Sept. 17,1999

Another unconstitutional Denver School Board election is less than two months away. Four of the seven board seats are to be filled and once again no Denver voter can vote in all four contests. There are two at-large seats to be filled, one a four year term, and the other to fill the remaining two years of the at-large term of Lee White who resigned from the board.

Voters in subdistricts 1 and 5 will have three votes (one sub-district and two at large). Voters in subdistricts 2, 3, and 4 will have two votes (at large only).

That's because of a Senate bill passed in 1992 and not yet challenged in the courts. SB 175, sponsored by Sen. Dottie Wham, R-Denver, and then-Rep. Pat Grant, R-Denver, amended Article 31 of Title 22 concerning the election of school district directors. It

established five director subdistricts in Denver along with two at-large director seats.

This was in conflict with Section 15 of Article 9 of the state constitution which reads:

"The general assembly shall, by law, provide for the organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Said district shall have control of instruction in the public schools of their respective districts."

The key words are "school district" and "qualified voters of the district." The Colorado Supreme Court decided the issue in 1963 in the case of Berni vs. Cook. This was a Boulder Valley School District election. There were seven districts, really subdistricts, designated A through G. The court said:

"The entire dispute revolves around the question as to whether voting for district directors must be limited to those who reside within Director District A or whether, though nominated and residing within District A, the candidates must be voted on by the entire school district."

The court held candidates must be voted on by the entire school district. The only dissent held that even nominations restricted to a separate (sub) district violated the constitution.

So in Colorado, school district board members are either chosen "at large" or represent smaller geographical areas of the district. But in either case, they are elected by all district voters, except for Denver.

Sponsors of SB 175 were aware, at the time of passage, of the constitutional problem. A formal opinion on the subject was issued by Legislative Legal Services Office on Jan. 16, 1992, to then-Rep. Wayne Knox, one of the SB 175 co-sponsors, two weeks before the bill was introduced:

"...this office takes the position that the Berni case must be acknowledged as a limitation on the authority of the legislature to enact legislation which provides that a school district director may be elected by the votes of less than a majority of the qualified electors of the district."

Their conclusion was that the voting plan in SB 175 violated Section 15 of Article 9 of the constitution as interpreted by the Berni case. On Feb. 25, 1992, the Denver School Board wrote to each member of the Colorado House, urging a "no" vote, quoting the Legal Services' opinion.

SB 175 made reference to Section 7 of Article 20 of the Colorado constitution which makes Denver one school district "elected in such a manner as the general school laws of the state shall provide." Sponsors of SB 175 obviously believed that language created an exception to allow them to pass a statute in conflict with the law and constitutional language governing all other school districts.

The Office of Legislative Legal Services didn't agree. Their legal memorandum, which is approved by the office's directors, knew there were two sections of the state constitution and declared: "... there is no patent or facial inconsistency between Section 15 of Article 9 and Section 7 of Article 20. There is nothing in the language of Section 7 that is inconsistent with the requirement of Section 15 that directors be elected by all qualified electors of the district."

The memorandum suggested that SB 175 could amend CRS 22-31-131 to provide that Denver school board directors run from (sub)districts of residence, and be elected by all district electors, but that is not what SB 175 did.

In its legislative declaration in CRS 22-31-131, the statute reads: "All communities of...(Denver), especially the parents of pupils enrolled in the district, should be represented on the board of education and the views of such communities will be better represented if five of the seven (school board) members....are elected under a director (sub) district plan of representation. Such a...plan would promote accountability of members of the board of education...to the needs of their constituents."

Oh, my! Substitute African-American and Hispanic-American for "communities" and you get the drift. Denver (of course) is a racist community which would NEVER in a million years elect at-large an African-American or Hispanic-American as mayor, or city auditor, or heaven forbid, a district attorney.

Under that thinking, the only way to ensure representation on the school board is to create subdistricts in which only voters in that subdistrict have a say. But what if your child lives in Subdistrict 1, but goes to middle school or high school in another subdistrict? How does this provide pressure on someone elected solely from another subdistrict where your vote has NO meaning?

Sometimes, electors are unhappy with the way a school board is operating. In most school districts, they can affect a change in philosophy when a majority of the board is up for election. But not in Denver. The four seats that will be decided in November will be the majority, but no Denver elector will have the right to decide which four members should be elected.

Meanwhile Broomfield, which is now a county will become a city and county on Nov. 15, 2001. Then the laws regarding election of school district directors designed to discriminate against Denver electors will also apply to Broomfield. Legislators will have two years to revise that law so that Broomfield electors (who are obviously not racist) can vote on all the school district director seats up for election.

The legislature in 1999 did effect one change in SB 175. That bill, as it passed the House in 1992 on second reading, added additional language requiring that ONLY the legislature could reapportion the Denver School District into subdistricts and the bill proceeded to reapportion the district to take effect beginning with the 2003 school board election.

In 1999, while the legislature was still in session, I wrote an "op-ed" column in the Denver Rocky Mountain News deploring the separate and unequal treatment provided to Denver electors as to reapportionment. Soon thereafter, the statute was revised in an amendment co-sponsored by Sen. Wham and Sen. Pat Pascoe, D-Denver, to restore the right of the Denver School Board to reapportion beginning after the next federal census.

One down, one to go.

Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.