Bill OWENS, in his official capacity as Governor of Colorado; and the State of Colorado, Defendants-Appellants and Kimble Breazell, in her own behalf and as next friend of her children, Devon Breazell, Desire Breazell, and Demetrik Breazell; Tracy A. Dominguez, in her own behalf and as next friend of her children, Manuel Thomas Dominguez, Steven Victor Dominguez, and Marissa Anne Dominguez; Patsy Hill, in her own behalf and as next friend of her children, Jonathan Hill and Antonio Hill; Charlene Howard, in her own behalf and as next friend of her children, Charles Howard and Carson Howard; Laura Huckabey, in her own behalf and as next friend of her grandchildren, Starlite McGuire and William Hodge; Bette Kelso, in her own behalf and as next friend of her grandchild, Amber Kelso; Kenya Knezevich, in her own behalf and as next friend of her children, Brian Walk and Andrew Walk; Rosa Morales, in her own behalf and as next friend of her children, Ray Morales and Joseph Morales; Angelia Teague, in her own behalf and as next friend of her children, Denise Teague and Danielle Teague; Lisa Trujillo, in her own behalf and as next friend of her child, Dejerae Trujillo; Yvonne Trujillo, in her own behalf and as next friend of her children, Jacob Rodriguez and Kaitlyn Rodriguez; and Troylynn Yellow Wood, in her own behalf and as next friend of her child, Kimimila Irving Means, Intervenors/Defendants-Appellants, v. COLORADO CONGRESS OF PARENTS, TEACHERS AND STUDENTS; The Interfaith Alliance of Colorado; League of United Latin American Citizens; Colorado State Conference of Branches of the NAACP; Deborah A. Brennan and Alan J. Delollis, on Behalf of themselves and their minor child, Cameron Brennan; Carolyn Bartels and Howard Bartels, on behalf of themselves and their minor child, Hannah Bartels; Senator Patricia Hill Pascoe; Senator Dorothy S. Wham; Rabbi Joel R. Schwartzman; Reverend Dr. Cynthia Cearley; Francisco Cortez; Beverly J. Ausfahl; Theresa Solis; Danielle L. Waagmeester and William J. Waagmeester, on behalf of themselves and their minor children, Rachael Waagmeester, Madison Waagmeester, and Dane Waagmeester; Janet Tanner, on behalf of herself and her minor child, Benjamin Tanner; and Pamela Weber, on behalf of herself and her minor child, Kenneth Weber, Plaintiffs-Appellees.
No. 03SA364.
Supreme Court of Colorado, En Banc.
June 28, 2004.
and
Kimble Breazell, in her own behalf and as next friend of her children, Devon Breazell, Desire Breazell, and Demetrik Breazell; Tracy A. Dominguez, in her own behalf and as next friend of her children, Manuel Thomas Dominguez, Steven Victor Dominguez, and Marissa Anne Dominguez; Patsy Hill, in her own behalf and as next friend of her children, Jonathan Hill and Antonio Hill; Charlene Howard, in her own behalf and as next friend of her children, Charles Howard and Carson Howard; Laura Huckabey, in her own behalf and as next friend of her grandchildren, Starlite McGuire and William Hodge; Bette Kelso, in her own behalf and as next friend of her grandchild, Amber Kelso; Kenya Knezevich, in her own behalf and as next friend of her children, Brian Walk and Andrew Walk; Rosa Morales, in her own behalf and as next friend of her children, Ray Morales and Joseph Morales; Angelia Teague, in her own behalf and as next friend of her children, Denise Teague and Danielle Teague; Lisa Trujillo, in her own behalf and as next friend of her child, Dejerae Trujillo; Yvonne Trujillo, in her own behalf and as next friend of her children, Jacob Rodriguez and Kaitlyn Rodriguez; and Troylynn Yellow Wood, in her own behalf and as next friend of her child, Kimimila Irving Means, Intervenors/Defendants-Appellants,
v.
COLORADO CONGRESS OF PARENTS, TEACHERS AND STUDENTS; The Interfaith Alliance of Colorado; League of United Latin American Citizens; Colorado State Conference of Branches of the NAACP; Deborah A. Brennan and Alan J. Delollis, on Behalf of themselves and their minor child, Cameron Brennan; Carolyn Bartels and Howard Bartels, on behalf of themselves and their minor child, Hannah Bartels; Senator Patricia Hill Pascoe; Senator Dorothy S. Wham; Rabbi Joel R. Schwartzman; Reverend Dr. Cynthia Cearley; Francisco Cortez; Beverly J. Ausfahl; Theresa Solis; Danielle L. Waagmeester and William J. Waagmeester, on behalf of themselves and their minor children, Rachael Waagmeester, Madison Waagmeester, and Dane Waagmeester; Janet Tanner, on behalf of herself and her minor child, Benjamin Tanner; and Pamela Weber, on behalf of herself and her minor child, Kenneth Weber, Plaintiffs-Appellees.
Institute for Justice, William Mellor, Washington, DC, Hale Hackstaff Friesen, LLP, Richard A. Westfall, Denver, Colorado, Attorneys for Intervenors/Defendants-Appellants.
Colorado Education Association, Martha R. Houser, Charles F. Kaiser, Sharyn E. Dreyer, Gregory J. Lawler, Cathy L. Cooper, Denver, Colorado, Bredhoff & Kaiser, P.L.L.C., Robert H. Chanin, John M. West, Maryann Parker, Washington, DC, People for the American Way Foundation, Elliot M. Mincberg, Judith E. Schaeffer, Washington, DC, Americans United for Separation of Church and State, Ayesha N. Khan, Washington, DC, American Civil Liberties Union Foundation of Colorado, Mark Silverstein, Denver, Colorado, American Jewish Congress, Marc D. Stern, New York, New York, American Federation of Teachers, David Strom, Washington, DC, American Jewish Committee, Alan S. Jaffe, Jeffrey P. Sinensky, Kara H. Stein, New York, New York, Anti-Defamation League, Steven M. Freeman, New York, New York, Attorneys for Plaintiffs-Appellees.
Caplan and Earnest LLC, W. Stuart Stuller, Boulder, Colorado, Colorado Association of School Boards, Lauren Kingsbery, Denver, Colorado, Attorneys for Amicus Curiae Colorado Association of School Boards.
Justice BENDER delivered the Opinion of the Court.
In this case, we consider whether the Colorado Opportunity Contract Pilot Program (“Pilot Program” or “the program“), sections
The trial court found the Pilot Program interferes with the local school districts’ discretion to allocate their funding, and therefore violates the local control requirement of
The defendants appeal to this Court, arguing that the General Assembly has plenary authority to guide and implement educational policy.1 Pursuant to this authority, the General Assembly has determined that the Pilot Program best serves the needs of children who “simply are not succeeding in the traditional school district setting.”
The defendants contend that the local control provisions of
Second, the defendants argue that school finance and educational policy have evolved significantly since this Court was first called upon to construe
Our task is to assess the constitutionality of the Pilot Program. We question neither the merits nor the wisdom of the policy decisions made by the General Assembly and embodied in this legislation. The defendants are correct that funding of the public schools has changed dramatically since article IX was adopted, and that the General Assembly has significant authority to guide and implement educational policy. However,
Through
Given the mandates of
Accordingly, we affirm the judgment of the trial court.
Facts and Proceedings Below
The Colorado Opportunity Contract Pilot Program is designed to meet the “educational needs of high-poverty, low-achieving children in [Colorado‘s] highest-poverty public schools.”
The program is available to low-income, low-achieving children who attend public school in a participating school district. Only those children who are eligible to receive free or low-cost lunch under the
If a child is eligible to participate in the program and has been accepted by a qualified nonpublic school, the child‘s parents may enter into a contract with the school district in which the child is enrolled.
As the program is currently enacted, enrollment is subject to statutory caps. During the 2004-05 school year, enrollment is limited to one percent of a participating school district‘s total student population. That percentage increases to two percent during the 2005-06 school year, four percent during the 2006-07 school year, and finally to six percent from the 2007-08 school year onward. See
The plaintiffs challenged the program on several grounds, including that the program is special legislation in violation of
The trial court first found that the program is not special legislation in violation of
The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respective districts.
After an extensive review of our case law interpreting and applying section 15, the trial court concluded section 15 “mandates that the local district must have discretion over how money is spent to provide instruction for students who live in the district.” The court then stressed that a substantial amount of funding for the program would come from local tax revenues, which have long been considered essential to effectuating local control over public education. The court found that implementation of the program is governed completely by statute and leaves the local school districts without discretion to determine which nonpublic schools or which students may participate.
The trial court concluded that because the school districts have no control over how locally-raised funds are spent or how the program is implemented, the program runs afoul of the local control requirement of
The defendants now appeal to this Court, and urge us to hold that the Pilot Program comports with the mandates of
Analysis
The defendants advance two arguments in support of the program. First, the defendants contend that the program does not impact a school district‘s control over instruction because students participating in the program leave the district to attend private school. The defendants interpret section 15 to require school district control only over instruction per se in the public schools. When a student leaves the district, the district no longer has any constitutional obligation regarding the instruction of that student, and therefore the district is no longer
Second, the defendants submit that the source of funds for the program is not relevant to an assessment of the program‘s constitutionality. The defendants emphasize the significant changes in “school finance and educational choice” since article IX, section 15 was adopted, and point to the failure of the school districts to meet the needs of the lowest-income, lowest-achieving students in the public schools. The defendants urge us to recognize that the General Assembly‘s supervisory powers over education are broad enough, and our constitution flexible enough, to permit the legislature to address this failure through enactment of the Pilot Program.
Our review of the history of
Local Control
The principle of local control has deep roots in Colorado‘s constitutional history. The Colorado Constitution was adopted in 1876 in an atmosphere of deep distrust of centralized authority. See Dale A. Oesterle & Richard B. Collins, The Colorado State Constitution: A Reference Guide 1 (2002). The document ultimately adopted was designed to “protect citizens from legislative misbehavior,” and thus, while the delegates recognized that a legislature must inevitably be created, they “assiduously wrote provisions that took away much of [the General Assembly‘s] discretionary authority.” Id. at 1-2.
The provisions governing education reflect the delegates’ ambivalence about legislative power.
The general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously.
The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respective districts.
As it was initially drafted, however, article IX vested responsibility for public school instruction in the state board of education. See Proceedings of the Constitutional Convention for the State of Colorado 185 (1907). This draft prompted considerable debate, which focused on the wisdom of investing control over the public schools in a political entity. As one delegate put it, the fear was that article IX “gave the [State] Board the direction of the schools, therefore making the whole thing a political affair; there ought to be no possibility of a suspicion that politics should run the schools of the territory.” Constitutional Convention, Denver Daily Times, Feb. 12, 1876.
This distrust of the political character of the state board was voiced in many ways. For example, several delegates expressed distrust of the state board‘s ability to resist political corruption in the area of text book selection, which they feared exposed the state board to “a mine of bribery and corruption.” Id. These delegates urged that control over decisions such as text book selection “should be taken entirely out of politics, and put as near the people as possible.” Id. In a similar vein, one delegate opined that allowing the state board to control text book selection would create a system “whereby school officers could line their pockets with money derived from the taxes of the people.” The
This theme of placing management of the public schools closer to the people was echoed in another aspect of the debate, which focused on the people who would comprise the state board. Some delegates objected to state control over instruction on competence grounds, stating “[t]he officers whom it was proposed to invest with the management of the schools must of necessity be politicians . . . and the possibilities are that they would not know much about school affairs.” Constitutional Convention, Denver Daily Times, Feb. 12, 1876. Ultimately, the delegates chose to confer responsibility for instruction, not merely text book selection, on the local school districts and entrust the state board of education with “general supervision” of the public schools.5 See
With the adoption of article IX, Colorado became one of only six states with an express constitutional local control requirement. See Booth, 984 P.2d at 646. In that provision, the framers made the choice to place control “as near the people as possible” by creating a representative government in miniature to govern instruction. And since its adoption, this Court has consistently emphasized the importance of local control to the state‘s educational system. See id.
The Belier line of cases
As the defendants point out, nothing in the language of
In Belier, we held that taxes raised in one school district could not be used to fund a public high school in another district. 59 Colo. at 98, 147 P. at 356. The legislation at issue in Belier allowed contiguous school districts to establish a union high school, which students who resided in either district could attend. Tax revenues raised in both districts were to be used to fund the union high school, while control over instruction would fall to the board of the district in which the union high school was located. We concluded that such a scheme violated the “letter and spirit” of
That same year, in School District No. 16 v. Union High School No. 1, we considered the constitutionality of a statute that allowed a student who resided in a district without a high school to attend a high school in a neighboring district at the expense of the student‘s district of residence. 60 Colo. 292, 152 P. 1149 (1915). As in Belier, we held that funds raised in one district could not be used to pay for public school in another district, and explained that imposing such a requirement on a local school district “clearly interfered with the control of instruction” in the paying district. Id. 60 Colo. at 293, 152 P. at 1149. Essential to this holding was the idea that local control requires a school district to have discretion over any instruction paid for with locally-raised funds. Id. (holding that the school district must retain discretion over “the character of . . . instruction the pupils [of the district] shall receive at the cost of the district“) (emphasis added); see also Hotchkiss v. Montrose County High Sch. Dist., 85 Colo. 67, 273 P. 652 (1928) (declaring invalid under
Finally, in Craig v. People ex rel. Hazzard, we held that the General Assembly may accomplish inter-district funding without running afoul of
In the Belier era, we scrupulously honored the framers’ preference, as expressed in
The defendants frankly acknowledge that from a funding point of view, the General Assembly would have the authority to enact the Pilot Program but for the Belier line of cases, and accordingly they urge us to overturn them. The defendants argue that these cases should be understood as “limited to [their] facts” because they were decided at a time where state involvement in the management and funding of the public schools was far more limited than it is today. Thus, the defendants contend that these cases are simply inapplicable to today‘s cases involving modern school finance.
We cannot accept this proposition. The Belier line of cases is not, as the defendants argue, relevant only to an archaic system of public school management. We have reaffirmed the vitality of our interpretation of article IX in those cases many times since Belier and its progeny were decided, most recently to reject a constitutional attack posed to our state-wide system of public finance. See Lujan, 649 P.2d at 1021-22, 1023. If we were to abandon Belier now and uphold the Pilot Program, we would also, as we explain below, abandon the rationale of our public school finance system as we understood it in Lujan.
Lujan
In Lujan we held that the local control provision of section 15 protects school districts against legislative efforts to require them to spend locally-raised funds on instruction that the district does not control, and preserves the districts’ democratic framework.
In that case, we considered whether the
Applying rational basis review, we held that this disparity among districts in the amounts raised and spent per pupil does not violate the equal protection guarantees of our state constitution because the financing scheme achieves the important governmental purpose of fostering local control of education, as is required by
Our interpretation of
With this interpretation in place, we explained how our public school finance system achieves the important government interest of fostering local control. Allowing a district to raise and disburse its own funds enables the district to determine its own educational policy, free from restrictions imposed by the state or any other entity:
The use of local taxes affords a school district the freedom to devote more money toward educating its children than is otherwise available in the state-guaranteed minimum amount. It also enables the local citizenry greater influence and participation in the decision making process as to how these local tax dollars are spent. Some communities might place heavy emphasis on schools, while others may desire greater police or fire protection, or improved streets or public transportation. Finally, local control provides each district with the opportunity for experimentation, innovation, and a healthy competition for educational excellence.
Id. at 1023; see also Booth, 984 P.2d at 648 (holding that local control over instruction means “substantial discretion regarding the character of instruction that students will receive at the district‘s expense“) (emphasis added).
In Lujan we made clear that control over instruction is inextricably linked to control over locally-raised funds. The representative structure created in
Given our analysis in Lujan, which relies and builds upon Belier, if we were now to
Booth
The defendants contend that, notwithstanding the cases discussed above, our decision in this case should be controlled by our analysis in Booth. In that case, we considered the constitutionality of the
In considering whether our analysis in Booth is applicable to this case, it is important to recognize the limited effect of the state board‘s second-appeal approval power in that case. The state board‘s decision did not direct the opening of the proposed charter school over the local board‘s objections. Rather, state approval of the second-appeal application simply required the local board to negotiate in good faith with the proponents of the charter school to resolve the objections that the local board had identified in its orders denying the charter application. Through such negotiations, the local district and the proponents would arrive at a binding contract that would allow the charter school to open and operate on terms acceptable to the local district. Id. at 653-54. The charter school statute met constitutional requirements because it closely circumscribed the state board‘s authority in the appeals process while simultaneously preserving the local board‘s control of instruction given in the charter school. The very limited nature of the state board‘s role is illustrated by the fact that we rejected as ultra vires the state board‘s attempt to order the local board to provide status reports on its future contract negotiations with the proponents. Id. at 655.
In this case, we are not asked to assess whether the state‘s constitutional authority to supervise education infringes on the local boards’ constitutional authority to control instruction. Rather, under the Pilot Program, the local boards do not retain any authority to determine which schools or which students are eligible to participate in the program, the amount of district funds to be devoted to the program, or the character of instruction paid for by those funds. The Pilot Program deprives the school districts of all local control of instruction. Thus, there are no constitutional powers to balance in this case, and therefore Booth does not apply.
The question in this case is whether the Pilot Program satisfies the mandates of the local control requirement of
The Pilot Program
We review the trial court‘s assessment of the constitutionality of the Pilot Program de novo. Gen. Motors Corp. v. City & County of Denver, 990 P.2d 59, 67 (Colo. 1999). We begin with the presumption that the Pilot Program is constitutional, and we must uphold the legislation unless the challenging party proves it is unconstitutional beyond a reasonable doubt. People v. Vasquez, 84 P.3d 1019, 1021-22 (Colo. 2004). In addition, we must uphold the statute unless “a ‘clear and unmistakable’ conflict exists between the statute and a provision of the Colorado Constitution.” E-470 Pub. Highway Auth. v. Revenig, 91 P.3d 1038, 1041 (Colo. 2004) (citation omitted).
The defendants argue that nothing in the language of
This argument simply ignores nearly one hundred years of this Court‘s precedent clearly linking control over instruction to discretion to spend locally-raised funds. We have consistently held that control over instruction requires the local boards to retain substantial discretion “as to the character of instruction pupils shall receive at the cost of the district.” Booth, 984 P.2d at 648 (quoting Sch. Dist. No. 16, 60 Colo. at 294, 152 P. at 1149); see also Belier, 59 Colo. at 98, 147 P. at 356. And in Lujan we explained that the power to allocate locally-raised tax revenues ensures the districts a measure of democratic freedom from the state. See Lujan, 649 P.2d at 1023. Local authority over locally-raised funds preserves the representative body created by section 15 and gives substance to the constitutional requirement that local boards “shall have control of instruction in the public schools of their respective districts.”
The Pilot Program violates these principles by requiring the school districts to pay funds — including those derived from locally-raised tax revenues — to parents, who in turn are required to pay those funds to nonpublic schools.
The defendants also argue that school finance and “school choice” have evolved significantly since Belier was decided, and thus “[a]pplying the Belier rule is incongruous with today‘s school finance policy and would limit the General Assembly‘s authority over educational policy.” As evidence, they point to the fact that currently, local tax revenues account for approximately forty percent of public school funds, whereas when the Belier line of cases were decided, nearly ninety-five percent of school funds were derived from local tax revenues.
Implicit in this argument is that with greater state funding comes greater state control over educational policy. This Court has long recognized, however, that the constitutional division of power between the state and local boards is not measured by funding. Hence, in Craig, we held that the state had plenary authority to implement a program that allowed students in one district to attend school in another district because the funds used to pay the transferring student‘s tuition came exclusively from the state controlled Public School Fund. See Craig, 89 Colo. at 148, 299 P. at 1067. To use the defendants’ numbers, Craig was decided at a time when local tax revenues accounted for all but a small fraction of the public schools’ operating budget. And yet we recognized that the state‘s power over its own funds was plenary in nature and did not depend in any way on the overall structure of school finance. See id. Similarly, the amount of funding derived from local tax revenues as compared to state contributions is immaterial to our analysis of the level of discretion the Colorado Constitution confers on local school boards today.
At base, the defendants argue that the public schools have failed, and the General Assembly should have the power to address that failure through programs such as the Pilot Program. Thus, the defendants contend, the General Assembly has reasonably chosen to confer power over instruction directly upon the parents of public school children and allow them to choose to send their children to private school.
Our task is not to pass judgment on the wisdom of the General Assembly‘s policy choices. Rather, it is solely to determine whether those policy choices comport with constitutional requirements. Our analysis of
We hold that the Pilot Program as enacted by the General Assembly conflicts clearly and irreconcilably with the Colorado Constitution, and the plaintiffs have met their burden of proving the program is unconstitutional beyond a reasonable doubt.
Conclusion
For the reasons given above, we hold that the Colorado Opportunity Contract Pilot Program, sections
Justice KOURLIS dissents.
Justice KOURLIS dissenting.
The Colorado Opportunity Contract Pilot Program (the “Pilot Program” or the “program“), §§
The majority reaches its conclusion based in part on its understanding of our constitutional history and based in part on this court‘s precedent. I disagree that the historical context suggests today‘s outcome. Further, although I agree that this court authored four cases dated between 1915 and 1931 that appear to equate local control over instruction with local control over educational tax dollars, in my view, the court has already moved away from that strict formulation in our more recent cases and it would be inconsistent with those modern cases to hold the Pilot Program unconstitutional. Accordingly, I respectfully dissent.
I. Historical Background to Article IX of the Colorado Constitution
The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respective districts.
In attempting to apply the dispositive constitutional article, we must also take into account
Like the majority, I view the historical context as somewhat instructive. However, I find a different emphasis in that context than does the majority. To my reading, the drafters of our constitution intended to protect local schools from the political influences of the state legislature by assuring that local districts were able to retain the right to decide which textbooks to purchase, and which courses of instruction to offer.
My review of the history suggests a different goal. As originally proposed, section 1 provided that all public schools would be managed by the state board of education (the “state board“). In that initial version as well, the state board was to consist of the State Superintendent of Public Instruction, the Secretary of State, and the Attorney General.1 One convention delegate opined that vesting the supervision of instruction in the state board placed too much power in the hands of three politicians who may or may not have adequate knowledge regarding the appropriate instruction of students. Constitutional Convention, Denver Daily Times, Feb. 12, 1876. That delegate “was of the opinion that school teachers and [local] superintendents ought to have a voice in the matter.” Id. He argued that the supervision of instruction should be left with the “Teachers’ Institutes of the Territory.” Id. Another delegate agreed and explained that the supervision of instruction should rest with the “Teachers’ Institutes or the local School Boards.” The Constitutional Convention, Denver Daily Tribune, Feb. 14, 1876.
The majority acknowledges that various convention delegates were concerned that permitting the state board to supervise in- struction would inevitably lead to corruption in the process of choosing textbooks. Maj. op. at 938-939. One delegate expressed grave concerns that the section as proposed gave “unlimited power to fix the matter of text-books” to a body that was “purely political.” The Constitutional Convention, Denver Daily Tribune, Feb. 14, 1876. While the state board was a necessary entity in the uniform oversight of public schools, many delegates believed that permitting it to control instruction would lead to inappropriate lobbying by textbook publishers. Id. Some delegates were surprised by the fact that other delegates read the phrase “supervision of instruction” as a potential mine of bribery. Id. It did not occur to them that “the Board of Education would have anything to do with the fixing of text books, but that [the state board] should have a general supervision of the public schools, . . . assuming somewhat the powers of the General Superintendent of schools.” Id.
“[T]o harmonize these conflicting sentiments, [one delegate] offered an amendment, making the first line of section 1 to read as follows: ‘The general supervision of the public schools shall be vested in a Board of Education.’ ” Id. Stating his approval of the changed line, one delegate exclaimed that “[t]he principle [of removing the power of textbook selection from the authority of the state board] should be to distribute those [voting] majorities to as small a degree as possible, and bring it home to each district.” Id. To this day, that line remains, nearly verbatim, in the constitution. Unlike section 1, section 15 of article IX passed the convention without amendment. Proceedings of the Constitutional Convention for the State of Colorado 360, 362-63 (1907) (then codified at section 16).
Thus, the history surrounding these sections suggests that the delegates to the convention were interested in securing to the local school boards the right to choose and buy textbooks, and the associated right to
It is against this historical backdrop that I view article IX, section 15 and the cases interpreting it.
II. Analysis
a. The Belier line of cases
In the early part of the Twentieth Century in Colorado, there was an insufficient population base to support a high school in every school district. Therefore, the legislature struggled with how to fund high schools that served more than one school district. In Belier v. Wilson, 59 Colo. 96, 147 P. 355 (1915), this court held that a tax levied on property in one school district in Otero County for the support of a high school in another school district in the same county was invalid. In a one-paragraph decision, the court held that the tax violated
That same year, we decided School District No. 16 v. Union High School No. 1, 60 Colo. 292, 152 P. 1149 (1915). There, we reviewed a statute that permitted a student who resided in a school district without a high school to attend a high school in a different school district located in the same county of his residence at the expense of the student‘s local school district. 60 Colo. at 292, 152 P. at 1149. Because the statute did not grant the school district without the high school any degree of control over the instruction that its resident students would receive in the adjacent district at the expense of the student‘s resident district, we held that the receiving school was not entitled to a judgment against the sending school district for tuition fees. 60 Colo. at 293-94, 152 P. at 1149-50. We stated that “[t]he Legislature, in providing for the education of the pupils of a given district in the schools of another district, and imposing the costs thereof upon the former, clearly interfered with the control of instruction in such district.” 60 Colo. at 293, 152 P. at 1149.
In Hotchkiss v. Montrose County High School, 85 Colo. 67, 273 P. 652 (1928), we again reviewed a statute that permitted a student living in a school district without a high school to attend a high school in another school district in the same county at the expense of the student‘s local school district. Similar to the statutes at issue in Belier and Union High School No. 1, the statute under review in Hotchkiss compelled the local school district to fund the high school instruction that a student received in a different school district. 85 Colo. at 69, 273 P. at 653. Because the statute did not vest the local school district with any discretion over instruction, the court concluded that the statute violated
The last in this line of old cases is Craig v. People ex rel. Hazzard, 89 Colo. 139, 299 P. 1064 (1931). There, we reviewed a statute that permitted a student residing in one district to attend a high school in another district at state expense. 89 Colo. at 142-44, 299 P. at 1065-66. Because the statute did not compel a school district to pay for instruction not under the district‘s control, we held that it did not violate
From these four cases, the majority draws the proposition that local control over instruction is synonymous with local control over all educational tax dollars.2 I suggest that even these older cases do not go that far, and could not support a conclusion that
More importantly, I read our two most recent cases as having moved away from a formula that equates local control with local tax dollar discretion, and having rather embraced a balancing test that gives greater deference to education legislation enacted by the General Assembly.
b. Lujan and Booth
The majority holds that our decision in Lujan v. Colorado State Board of Education, 649 P.2d 1005 (Colo. 1982), reaffirmed the marriage of funding and control. There, we reviewed the constitutionality of the entire state school finance system. Because of varying property values throughout the state, some school districts were able to raise more revenue than other school districts, producing a disparity of funding among the various school districts in the state. Id. at 1013-14. The plaintiffs challenged that system, arguing that it violated the Equal Protection Clauses of the United States and Colorado Constitutions. Id. at 1014.
We reviewed the constitutionality of the school finance system under a rational basis review. Along those lines, we stated that to uphold the school finance system, the system had to be reasonably related to furthering a legitimate state purpose. Id. at 1022. Because the General Assembly had not identified a purpose with particularity, we had to infer the purpose from the statute itself as well as from other relevant enactments.
As part of that inquiry, we reviewed “the history of Colorado‘s educational system along with selected constitutional provisions and interpretive case law.” Id. at 1023. Citing to
Importantly, however, we made these pronouncements not to construe or interpret
Instead, the real import of Lujan is its emphasis on the complimentary constitutional roles of the state and local entities in providing public education. Far from enshrining the notion that local control equals local funding, Lujan underscores the necessary balance of control between the state and the local school district that must be considered in reviewing any piece of educational legislation.
Indeed, we specifically stated that judicial intrusions into the decisions of the General Assembly are to be avoided, “especially . . . where the controversy . . . is essentially directed toward what is the best public policy which can be adopted to attain quality schooling and equal educational opportunity for all children who attend our public schools.” Lujan, 649 P.2d at 1018.
In Lujan, we did, indeed, recognize very important principles-but not, in my view, the ones that the majority endorses. Rather, we recognized that every eligible student in the state has a right to a free and thorough education, and that both the state and the local governmental entities have a role in fulfilling that promise. Id. at 1025. Hence, the actions of the general assembly must be judged against its charge to provide a free and uniform system of public schools within
That pronouncement hearkened back to Wilmore v. Annear, 100 Colo. 106, 115, 65 P.2d 1433, 1437 (1937), where we held that “the establishment and financial maintenance of the public schools of the state is the carrying out of a state and not a local or municipal purpose.” Indeed, “[b]y vesting the power in districts to levy and collect taxes for the support of the school or schools in such districts, the state was but adopting a means for carrying out its purposes.” Id. Wilmore made clear that local funding is a mechanism to implement the state-wide responsibility regarding education; it is not an end to itself.
Against that backdrop, and affording the legislature a strong presumption of constitutionality, we upheld the state‘s system of public funding in Lujan. 649 P.2d at 1025. Lujan stands for the proposition that both the general assembly and the local school board have a role in assuring that we meet our educational responsibilities.
That careful balancing of responsibilities is even clearer in our most recent relevant case, Board of Education of School District No. 1 v. Booth, 984 P.2d 639 (Colo. 1999). In Booth, we reviewed a constitutional challenge to a portion of the
In that case, the local school board had denied a charter school application. On appeal, finding that the denial of the application was contrary to the best interests of the pupils, school district, or local community, the state board ordered the local board to approve the application. Id. at 644. The local school board challenged that decision, arguing that the appeal provision of section
We rejected both of these categorical arguments “because each fail[ed] to recognize or reconcile the potential for competing responsibilities created by the constitution.” Id. at 645. In considering those competing responsibilities, we distanced ourselves from the assumption-prevalent in Belier and its progeny-that any effect on a school district‘s financial resources triggered its right to control instruction. In so doing, we applied a concept of “control of instruction” that did not involve money, but that contemplated instead a school district‘s responsibility to oversee and implement its educational programs-a notion that the local board had the right to control the instruction for which it was to be held accountable.
We first took note of the general assembly‘s primary constitutional responsibility concerning education-its duty to “provid[e] for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.” Id. (quoting
We held that the district‘s control of instruction “requires power or authority to guide and manage both the action and practice of instruction as well as the quality and state of instruction” and involves “substantial discretion regarding the character of instruction that students will receive at the district‘s expense.” Id. at 648. Thus, “[a]s long as a school district exists, the local board has undeniable constitutional authority.” Id. at 646. Nevertheless, “just as even core constitutional rights are not absolute, this constitutional authority is subject to limits.” Id. Accordingly, “[t]he contours of constitutional rights are typically determined by balancing competing interests.” Id. Hence, a school district‘s right to local control is not absolute and must be weighed against other considerations.
After noting the competing roles and responsibilities of the general assembly and the school districts, we proceeded to develop a specific balancing test in order to reconcile the competing interests presented in that case. We weighed the authority of the state board as an extension of the General Assembly on the one hand against the local board as an extension of the school district on the other. Id. at 646-648. The overarching purpose of the Booth test, we stated, was to determine whether the legislation at issue unduly interfered with the local school district‘s constitutional authority.3 Id. at 649.
As formulated, that test permits the local board‘s control of instruction and any concomitant discretion to be “restricted or limited . . . by statutory criteria and/or judicial review” provided that any such limitations do “not have the effect of usurping the local board‘s decision-making authority or its ability to implement, guide, or manage the educational programs for which it is ultimately responsible.” Id. (emphasis added). Thus, we held that “in the context of novel education reform legislation, we cannot attempt a definitive constitutional demarcation.” Id. Rather, we must take the principles of the balancing test and “review each case on its facts.” Id. at 650. We must apply that understanding in reviewing “the statute whose language and operation are specifically before us.” Id.
Where the statute advances a legitimate educational purpose, we give deference to the balance that the General Assembly sought to maintain between state authority and local board authority.4 Id. at 650. We presume that balance is permissible unless it poses a clear impediment upon either the state actor or the local board to exercise its own constitutional authority. Id. Foremost, the party alleging that the statute is unconstitutional bears the burden at all times of proving that the statute is unconstitutional beyond a reasonable doubt. Id.
With these principles in mind, I turn to the General Assembly‘s role in passing the Pilot Program and the effect of the program upon
c. The Pilot Program
The Pilot Program directs “[a] nonpublic school that chooses to participate in the pilot program [to] file an application with a school district.”
The school district has little discretion to refuse enrollment in the program to eligible students,
The Pilot Program may be funded in part through local revenue from the school districts affected by the program.5 It is also funded by state dollars. There is even evidence to suggest that federal dollars make up a portion of the total contribution.
The majority concludes that because the program interferes with the local school districts’ control over instruction financed to any extent by locally-raised funds, it is unconstitutional. I disagree. Rather, applying the directives of Booth, I find that the opponents to the program have failed to meet their burden of demonstrating unconstitutionality.
Booth instructs us that a “generally applicable law triggers control of instruction concerns when applied to specific local board decisions likely to implicate important education policy.” 984 P.2d at 649. There, we upheld an innovative state program that clearly interfered to some extent with local control over instruction because it did not have the effect of “usurping the local board‘s decision-making authority or its ability to implement, guide, or manage the educational programs for which it is ultimately responsible.” Id.
Booth, in particular, directs our focus back to the plain language of
The language of the constitution itself does not in any way preclude the Pilot Program. Instead, the only support for that conclusion arises out of cases that responded to educational dilemmas entirely different from those faced today-cases that this court has already discounted in its more recent pronouncements. Legislatures must be innovative and creative in their policy decisions. Courts, in turn, must evaluate those innovations against the more stable drumbeat of constitutional mandate and precedent. Here, I see no conflict between the constitution and the Pilot Program.
d. Special Legislation
Since I would otherwise hold the statute constitutional, I would need to reach Plaintiffs’ argument that the Pilot Program was passed as “special legislation” in violation of
III. Conclusion
Because I do not believe that the Pilot Program violates either the language or the spirit of the constitutional provision protecting local control over instruction offered in public schools, I conclude that the Pilot Program is constitutional. Accordingly, I would reverse the district court on that basis, and would remand for further consideration of any remaining issues.
I am authorized to state that Justice RICE and Justice COATS join in this dissent.
Justice BENDER
Supreme Court of Colorado