concurring in part and dissenting in part.
I agree with the majority's resolution of the standing issue. I also agree that this issue is not moot. However, I must disagree with the conclusion that the amendments to the Charter Schools Act do not infringe upon the "local control" provisions of article IX, sections 15 and 16 of the Colorado Constitution. Rather, I conclude that these amendments usurp the local school districts' authority under those constitutional provisions, and they are, therefore, facially invalid. Having reached this conclusion, I need not consider Boulder Valley's other constitutional claims.
As the majority seems to recognize, the basic issue presented here is whether the General Assembly may empower a state agency to create a parallel and competing system of public schools over which no local school board has any control. The statute at issue places within the authority of the Institute the determination whether a local school board may assert control over a charter school created by that agency. This is made evident by the Institute's seemingly inconsistent treatment of Boulder Valley School District.
Further, the fact that the present statute is limited to "charter" schools is relatively inconsequential. If the state can constitutionally create a competing system of state-controlled charter schools, it can, exercising the same constitutional authority, create an entirely separate public school system controlled by a state agency or by entities created and controlled by that agency.
The question, then, requires a consideration of the seeming conflict between the state's constitutional responsibility under article IX, sections 1 and 2 to provide "general supervision" of the state's public schools and a "thorough and uniform system of free public schools," on the one hand, and the local *933school board's authority under article IX, sections 15 and 16 to "control ... instruction in the public schools of their respective districts" and to "prescribe textbooks to be used in the public schools" on the other.
There have been few previous instances in which the legislation in issue presented such a direct conflict. Indeed, most of the cases in which the Colorado courts have considered the reach of a local school board's constitutional authority have involved a state mandate for the school district to perform an act without providing for the direct involvement of any state agency. In these cases, the supreme court has determined that the state may not require the expenditure of local funds to provide education to students where the local board has no control over the education to be provided to those students. See, e.g., Belier v. Wilson, 59 Colo. 96, 147 P. 355 (1915). This principle has most recently been applied by that court in Owens v. Colorado Congress of Parents, Teachers & Students, 92 P.3d 933 (Colo.2004). While this line of cases required the court to consider the reach of the local board's constitutional authority over the instruction given students in its district, it did not require a corresponding inquiry into the reach of the state's constitutional authority.
The only decision that did require such a comparison, and the one that is the most instructive upon the issue presented here, is Board of Education v. Booth, 984 P.2d 639 (Colo.1999). That case arose under the Charter Schools Act before the amendments to that Act that are under consideration here.
The issue presented in Booth was the legal effect of a final order of the State Board under a former version of section 22-80.5-108(8)(d), which directed a local school board to approve a charter school application. A division of this court had held that such an order required the local school district to enter into a contract with the charter school applicants that would contain all of the provisions set forth in their application. Booth v. Board of Education, 950 P.2d 601 (Colo.App.1997). In doing so, the division had refused to pass upon the constitutionality of that provision of the Act, because it considered that this issue was not fully ripe for determination.
The supreme court in its Booth opinion rejected both of those conclusions. First, it determined that the issue of the constitutionality of the pertinent statute, considering the record before it and the Uniform Declaratory Judgment Act, § 18-51-105, C.R.8.2008, rendered that issue ready for resolution. Booth, 984 P.2d at 644-45. It then proceeded to determine the legal effect of an order requiring a local school district's approval of a charter school application. In doing so, it recognized that it was required to "consider the interplay" between the pertinent statute and the constitutional provisions that granted both to the state and to the local boards authority over the public school system of this state. Id. at 645.
It then considered the nature of the constitutional authority granted to the state and concluded that its supervising authority was intended by the framers to include only "direction, inspection and critical evaluation of 'the whole' in the sense of contributing a statewide perspective to decisions affecting public schools." Id. at 647-48.
In turn, it considered the nature of a local board's authority under article IX, section 15. It ultimately concluded that, while such authority is not absolute, nevertheless, any "general statutory or judicial constraints ... must not have the effect of usurping the local board's decision-making authority or its ability to implement, guide, or manage the educational programs for which it is ultimately responsible." Id. at 649.
It then reviewed the statutory provision at issue in Booth and rejected the conclusion that the State Board's final order resulted in a contract between the applicants and the local school board. On the contrary, it concluded that if the Act were interpreted to require a local school board to approve a charter school under conditions not approved by that board, the effect of the statute might well be to usurp the local school board's authority or its ability to implement the educational programs for which it is ultimately responsible. Such a construction of the statute would "raise serious constitutional infirmities." Id. at 658.
*934Rather, it concluded that under the Act, when the State Board issues a final order requiring the local board to approve a charter school application, the order only "requires the charter applicants and the local board to resolve any issues necessary to permit the applicants to open a charter school." Id. at 654. Such an order only "creates a good faith commitment on the part of the local board to work with the charter applicants" to resolve any recurring concerns that it may have. Id. at 655. "This understanding of a State Board order to approve a charter application," it said, "avoids constitutional infirmity." Id. (emphasis supplied).
Booth itself, then, makes reasonably clear that the state's general authority to provide "direction, inspection, and critical evaluation" of the whole public educational system does not allow it to dictate that a local school board must establish a particular public school.
That this is the meaning to be placed upon Booth has been made even clearer by the supreme court's more recent decision in Owens. That case raised the issue whether a state statute could require a local school board to pay parents to allow their children to enroll in nonpublic schools over which the local school board had no instructional control. The question presented in Owens, then, was similar to the issues presented in the Belier line of cases. Nevertheless, the Owens opinion contains an analysis of Booth that is pertinent to the issue before us.
First, the Owens court emphasized that "[t]he principle of local control has deep roots in Colorado's constitutional history." 92 P.3d at 938. It noted that the original framers deliberately removed authority over education from the State Board and specifically placed authority over that subject in local school boards. Id. And, it concluded that the Belier line of cases compelled the conclusion that the requirement for the use of local funds to pay for an education not controlled by the local school board was unconstitutional.
In Owens, moreover, the state had contended that the decision in Booth, properly construed, would legitimize the statute at issue there. In rejecting this assertion, the court noted that, as construed by Booth, the statutorily required final order "simply required the local board to negotiate in good faith." Id. at 942. It concluded:
The charter school statute [at issue in Booth ] met constitutional requirements because it closely circumscribed the state board's authority in the appeals process while simultaneously preserving the local board's control of instruction given in the charter school.
Id. (emphasis supplied).
Hence, because the statute at issue in Owens deprived the local school board "of all local control of instruction," the statute could not pass constitutional muster. Id.
Here, as in Owens, the statute at issue deprives the local school board of all control over the instruction to be given in any institute charter school that is to be located within its boundaries. That control is to be exercised by the state through a separate entity, unless that agency unilaterally decides to grant authority over the charter school to the local school board.
This function of controlling the education of students within a public school goes beyond the state's authority to direct, inspect, and critically evaluate the whole public school system by contributing a state perspective to the decisions supporting public schools. CJ Booth, 984 P.2d at 647. Rather, by authorizing the state to establish public schools over which no local school board has any authority, the statute has usurped the local school board's constitutional authority. It seems clear to me, therefore, that the statute at issue impermissibly intrudes upon the authority of the local school boards to control instruction in the public schools within their districts.
This conclusion finds support in the recent opinion by a Florida District Court of Appeal in Duval County School Board v. State Board of Education, 998 So.2d 641 (Fla.App.2008). Florida's constitution contains provisions similar to those at issue here. It authorizes its local school boards to "operate, control and supervise all free public schools within the school district." Fla. Const. art. IX, § 4(b). Likewise, it authorizes the Flori*935da legislature to provide for "a uniform, efficient, safe, secure, and high quality system of free public schools." Fla. Const. art. IX, § l(a). Relying upon the latter provision, the Florida legislature adopted an act that was, in all essential provisions, the same as Colorado's - recently - amended - Charter Schools Act. It established a state commission that had authority to authorize charter schools throughout the state and withdrew the local school board's right to do so, exeept with the approval of this commission.
The Florida District Court of Appeal held that this act conflicted with the local board's constitutional authority and was facially invalid.
Moreover, the fact that, here, the charter schools to be established by the Institute are to be funded solely from a source other than the local districts is, in my view, substantially irrelevant. -It is true, of course, that in the Belier line of cases local funds were used to pay for a student's education over which the local school board had no control. The basic constitutional sin in these cases, however, was this lack of local control over the educational program. And, of course, in none of those cases had the state attempted to create a competing public school system, as is the case here. Indeed, in Owens, the most recent Belier-type case, the supreme court specifically said that "the constitutional division of power between the state and local boards is not measured by funding." 92 P.3d at 948.
In addition to the contention that State Board's order to approve an application for a charter school violated the local control provision of section 15, the local school district in Booth had also argued that the order violated the provision in section 16 that prohibits the General Assembly or the State Board from prescribing textbooks "to be used in the public schools." However, because the charter school there proposed to use the same textbooks as were used in the district's schools, the court concluded that State Board's order in that case did not implicate section 16. 984 P.2d at 655. Hence, it declined to consider how that constitutional prohibition might be impacted in another case.
Here, of course, unlike the cireumstance in Booth, the Act does not provide for the local school board to have any involvement in the instruction to be offered or the textbooks to be used in the institute charter schools. Those decisions are to be made by managers authorized by the state agency, the Institute, created by the General Assembly. To this extent at least, those managers are agents of the General Assembly, and the textbooks selected by them are the products of that body. I conclude, therefore, that the amended Act also violates the principle incorporated in section 16.
I also must conclude that the provisions of article VIII, section 1, do not authorize a state's violation of the provisions of article IX, sections 15 and 16.
It is to be noted, first, that this provision is not to be found in article IX, which is devoted to "Education." Rather, it was placed in a separate article, entitled "State Institutions." Indeed, no reference to "public sehools" is to be found in article VIII, section 1. Rather, that provision reads as follows:
Educational, reformatory and penal institutions, and those for the benefit of the insane, blind, deaf and mute, and such other institutions as the public good may require, shall be established and supported by the state....
(Emphasis supplied.)
Given these provisions, and their location, their most logical interpretation is that the term "educational ... institutions" refers to institutions of higher learning and not to public schools offering education at the kindergarten through high school levels. And, this interpretation appears to be the one adopted by the supreme court in Wilmore v. Annear, 100 Colo. 106, 109, 65 P.2d 1433, 1434 (1987) ("It will be observed that section 1, article 8, of the Constitution uses the term 'educational ... institutions' in referring to schools other than the constitutionality required public schools" (emphasis supplied) ).
But, even if the phase "educational institutions" could be construed to include "public schools," I note that the provision authorizes the state simply to "establish" and "support" those schools. To the extent that these terms might be construed to allow the state to control instruction within public schools, *936this provision would seem to conflict with the substantive provisions of article IX, section 15. If such is the case, the judiciary must adopt a construction that would harmonize them, if possible See Colorado Common Cause v. Bledsoe, 810 P.2d, 201, 212 (Colo.1991) (Lohr, J., concurring in part and dissenting in part).
Further, a specific constitutional provision controls over a general one. de'Sha v. Reed, 194 Colo. 367, 370, 572 P.2d 821 (1977). Here, article IX, section 15 is specific in providing that local school boards "shall have control of instruction in the public schools of their respective districts." This specific provision would control over the general provision that the state may "maintain and support" such schools.
For these reasons, therefore, I conclude that the Charter Schools Act, as amended, violates the local control mandates contained in article IX, sections 15 and 16.
In reaching this conclusion, I have not ignored the evident legislative motive behind the adoption of the amended Act. Surely, that motive was based upon the perception that Colorado's public school system, as created by the 1876 constitution, is not meeting the needs of the twenty-first century. Whether that perception is an accurate one, and if it is, how the system is to be corrected, is at base a policy issue for legislators; it can, in my view, play little, if any, consideration in our role as interpreters of that constitution. If the present constitutional system is inadequate, the solution lies not in a forced interpretation of that constitution, but within the amendment process.