to serve elementary school children in the
area.
¶5 Two of the other schools at issue here, West Generation Academy and West
Leadership Academy, replaced West High School and the middle school operating on
the West campus. These schools serve grades six through twelve on the former West
High School campus. In 2011, the DPS Board approved phased-out closures of West
High School and the middle school. The resolution approving these closures cited the
failings of both: West “had declining enrollment” as well as “the lowest graduation rate
and highest remediation rate of any of [DPS’s] traditional high schools,” while the
middle school was “Accredited on Probation and the lowest rated school on the
District’s Performance Framework.”
3
¶6 The final three new innovation schools challenged here are the Denver Center for
21st Century Learning at Wyman (“DC21”), Swigert International School, and
McAuliffe International School. DC21 was designed to re-engage high-risk youth
facing problems such as gang involvement, substance abuse, pregnancy, and truancy.
Swigert and McAuliffe were created to address student population growth in Denver’s
Stapleton neighborhood.
¶7 After the DPS Board voted for phased-out closure of the old schools and the
eleven new schools were created, the DPS Board approved the innovation plan for each
new school. In 2011 and 2012, the State Board of Education (“State Board”), pursuant to
section 22-32.5-107(3), unanimously designated these eleven new schools. Then,
teachers and other employees were hired to work in the eleven schools. Next, in the
first week that each school opened, as provided in section 22-32.5-109(1)(b), the faculty
at each new school voted on whether to waive the collective bargaining agreement
(“CBA”) provisions identified in the innovation plans. Each of these secret-ballot votes
resulted in far more than the requisite sixty percent support for the waivers of the CBA
provisions. The teachers and staff at each school also voted on whether they supported
their schools’ innovation plan. The majority of teachers and staff at each school voted in
support of each innovation plan.
¶8 The Denver Classroom Teachers Association, the Denver Association of
Educational Office Professionals, Lloyd Bourdon, Cheryl Myres, and Toni Falcon
(collectively, “the Association”) brought suit to challenge the DPS Board’s approval of
the eleven new schools’ innovation plans. The district court upheld the innovation
4
school designations except as to two schools in Stapleton—Swigert and McAuliffe—
which it denied on the basis that those schools were not created “to address problems
identified in chronically failing schools and failing student populations.” The court
ruled that section 22-32.5-104(3)(f), which states that an innovation plan shall contain
evidence that a majority of teachers, administrators, and the school accountability
committee consent to the designation as an innovation school, was “inapplicable” to the
remaining nine schools, noting that teachers showed “their approval of the Innovation
Plan by agreeing to work at the school and signing a contract of employment at the
school, knowing it was operating under an Innovation Plan, with an extended school
day and year, other provisions imposing higher demands on the teachers, and statutory
and CBA waivers.”
¶9 The Association appealed and argued that under section 104(3)(f), an innovation
plan cannot be submitted to a local school board and the State Board without the prior
majority consent of teachers, administrators, and the school accountability committee.
In other words, it argued that an innovation plan could only be submitted by an
existing non-innovation school and could not be submitted by a school that had yet to
hire teachers. The court of appeals agreed with the Association and reversed the
designations except as to Swigert and McAuliffe—for those, it upheld the denial of the
innovation designations. Denver Classroom Teachers Ass’n v. Denver Sch. Dist. No. 1,
2015 COA 71, ¶ 68, __ P.3d __. DPS and the DPS Board appealed, and this court
granted certiorari.
5
II. Analysis
¶10 The crux of the question presented by this case is, simply, can a local school
board approve a “new” school’s innovation plan before the school hires teachers? We
hold that it can. The General Assembly intended that the ISA give schools and school
districts flexibility and autonomy to address the needs of students and the communities
in which they live. Construing the ISA to preclude a local school board from approving
innovation plans from “new” schools that had not previously opened as non-innovation
schools and had yet to hire teachers would be directly contrary to this intent. Moreover,
given this intent, we construe section 104(3)(f) to be directory and inapplicable to such
“new” innovation schools. Accordingly, we hold that the ISA does not preclude a local
school board from approving innovation plans from schools that have not previously
opened as non-innovation schools and have yet to hire teachers.
A. Standard of Review and Statutory Construction
¶11 We review issues of statutory construction de novo. Specialty Rests. Corp. v.
Nelson, 231 P.3d 393, 397 (Colo. 2010). In interpreting a statute, our primary objective is
to ascertain and effectuate the intent of the General Assembly. Id. In making this
determination, we presume that the General Assembly intended a just and reasonable
result, and we consider the consequences of a particular construction. Bd. of Cty.
Comm’rs of Cty. of Park v. Park Cty. Sportsmen’s Ranch, LLP, 45 P.3d 693, 711 (Colo.
2002). “Perhaps the best guide to intent is the declaration of policy which frequently
forms the initial part of an enactment.” St. Luke’s Hosp. v. Indus. Comm’n, 349 P.2d
995, 997 (Colo. 1960).
6
¶12 Additionally, a “statute should be given the construction and interpretation
which will render it effective in accomplishing the purpose for which it was enacted.”
Zaba v. Motor Vehicle Div., Dep’t of Revenue, 516 P.2d 634, 637 (Colo. 1973). We also
“read the statutory design as a whole, giving consistent, harmonious, and sensible effect
to all of its parts.” Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 11, 325 P.3d 571, 576.
But we should avoid constructions that lead to illogical or absurd results. Johnson v.
People, 2016 CO 59, ¶ 18, 379 P.3d 323, 327.
B. The Innovation Schools Act
¶13 The legislative declaration of the ISA explains that the General Assembly
recognized a need to grant principals, faculty, and school districts the “maximum
degree of flexibility possible to meet the needs of individual students and the
communities in which they live.” § 22-32.5-102(1)(d). The legislative declaration also
explains that districts should “delegate to each public school a high degree of autonomy
in implementing curriculum, making personnel decisions, [and] organizing the school
day” (among other things)—“thereby empowering each public school to tailor its
services most effectively and efficiently to meet the needs of the population of students
it serves.” § 22-32.5-102(1)(e).
¶14 To effectuate its purposes, the ISA created a system that allows a public school to
submit an “innovation plan” to its local school board for approval. § 22-32.5-104(1)(a)–
(b). The plan should describe the “innovations” the public school would like to
implement, which may include changes to, among other things, the length of the school
day and year, the curriculum, and teacher hiring and compensation.
7
§ 22-32.5-104(3)(b)–(c). If the local school board approves the plan, it may seek
designation by the State Board as a district of innovation on the basis of the submitted
plan or plans as the case may be. § 22-32.5-107(1).
¶15 Because submitted innovation plans may require changes that otherwise would
be precluded by state statutes, district rules, and CBA provisions, designation by the
State Board has the important consequence of relieving the designated innovation
schools from a number of these restrictions. Specifically, upon designation, “the [S]tate
[B]oard shall waive any statutes or rules specified in the school district’s innovation
plan” other than specified statutes not subject to waiver. § 22-32.5-108(1). However, if
the innovation plan contains a provision that attempts to waive any CBA provisions,
any such waiver will only be effective upon “obtaining the approval, by means of a
secret ballot vote, of at least sixty percent of the members of the collective bargaining
unit who are employed at the innovation school.” § 22-32.5-109(1)(b).
¶16 In addition, section 104(3) gives specific direction about the contents of
innovation plans. That section states, among other things, that plans must provide
evidence that a majority of teachers employed at the school consent to designation as an
innovation school. § 22-32.5-104(3)(f). However, the statute imposes no substantive
restrictions on a local school board’s authority to approve or disapprove innovation
plans, § 22-32.5-104(1), and the State Board must designate for innovation unless a plan
is likely to result in a decrease in academic performance or is not fiscally feasible,
§ 22-32.5-107(3)(a)(I)–(II).
8
C. The Innovation Schools Act and “New” Schools
¶17 Nothing in the ISA precludes a local school board from approving an innovation
plan from a school that has not previously been open as a non-innovation school and
has yet to hire teachers (i.e., a “new” school). Yet, the Association argues that we
should read such a preclusion into the ISA because, under its logic, a local school board
cannot approve an innovation plan that fails to meet the requirements of section
104(3)(f). It argues that by specifically requiring the consent of teachers, section
104(3)(f) presumes the existence of an operating school, and as such, a local school
board cannot approve an innovation plan from a school without teachers. However,
section 104(3)(f) is far too slender a reed on which to base reading an implied preclusion
into the ISA.
¶18 We must “read the statutory design as a whole” in order “to ascertain and give
effect to the legislature’s intent.” Young, ¶ 11, 325 P.3d at 576. Rather than read any
one statutory provision in isolation, we examine the provision in the context of the
statute as a whole and strive to give consistent, harmonious, and sensible effect to all
parts of the statute. Id. Thus, we can only read section 104(3)(f) in the overall context of
the ISA and in light of the ISA’s purposes. The clear purpose of the ISA is to allow
schools and school districts the flexibility and autonomy to address the needs of
students and the communities in which they live. See § 22-32.5-102(1)(a), (c)–(e). Thus,
the ISA was intended as an empowerment of, not a restriction upon, local school
districts. Construing section 104(3)(f) to preclude “new” innovation schools undercuts
this intended empowerment and flexibility. If section 104(3)(f) precludes the creation of
9
“new” innovation schools, a school will be required to first open as a non-innovation
school before it can submit an innovation plan. Such delay would be inimical to the
interests of all students, especially to those from failing school districts, and contrary to
the purposes of the ISA. Additionally, this would be a severe limitation on a local
district’s flexibility and is therefore out of line with the intent of the General Assembly.
¶19 Moreover, the State Board cannot legally deny innovation status to “new”
schools simply because their innovation plans lack section 104(3)(f) information. See
§ 22-32.5-107(3)(a). Instead, the State Board is limited to reviewing only academic and
fiscal issues. See § 22-32.5-107(3)(a)(I)–(II). Thus, a restrictive reading of 104(3)(f) leads
to an illogical construction of the ISA, namely that section 104 would invalidate a local
school board’s approval of new schools, but section 107 would require the State Board
to designate those “improperly” approved schools. This reading contravenes the
requirement that courts construe statutes, wherever possible, to avoid these sorts of
illogical results. See Johnson, ¶ 18, 379 P.3d at 327.
¶20 In any event, as applied to “new” schools, section 104(3)(f) is directory rather
than mandatory. A “‘directory’ provision in a statute is one, the observance of which is
not necessary to the validity of the proceeding to which it relates” and “involving no
invalidating consequence for its disregard.” Directory, Black’s Law Dictionary (6th ed.
1990); see also Directory Statute, Black’s Law Dictionary (10th ed. 2014) (“A law that
indicates only what should be done, with no provision for enforcement.”). The
distinction between a “directory” and a “mandatory” provision—that is, whether
noncompliance invalidates the action—turns on “legislative intent.” Protest of
10
McKenna, 2015 CO 23, ¶ 19, 346 P.3d 35, 41. Section 104(3)(f)—which is silent as to the
consequences of not providing the information and does not address how a school that
lacks teachers, administrators, and/or a school accountability committee could possibly
submit a valid innovation plan—cannot trump the broader purposes and intent of the
statute: those of “preserving local flexibility” and providing the “maximum degree of
flexibility” in “empowering each public school” to innovate. § 22-32.5-102(1)(a)–(e).
Construing section 104(3)(f) as mandatory and implicitly prohibiting “new” innovation
schools would defeat the ISA’s manifest purposes of encouraging innovation and
flexibility. Ultimately, then, the section 104(3)(f) informational provision is directory
and inapplicable to plans involving “new” schools.
¶21 In sum, we hold that the ISA does not preclude a local school board from
approving an innovation plan from a school that has not previously opened as a
non-innovation school and has yet to hire teachers. Instead, a local school board can
approve an innovation plan that does not include information discussed in section
104(3)(f).
III. Conclusion
¶22 We hold that the ISA does not preclude a local school board from approving
innovation plans from new innovation schools that have not previously opened as
non-innovation schools and have yet to hire teachers. Accordingly, the judgment of the
court of appeals is reversed as to all eleven new schools. We remand for further
proceedings consistent with this opinion.
11
JUSTICE EID concurs in the judgment, and JUSTICE COATS joins in the concurrence
in the judgment.
JUSTICE GABRIEL dissents, and JUSTICE MÁRQUEZ and JUSTICE HOOD join in
the dissent.
12
JUSTICE EID, concurring in the judgment.
¶23 I agree with the Chief Justice that section 104(3)(f) of the Innovation Schools Act
(“the Act”) does not preclude the new innovation schools at issue in this case. I would
reach that result on a narrower ground, however, and therefore concur only in the
judgment the Chief Justice’s opinion reaches.
¶24 Section 104(3)(f) states that an innovation plan “shall include the following
information: . . . Evidence that . . . a majority of the teachers employed at the public
school . . . consent to designation as an innovation school . . . .” The court of appeals
concluded that “[a] new school’s innovation plan . . . cannot meet the requirements of
subsection 104 of the Act until the school has commenced operations and its plan has
received the necessary majority consent[] from teachers . . . . As a result, . . . a new
school that has neither teachers nor students cannot seek innovation status.” Denver
Classroom Teachers Ass’n v. City & Cty. of Denver Sch. Dist. No. 1, 2015 COA 71, ¶ 60,
__ P.3d __. In other words, the court of appeals drew an inference from section
104(3)(f)’s reference to teachers’ “consent” that the section imposes a requirement that a
new innovation school actually have teachers before it may submit an innovation plan
for approval; otherwise, the court appears to reason, there would be no teachers to
consent to designation.
¶25 The Chief Justice observes that this inference “is far too slender a reed on which
to base reading an implied preclusion” into the Act. C.J. op. ¶ 17. I agree. Section
104(3)(f) does not state that a school is required to have teachers before an innovation
plan may be submitted. Instead, it refers to providing evidence that a majority of
1
teachers have consented to the designation. Therefore, when section 104(3)(f) is applied
to a new innovation school that has no teachers, a majority of those teachers consenting
to designation would simply be zero—as was the case here. The language of section
104(3)(f) mandates no more. Indeed, importing a new requirement into the language of
section 104(3)(f) would be inconsistent with the General Assembly’s expressly stated
purpose in adopting the Act—namely, to grant the “maximum degree of flexibility
possible to meet the needs of individual students and the communities in which they
live.” § 22-32.5-102(1)(d). Accordingly, the plans in question in this case comport with
section 104(3)(f).
¶26 Because section 104(3)(f) is satisfied in this case, I would not find it necessary to
address the consequences that might flow from noncompliance. Here I part ways with
the Chief Justice’s opinion, which goes on to hold that the State Board could not deny
innovation status to new schools for noncompliance with section 104(3)(f), and that, in
any event, section 104(3)(f) is merely directory, not mandatory. C.J. op. ¶¶ 19–20. If
section 104(3)(f) is directory, it would seem that all of section 104(3) is directory, which
would mean that an innovation plan could contain none of the information described in
section 104(3) and still be considered an innovation plan. In my view, the language of
the Act does not support this result. For these reasons, I respectfully concur only in the
judgment reached by the Chief Justice’s opinion.
I am authorized to state that JUSTICE COATS joins in this concurrence in the
judgment.
2
JUSTICE GABRIEL, dissenting.
¶27 Relying on broad statements as to the intent of the Innovation Schools Act of
2008 (“ISA”), §§ 22-32.5-101 to -111, C.R.S. (2016), the Chief Justice’s opinion holds,
purportedly contrary to the court of appeals division below, that the ISA does not
preclude a local school board from approving an innovation plan submitted by a “new”
innovation school. C.J. op. ¶ 1.2
¶28 The division, however, did not hold that the ISA precludes a local school board
from approving an innovation plan submitted by a “new” innovation school. Rather,
the division rejected as contrary to the ISA the contention of the petitioners, Denver
School District No. 1 and its board of education (collectively, “DPS”), that the General
Assembly intended “new” innovation schools to be exempt from the ISA’s
pre-submission approval requirements. Denver Classroom Teachers Ass’n v. City &
Cty. of Denver Sch. Dist. No. 1, 2015 COA 71, ¶¶ 41–42, ___ P.3d ___. The division then
concluded that a public school or school district cannot develop an innovation plan
without complying with the requirements of the ISA. Id. at ¶ 45.
¶29 Moreover, although the Chief Justice’s opinion relies on what it views to be the
intent of the ISA, in doing so, it all but ignores the pertinent provisions of that statute,
which undermine the Chief Justice’s conclusions.
¶30 Because (1) the plain language of section 22-32.5-104(3)(f) requires innovation
plans to include evidence that a majority of the teachers and of the school accountability
2 For clarity and readability, I will sometimes use “Chief Justice” herein as shorthand
for “Chief Justice’s opinion.”
1
committee (“SAC”) of the school at issue have consented to the school’s designation as
an innovation school, (2) such approvals were not properly obtained here, and (3) the
parties conceded at oral argument that such approvals could be obtained for “new”
innovation schools, I respectfully dissent.
I. Analysis
¶31 I begin by noting the applicable principles of statutory interpretation. I then
address the pertinent provisions of the ISA. I conclude by applying the plain language
of the ISA to the facts presented here and by explaining why I believe the Chief Justice’s
opinion is contrary to that statute.
A. Standard of Review and Principles of Statutory Interpretation
¶32 We review de novo questions of law concerning the application and construction
of statutes. Hickerson v. Vessels, 2014 CO 2, ¶ 10, 316 P.3d 620, 623. In interpreting
statutes, we must give effect to the General Assembly’s intent. Aetna Cas. & Sur. Co. v.
McMichael, 906 P.2d 92, 97 (Colo. 1995). To discern this intent, we interpret statutory
terms in accordance with their plain and ordinary meanings. Id. In addition, “we
examine the statutory language in the context of the statute as a whole and strive to
give ‘consistent, harmonious, and sensible effect to all parts.’” Reno v. Marks, 2015 CO
33, ¶ 20, 349 P.3d 248, 253 (quoting Denver Post Corp. v. Ritter, 255 P.3d 1083, 1089
(Colo. 2011)). We will not add words to a statute, nor will we subtract words from it.
Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007). In the absence of ambiguity, we
apply the statute’s language as written. Id. If, however, a statute is ambiguous, then
2
we may consider the statute’s purpose or policy, as well as its legislative history, to
discern the General Assembly’s intent. McMichael, 906 P.2d at 97.
B. Pertinent Provisions of the ISA
¶33 When it enacted the ISA, the General Assembly declared, among other things,
that parents should have input regarding their children’s education and that the faculty
employed at a school should have substantial flexibility in determining how to meet
students’ needs:
(a) The constitutional provisions regarding the public education system
direct the general assembly to establish a thorough and uniform statewide
system of public education, but they also recognize the importance of
preserving local flexibility by granting to each school district board of
education the control of instruction in the schools of the school district;
(b) The constitution’s requirement that each school district board of
education is responsible for controlling the instruction in its schools is
based on the belief that the delivery of educational services must be
tailored to the specific population of students they are intended to serve
and that the parents of those students should have great opportunity for
input regarding the educational services their children receive;
(c) In tailoring the delivery of educational services, it is also important that
the persons delivering those services, the principal of the public school
and the faculty employed at that school, have the maximum degree of
flexibility possible to determine the most effective and efficient manner in
which to meet their students’ needs.
§ 22-32.5-102(1)(a)–(c) (emphasis added).
¶34 To achieve these goals, section 22-32.5-104(1)(a) provides, “A public school of a
school district may submit to its local school board an innovation plan as described in
subsection (3) of this section.”
3
¶35 Subsection (3), in turn, requires, among other things, that the innovation plan
submitted to the local school board include evidence that a majority of both the faculty
and the SAC consented to the submitted plan:
(3) Each innovation plan, whether submitted by a public school or created
by a local school board through collaboration between the local school
board and a public school, shall include the following information:
....
(f) Evidence that a majority of the administrators employed at the public
school, a majority of the teachers employed at the public school, and a
majority of the [SAC] for the public school consent to designation as an
innovation school.
§ 22-32.5-104(3) (emphasis added).
¶36 The SAC’s members include the principal of the school or the principal’s
designee and at least one teacher who provides instruction at the school; three parents
or legal guardians of students enrolled in the school; one adult member of an
organization of parents, teachers, and students recognized by the school; and one
person who is involved in business or industry in the community. § 22-11-401(1)(a),
C.R.S. (2016).
¶37 As the above-quoted legislative declaration makes clear, the pre-submission
consent of a majority of the teachers at the school and a majority of the SAC is intended
to ensure that (1) parents will have “great opportunity for input regarding the
educational services their children receive” and (2) teachers at the school will have “the
maximum degree of flexibility possible to determine the most effective and efficient
manner in which to meet their students’ needs.” § 22-32.5-102(1)(b)–(c).
4
C. Application
¶38 The material facts here are undisputed.
¶39 The innovation plans that were submitted to the local school board did not
include the requisite evidence that a majority of the teachers employed by the schools at
issue had consented to those plans. See § 22-32.5-104(3)(f). Nor did the plans include
evidence that a majority of the SAC had consented to them. See id.
¶40 Moreover, as the parties conceded at oral argument, it was possible to comply
with section 22-32.5-104(3)(f) and to obtain the requisite consents even for “new”
innovation schools.
¶41 Accordingly, the plans submitted to the local school board here violated the plain
language of the applicable provisions of section 22-32.5-104 of the ISA, namely,
(1) section 22-32.5-104(1)(a), which authorizes schools to submit to the board “an
innovation plan as described in paragraph (3) of [that] section,” and (2) section
22-32.5-104(3)(f), which, in turn, required the plans to include the above-noted consents
from the SAC and the teachers at the school. As a result, in my view, the local school
board had no authority to approve such noncompliant plans, in direct contravention of
the ISA’s terms and stated purposes. See §§ 22-32.5-102(1)(a)–(c), 22-32.5-104(3)(f).
¶42 The Chief Justice nonetheless contends, or at least suggests, that (1) the foregoing
interpretation of the ISA precludes “new” innovation schools, (2) section
22-32.5-104(3)(f)’s pre-submission consent requirements are merely informational, and
(3) those requirements are “directory” and not “mandatory.” See C.J. op. ¶¶ 18–20. I
address these assertions in turn.
5
¶43 First, contrary to the Chief Justice’s suggestion that the above-noted
interpretation of the ISA conflicts with the General Assembly’s intent by precluding
“new” innovation schools, see C.J. op. ¶ 18, as noted above, both sides in this case
conceded at oral argument that “new” innovation schools could obtain the requisite
consents if necessary. Indeed, it is the Chief Justice’s interpretation of the ISA, which
allows schools to exclude teachers and parents from the plan development process, that
contradicts both the ISA’s expressed purpose and its obvious goal of fostering
innovation through collaboration between and among all of the interested parties. See
§ 22-32.5-102(1)(a)–(c).
¶44 Second, I disagree with the Chief Justice’s suggestion that section
22-32.5-104(3)(f) is merely informational. See C.J. op. ¶ 19. To the contrary, in my view,
that provision is a substantive requirement that ensures that teachers and parents will
have input into the innovation plan’s development, precisely as the ISA envisions.
¶45 In this regard, I disagree with the Chief Justice’s implicit view that
pre-submission consent from teachers and parents is not required for “new” innovation
schools because those schools do not yet exist and thus have no parents or teachers.
Had the General Assembly wished to except from its pre-submission consent
requirements “new” innovation schools, it could have done so expressly. But it did not,
and in my view, such an omission was likely intentional because exempting “new”
innovation schools from the ISA’s pre-submission requirements would have
undermined the collaboration between and among the school’s administration, faculty,
and parents that the ISA renders central to innovation schools.
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¶46 I likewise disagree with DPS’s assertion that the post hoc teacher approvals that
were obtained here established substantial compliance with the ISA’s pre-submission
consent requirements. In determining whether strict or substantial compliance with a
statute is required, we have considered both the objective that the legislation at issue
seeks to achieve and any prejudice to the party against whom substantial compliance is
asserted. See Woodsmall v. Reg’l Transp. Dist., 800 P.2d 63, 67–69 (Colo. 1990). Here,
for the reasons noted above, the ISA expressly mandates teacher and parent
involvement in the development of an innovation plan. See § 22-32.5-102(1)(b)–(c).
Indeed, the statute provides that parents should have “great opportunity for input”
regarding their children’s education. See § 22-32.5-102(1)(b). Notwithstanding the
foregoing requirements, in this case, the schools did not obtain the requisite teacher
consent prior to submitting their innovation plans to the school board. Instead, the
schools obtained after-the-fact consent from the teachers, apparently as a condition of
employment. I perceive no basis for concluding that such post hoc teacher approvals
established “substantial compliance” with section 22-32.5-104(3)(f). To the contrary, the
schools’ reliance on post hoc approvals allowed the schools to evade the pre-submission
teacher involvement that the ISA requires.
¶47 And even if post hoc teacher approval could somehow be deemed sufficient to
satisfy the teacher consent requirement of section 22-32.5-104(3)(f), DPS has not
asserted—nor could it assert—substantial compliance as to the requirement of SAC
consent. The SACs do not appear to have consented either before or after the plans’
submissions to the school board. Accordingly, the undisputed facts reveal no
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compliance—substantial or otherwise—with the requirement of pre-submission SAC
consent.
¶48 Third, I am unpersuaded by the Chief Justice’s assertion that section
22-32.5-104(3)(f)’s statement as to what an innovation plan “shall” include is “directory”
rather than mandatory. C.J. op. ¶ 20. Although “shall” generally has a mandatory
connotation, we have recognized that no bright-line test distinguishes mandatory from
directory provisions. Protest of McKenna, 2015 CO 23, ¶ 19, 346 P.3d 35, 41. Thus, we
have said that legislative intent controls. Id.¶49 Here, I perceive nothing in the ISA or in its statement of legislative purpose to
suggest that section 22-32.5-104(3)(f) was intended to be merely directory. Although the
Chief Justice’s opinion relies on its view of the ISA’s overriding purpose of allowing
flexibility in innovation, it overlooks the ISA’s equally important goal of ensuring
collaboration among and input from all interested parties, especially teachers and
parents. In these circumstances, I cannot conclude that section 22-32.5-104(3)(f)’s
provisions are merely directory.
¶50 In sum, the Chief Justice’s opinion relies heavily on the purported intent of the
ISA, to the exclusion of the plain language of that statute, which, in my view,
contradicts the Chief Justice’s conclusions. In doing so, the Chief Justice’s analysis
allows schools to avoid the ISA’s requirements of parent and teacher involvement in
developing an innovation plan, which, in turn, undermines the collaboration among all
interested parties that is indispensable to innovation schools.
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¶51 Had the General Assembly intended to create a “new” innovation school
exception to the requirement of parent and teacher consent, it could easily have done
so. But it did not, and I do not believe that it is this court’s place to read into the statute
an exception that is not there, no matter how expedient we might deem such an
exception to be. See Turbyne, 151 P.3d at 567 (noting that we will not add words to a
statute, nor will we subtract words from it).
II. Conclusion
¶52 For these reasons, I respectfully dissent.
I am authorized to state that JUSTICE MÁRQUEZ and JUSTICE HOOD join in
this dissent.
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