v. Poudre School Dist R-1 , 2020 COA 27 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
February 13, 2020
2020COA27
No. 18CA2345, Stanczyk v. Poudre School Dist R-1 —
Education — Teacher Employment, Compensation, and
Dismissal — Nonprobationary Portability
A division of the court of appeals considers whether a school
district may restrict a teacher’s right under section 22-63-203.5,
C.R.S. 2019, to transfer his or her nonprobationary status from one
school district to another, known as nonprobationary portability.
The division concludes that a school district may not impose
unreasonable restrictions on a teacher’s exercise of the right to
nonprobationary portability. If a teacher complies with the
statutory requirements for nonprobationary portability, the hiring
school district must grant the teacher nonprobationary status. In
this case, the defendants’ restrictions on a teacher’s right to
exercise the right to nonprobationary portability were unreasonable
because they allowed defendants to decide unilaterally whether the
teacher could obtain nonprobationary status.
Because the defendants unreasonably restricted the teacher’s
ability to exercise the statutory right to nonprobationary portability,
the district court erred in awarding summary judgment in favor of
the defendants. The division holds that the plaintiffs are entitled to
summary judgment on their claim that the defendants’ restrictions
violated the teacher’s right to nonprobationary portability and
remands for further proceedings on the plaintiffs’ remaining claims.
COLORADO COURT OF APPEALS 2020COA27
Court of Appeals No. 18CA2345
Larimer County District Court No. 17CV30480
Honorable Gregory M. Lammons, Judge
Patricia Stanczyk and Poudre Education Association,
Plaintiffs-Appellants,
v.
Poudre School District R-1 and Poudre School District R-1 Board of Education,
Defendants-Appellees.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE LIPINSKY
Webb and Dunn, JJ., concur
Announced February 13, 2020
Brooke Copass, Rory Herington, Charles Kaiser, Denver, Colorado, for
Plaintiffs-Appellants
Semple, Farrington, Everall, & Case, P.C., M. Brent Case, Jonathan Fero, Mary
Barham Gray, Denver, Colorado, for Defendants-Appellees
Philip J. Weiser, Attorney General, Julie C. Tolleson, First Assistant Attorney
General, Jenna Zerylnick, Assistant Attorney General, Denver, Colorado, for
Amicus Curiae Patricia Stanczyk and Poudre Education Association
¶1 In 2010, the Colorado General Assembly enacted sweeping
changes to the state’s teacher evaluation and compensation system
that, for the first time, tied a teacher’s nonprobationary status to
his or her performance. As with the prior concept of tenure, a
teacher who achieves nonprobationary status receives job
protections not available to other teachers, including protection
against unreasonable dismissal and hearing rights.
¶2 The General Assembly further provided that a
nonprobationary teacher has the right to transfer his or her
nonprobationary status from one school district to another by
submitting specified evidence of his or her effectiveness as an
educator. This statutory right is known as nonprobationary
portability.
¶3 In this case, we consider the narrow question whether a school
district may restrict a teacher’s ability to exercise the right of
nonprobationary portability through use of a job application and
form employment contract that require the teacher to relinquish the
right to nonprobationary portability as a condition of employment.
(We refer to such a job application and employment agreement as
the Restrictions.)
1
¶4 Plaintiffs, Patricia Stanczyk and Poudre Education Association
(Association), allege that defendants, Poudre School District R-1
and Poudre School District R-1 Board of Education (the Poudre
Defendants), unlawfully stymied Stanczyk’s and similarly situated
teachers’ exercise of their right to nonprobationary portability
through use of the Restrictions. The Poudre Defendants deny that
their application form and form employment agreement are
unlawful. In the alternative, they assert that, under their
prerogative of local control, school districts may disregard the
statutory mandate of nonprobationary portability.
¶5 We affirm in part and reverse in part:
• We affirm the district court’s award of summary
judgment to the Poudre Defendants on Stanczyk and the
Association’s claim for violation of article XI, section 2 of
the Colorado Constitution.
• We affirm the district court’s award of summary
judgment to the Poudre Defendants on Stanczyk’s claims
for breach of statutory contract, violation of due process
rights, and mandamus relief.
2
• We reverse the district court’s award of summary
judgment to the Poudre Defendants on Stanczyk and the
Association’s claims for declaratory judgment.
• We hold that the Association is entitled to summary
judgment on both the declaratory judgment claims
because the Poudre Defendants’ use of the Restrictions is
unlawful and, under the nonprobationary portability
statute, the Poudre Defendants must provide a qualifying
teacher with nonprobationary status upon the teacher’s
compliance with the statutory requirements for
nonprobationary portability.
• We hold that Stanczyk is entitled to summary judgment
on the claim that the Poudre Defendants’ use of the
Restrictions unlawfully deprived her of the right to
nonprobationary portability, but that disputed issues of
material fact preclude the entry of summary judgment to
any party on the claim for a declaratory judgment that
she is entitled to nonprobationary status.
• We remand for further proceedings consistent with this
opinion.
3
¶6 First, we discuss the history of the statute granting teachers
the right to nonprobationary portability. Second, we summarize the
factual and procedural background of the case. Third, we
determine whether Stanczyk and the Association have standing to
assert the claims they pleaded against the Poudre Defendants.
Fourth, we explain the standard of review applicable to this case.
Fifth, we consider the district court’s grant of summary judgment to
the Poudre Defendants on the Association and Stanczyk’s claims for
declaratory judgment. Sixth, we consider the Association and
Stanczyk’s remaining claims.
I. The History of the Nonprobationary Portability Statute
A. Nonprobationary Status Replaced Tenure in Colorado
¶7 Before 1990, a teacher received tenure if he or she was
continuously employed in the same school district for three
academic years. § 22-63-112(1), C.R.S. 1989. Once tenured, a
teacher could be dismissed only for certain, enumerated reasons
relating to cause. § 22-63-116, C.R.S. 1989. Thus, with limited
exceptions, a tenured teacher was “entitled to a position of
employment as a teacher.” § 22-63-115, C.R.S. 1989; see Johnson
v. Sch. Dist. No. 1, 2018 CO 17, ¶ 3, 413 P.3d 711, 713.
4
¶8 In 1990, the Teacher Employment, Compensation, and
Dismissal Act (TECDA) eliminated all substantive references to
tenure from Colorado’s education statutes. Ch. 150, sec. 1,
§§ 22-63-101 to -403, 1990 Colo. Sess. Laws 1117-28; see Johnson,
¶ 4, 413 P.3d at 713-14. “TECDA instead created a distinction
between nonprobationary and probationary teachers, defining the
latter as ‘a teacher who has not completed three full years of
continuous employment with the employing school district and who
has not been reemployed for the fourth year.’” Sch. Dist. No. 1 v.
Masters, 2018 CO 18, ¶ 6, 413 P.3d 723, 726 (quoting
§ 22-63-103(7), C.R.S. 1990).
¶9 Nonprobationary teachers retained certain of the protections
afforded to tenured teachers under prior law. See id. at ¶ 7, 413
P.3d at 726. Sections of TECDA still in force today provide that
nonprobationary teachers can be dismissed only for enumerated
reasons. § 22-63-301, C.R.S. 2019; see § 22-63-302, C.R.S. 2019.
Additionally, before termination of their employment,
nonprobationary teachers are entitled to receive notice and an
opportunity to be heard by a neutral hearing officer. § 22-63-302;
see § 22-63-202(2)(c.5)(III)(B), C.R.S. 2019.
5
B. SB 191 Tied Nonprobationary Status to Performance
¶ 10 In 2010, Senate Bill 10-191 (SB 191) changed the way
Colorado teachers are evaluated and receive nonprobationary
status. Ch. 241, sec. 10, § 22-63-103, 2010 Colo. Sess. Laws 1070.
SB 191 rests on the belief that a “system to evaluate the
effectiveness of licensed personnel is crucial to improving the
quality of education in this state” and that “such a system [should]
be applicable to all licensed personnel in the school districts and
boards . . . throughout the state.” § 22-9-102(1)(a), C.R.S. 2019.
¶ 11 SB 191 created a uniform, statewide framework for evaluating
teachers, provided for development of statewide criteria to measure
teacher effectiveness, mandated annual teacher evaluations, and
required that fifty percent of a teacher’s evaluation score be based
on student academic growth. Ch. 241, sec. 5, § 22-9-105.5, 2010
Colo. Sess. Laws 1056-61.
¶ 12 As part of this framework, the General Assembly linked
nonprobationary status to teacher performance.
§ 22-9-102(1)(a)(V). To attain nonprobationary status, a teacher
must demonstrate three years of effectiveness, measured by the
6
statewide standards established in SB 191.
§§ 22-9-105.5(3)(d), -63-103(7), -63-203(1)(b), C.R.S. 2019.
C. SB 191 Established Nonprobationary Portability
¶ 13 SB 191 granted teachers who had attained nonprobationary
status the right to transfer that status from one district to another.
§ 22-63-203.5, C.R.S. 2019. Section 22-63-203.5 provides that a
nonprobationary teacher
who is employed by a school district and is
subsequently hired by a different school
district may provide to the hiring school
district evidence of his or her student
academic growth data and performance
evaluations for the prior two years for the
purposes of retaining nonprobationary status.
Id. (We refer to such evidence and evaluations as Required
Documentation.) Importantly, the statute says that “[i]f, upon
providing such data, the nonprobationary teacher can show two
consecutive performance evaluations with effectiveness ratings in
good standing, he or she shall be granted nonprobationary status in
the hiring school district.” Id. (emphasis added). Before the
General Assembly enacted section 22-63-203.5, school districts had
the sole discretion whether to grant nonprobationary status to a
nonprobationary teacher who relocated from another school district.
7
D. School Districts Can Obtain Exemptions from Certain of the
Statewide Mandates in the Education Statutes
¶ 14 School districts, the State Board of Education, and the
General Assembly have different and distinct roles in overseeing the
education of Colorado’s children. Under the Colorado Constitution,
school districts have the authority to control “instruction in [their]
public schools,” Colo. Const. art. IX, § 15, while the State Board of
Education possesses general supervisory power over Colorado’s
public schools, Colo. Const. art. IX, § 1(1). The General Assembly is
charged with “provid[ing] for the establishment and maintenance of
a thorough and uniform system of free public schools throughout
the state” (the Thorough and Uniform Clause). Colo. Const. art. IX,
§ 2.
¶ 15 In keeping with these differing roles, school districts may seek
an exemption from the State Board of Education from most, but not
all, of the statewide mandates set forth in title 22 of the Colorado
Revised Statutes. § 22-2-117, C.R.S. 2019. (The mandates for
which a school district may not obtain an exemption are listed in
subsections (1)(b) and (1.5) of section 22-2-117. Nonprobationary
portability is not one of them.)
8
¶ 16 To obtain an exemption from a statewide mandate, a school
district must obtain stakeholder support and provide public notice,
§ 22-2-117(1)(d), (2), and must satisfy the State Board of Education
that the exemption “would enhance educational opportunity and
quality within the school district and that the costs to the school
district of complying with the requirements for which the waiver is
requested significantly limit educational opportunity within the
school district.” § 22-2-117(1)(a).
II. Background
A. Underlying Facts
¶ 17 Stanczyk, a licensed teacher, worked in the Thompson School
District from 1995 through the 2015-16 school year. She attained
nonprobationary status in that district in the 1998-99 school year.
¶ 18 During her last year at the Thompson School District,
Stanczyk applied for several positions with the Poudre School
District (School District). Because the School District did not
accept paper applications, Stanczyk applied for the positions
though the School District’s online application system, known as
AppliTrack. Before Stanczyk could submit her completed
9
application through AppliTrack, she was required to confirm her
agreement with the following statement:
Any offers of employment extended by [School
District] to me are conditioned on signing a
probationary teacher contract and not
asserting the portability of nonprobationary
status I have acquired in another school
district, if any.
¶ 19 Following this language, Stanczyk had to click a box
acknowledging “I agree” that “I have read, understand, and agree to
all the terms above.” The AppliTrack form did not provide an “I
disagree” option. Stanczyk clicked the “I agree” box and submitted
her application. The School District’s website did not include an
explanation of how an applicant could avoid clicking “I agree” or a
statement of its policy on nonprobationary portability.
¶ 20 The School District offered Stanczyk a probationary teaching
position. Before signing her employment contract for that position,
Stanczyk visited the School District’s human resources office and
asked whether the School District permitted nonprobationary
portability. A person whose name and title do not appear in the
record allegedly conferred with a coworker and responded to
Stanczyk, “we don’t do that here.”
10
¶ 21 Victoria Thompson, the School District’s Human Resources
Director, however, asserted in an affidavit submitted in support of
the Poudre Defendants’ motion for summary judgment that the
School District “does not require applicants for teaching positions to
waive nonprobationary portability.” (We refer to Victoria Thompson
as “Ms. Thompson,” rather than as “Thompson,” to distinguish the
references to her from the references to the Thompson School
District.) Ms. Thompson said that the School District’s human
resources office can “allow the teacher to submit the application
without agreeing to the waiver provision.”
¶ 22 After Stanczyk visited the human resources office, she signed
a contract with the School District for a probationary position. The
contract said that Stanczyk would be “employed as a probationary
teacher under C.R.S. § 22-63-203” and that she had “voluntarily
waived [her] right under C.R.S. § 22-63-203.5 to assert the
portability of [her] nonprobationary status.” Additionally, the
contract specified that it was “voidable at the option of the [Poudre
School District R-1] Board of Education” if Stanczyk asserted “the
portability of [her] nonprobationary status acquired in another
school district.”
11
¶ 23 At the conclusion of the academic year, a supervisor told
Stanczyk that her contract with the School District would not be
renewed. A week later, Stanczyk informed Ms. Thompson by email
that she wished to exercise her right to nonprobationary portability,
specifically referencing section 22-63-203.5. Stanczyk attached to
the email her evaluations from the Thompson School District for the
2014-15 and 2015-16 school years, in which she had received
ratings of “Highly Effective” and “Effective,” respectively. Ms.
Thompson denied Stanczyk’s request to transfer her
nonprobationary status to the School District.
¶ 24 Ms. Thompson testified during her deposition that Stanczyk’s
request was “very incomplete.” Ms. Thompson did not
contemporaneously tell Stanczyk, however, that the School District
did not believe Stanczyk had submitted the Required
Documentation. While Ms. Thompson also said that Stanczyk had
waited too long to request portability, Ms. Thompson testified that
she did not feel comfortable specifying the School District’s deadline
to request nonprobationary portability.
¶ 25 Several days after Ms. Thompson denied Stanczyk’s request to
exercise her right to nonprobationary portability, the Poudre School
12
District R-1 Board of Education confirmed that Stanczyk’s contract
would not be renewed. Because the Poudre Defendants considered
Stanczyk to be a probationary teacher, they did not follow the
statutory procedure for terminating a nonprobationary teacher,
which would have afforded her notice and an opportunity to be
heard by a neutral hearing officer. § 22-63-302.
B. Procedural History
¶ 26 When her contract was not renewed, Stanczyk and the
Association, of which Stanczyk is a member, filed suit against the
Poudre Defendants. Stanczyk and the Association pleaded six
claims for relief seeking:
(1) a declaratory judgment that the Poudre Defendants must
grant nonprobationary status to Stanczyk and similarly
situated teachers who provide the Required
Documentation (First Claim for Declaratory Judgment);
(2) a declaratory judgment that the Poudre Defendants’ use
of the Restrictions violates Colorado law and is contrary
to public policy (Second Claim for Declaratory
Judgment);
13
(3) mandamus relief (if other relief is not available) to compel
the Poudre Defendants to grant nonprobationary status
to Stanczyk and similarly situated teachers who provide
the Required Documentation;
(4) a determination that section 22-63-203.5 creates a
statutory contract between the School District and its
teachers, and that the School District breached such
contract with Stanczyk and similarly situated teachers;
(5) a determination that the Poudre Defendants deprived
Stanczyk and similarly situated teachers of a property
interest in continued employment without due process of
law, in violation of the Colorado Constitution; and
(6) a determination that the Poudre Defendants’ use of the
Restrictions violates the guarantee of a “thorough and
uniform system of free public schools” set forth in the
Thorough and Uniform Clause and is therefore
preempted by section 22-63-203.5.
¶ 27 The parties cross-moved for summary judgment.
14
¶ 28 As relevant to this appeal, the Poudre Defendants contend
they were entitled to summary judgment because:
(1) Stanczyk and the Association lack standing;
(2) Stanczyk waived her right to nonprobationary portability
or, in the alternative, Stanczyk’s request for
nonprobationary portability was untimely and she did
not provide the Poudre Defendants with the Required
Documentation;
(3) the Poudre Defendants cannot be compelled to make the
discretionary decision whether Stanczyk submitted the
Required Documentation;
(4) because section 22-63-203.5 creates a statutory right,
and not a constitutional right, the Poudre Defendants
could not have denied Stanczyk due process rights; and
(5) section 22-63-203.5 does not create a statutory contract
or a property interest.
¶ 29 Stanczyk and the Association argued they were entitled to
summary judgment on their claims for declaratory relief because
there is no factual dispute that the Poudre Defendants unlawfully
deprive teachers of their right to nonprobationary portability, in
15
violation of section 22-63-203.5. They also contended that the word
“shall” in section 22-63-203.5 creates a statutory contract between
the School District and the nonprobationary teachers it hires.
Similarly, they argued that nonprobationary status is a property
right and that the Poudre Defendants unconstitutionally deprived
Stanczyk and similarly situated teachers of such property right
without due process of law. Finally, they asserted that if no other
relief is granted, they are entitled to mandamus relief because the
Poudre Defendants had a duty under section 22-63-203.5 to
provide nonprobationary status to Stanczyk and similarly situated
teachers.
¶ 30 The district court granted summary judgment to the Poudre
Defendants. The court determined:
(1) Stanczyk had standing to bring all six of her claims and
the Association had associational standing to join in
Stanczyk’s two declaratory judgment claims and her
claim that the Poudre Defendants’ use of the Restrictions
violates the Thorough and Uniform Clause;
16
(2) school districts may require teachers to relinquish their
right to nonprobationary portability as a condition of
employment;
(3) Stanczyk waived her right to nonprobationary portability
by signing the School District’s form employment
agreement;
(4) because Stanczyk waived that right, the Poudre
Defendants were not required to grant her
nonprobationary status;
(5) the Poudre Defendants’ use of the Restrictions did not
violate section 22-63-203.5 because local school boards
have general authority over teacher employment
decisions;
(6) Stanczyk could not succeed on her claims for breach of
contract and violation of her due process rights because
section 22-63-203.5 “does not create a contract with
teachers by operation of law and teachers do not have a
property interest in nonprobationary portability”; and
(7) Stanczyk and the Association “did not provide any
evidence that requiring teachers to waive their right to
17
request nonprobationary portability has any effect” on
whether the state’s public school system is “thorough
and uniform,” and therefore they could not succeed on
their claim arising under the Thorough and Uniform
Clause.
¶ 31 On appeal, Stanczyk and the Association again argue that the
Poudre Defendants’ use of the Restrictions violates the statewide
mandate codified in section 22-63-203.5.
¶ 32 The Poudre Defendants deny that their use of the Restrictions
is unlawful and assert that the district court correctly awarded
them summary judgment on Stanczyk’s claims because she waived
the right to nonprobationary portability. They also argue that
Stanczyk and the Association lack standing.
III. The District Court Correctly Decided the Standing Issue
Before we address the district court’s ruling on the merits, we
must consider the Poudre Defendants’ argument that Stanczyk and
the Association lack standing to bring their claims. Barber v. Ritter,
196 P.3d 238, 245 (Colo. 2008) (“Standing is a threshold issue that
must be satisfied in order for a court to decide a case on the
merits.”). “In determining whether a plaintiff has alleged an injury
18
sufficient to confer standing, an appellate court considers the
allegations in the complaint, as well as testimony and other
documentary evidence in the record.” Rechberger v. Boulder Cty.
Bd. of Cty. Comm’rs, 2019 COA 52, ¶ 8, 454 P.3d 355, 357.
“Whether a plaintiff has standing to sue is a question of law that we
review de novo.” Barber, 196 P.3d at 245.
¶ 33 Because Stanczyk and the Association jointly asserted all
claims pleaded in their complaint, we consider whether (1) Stanczyk
has standing as an individual and (2) the Association has
associational standing to assert the claims on behalf of its
members.
A. Stanczyk Has Standing to Assert All Six of Her Claims
¶ 34 To establish standing, an individual “must satisfy a two-part
test requiring (1) that the plaintiff ‘suffered injury in fact,’ and (2)
that the injury was to a ‘legally protected interest as contemplated
by statutory or constitutional provisions.’” Barber, 196 P.3d at 245
(quoting Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535,
538 (1977)).
¶ 35 Under the first prong of the test, “[t]he injury may be tangible,
such as physical damage or economic harm; however, it may also
19
be intangible, such as aesthetic issues or the deprivation of civil
liberties. Deprivations of many legally created rights, although
themselves intangible, are nevertheless injuries-in-fact.” Ainscough
v. Owens, 90 P.3d 851, 856 (Colo. 2004) (citation omitted).
Standing, however, is not established by an injury that is overly
“indirect and incidental” to the defendant’s action. Hickenlooper v.
Freedom from Religion Found., Inc., 2014 CO 77, ¶ 9, 338 P.3d
1002, 1007 (quoting Ainscough, 90 P.3d at 856).
¶ 36 As the district court correctly pointed out, it is undisputed
that the Poudre Defendants “denied Stanczyk’s request for
nonprobationary portability, and, therefore, allegedly caused her
injury.” The Poudre Defendants argue the opposite: that Stanczyk
cannot establish the first prong because “she caused her own injury
by affirmatively waiving her right to transfer her nonprobationary
status and subsequently waiting eight months to request
portability.” We disagree with the Poudre Defendants.
¶ 37 The Poudre Defendants rely on People in Interest of J.C.S., 169
P.3d 240, 245 (Colo. App. 2007), for the proposition that the injury-
in-fact requirement cannot be satisfied if the plaintiff caused the
injury to herself. In J.C.S., however, the division acknowledged that
20
Colorado has never adopted a “self-inflicted injury limitation on
standing.” Id. at 246. Rather, whether the plaintiff caused her own
injury is a consideration in determining whether the plaintiff can
prove causation. Id. Under J.C.S., the Poudre Defendants cannot
establish that Stanczyk lacks standing even if her injury was self-
inflicted. Thus, we agree with the district court that Stanczyk has
properly alleged an injury in fact.
¶ 38 Although the district court also addressed the Poudre
Defendants’ argument under the second prong of the standing
analysis — whether Stanczyk suffered an injury to a legally
protected interest — the Poudre Defendants do not pursue this
argument on appeal. We therefore deem their “legally protected
interest” argument abandoned. Armed Forces Bank, N.A. v. Hicks,
2014 COA 74, ¶ 38, 365 P.3d 378, 386 (“[A]rguments raised in the
trial court and not pursued on appeal are deemed abandoned[.]”
(citing People v. Dash, 104 P.3d 286, 293 (Colo. App. 2004))).
¶ 39 Thus, we affirm the district court’s determination that
Stanczyk had standing.
21
B. The Association Has Associational Standing to Join in
Stanczyk’s Claims for Declaratory Judgment and Claim
Arising Under the Thorough and Uniform Clause
¶ 40 We agree with the district court that the Association has
associational standing to join in three of Stanczyk’s claims — (1) the
First Claim for Declaratory Judgment (seeking a determination that
the Poudre Defendants must grant nonprobationary status
whenever a qualified teacher submits the Required Documentation);
(2) the Second Claim for Declaratory Judgment (seeking a
determination that the Poudre Defendants’ use of the Restrictions is
unlawful); and (3) the claim that the Poudre Defendants’ use of the
Restrictions violates the Thorough and Uniform Clause. Because
the Association does not challenge the district court’s ruling that it
lacks standing to assert the remaining claims, we consider only the
Poudre Defendants’ challenge to the Association’s associational
standing to join in the three claims listed above. See id. (explaining
we do not consider arguments that have not been raised on appeal).
[A]n organization has associational standing
when: (1) its members would otherwise have
standing to sue in their own right; (2) the
interests it seeks to protect are germane to the
organization’s purpose; and (3) neither the
claim asserted, nor the relief requested,
22
requires the participation of individual
members of the lawsuit.
Colo. Union of Taxpayers Found. v. City of Aspen, 2018 CO 36, ¶ 10,
418 P.3d 506, 510.
1. The First Claim for Declaratory Judgment as to the
Association
¶ 41 The Association seeks a declaratory judgment that the Poudre
Defendants must grant qualifying teachers nonprobationary status
if the teachers provide the Required Documentation. Under the
first prong of the standing analysis, an organization has
associational standing when its members have standing to sue in
their own right. Id. Because Stanczyk has standing to bring this
claim, so does the Association.
¶ 42 Under the second prong, we consider whether a declaratory
judgment addressing teachers’ exercise of their right to
nonprobationary portability would be germane to the Association’s
purpose. See id. We conclude it would be germane. See Kelley v.
Shelby Cty. Bd. of Educ., 198 F. Supp. 3d 842, 850 (W.D. Tenn.
2016) (Protecting teachers “from dismissal in violation of [state] law
[is] an interest germane to [a teachers’ union’s] organizational
purpose.”).
23
¶ 43 The Poudre Defendants further argue that the Association
lacks standing to assert the Second Claim because a teacher must
exercise the right to nonprobationary portability before the school
district hires the teacher and, thus, before the teacher is eligible to
join a teachers’ union. But, as we explain in Part V.A.2 below,
section 22-63-203.5 grants the right to nonprobationary portability
to nonprobationary teachers whom a school district has already
hired and who, therefore, are eligible to join the teachers’ union.
For these reasons, the Association meets the second prong of the
standing test.
¶ 44 Finally, under the third prong of the standing test, we
conclude that, from the Association’s perspective, the First Claim
for Declaratory Judgment does not require the participation of
individual teachers because a declaratory judgment that the Poudre
Defendants must comply with section 22-63-203.5 would impact all
Association members in Stanczyk’s position, and not Stanczyk
alone.
24
2. The Second Claim for Declaratory Judgment as to the
Association
¶ 45 The Association seeks a declaratory judgment that the Poudre
Defendants’ use of the Restrictions violates Colorado law. For the
reasons explained above, the Association meets all three prongs to
establish standing to assert this claim: Stanczyk has standing and
is a member of the Association; determining whether the Poudre
Defendants’ use of the Restrictions violates Colorado law is germane
to the Association’s purpose; and such a decision would apply to all
Association members similarly situated to Stanczyk.
3. The Association’s Third Claim that the Poudre Defendants
Violated the Thorough and Uniform Clause
¶ 46 The Association seeks a ruling that the Poudre Defendants
violated the Thorough and Uniform Clause by requiring teachers to
relinquish their right to nonprobationary portability as a condition
of employment.
¶ 47 For the same reasons why the Association has standing to
assert its claims for declaratory judgment, it also has associational
standing to join Stanczyk in asserting this constitutional claim.
¶ 48 Thus, we affirm the district court’s ruling on standing.
25
IV. We Review De Novo the District Court’s Decision to Grant
Summary Judgment to the Poudre Defendants
¶ 49 Summary judgment “is a drastic remedy, to be granted only
when there is a clear showing that the applicable standards have
been met.” Cary v. United of Omaha Life Ins. Co., 68 P.3d 462, 466
(Colo. 2003). A district court may grant summary judgment only if
the “pleadings, depositions, answers to interrogatories, and
admissions on file, together with [supporting and opposing]
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as
a matter of law.” C.R.C.P. 56(c).
¶ 50 The party moving for summary judgment bears the “burden of
establishing the lack of a triable factual issue, and all doubts as to
the existence of such an issue must be resolved against the moving
party.” Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo.
1988). If the moving party can establish the absence of record
evidence to support the nonparty’s case, the burden shifts to the
nonmoving party to show a triable issue of fact. Cont’l Air Lines,
Inc. v. Keenan, 731 P.2d 708, 713 (Colo. 1987).
26
¶ 51 When all parties move for summary judgment, the trial court
must “consider each motion separately, review the record, and
determine whether a genuine dispute as to any fact material to that
motion exists.” Churchey, 759 P.2d at 1340. “One party’s assertion
of undisputed facts cannot ‘be applied in connection with’ the other
party’s cross-motion for summary judgment.” Jones v. Samora,
2016 COA 191, ¶ 44, 395 P.3d 1165, 1174 (quoting Churchey, 759
P.2d at 1340). “If there are genuine disputes regarding facts
material to both motions, the court must deny both motions.”
Churchey, 759 P.2d at 1340.
¶ 52 “In reviewing a summary judgment order, an appellate court
applies the same standard as the district court.” City of Fort Collins
v. Colo. Oil, 2016 CO 28, ¶ 9, 369 P.3d 586, 590. Thus, we review a
trial court’s decision to grant a motion for summary judgment de
novo. S. Cross Ranches, LLC v. JBC Agric. Mgmt., LLC, 2019 COA
58, ¶ 11, 442 P.3d 1012, 1015. Our task on review “is to determine
whether a genuine issue of material fact existed and whether the
district court correctly applied the law.” Colo. Oil, ¶ 9, 369 P.3d at
590.
27
V. The District Court Erred in Awarding Summary Judgment to
the Poudre Defendants on Stanczyk and the Association’s
Declaratory Judgment Claims
¶ 53 Stanczyk and the Association’s claims for declaratory
judgment rest on their contention that the Poudre Defendants’ use
of the Restrictions violates section 22-63-203.5. But the district
court did not reach the merits of this argument. Rather, it awarded
summary judgment to the Poudre Defendants on the declaratory
judgment claims based upon its determination that the right to
nonprobationary portability is waivable and that Stanczyk waived it.
The district court misread section 22-63-203.5, however, and did
not need to reach the issue of whether the right to nonprobationary
portability can be waived.
¶ 54 We resolve the case by considering the more fundamental
question of whether the Poudre Defendants’ use of the Restrictions,
as reflected in the parties’ summary judgment motions and briefs,
violates section 22-63-203.5.
¶ 55 To determine whether the Poudre Defendants’ use of the
Restrictions is lawful, we first review the nonprobationary
portability statute. Second and third, we examine the Poudre
Defendants’ use of the Restrictions and, in doing so, determine
28
whether the Poudre Defendants violated section 22-63-203.5.
Fourth, we discuss the exclusive means by which the Poudre
Defendants could avoid the mandate of section 22-63-203.5. Fifth,
we consider the Poudre Defendants’ local control argument. We
then apply these analyses in determining whether the district court
erred in granting summary judgment to the Poudre Defendants on
Stanczyk and the Association’s declaratory judgment claims.
A. The Nonprobationary Portability Statute
1. Rules of Statutory Interpretation
¶ 56 The meaning of section 22-63-203.5 is a question of law that
we review de novo. Wolf Ranch, LLC v. City of Colorado Springs, 220
P.3d 559, 563 (Colo. 2009).
¶ 57 When we interpret a statute, “[w]e begin with the statutory
language itself and give the text its ordinary and commonly
accepted meaning.” Rooftop Restoration, Inc. v. Am. Family Mut. Ins.
Co., 2018 CO 44, ¶ 12, 418 P.3d 1173, 1176. “The language at
issue must be read in the context of the statute as a whole and the
context of the entire statutory scheme. Thus, our interpretation
should give consistent, harmonious, and sensible effect to all parts
of a statute.” Jefferson Cty. Bd. of Equalization v. Gerganoff, 241
29
P.3d 932, 935 (Colo. 2010) (citations omitted). “A ‘cardinal principle
of statutory construction’ is that no clause, sentence, or word is
‘superfluous, void, or insignificant.’” Falcon Broadband, Inc. v.
Banning Lewis Ranch Metro. Dist. No. 1, 2018 COA 92, ¶ 31, ___
P.3d ___, ___ (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)).
2. Section 22-63-203.5 Requires School Districts to Provide
Nonprobationary Status to Qualified Teachers Who Submit the
Required Documentation
¶ 58 The plain language of section 22-63-203.5 grants qualified
teachers the sole discretion to exercise the right of nonprobationary
portability: “[U]pon providing [the Required Documentation], the
nonprobationary teacher . . . shall be granted nonprobationary
status in the hiring school district.” (Emphasis added.) Thus, if a
qualified teacher provides a school district with the Required
Documentation, the hiring school district must provide the teacher
with nonprobationary status. See Colo. Real Estate Comm’n v. Vizzi,
2019 COA 33, ¶ 27, ___ P.3d ___, ____ (explaining that, absent a
clear indication of contrary legislative intent, the word “shall” in a
statute means that the General Assembly intended the listed action
to be mandatory).
30
¶ 59 This statutory right belongs to any qualifying teacher who (1)
was “employed by a school district”; (2) is “subsequently hired by a
different school district” (called the “hiring school district”); and (3)
submits the Required Documentation. § 22-63-203.5.
B. The Poudre Defendants’ Use of the Restrictions
¶ 60 The parties’ summary judgment motions and briefs reflect no
dispute that the Poudre Defendants imposed the Restrictions on
Stanczyk and other similarly situated teachers. First, the School
District’s online AppliTrack application form required teachers to
acknowledge their waiver of the right to nonprobationary portability
by clicking the “I accept” button before they could submit the
application. In her deposition testimony and affidavit, Ms.
Thompson claimed that a teacher could ask the School District’s
human resources department to override AppliTrack and “allow the
teacher to submit the application without agreeing to the waiver
provision.”
¶ 61 Yet the record shows that neither the AppliTrack form nor the
School District’s website indicated that a teacher could apply for a
job without waiving the right to nonprobationary portability or how
the teacher could do so. Thus, the record shows only that a teacher
31
must agree to waive nonprobationary portability to submit the
online application. The information the School District presented to
the public created the impression, intentionally or otherwise, that
the School District did not permit teachers to exercise the right to
nonprobationary portability.
¶ 62 Second, the School District used a form employment
agreement stating that, by signing, the teacher “voluntarily waived
[his or her] right” to assert nonprobationary portability and that the
contract is “voidable at the option of the [School District]” if the
teacher asserted the right to nonprobationary portability.
¶ 63 Although the parties disagree whether a teacher can
circumvent the Restrictions, there is no dispute that the Poudre
Defendants used the Restrictions to require teachers to relinquish
the right to nonprobationary portability as a condition of
employment. Even if teachers could somehow apply for
employment with the School District without agreeing to the waiver
language in the AppliTrack form, the Poudre Defendants would still
retain, through the form employment agreement, the power to hire
only those teachers who surrendered their right to nonprobationary
portability.
32
C. The Poudre Defendants’ Use of the Restrictions Violates
Section 22-63-203.5
¶ 64 A school district may not unreasonably restrict a teacher’s
exercise of the right to nonprobationary portability under section
22-63-203.5. The Poudre Defendants’ use of the Restrictions is
unreasonable because it reverts the portability decision from the
teacher back to the school district, thereby writing section
22-63-203.5 out of the statute book.
¶ 65 Before the General Assembly adopted section 22-63-203.5, if
an experienced teacher who had achieved nonprobationary status
wanted to accept a position with a different school district, the
teacher had no choice but to relinquish his or her nonprobationary
status (and the associated protections) — and start anew as a
probationary teacher — unless the hiring school district offered the
teacher a nonprobationary position. The decision whether the
teacher would receive nonprobationary status in the hiring school
district exclusively belonged to the hiring school district.
¶ 66 Section 22-63-203.5 changed the law by giving the teacher the
sole power to exercise the right of portability. But the statute has
significance only if teachers retain this power.
33
¶ 67 The Poudre Defendants’ use of the Restrictions enables them
to choose which of the School District’s teachers, if any, may enjoy
the benefits of 22-63-203.5 or even deny employment to all teachers
who try to exercise their right to nonprobationary portability. The
AppliTrack form, at best, discourages teachers from exercising their
right to nonprobationary portability. The School District’s form
employment contract, however, empowers the School District to
render a teacher’s employment contract void if the teacher attempts
to benefit from his or her statutory right to nonprobationary
portability.
¶ 68 For these reasons, we conclude that the Poudre Defendants’
use of the Restrictions violates section 22-63-203.5. Our holding is
narrow. Because we conclude the Poudre Defendants’ use of the
Restrictions is unlawful, we need not address the circumstances, if
any, under which a teacher — undeterred by the Restrictions — can
voluntarily waive the right to nonprobationary portability. See
Ritter v. Jones, 207 P.3d 954, 961 (Colo. App. 2009) (“[W]aiver of a
statutory protection must be voluntary.”). Nor need we consider
whether a school district may place reasonable restrictions, such as
34
a deadline to request nonprobationary status, on a teacher’s
exercise of the right to nonprobationary portability.
D. A School District May Obtain an Exemption from Section
22-63-203.5’s Mandate from the State Board of Education
¶ 69 The Poudre Defendants are not left without a remedy if they
wish to deny the right to nonprobationary portability to their
teachers. As discussed in Part I.D above, section 22-2-117
authorizes the State Board of Education to balance the school
district’s right to local control against a statewide mandate. If the
Poudre Defendants can satisfy the statutory criteria for obtaining
an exemption from the mandate set forth in 22-63-203.5, the State
Board of Education may grant such an exemption.
¶ 70 The enactment of the statute authorizing the State Board of
Education to exempt school districts from statewide statutory
mandates means that school districts may not deny teachers a right
guaranteed by statute without obtaining the State Board of
Education’s authorization. See People in Interest of R.J., 2019 COA
109, ¶ 8, 451 P.3d 1232, 1235 (explaining that the inclusion of
certain terms in a rule or statute implies the exclusion of others).
Thus, an exemption from the State Board of Education is the
35
exclusive means by which the Poudre Defendants may avoid
compliance with section 22-63-203.5. (The parties’ summary
judgment motions and briefs do not indicate whether the Poudre
Defendants sought the State Board of Education’s authorization to
circumvent section 22-63-203.5’s mandate.)
E. The Poudre Defendants’ Prerogative of Local Control Does Not
Include the Authority to Disregard the Statewide Statutory
Mandate of Nonprobationary Portability
¶ 71 The Poudre Defendants’ local control argument is
unconvincing. The Poudre Defendants argue that “holding
portability to be inalienable would fully usurp the [School] District’s
power to offer employment on the terms and conditions it deems
appropriate” and, therefore, would violate the Poudre Defendants’
prerogative of local control.
¶ 72 Local control does not permit a school district to ignore a
statewide statutory mandate without obtaining an exemption from
the State Board of Education. Taken to its logical extreme, the
Poudre Defendants’ argument would allow every school district in
Colorado to ignore section 22-63-203.5 — or any other statewide
statutory mandate. To paraphrase Justice Cardozo, this would
36
result in local control run riot. See A.L.A. Schechter Poultry Corp. v.
United States, 295 U.S. 495, 553 (1935) (Cardozo, J., concurring).
F. The Association, But Not Stanczyk, Is Entitled to Summary
Judgment on the First Claim for Declaratory Judgment
¶ 73 Stanczyk and the Association seek a declaratory judgment
that the Poudre Defendants must grant Stanczyk and similarly
situated teachers nonprobationary status if they provide the Poudre
Defendants with the Required Documentation. Given our
determination that the Poudre Defendants’ use of the Restrictions
violates section 22-63-203.5, we hold that the Association is
entitled to summary judgment on the First Claim for Declaratory
Judgment. The nonprobationary portability statute makes clear
that, if a qualified teacher complies with the requirements for
nonprobationary portability, the Poudre Defendants must grant the
teacher that status. It logically follows that the Poudre Defendants
cannot place unreasonable roadblocks in the path of a teacher’s
exercise of the right to nonprobationary portability.
¶ 74 Stanczyk is not entitled to summary judgment on the First
Claim for Declaratory Judgment, however, because the record
reflects disputed issues of material fact as to whether she provided
37
the School District with the Required Documentation. See Dep’t of
Nat. Res. v. 5 Star Feedlot Inc., 2019 COA 162M, ¶ 37, ___ P.3d ___,
___ (holding that the Court of Appeals may direct entry of summary
judgment in favor of the moving party where the non-moving party
did not come forward with evidence demonstrating a genuine issue
of material fact).
¶ 75 Section 22-63-203.5 states that a nonprobationary teacher
“may provide to the hiring school district evidence of his or her
student academic growth data and performance evaluations for the
prior two years for the purposes of retaining nonprobationary
status.” § 22-63-203.5 (emphasis added). Stanczyk alleges that
she provided the School District with the required student academic
growth data and performance evaluations. The Poudre Defendants,
however, contend that Stanczyk “failed to provide evidence of
student academic growth data from her prior two years.” Stanczyk
counters that her evaluations included “student academic growth
data” because these scores accounted for “50% of [her] overall
evaluation score as required by [statute].”
¶ 76 This factual dispute precludes resolution of the First Claim for
Declaratory Judgment on summary judgment as to Stanczyk.
38
¶ 77 In sum, we reverse the district court’s award of summary
judgment to the Poudre Defendants on Stanczyk and the
Association’s First Claim for Declaratory Judgment. We hold that
the Association is entitled to summary judgment on the First Claim
for Declaratory Judgment and that disputed issues of material fact
preclude the entry of summary judgment in favor of any party on
the First Claim for Declaratory Judgment as to Stanczyk.
G. Stanczyk and the Association Are Entitled to Summary
Judgment on Their Second Claim for Declaratory Judgment
¶ 78 Stanczyk and the Association seek a declaratory judgment
that the Poudre Defendants’ use of the Restrictions is unlawful.
Based on our determination that the Poudre Defendants’ use of the
Restrictions violates section 22-63-203.5, we hold that the district
court erred in granting summary judgment to the Poudre
Defendants on the Second Claim for Declaratory Judgment, and
that Stanczyk and the Association are entitled to summary
judgment on this claim.
39
VI. We Affirm the District Court’s Award of Summary Judgment to
the Poudre Defendants on Stanczyk and the Association’s
Remaining Claims
A. Mandamus Relief
¶ 79 A party may obtain mandamus relief only if other relief is
unavailable. See Gandy v. Williams, 2019 COA 118, ¶ 24, ___ P.3d
___, ___. Because we hold that Stanczyk is entitled to summary
judgment on the Second Claim for Declaratory Judgment, she may
not obtain mandamus relief. Thus, while our reasoning differs from
that of the district court, we affirm the district court’s holding that
the Poudre Defendants are entitled to summary judgment on
Stanczyk’s mandamus claim. See Steamboat Springs Rental &
Leasing, Inc. v. City & Cty. of Denver, 15 P.3d 785, 786 (Colo. App.
2000) (“An appellate court may affirm a correct judgment based on
reasoning different from that relied on by the trial court.”).
B. Breach of Statutory Contract
¶ 80 Stanczyk asserts that, by operation of law, section
22-63-203.5 creates a contract between her and the School District,
and that the School District breached such contract. We disagree.
¶ 81 In Masters, the Colorado Supreme Court analyzed when
provisions of the education statutes create a statutory contract
40
between teachers and their school districts. Masters, ¶ 22, 413
P.3d at 729. The court explained that, in prior education statutes,
the General Assembly had indicated its intention to grant teachers
statutory contract rights. Id. In TECDA, however, the General
Assembly removed
key language from TECDA’s predecessor
statute . . . . Whereas [the Teacher
Employment, Dismissal, and Tenure Act of
1967 (TEDTA)] made pervasive use of the term
“tenure,” TECDA omits it entirely. And
whereas TEDTA provided that under certain
circumstances a teacher is “entitled to a
position of employment as a teacher,” TECDA
uses no such entitlement language.
Id. at ¶¶ 20-21, 413 P.3d at 729 (citations omitted). The court,
therefore, concluded that “TECDA did not create a contractual
relationship” between teachers and their school districts. Id. at
¶ 22, 413 P.3d at 729. Because section 22-63-203.5 appears in the
same title and article of the Colorado statutes as TECDA, we
conclude that the nonprobationary portability statute also does not
create a statutory contract.
C. Due Process
¶ 82 Stanczyk contends that the Poudre Defendants violated her
due process rights by depriving her of a property right without
41
proper notice and an opportunity to be heard. “The United States
Constitution prohibits states from depriving any person of property
without due process of law.” Johnson, ¶ 25, 413 P.3d at 718 (citing
U.S. Const. amend. XIV). Therefore, if, as Stanczyk contends,
Colorado’s nonprobationary teachers have a property interest in
continued employment, the General Assembly could not deprive
them of that interest without due process.
¶ 83 The Colorado Supreme Court, however, has explained that
“because TECDA eliminated the word ‘tenure’ and other entitlement
and durational language, a nonprobationary teacher has no vested
property interest in salary and benefits.” Id. at ¶ 24, 413 P.3d at
717-18.
¶ 84 Stanczyk attempts to distinguish the court’s holding in
Johnson by arguing that the right to nonprobationary portability is
a different type of property right from “salary and benefits,” and
that the word “shall” in section 22-63-203.5 suggests the type of
durational language used in the earlier tenure statutes. We
disagree.
¶ 85 The use of “shall” alone did not create an entitlement in those
statutes; rather, the word established the property right only when
42
used in context. The Johnson court explained that “TEDTA
guaranteed that a tenured teacher ‘shall be entitled to a position of
employment as a teacher.’” Id. (quoting § 22-63-115, C.R.S. 1988).
The court concluded that the removal of this language from the
education statutes demonstrated the General Assembly’s intent to
eliminate that expectancy. Id. Thus, we conclude that Stanczyk’s
due process claim fails as a matter of law.
D. Violation of the Thorough and Uniform Clause
¶ 86 Stanczyk and the Association claimed that the Poudre
Defendants’ refusal to allow teachers to exercise the right of
nonprobationary portability violates the Thorough and Uniform
Clause. As the district court noted, however, they did not provide
any support for this position in their motion for summary
judgment. For this reason, the district court granted summary
judgment in favor of the Poudre Defendants on this claim. We
agree and affirm the district court’s decision on Stanczyk and the
Association’s claim arising under the Thorough and Uniform
Clause. See Armed Forces Bank, N.A., ¶ 38, 365 P.3d at 386.
43
VII. Conclusion
(1) We affirm the district court’s determination that Stanczyk
has standing to assert all six of her claims and the
Association has standing to join in Stanczyk’s declaratory
judgment claims and claim arising under the Thorough
and Uniform Clause.
(2) We affirm the district’s court award of summary
judgment in favor of the Poudre Defendants on
Stanczyk’s claims for breach of statutory contract, due
process, and mandamus relief.
(3) We affirm the district’s court award of summary
judgment in favor of the Poudre Defendants on Stanczyk
and the Association’s claim arising under the Thorough
and Uniform Clause.
(4) We reverse the district court’s award of summary
judgment in favor of the Poudre Defendants on Stanczyk
and the Association’s claims for declaratory judgment.
(5) We conclude that disputed issues of material fact
preclude the award of summary judgment to any party
44
on the First Claim for Declaratory Judgment as to
Stanczyk.
(6) We remand for further proceedings consistent with this
opinion, including (a) entry of summary judgment in
favor of the Association on the First and Second Claims
for Declaratory Judgments, (b) entry of summary
judgment in favor of Stanczyk on the Second Claim for
Declaratory Judgment, and (c) a trial on the merits on
the First Claim for Declaratory Judgment as to Stanczyk.
JUDGE WEBB and JUDGE DUNN concur.
45