STATE OF COLORADO
BOARD OF EDUCATION
201 East Colfax Avenue, #506
Denver, Colorado 80203
__________________________________________________
In Re:
Appellant: Vega Collegiate Academy
District/Appellee: Aurora Public Schools (Adams-Arapahoe
School District 28-J)
BOARD USE ONLY
Attorney for Appellant
Tim Farmer, Reg. No. 48331
The Law Office of Brad A. Miller
5665 Vessey Rd. Colorado Springs, CO 80908
Case No: 18-CS-________
Phone Number: 303-810-1601
E-mail: Tim@bradmillerlaw.com
ANSWER TO APPELLEE’S OBJECTION AND REQUEST TO REJECT VCA’S
NOTICE OF APPEAL
Vega Collegiate Academy (“VCA”), by and through its attorney, submits this Answer to
the Objection to Notice of Appeal (“Objection”) filed by Adams-Arapahoe School District 28-J
a/k/a Aurora Public Schools (“District”) to the Colorado State Board of Education (“State
Board”):
I.

INTRODUCTION

VCA is a charter school authorized by the District that is focused on serving students in
under-privileged communities. VCA opened its doors in 2017, serving kindergarten and fifth
grade students, utilizing space in a church to provide its students with the education they and
their families decided was best for them. Given the space constraints of the church, and VCA’s
District approved plan to slowly and thoughtfully expand to serve two additional grades per year,
VCA located a property fit to be converted to a school (a herculean accomplishment in

 Colorado’s tight commercial market), secured financing, developed plans, and stands prepared to
create a beautiful school facility for its students.
VCA presented its plan to the local planning commission, and was unanimously and
emphatically approved to proceed. The members of the planning commission were ecstatic to
know that a responsible tenant, with plans to develop a beautiful facility, was moving in as a part
of the continued revitalization efforts on East Colfax.
Unfortunately, the thoughtful plans of VCA, and the hopes and dreams of its students and
the community are currently on hold as a result of the District’s decision to unilaterally impose a
condition on VCA by denying its request to re-locate to its proposed location.1 The State Board
must exercise its statutory and constitutional authority to hear VCA’s appeal and render a
decision that it determines to be in the best interests of the pupils, the district, or the community.
II.

THE STATE BOARD SHOULD DENY THE DISTRICT’S OBJECTION AND
ACCEPT VCA’S APPEAL

The basis of the District’s Objection is that its unilateral imposition of conditions is not a
unilateral imposition of conditions, but is instead a dispute about a governing policy provision of
the charter contract between VCA and the District (“Contract”). As such, the District claims, the
matter is subject to dispute resolution under C.R.S. 22-30.5-107.5 and the dispute resolution
procedures of the Contract. This is incorrect. Dispute resolution is only applicable to
disagreements not subject to appeal to the State Board, as established in the opening line of
C.R.S. 22-30.5-107.5, “Except as otherwise provided in section 22-30.5-108…,” and 22-30.5108 provides that unilateral imposition of conditions are appealable to the State Board and,

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This is more thoroughly expounded on in VCA’s Notice of Appeal

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 therefore, and not subject to dispute resolution. Given this statutory construction, despite the
assertions of the District, this matter is actually outside of the dispute resolution statutes.
Because dispute resolution is only appropriate when an issue isn’t subject to appeal to the
State Board, and since the District’s action is a unilateral imposition of conditions subject to
appeal, then the State Board must reject the District’s Objection and hear VCA’s appeal and rule
on the merits. To adopt the District’s view would be to render ineffective the intent of state law,
and provide district authorizers with a pathway to unilaterally impose conditions on a charter
school without any effective remedy for the charter school.
The District, in its Objection, claims that VCA must do two things in order to have an
appeal properly before the State Board: 1) demonstrate that the District’s action is a unilateral
imposition of conditions, and 2) that the action was taken by the District’s Board of Education.
VCA will demonstrate herein that the first requirement is met, and that the District’s insistence
on the second is only partially correct, based on precedent, and that, once correctly understood, it
is likewise met.
A. ACCEPTANCE OF VCA’S APPEAL IS IN ACCORDANCE WITH STATE LAW
AND ENSURES CHARTER SCHOOLS ARE PROVIDED A PROPER REMEDY
The lynchpin of the District’s argument is a twisted interpretation of the Charter School’s
Act, C.R.S. 22-30.5-101, et. seq., (the “Act”) designed to improperly empower the District, and
strip VCA of any appreciable remedy. The statute in question states, in relevant part, “Except as
otherwise provided in section 22-30.5-108, any disputes that may arise between a charter
school and its chartering school district concerning governing policy provisions of the school's
charter contract shall be resolved pursuant to this section.”2 Under section 108 of Article 30.5,

2

C.R.S. 22-30.5-107.5(1), emphasis added

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 which is the section that deals with appeals to the State Board, a “unilateral imposition of
conditions…on a charter school…” is a matter subject to appeal. Not dispute resolution.
The Colorado Supreme Court has consistently held that “in construing a statute, our
purpose is to give effect to the intent of the legislature and adopt the statutory construction that
best effectuates the purposes of [the] legislative scheme.’”3 The Colorado state legislature
enacted a charter school appeals “scheme” designed to protect charter schools from unilateral
decisions of school districts/authorizers that have a negative impact on charter schools without
subjecting those decisions to review by the State Board.
Specifically, the law authorizes the “state board, upon receipt of a notice of appeal or
upon its own motion, may review decisions…[on] the unilateral imposition of conditions on a
charter applicant or charter school.”4 It is worth noting that this section of the statute allows the
State Board to review decisions, even if the local board attempts to make that decision through a
letter written by its Superintendent, as opposed to being by resolution.
Since such a robust system of appeals, or a “scheme” to use the language of the Supreme
Court, is in place, it runs contrary to and would not “give effect to the intent of the legislature” if
the State Board were to adopt the District’s theory. Such an outcome would foreclose VCA’s
ability to have the District’s decision timely reviewed and ruled on by appeal to the State Board,
which could render VCA unable to continue and may amount to a constructive revocation of its
Contract (you can’t have a school without a facility).
A reasonable reading of this statutory language, in the context of the appeals framework
established by the legislature, would not lead one to the absurd conclusion advanced by the
District that this was meant to subject a school to a prolonged dispute resolution process before it

3
4

Thomas v. F.D.I.C., 255 P.3d 1073, 1077 (Colo. 2011) quoting Spahmer v. Gullette, 113 P.3d 158, 162 (Colo.2005)
C.R.S. 22-30.5-108(1), emphasis added

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 can challenge a unilaterally imposed condition. Unilaterally imposed conditions move out of the
dispute resolution process, and in to the appeals process.
A contrary decision by the State Board would only encourage authorizers to build
mechanisms to unilaterally impose conditions in to the language of the charter contract, and then
once the condition is unilaterally imposed, claim it can’t be appealed because it’s a dispute
regarding a governing policy provision. Such an outcome is not what the Act allows, and it is
why there is a specific, statutory exemption from dispute resolution for unilateral imposition of
conditions. Any alternative would encourage and reward bad behavior.
B. THE DISTRICT’S ACTION IS A UNILATERAL IMPOSITION OF CONDITIONS
The District claims its action is not a unilateral imposition of conditions. If telling a
school that they cannot relocate to a larger facility that would allow the school to fulfil its
approved plan to serve more grades of students in its target area is not a unilaterally imposed
condition, it is hard to imagine what is. A unilateral imposition of conditions is not defined in
statute, leaving it up to the interpretation of the State Board to determine what qualifies. It stands
to reason that this language was left intentionally broad, so as to empower the State Board to use
its judgment in discerning what constitutes a unilateral imposition of conditions.
The District’s decision to stop VCA’s relocation, if left to stand, is unreasonable and
devastating to VCA’s students and families. VCA asserts that it is exactly these types of
decisions that lawmakers envisioned being reviewed by the State Board; decisions that have a
grave negative impact on charter schools, and that could result in the school being unable to
continue, thus foreclosing on the educational choice of hundreds of families. It is nonsensical to
think that such an action was not part of what lawmakers meant when they provided a pathway
for unilateral impositions of conditions to be subject to appeal. VCA respectfully requests that

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 the State Board make the determination that the decision of the District is a unilateral imposition
of conditions, subject to appeal.
C. PRECEDENT ESTABLISHES THE STATE BOARD’S ABILITY TO HEAR THE
APPEAL, DESPITE NO FORMAL ACTION BY THE DISTRICT’S BOARD
The second part of the District’s argument is that its action denying the relocation can’t
be considered a unilateral imposition of conditions because it wasn’t ruled on by its board of
education. This argument is the same as an argument advanced, and shot down, in the past by
Englewood School District, which relied on a faulty interpretation of C.R.S. 22-30.5-107(5),
which states, “A school district may unilaterally impose conditions on a charter applicant or on a
charter school only through adoption of a resolution of the local board of education of the school
district.” As found in the precedent setting State Board Order, 5 this is a command to districts to
use the board resolution process to unilaterally impose conditions, not a definition that any
condition imposed on a school outside of the resolution process is somehow not a unilaterally
imposed condition. Such an interpretation, as the Order clearly determines, would be absurd.
Precedent already establishes that a charter school cannot be stripped of its right to an
appeal simply because a district board acts through one of its agents to render a decision. Those
agents are actors on behalf of the Board. In the Englewood case it was action by the board’s
attorney that amounted to a unilaterally imposed condition, and in this case it is the board’s
superintendent. Simply because the District’s Board skipped adoption of a board resolution to
unilaterally impose the District’s condition, which under the Act it should not have done, doesn’t
make it any less of a unilaterally imposed condition.

See Colorado State Board of Education “Order Denying Arapahoe County School District No. 1’s Objection and Request to
Reject Tricity Notice of Appeal;” attached to this submission for easier reference.
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 It would lead to absurd outcomes if a board of education were able to thwart an appeal
simply by having one of its agents unilaterally impose a condition rather than by board action.
Again, this would simply encourage and reward bad actors who choose to act through agents
instead of as a board, and would strip a charter school of its right of appeal through no fault of its
own. Such an outcome would not be consistent with the intent of the Act.
D. THE CONSTITUTIONAL AND STATUTORY AUTHORITY AND
JURISDICTION OF THE STATE BOARD MUST BE RESPECTED
The District, in its objection, raises questions regarding the jurisdiction of the State Board
to hear this matter. The legislature of the state of Colorado has created a framework through
which the State Board is granted authority and jurisdiction, coupled with its state constitutional
“general supervision”6 powers, to oversee the process of charter school decision-making by local
boards and even the exclusive chartering authority of local boards. Within that statutory
framework is the ability to hear and rule on appeals related to the unilateral imposition of
conditions.7
This authority was challenged and upheld by the Colorado Supreme Court. In that
decision the Supreme Court upheld the statutory authority of the State Board and ruled that “the
permissible scope of the State Board's powers and duties…provides legislative precedent for the
Charter Schools Act's designation of the State Board as final arbiter of disputes involving local
boards.”8 Given the breadth with which the State Board has been empowered in the Act, and that
this power has been upheld by our state’s highest court, then whether or not the State Board can
exercise jurisdiction over this matter should not be in dispute.

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Colo. Const. art. IX, § 1(1)
C.R.S § 22-30.5-107(3)
8 Bd. of Educ. of Sch. Dist. No. 1 in City & Cnty. of Denver v. Booth, 984 P.2d 639, 648 (Colo. 1999)
7

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 III.

REQUEST TO ACCEPT THE APPEAL

VCA respectfully requests that the State Board deny the District Board’s motion to reject
VCA’s appeal, and accept VCA’s Notice of Appeal for review. Denial of VCA’s appeal would
provide a road map for other districts that are interested in collecting unbalanced power to
themselves and gain the ability to impose conditions unilaterally, and strip charter schools of any
substantive remedy. VCA’s students and families deserve nothing less than to have their day
before an impartial tribunal, to have the decision of the District to unilaterally impose conditions
reviewed and ruled upon. Acceptance of VCA’s appeal is, without question, in the best interests
of students, the school district, and the community.
RESPECTFULLY SUBMITTED this 9th day of February, 2018

_______________________________________
Tim Farmer, Esq. Reg. No. 48331
The Law Office of Brad A. Miller
5665 Vessey Rd. Co. Springs, CO 80908

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 Certificate of Service
On February 9th, 2018 this Answer has been filed with the Colorado State Board of Education at
the following email address. In addition, three hard copies will be sent by U.S. Mail to the
following physical address:
Colorado State Board of Education
201 E Colfax Ave., Suite 506
Denver, CO 80203
State.board.efilings@cde.state.co.us
A hard copy was also be sent by U.S. Mail to the following physical address:
Board of Education
Aurora Public Schools
Educational Services Center – 1
15701 E. First Ave. Suite 206 Aurora, CO 80011
An electronic copy was also sent to the following:
Brandon Eyre, Legal Counsel for Aurora Public Schools
bjeyre@aps.k12.co.us

_________________________
Tim Farmer, Esq.

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