by Jeremiah Barry
A school district may create new schools that include several innovative approaches to providing education, but the Colorado Court of Appeals in Denver Classroom Teachers Assoc. v. City and County of Denver School District No 1, recently ruled that these new schools cannot be automatically designated as “schools of innovation,” they cannot implement innovation plans as described in statute, and the State Board of Education cannot waive state statutes identified in the innovation plans.
In 2008, the General Assembly passed the Innovation Schools Act of 2008 (“Act”). The Act is designed to authorize administrators, teachers, or parents to design a school that implements innovations to improve the education of its students. The innovations may include changes in school staffing; curriculum and assessments; class scheduling; or faculty recruitment, employment, evaluation, and compensation. An innovation plan may identify certain school district or state rules and the terms of collective bargaining agreements that would need to be waived for the school to implement its innovation plan.
The Act requires an innovation plan to meet several requirements before a school board may approve the plan. Most important for the Denver Classroom Teachers Association case, an innovation plan must include evidence that a majority of the administrators employed at the public school, a majority of the teachers employed at the public school, and a majority of the school accountability committee consent to the designation as an innovation school.
After the State Board of Education approves a school’s or school district’s innovation plan, the innovation school or district must seek the approval, by secret ballot vote, of at least 60% of the members of a collective bargaining unit who are employed at the innovation school for any waivers of the collective bargaining agreement that are necessary to implement the plan.
The City and County of Denver School District No. 1 (“District”) approved innovation plans for two existing schools and complied with all of the requirements of the Act. The District also approved 11 innovation schools at issue in the suit. The schools were either new schools established because of population growth in certain areas of Denver or new schools replacing existing schools that were in turnaround or redesign status because of failure to meet performance targets. At the time that the District and the State Board of Education approved their innovation status, the schools did not yet have teachers or accountability committees, so the innovation plans did not include evidence of the consent of the teachers, administrators, and parents. And there were no members of a collective bargaining unit to approve waivers of a collective bargaining agreement. The District obtained the required consents and votes only after the District and the State Board approved the innovation plans and as teachers and administrators were hired for the new schools.
The Denver Classroom Teachers Association (“Association”) filed suit alleging that the schools should not have been given innovation status due to the lack of consent and that the innovation plans could not be implemented because of a lack of the collective bargaining unit votes required by the Act. The District countered that it was impossible to obtain these approvals and votes when there were no teachers or administrators yet employed at the schools and no parents of students from which to form accountability committees. The District argued that the later consents constituted substantial compliance with the Act.
The Colorado Court of Appeals ruled in favor of the Association and remanded the case back to the district court to fashion a remedy. While the Court of Appeals acknowledged that in certain cases, substantial compliance might be sufficient, it looked at the Act as a whole and gave special consideration to the legislative declaration found in section 22-32.5-102 (1), C.R.S. Specifically, the Court of Appeals found that the District’s approach was inconsistent with the intent that faculty employed at a school “have the maximum degree of flexibility to determine the most effective manner in which to meet their students’ needs” and that parents of students have “great opportunity for input regarding the educational services their children receive.” The Court of Appeals concluded that if the prior approvals are not required, “teachers and parents have no opportunity for input [and] can only agree or not agree to teach or have their child attend a school for which the innovation plan has already been finalized.”
So for now, while a new school may be innovative, it apparently cannot be a school of innovation.