The Colorado Supreme Court ruled on Monday that cooperative associations of school boards lack the power to open facilities outside their boundaries in school districts that do not consent to the placement.

Under Colorado law, boards of cooperative services, or BOCES, allow for school districts to band together and contract for additional services among their members. One of their powers is to construct buildings and purchase equipment “at any appropriate location, whether within or without a school district providing the money for the facilities.”

Recently, Education reEnvisioned BOCES, headquartered in Monument, took the view that “within or without” meant it may open new schools anywhere in the state — not solely within the geographic boundaries of its member districts. It was a position at odds with the Colorado State Board of Education and even the association representing BOCES, which both warned that allowing BOCES to operate schools from hundreds of miles away would eliminate any local accountability.

The Supreme Court sided against ERBOCES, noting lawmakers had not even granted school districts the power to unilaterally operate programs outside their borders.

“Indeed, in our view, it would be illogical or absurd to say that an individual school district cannot locate a school extraterritorially without written consent but that a BOCES, and only a BOCES, can do so,” wrote Justice Richard L. Gabriel in the May 20 opinion.

The debate over BOCES’ ability to operate outside their geographies challenged local districts’ veto power over proposed educational programming within their borders. The upshot, however, would be to enable school district co-ops to parachute into distant communities and evade the established process for opening charter schools.

In the underlying case, ERBOCES opened Orton Academy in 2020 within the boundaries of Colorado Springs School District 11 as a school for students with dyslexia. The district is not a member of ERBOCES and did not consent to the academy’s placement.

During the litigation, District 11 pointed to evidence that ERBOCES was the only entity placing facilities in non-member districts without consent. While the case progressed through the courts, the legislature went so far as to enact a temporary moratorium on the practice until the Court of Appeals had a chance to weigh in.

In November 2022, a three-judge appellate panel concluded the authority to locate facilities “within or without” a school district logically referred to BOCES member districts, not any school district in Colorado.

The legislature “has never included unrestricted extraterritoriality in a BOCES’ enumerated powers,” wrote Judge Neeti V. Pawar.

The state board of education, Colorado Education Association, Colorado BOCES Association and the groups representing school boards and executives wrote to the Supreme Court on behalf of District 11, arguing school districts’ authority within their borders serves an important public policy goal.

“ERBOCES glibly overlooks why the legislature so often relies on consent. A local school board can be held accountable by its voters,” the groups wrote.

During oral arguments in March, some justices were likewise concerned about the lack of accountability that could accompany BOCES’ ability to open schools beyond their borders.

“Let’s say that the parents in Sterling start to get pretty unhappy with the Education reEnvsioned school located in Sterling. They have no control over that school. It’s sitting right there in their district, but it’s run by the BOCES,” said Justice Melissa Hart. “So, they have no ability to ask the school board to remove a principal they don’t like. The democratic idea of parental involvement in schools is gone.”

“No one’s forced to go to that school even if it was in Sterling. If parents don’t think it’s a good school for their child, they don’t have to go to that school,” responded ERBOCES’ attorney, Bryce D. Carlson.

Ultimately, the Supreme Court determined it did not make sense that the legislature would establish a process for authorizing charter schools at the state or local level, only to then give BOCES the power to circumvent the procedure unilaterally.

BOCES’ ability to construct buildings “plainly means that a BOCES may locate a facility in any member district, whether or not that district provided money for the facility,” Gabriel concluded.

During the appeal, Orton Academy applied to be a District 11 charter school and the school district gave its preliminary approval. By July 1, Orton Academy could officially become an authorized charter school. Gabriel explained the Supreme Court opted to decide the appeal anyway, rather than declare it moot, because the arrangement did not appear final and the case involved a “matter of great public importance.”

Lawyers for District 11 did not immediately respond to questions. An attorney for ERBOCES said the organization was “deeply disappointed” by the ruling, but its extraterritorial schools would be unaffected because they have all entered into operating agreements with the local school districts.

The case is Education ReEnvisioned BOCES et al. v. Colorado Springs School District 11.