The Colorado Association of School Boards (CASB), Colorado Association of School Executives (CASE), six school districts and two individual taxpayers claim that a new state law that is designed to help foster care students, will unfairly impact school transportation and should be ruled unconstitutional. Especially at issue is the cross-district busing, which is the crux of the litigation.
The plaintiffs backed up its assertions with a lawsuit they filed in Denver District Court on Aug. 6 against the State of Colorado, Colorado State Board of Education, Colorado Commissioner of Education (Katy Anthes), and Gov. John Hickenlooper. The school groups collectively allege that last-minute changes to House Bill 18-1306, which was signed into law earlier this year and is aimed at helping foster care kids, would unfairly impact school transportation.
The expanded group of plaintiffs are now, as of Aug. 13, the: Colorado Association of School Executives, Colorado Association of School Boards, Englewood and Sheridan school districts in south suburban Denver, Cheyenne Mountain district in Colorado Springs, Monte Vista district in southwestern Colorado, Poudre district in Fort Collins, Jefferson County school district, Jeffco Superintendent Jason Glass, and Poudre school board member Cathy Kipp.
The bills are sponsored by Rep. Dafna Michaelson Jenet, Sen. Don Coram and Sen. Dominick Moreno.
Riley Kitts, legislative liaison for the Colorado Department of Human Services, commented that, “Colorado is experiencing the worst dropout rate for foster students ever reported.” He wrote online that HB 18-1306:
- Supports students to remain in their schools of origin.
- Provides for transportation for foster students.
- Requires more immediate enrollment for students placed in foster care.
- Reduces barriers to receiving high school diplomas.
Low graduation rate
CO4Kids released a statement on its website that the law is necessary to address a four-year graduation rate of only 23 percent, and getting worse statewide for students in foster care. The organization pointed out that the graduation rate was 33 percent in 2016. The state graduation rate for all other students is 81 percent.
“A big reason for that is that when a student enters foster care they not only move homes, they move schools,” added CO4Kids. “The mobility rate for students in foster care is 55 percent. State mobility rate is 16 percent.”
Mobility rate refers to the number of students who moved into or out of a district during a given school year.
“It is no wonder that the dropout rate for students in foster care is 9 percent. The state drop-out rate is only 2 percent,” CO4Kids said.
CASB and CASE, plus the other plaintiffs, argue that the bill’s “transportation section is invalid under multiple provisions of the Colorado Constitution, including the clear expression and single subject requirements.”
That key section was added at the 11th hour without public discussion or debate. It deletes the longstanding statute requiring that a school district consent to another school district furnishing transportation to its students, the suit argues. CASB and CASE said deleting this requirement would allow a school district to enter a neighboring district and provide transportation to nonresident students without the district’s consent, as well as reimburse parents for expenses incurred in transporting nonresident students.
The lawsuit seeks a court order, CASE notes, “declaring the transportation section void and requests a preliminary injunction. If granted, the preliminary injunction would require the Colorado Commissioner of Education to provide notice of this lawsuit to all local school boards and to instruct all school districts to follow the law as it existed before HB 18-1306. The goal of the preliminary injunction would be to maintain the established systems and agreements for student transportation until the court decides whether the transportation section of HB 18-1306 is unconstitutional and therefore invalid.”
The bill’s other points would supposedly not be affected by the lawsuit. However, CASE said that, “Even if the court finds the transportation section of HB 18-1306 void, as a violation of provisions in the Colorado Constitution governing the legislative process, the Colorado General Assembly could pass the same or a similar law during a subsequent legislative session.”
According to CASE, “The new transportation section is scheduled to take effect this school year, though this will change if the court grants the request for a preliminary injunction.”
CASB officials noted that, SB 18-228 was “killed earlier that week in the House Education Committee as a result of much hard work by CASB, CASE, and others. Neither Section 7, or SB 18-228 from which it was lifted, have anything to do with foster children. Rather, both pieces of legislation address matters specified in the title of the killed SB 18-228, transportation and choice for all students.”
In particular, “CASB believes this last minute addition of Section 7 to the foster care bill is unconstitutional. The Colorado Constitution forbids any bill from containing more than one subject and requires that the bill’s subject be ‘clearly expressed’ in the bill title. HB 18-1306 now contains two topics with very different purposes. Further, the manner in which the legislature amended the bill, a deliberate maneuver by the sponsor of SB 18-228, prevented the education stakeholders from weighing in on the amendment.”
According to CASB, “These constitutional single subject and clear expression mandates exist for important public policy reasons. They make each legislative proposal dependent on its own merits. They alert members of the legislature and public to the content of proposed legislation. They allow the governor to consider each single subject of legislation independently in determining whether to exercise veto power.”
CASB and CASE’s lobbyists “worked with Governor Hickenlooper’s office to express their concerns with the last minute amendment. CASB’s legal team drafted a letter to the Governor, framing the legal problems with the bill. As a result of CASB and CASE’s significant efforts, on June 1, 2018, Governor Hickenlooper issued a letter to the Colorado House of Representatives in which he expressed serious concerns about the constitutionality of Section 7 and the process by which the amendment was ‘bolted’ onto the foster care bill.”
The Chronicle of Social Change wrote that with the $2.9 million bill, “Colorado will be the first state to legislate the implementation of a federal law that compels school systems to ensure that, among other things, foster kids have a ride to school. Multiple states have reported difficulties implementing the federal law, and Colorado is the first to propose a bill that would pay for foster students to be transported to their so-called school of origin, a mandate that was enshrined in the federal Every Student Succeeds Act and was meant to have been implemented by December 2016.”
The key allegations in the lawsuit begin with a common one, that the title of the bill, and the bill itself, include more than one subject, which is not allowed in the state, except for general appropriations bills.
The second allegation is that the House bill title was amended to include an appropriation.
The third allegation was that the bill “aligns state law with federal ‘Every Student Succeeds Act’ (ESSA) provisions relating to students in foster care, referred to in state statutes as ‘students in out-of-home placement.’ ESSA permits students in out-of-home placement at any time during the school year to remain in their school of origin, as defined in the bill, rather than move to a different school upon placement outside of the home or changes in placement, unless the county department of human or social services (county department) determines that it is not in the child’s best interest to remain in his or her school of origin.”
The fourth allegation simply noted that the House bill was passed and introduced into the Colorado Senate on April 30, 2018.
The fifth allegation is that while the bill was being considered by a Senate committee, it was amended on May 3, 2018, to add a new Section 7, which then passed the Senate and was repassed by the House on May 4, 2018. Then it notes that the new Section 7 is identical to Section 2 of another Senate bill on school choice, which had been postponed indefinitely (i.e., killed) in a House committee the previous day, May 2.
Specifically, the suite stated, “The effect of the last-minute grafting of Senate Bill 18-228’s Section 2 into House Bill 18-1306 as a new Section 7 was to strike two general and longstanding (since 1964) statutory conditions upon the ability of a local school district to transport to its schools (or reimburse for expenses such transport for) nonresident students residing in other school districts. The subject statute—CRS Subsection 22-32-113 (‘Transportation of pupils – when’)—previously (a) limited such transport to adjacent districts and required the consent of the district of the student’s residence.”
Then came complaints about the bill’s timing and lack of public discussion. “The addition of Section 7 to that bill nevertheless occurred without debate or discussion in committee, with no notice to education policy stakeholders, and in the final week of the 2018 legislative session. Further, there was no amendment to the title of House Bill 18-1306 to reflect the new subject matter addressed by the new Section 7.”
The Governor’s Letter
After the House bill was received by the governor, he signed it into law, but wrote an accompanying letter addressed to the House, that endorsed the “primary purpose of the legislation,” which was to “keep foster children in their school-of-origin, regardless of their [out of home] placement.”
However, the Hickenlooper wrote that, “extraneous language was joined onto this bill by the Senate Committee on State, Veterans, and Military Affairs. This language added a Section 7 of the bill has no apparent nexus to foster children, and mirrors a different bill postponed indefinitely by the other chamber the immediate prior day. But equally alarming, the language was added in the final days of session, with no knowledge by education stakeholders, with no explanation by the amendment’s proponent, and with no discussion or debate by the Committee. We make no judgement today on whether this language is sound policy. However, we have serious concerns about the process in which this amendment was bolted onto such an important bill.”
Hickenlooper’s June 1 letter concluded that, “We sign HB 18-1306 into law today because its benefit to Colorado foster children cannot be overstated—its enactment is crucial. But our support ends where Section 7 begins. Should potential Single-Subject Law violations be raised to the Judicial Branch, we expect a court of law will look unfavorably on the language treading beyond HB 18-1306’s title, and rule such extraneous language void.”