Not that long ago, public school boards in Colorado struggled to attract any candidates to run for office or be appointed to fill vacated seats.

Today, some contenders spend tens of thousands of dollars to win votes, as the nation’s culture wars have sunk to one of the lowest rungs of elected officialdom, turning the nonpartisan role of school board director into a highly coveted and often politicized office.

Out of this new education landscape has come more legal disputes.

“School boards are more overtly political, which has led to increased legislation,” said Colorado Springs attorney Brad Miller of Miller Farmer Law.

His firm represents 70 to 80 public charter schools across the state including in Denver, Aurora and Colorado Springs school systems, and about a dozen school districts across communities in the Pikes Peak region and in rural areas such as Elizabeth and Springfield.

“On the front end, the most obvious in our law firm’s experience is a vast increase in administrative-law types of claims — Equal Employment Opportunity Commission, the Colorado Civil Rights Division — they’re up tenfold in the last four years, a really remarkable increase,” he said.

Regulatory changes are among the reasons Miller cites for the trend.

“Our state legislature has in the last few years augmented the protected classes and rights, and has gotten more in the weeds in processes for special education and grievance reviews and student discipline issues,” he said. “That’s provided more incentive for folks to bring legal challenges to school districts.”

Miller also points to fallout from pandemic restrictions and the growing influence of social media as “contributing to people approaching public life differently” and creating “a kind of dyspepsia that has led to increases in cases,” he said.

COVID protocols that left children struggling to do lessons online at home opened parents’ eyes to what their children’s educational experience is like, he said. In some cases, parents didn’t like what they saw, such as teachers promoting worldviews that were not the same as those they hold.

“This led to pro-parent board elections, which became politicized,” Miller said.

Some school boards have adopted a “Parents’ Bill of Rights,” for example, or have made resolutions, proclamations, declarations or policies about whether certain curriculum can be taught, such as “critical race theory,” which holds that racism is systemic in various laws, rules and factions of society and not based solely on individuals’ prejudices.

Litigation issues

Some boards have terminated teachers who they believed prioritized ideological agendas in classrooms, which Miller said is unusual, because teachers often have tenure that guarantees their jobs. But changes in the rights and procedures that apply to deciding disagreements between parents and school districts have made that possible, he said.

“We’ve seen an increase in employment lawsuits we wouldn’t have seen in the past because boards never had the will to go through the due process and tenure to make these choices,” Miller said.

Under the federal government’s Title IX protections against discrimination on the basis of sex in education programs or activities, students’ gender rights have been brought to courtrooms, as have issues regarding students’ hair, clothing and jewelry allowed in schools.

Legal challenges over parents’ rights such as book banning also have surfaced. Colorado lawmakers’ attempt to address the matter with a bill in the statehouse in this year’s legislative session that would have made it harder for libraries and schools to remove books from their collections failed in February in the Senate Education Committee.

Cases of First Amendment rights and students’ religious freedoms, locally questioning students having Bibles at their desks, have been debated in courtrooms.

Other topics of lawsuits in El Paso and Teller counties have included employees’ claims of wrongful termination, complaints about inadequate fulfillment of students’ individual education programs, school boards’ suspected breach of open meetings laws, education rights pertaining to students with disabilities and infringements on students’ civil rights.

Overall, “With overtly political stands, it’s difficult for a public entity to understand where its role is when its governance in involved in these sorts of disputes,” Miller said.

The development has created backlogs and longer timeframes for cases to be resolved, he added.

The Colorado Department of Education does not track legal challenges involving public school districts, according to spokesman Jeremy Meyer.

Lawsuits have become commonplace throughout Colorado’s 178 school districts, said Jubal Yennie, executive director of the Colorado Association of School Boards, a trade group that helps school boards do their unpaid jobs of governing districts.

School districts by nature routinely field concerns about the means and methodology of how students receive public education and how employees are treated, he said.

While his association employs two attorneys on staff who train school board members about legal policies, such as required procedures for open meetings and Title IX provisions, they do not provide legal advice.

But Yennie said he hasn’t noticed significant change in the number of lawsuits — “throughout my career it’s been feast or famine.”

Lawsuits aren’t cheap

The cost of public education litigation concerns some observers.

“The bottom line is school districts instead of saying they’re wrong would rather double down; instead of getting it right, they want to be right,” said Ryan Brown, a parent of a student in School District 49 in eastern Colorado Springs and staunch advocate for students’ rights.

“They will spend money and take complaints to court because it’s not their money, it’s taxpayers’ money,” he said. “If taxpayers were more aware of how districts are spending their money and how kids are going without, they’d be more involved.”

Miller disagrees, saying contrary to what some people think, school districts do want to resolve problems.

“They’re less concerned about legalities and more concerned about serving students. They are very diligent when problems arise and focus on, ‘How can we best serve this kid?’” he said. “School districts aren’t going to win at all costs or violate integrity to win. There’s a general good faith I’ve seen expressed, and settling is often the result because what they’re wanting to do is make things right.”

Brown said he believes school districts “try to cover things up.”

“They have policies and correct procedures in place, but they’re not practicing what they’re preaching,” he said.

The Colorado School Finance Project, a nonprofit that compiles and distributes nonpartisan data about school finance for state and local policymakers, also does not keep tabs on legal filings involving public schools, said Executive Director Tracie Rainey.

But staff has taken notice.

In the past, Rainey said, many such issues would not have been settled through the court system.

“They would have been handled through board discussion at the local community and not have risen to the point where you’re seeing legal costs associated with it,” she said.

Linking legal expenses directly to local taxpayer dollars may not be accurate, Rainey noted.

“You may or may not be able to attribute legal expenses to local taxpayer dollars because the operational dollars that come in through the School Finance Act are a combination of local and state dollars,” she said.

Still, legal action “is taking dollars away from other education priorities,” Rainey said.

School districts plan for legal expenses in their annual operating budgets, said Yennie of the Colorado Association of School Boards.

“Legal matters, litigation are just part of what school districts, superintendents and school boards have to deal with in order to operate school districts,” he said.

Insurance provides coverage for litigation, he said, with “the vast majority (of expenses) not absorbed by per pupil revenues but just a factor of their insurance.”

But as the insurance industry works, the more claims, the higher the premiums the district pays in subsequent years, which does come out of operational budgets, said Brown, the parent.

Denver schools’ attorneys

Districts also incur costs by either having in-house counsel on staff or contracting with legal firms for services, or both.

Denver Public Schools has 10 attorneys on staff and also hires outside attorneys to handle lawsuits, said Igor Raykin, a prosecuting attorney with Kishinevksy & Raykin in Aurora. 

A look at legal expenses obtained through open records requests at some El Paso County school districts shows wide variations. Fountain-Fort Carson School District 8 paid $17,745 to three law firms in the 2023-24 academic year, compared with $60,301 to in 2022-23. 

General legal expenses reached a high of about $240,000 in fiscal year 2021-22 in Colorado Springs School District 11.

Legal expenditures for special education cases hit a high of just under $400,000 for the district in fiscal year 2022-23. Personnel disputes cost the district about $520,000 in 2014-15. 

Academy School District 20 paid law firms about $113,000 in 2023, compared with $172,665 in 2021. In 2019, the district spent about $27,500 in legal expenses, records show.

School District 49 annually contracts general legal counsel, which has averaged $128,000 per year for the past five years, said spokesman David Nancarrow. 

For specialty cases requiring additional legal services, D-49 contracts with outside legal experts, at an average annual cost of $60,700 over the past five years, he said in an email.

D-49 generally does not settle cases, Nancarrow said, although the district’s insurance provider may choose to settle, in which case the district would provide a “reasonable deductible” generally of $10,000 per claim. 

“As an example, for a deductible cost of $30,000 for three separate invoices in 2023, D-49 mutually separated with former employees who engaged in professional misconduct,” he said. “Our actual out-of-pocket court costs including fees and insurance deductibles over the past six years is just under $40,000.” 

And, “While managing our spending for legal services on a contract basis, D-49 is also successfully recovering costs from malicious litigants who have filed frivolous lawsuits,” Nancarrow said.

Expenses for school districts would be lower if they chose to settle early on in the proceedings, said Raykin, whose firm specializes in special education cases but also represents other claims from teachers, parents and students.

“School districts are doing this to themselves,” he said. “The vast majority of people who sue school districts are doing it as a last resort, and most of the asks from parents are pretty low because people want justice and they want better services — nobody’s getting rich off these cases.”

Some schools or districts will “fight tooth and nail over minor, reasonable asks for parents and they incur a lot of money in litigation, which is their fault,” Raykin said.

As an example, he points to a Colorado Springs charter school that recently lost a lengthy court case over a male child being expelled for wearing an earring to school because the school’s rule was that girls were allowed to wear earrings but boys were not.

“We have six figures in attorneys’ fees, and they probably have six figures in attorney’s fees,” said Raykin, who argued the case on the parents’ behalf.

Ideology in curriculums 

Lawsuits in education are also more prevalent on the national front, said professor Jennifer Sughrue, coordinator of college of education programs at Florida Gulf Coast University. She’s also past president of the Education Law Association, a professional group that studies legal problems pertaining to education for K-12 and the university level.

Many teachers, parents and students are being driven into courts over the breadth of new state laws focused on diversity, equity and inclusion curriculum and programming, she said in an email.

“A recent trend in the last four to eight years has been to legislate ideology into public school curriculums,” Sughrue said.

Inasmuch as each state has control over public school curriculum, state lawmakers can modify curriculum with “a fairly unrestricted hand,” she said.

In the Republican-dominant legislature in Florida, for example, Sughrue said lawmakers have restricted or remodeled curriculum around topics including slavery, diversity, LGBTQ+ youth and families.

In the Democrat-controlled General Assembly in Colorado,  led by a gay governor, lawmakers in this year’s session approved a bill that requires schools to use students’ preferred names and says refusing to do so is a form of discrimination.

And 2019 revisions to the Colorado Comprehensive Human Sexuality Act prohibits the State Board of Education from waiving content requirements for any public school that provides comprehensive human sexuality education.

Schools that teach human sexuality must not “exclude the health needs of intersex individuals or lesbian, gay, bisexual or transgender individuals.”

Iowa, on the other hand, has a law that forbids school districts from “providing programs, promotion and instruction relating to gender identity or sexual orientation to students in grade 6 or below and are required to notify a child’s parents if the child requested an accommodation related to gender identity,” Sughrue noted.

“This law is currently being challenged in the courts, but the lower federal court did place a preliminary injunction on its enforcement until the matter is litigated,” she said.

Removing what some people consider to be offensive library materials for minors, use of bathrooms based on a student’s gender identity and whether transgender youth can play on sports teams based on their gender identity rather than their biological sex are other hot-button legal challenges appearing around the country, Sughrue said.

School safety also makes a frequent appearance in courts, with use of excessive force against children with disabilities being the area of litigation that Sughrue has seen the most growth in nationwide.

“An unfortunate trend is the lack of liability because most federal courts are awarding law enforcement defendants qualified immunity, meaning they violated the students’ rights, but they did not know any better,” she said. “Those of us who follow this are awaiting the day when the courts say, ‘Oh, you should have known better.’”

Also, families continue to search for ways to hold schools, gun makers and law enforcement accountable for mass shootings.

Schools have escaped liability because they are not responsible for the actions of third parties if those actions are not foreseeable, Sughrue said.

Gunmakers have not been held accountable because they are not responsible for what individuals do with the weapons they purchase, and states have provided them with legislative coverage, restricting government agencies from seeking recourse.

Forays into criminal liability are making headway, however.

Former Uvalde Consolidated Independent School District Police Chief Pete Arredondo and former school police officer Adrian Gonzales recently were indicted on charges of child abandonment and endangerment and criminal negligence.

Also Jennifer and James Crumbley, whose son shot and killed four students at a Michigan high school in 2021, became the first parents convicted in a U.S. mass shooting. They were sentenced in April to at least 10 years in prison for involuntary manslaughter after prosecutors presented evidence of an unsecured gun at home and indifference toward the teen’s mental health.

“That should be a wake-up call to parents,” Sughrue said.