22-30.5-108. Appeal - standard of review - procedures.

Statute text

(1) Acting pursuant to its supervisory power as provided in section 1 of article IX of the state constitution, the state board, upon receipt of a notice of appeal or upon its own motion, may review decisions of any local board of education concerning the denial of a charter school application, the nonrenewal or revocation of a charter school's charter, or the unilateral imposition of conditions on a charter applicant or a charter school, in accordance with the provisions of this section. Any disputes arising with regard to governing policy provisions of a charter school's charter contract shall be resolved as provided in section 22-30.5-107.5. A local board of education's refusal to review a charter application constitutes a denial of the charter application and is appealable as a denial pursuant to the provisions of this section.

(2) A charter applicant or any other person who wishes to appeal a decision of a local board of education concerning the denial of a charter application or the nonrenewal or revocation of a charter or the unilateral imposition of conditions on a charter applicant or a charter school, shall provide the state board and the local board of education with a notice of appeal or of facilitation within thirty days after the local board's decision. The person bringing the appeal shall limit the grounds of the appeal to the grounds for the denial of a charter application or the nonrenewal or revocation of a charter, or the unilateral imposition of conditions on a charter applicant or charter school, whichever is being appealed, specified by the local board of education. The notice shall include a brief statement of the reasons the appealing person contends the local board of education's denial of a charter application or nonrenewal or revocation of a charter, or imposition of conditions on a charter applicant or charter school was in error.

(2.5) If a district court dismisses a case for lack of jurisdiction and the case involves a charter application, or the nonrenewal or revocation of a charter, or the unilateral imposition of conditions on a charter applicant or charter school, the thirty-day period for filing a notice of appeal or of facilitation described in subsection (2) of this section shall be tolled until the date of dismissal by the court.

(3) If the notice of appeal, or the motion to review by the state board, relates to a local board's decision to deny a charter application or to refuse to renew or to revoke a charter or to a local board's unilateral imposition of conditions that are unacceptable to the charter applicant or the charter school, the appeal and review process shall be as follows:

(a) Within sixty days after receipt of the notice of appeal or the making of a motion to review by the state board and after reasonable public notice, the state board shall review the decision of the local board of education and make its findings. If the state board finds that the local board's decision was contrary to the best interests of the pupils, school district, or community, the state board shall remand such decision to the local board of education with written instructions for reconsideration thereof. Said instructions shall include specific recommendations concerning the matters requiring reconsideration.

(b) Within thirty days following the remand of a decision to the local board of education and after reasonable public notice, the local board of education, at a public hearing, shall reconsider its decision and make a final decision. If the local board of education decides to approve the charter application or decides not to unilaterally impose the condition, the local board of education and the charter applicant shall complete the charter contract within ninety days following the remand of the state board's decision to the local board of education.

(c) Following the remand, if the local board of education's final decision is still to deny a charter application or to unilaterally impose the condition on a charter applicant or if the local board of education's final decision is still to refuse to renew or to revoke a charter or to unilaterally impose conditions unacceptable to the charter school, a second notice of appeal may be filed with the state board within thirty days following such final decision.

(d) Within thirty days following receipt of the second notice of appeal or the making of a motion for a second review by the state board and after reasonable public notice, the state board, at a public hearing, shall determine whether the final decision of the local board of education was contrary to the best interests of the pupils, school district, or community. If such a finding is made, the state board shall remand such final decision to the local board with instructions to approve the charter application, or to renew or reinstate the charter or to approve or disapprove the conditions imposed on the charter applicant or the charter school. The decision of the state board shall be final and not subject to appeal.

(3.5) In lieu of a first appeal to the state board pursuant to paragraph (a) of subsection (3) of this section, the parties may agree to facilitation. Within thirty days after denial of a charter application or nonrenewal or revocation of a charter or unilateral imposition of conditions on a charter applicant or a charter school by the local board of education, the parties may file a notice of facilitation with the state board. The parties may continue in facilitation as long as both parties agree to its continued use. If one party subsequently rejects facilitation, and such rejection is not reconsidered within seven days, the local board of education shall reconsider its denial of a charter application or nonrenewal or revocation of a charter and make a final decision as provided in paragraph (b) of subsection (3) of this section. The charter applicant may file a notice of appeal with the state board as provided in paragraph (c) of subsection (3) of this section within thirty days after a local board of education's final decision to deny a charter application, to refuse to renew or to revoke a charter, or to unilaterally impose conditions on a charter applicant or a charter school.

(4) (Deleted by amendment, L. 2004, p. 1578, 7, effective June 3, 2004.)

(5) Nothing in this section shall be construed to alter the requirement that a charter school be a part of the school district that approves its charter application and charter contract and be accountable to the local board of education pursuant to section 22-30.5-104 (2).

History

Source: L. 93: Entire article added, p. 1056, 1, effective June 3. L. 94: (3)(a) and IP(4)(a)(I) amended, p. 1341, 1, effective May 25. L. 96: (2), IP(3), and (3)(c) amended and (3.5) added, p. 754, 6, effective May 22. L. 97: (3)(a), IP(4)(a)(I), and (5) amended, p. 586, 17, effective April 30. L. 2002: (1), (2), IP(3), (3)(c), and (3)(d) amended and (2.5) added, p. 1002, 2, effective June 1. L. 2004: Entire section amended, p. 1578, 7, effective June 3.

Annotations

 

ANNOTATION

Annotations

Where the state board of education concludes that a charter school's remedy lay in district court, such conclusion does not confer jurisdiction on the courts or extend standing to plaintiffs when none otherwise existed. Acad. of Charter Schs. v. Adams Cty. Sch. Dist. No. 12, 994 P.2d 442 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 32 P.3d 456 (Colo. 2001).

The state board is authorized to substitute its judgment for that of a local board under the "best interests" language of subsection (3)(d). Bd. of Educ., Dist. No. 1 v. Booth, 984 P.2d 639 (Colo. 1999).

State board's authority is limited upon a second appeal. Where, on first appeal, the state board had approved a charter application in principle but directed the local board and the applicants to negotiate further on unresolved operational details, the state board had no authority to issue a similar, conditional approval on the second appeal pursuant to subsection (3)(d). Booth v. Bd. of Educ., 950 P.2d 601 (Colo. App. 1997), aff'd in part and rev'd in part on other grounds, 984 P.2d 639 (Colo. 1999).

The plain language of this section authorizes the state board only to require approval of the charter application as submitted and not subsequent status reports. Bd. of Educ., Dist. No. 1 v. Booth, 984 P.2d 639 (Colo. 1999).

If disputes arise from the implementation of the governing policy provisions of the charter contract, such disputes may eventually be appealed to the state board of education pursuant to this section, and any decision rendered by the state board is final and not subject to appeal. Acad. of Charter Schs. v. Adams Cty. Sch. Dist. No. 12, 32 P.3d 456 (Colo. 2001).

Only issue on second appeal is whether the local board's denial of an application is contrary to the best interests of the pupils, school district, or community. The state board's purported issuance of a partial or conditional order to approve a pending application, which fell short of an unconditional finding on this issue, was held unenforceable and the case was remanded for further proceedings. Booth v. Bd. of Educ., 950 P.2d 601 (Colo. App. 1997), aff'd in part and rev'd in part on other grounds, 984 P.2d 639 (Colo. 1999).

State board's final order on second appeal is not subject to judicial review under the State Administrative Procedure Act. Booth v. Bd. of Educ., 950 P.2d 601 (Colo. App. 1997), aff'd in part and rev'd in part on other grounds, 984 P.2d 639 (Colo. 1999).

Subsection (3)(d) precludes an appeal of only the state board's second appeal decision. Plaintiff was not precluded from seeking judicial review after the state board's first appeal decision because the statutory provision concerning the state board's first appeal decision does not contain language that precludes appeal. Only the statutory provision concerning the state board's second appeal decision contains language that precludes appeal. Brannberg v. Colo. State Bd. of Educ., 2021 COA 132, 503 P.3d 893.

Applied in Acad. of Charter Schs. v. Adams Cty. Sch. Dist. No. 12, 994 P.2d 442 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 32 P.3d 456 (Colo. 2001).