Six school districts and the associations that represent them are suing to stop a change to Colorado law that could increase access to school choice but that was approved under questionable circumstances.
The lawsuit filed this week in Denver District Court doesn’t deal with the merits of the policy but with the way it was enacted. In the last days of the 2018 legislative session, state Sen. Owen Hill, a Republican from Colorado Springs, took language from a defeated bill related to school choice and transportation and attached it as an amendment to a bill dealing with educational barriers for foster youth.
In a signing statement, Gov. John Hickenlooper said the maneuver potentially violates the “single-subject rule,” which requires that each bill deal with a one topic clearly expressed in the title of the bill and that any amendments also relate to that subject. He predicted there could be a lawsuit over the issue, and two months later, here we are.
The plaintiffs in the case are the Colorado Association of School Executives, the Colorado Association of School Boards, the small Englewood and Sheridan school districts in south suburban Denver, the Cheyenne Mountain district in Colorado Springs, the Monte Vista district in southwestern Colorado, the Poudre district based in Fort Collins, and the Jefferson County school district, the second largest in the state. Jeffco Superintendent Jason Glass and Poudre school board member Cathy Kipp also joined the lawsuit.
The lawsuit claims the “operations and finances” of the districts will be affected by legislation that was passed “in a manner and by a process expressly prohibited by the Colorado Constitution and in derogation of these plaintiffs’ constitutionally protected interests as stakeholders in the fairness, integrity, and transparency of the legislative processes employed by the Colorado General Assembly.”
“The bill was originally about foster care children,” said CASE executive director Lisa Escárcega. “And at the very end of the session, they rewrote the last part, and expanded it to all children. Those are the reasons why we’re filing the lawsuit.”
Hill called CASE’s position “a complete lie,” noting that that organization along with the school board association and the Sheridan and Englewood districts also opposed the standalone bill on which his amendment was based.
“Everything we vote on, we vote on the merits of the policy,” Hill said. “That’s what this is about for the unions and the districts. They don’t want kids to have the freedom to go across district lines.”
The foster youth bill seeks to make it easier for these students, who have some of the lowest graduation rates in the state, to finish high school by requiring child welfare officials and school districts to work out transportation to the student’s home district when that’s in the child’s best interest. It also creates flexibility around graduation requirements when students do change schools. The bill’s title is “Improving Educational Stability for Foster Youth.”
The tacked-on language says that a school board “may furnish transportation” to students who are enrolled in the district but who live in another district. The provision applies to all students, not just those who are in the foster system. It also strikes language from existing law that requires the consent of the school district from which students are being bussed.
Similar language appeared in a bill sponsored by Hill called “Improving School Choice in Traditional Schools.” Students in Colorado can enroll in any school that has room for them and can meet their needs, but most students who go somewhere besides their neighborhood school don’t get transportation, something that advocates for school choice have long criticized as a major barrier for students from low-income families, whether they’re moving between districts or within one.
In 2015, Pueblo City Schools blocked the Pueblo 70 district from running buses through its jurisdiction to pick up some of the roughly 150 students who opted into the higher-performing district that primarily serves the surrounding county.
In opposing the original transportation provision, superintendents from Sheridan and Englewood raised the prospect of districts running busses through more affluent neighborhoods, siphoning off those students and the state funding that goes with them, while leaving poorer districts to educate those with the greatest needs.
Jeffco Public Schools is in a different position. In an email, Glass said his district might see net enrollment growth from this change, but he worries about the broader implications.
“We bring in approximately 3,000 more students than we lose to inter-district school choice and that trend would likely grow if this provision in the foster care bill comes to pass,” he wrote. “At issue for us is the violation of the single-subject element of the state constitution. This choice amendment would represent a seismic shift in education policy in the state. Such changes should be considered through open and transparent debate in the legislative process, not tucked in as a last minute amendment under another bill title.”
In an interview, Hill said the transportation provision was a necessary component of the foster youth bill because the state couldn’t simultaneously require that these students be transported back to their home schools while retaining the requirement to get consent from the district in which they now reside.
Hill never made this argument in committee. There was no discussion at all when the amendment was proposed and adopted, and advocates for the foster youth bill didn’t raise it as a concern. School districts already provide transportation to homeless youth who want to remain in their home schools under provisions in federal law, and foster youth are entitled to similar services. The transportation envisioned under the foster youth bill could also occur through rideshare services or by reimbursing foster parents for mileage, and nothing in state law prevents simply driving a student to school in another district.
The plaintiffs are seeking an injunction to prevent the law from taking effect while the matter is litigated.
The lawsuit names Hickenlooper, Education Commissioner Katy Anthes and the State Board of Education as defendants because they oversee implementation of these laws. Representatives of the governor’s office and the state Department of Education declined to comment on the lawsuit. The State Board of Education did not take any position on the legislation in question when it was being debated at the Capitol.
The Attorney General’s Office is charged with defending the state from the lawsuit. A spokesperson for the attorney general declined to comment.
This article has been updated to include comment from Jeffco Superintendent Jason Glass and a response from the Attorney General’s Office.