v. Poudre School Dist R-1

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
February 13, 2020

2020COA27

No. 18CA2345, Stanczyk v. Poudre School Dist R-1 —
Education — Teacher Employment, Compensation, and
Dismissal — Nonprobationary Portability

A division of the court of appeals considers whether a school

district may restrict a teacher’s right under section 22-63-203.5,

C.R.S. 2019, to transfer his or her nonprobationary status from one

school district to another, known as nonprobationary portability.

The division concludes that a school district may not impose

unreasonable restrictions on a teacher’s exercise of the right to

nonprobationary portability. If a teacher complies with the

statutory requirements for nonprobationary portability, the hiring

school district must grant the teacher nonprobationary status. In

this case, the defendants’ restrictions on a teacher’s right to

exercise the right to nonprobationary portability were unreasonable
because they allowed defendants to decide unilaterally whether the

teacher could obtain nonprobationary status.

Because the defendants unreasonably restricted the teacher’s

ability to exercise the statutory right to nonprobationary portability,

the district court erred in awarding summary judgment in favor of

the defendants. The division holds that the plaintiffs are entitled to

summary judgment on their claim that the defendants’ restrictions

violated the teacher’s right to nonprobationary portability and

remands for further proceedings on the plaintiffs’ remaining claims.
COLORADO COURT OF APPEALS 2020COA27

Court of Appeals No. 18CA2345
Larimer County District Court No. 17CV30480
Honorable Gregory M. Lammons, Judge

Patricia Stanczyk and Poudre Education Association,

Plaintiffs-Appellants,

v.

Poudre School District R-1 and Poudre School District R-1 Board of Education,

Defendants-Appellees.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE LIPINSKY
Webb and Dunn, JJ., concur

Announced February 13, 2020

Brooke Copass, Rory Herington, Charles Kaiser, Denver, Colorado, for
Plaintiffs-Appellants

Semple, Farrington, Everall, & Case, P.C., M. Brent Case, Jonathan Fero, Mary
Barham Gray, Denver, Colorado, for Defendants-Appellees

Philip J. Weiser, Attorney General, Julie C. Tolleson, First Assistant Attorney
General, Jenna Zerylnick, Assistant Attorney General, Denver, Colorado, for
Amicus Curiae Patricia Stanczyk and Poudre Education Association
¶1 In 2010, the Colorado General Assembly enacted sweeping

changes to the state’s teacher evaluation and compensation system

that, for the first time, tied a teacher’s nonprobationary status to

his or her performance. As with the prior concept of tenure, a

teacher who achieves nonprobationary status receives job

protections not available to other teachers, including protection

against unreasonable dismissal and hearing rights.

¶2 The General Assembly further provided that a

nonprobationary teacher has the right to transfer his or her

nonprobationary status from one school district to another by

submitting specified evidence of his or her effectiveness as an

educator. This statutory right is known as nonprobationary

portability.

¶3 In this case, we consider the narrow question whether a school

district may restrict a teacher’s ability to exercise the right of

nonprobationary portability through use of a job application and

form employment contract that require the teacher to relinquish the

right to nonprobationary portability as a condition of employment.

(We refer to such a job application and employment agreement as

the Restrictions.)

1
¶4 Plaintiffs, Patricia Stanczyk and Poudre Education Association

(Association), allege that defendants, Poudre School District R-1

and Poudre School District R-1 Board of Education (the Poudre

Defendants), unlawfully stymied Stanczyk’s and similarly situated

teachers’ exercise of their right to nonprobationary portability

through use of the Restrictions. The Poudre Defendants deny that

their application form and form employment agreement are

unlawful. In the alternative, they assert that, under their

prerogative of local control, school districts may disregard the

statutory mandate of nonprobationary portability.

¶5 We affirm in part and reverse in part:

• We affirm the district court’s award of summary

judgment to the Poudre Defendants on Stanczyk and the

Association’s claim for violation of article XI, section 2 of

the Colorado Constitution.

• We affirm the district court’s award of summary

judgment to the Poudre Defendants on Stanczyk’s claims

for breach of statutory contract, violation of due process

rights, and mandamus relief.

2
• We reverse the district court’s award of summary

judgment to the Poudre Defendants on Stanczyk and the

Association’s claims for declaratory judgment.

• We hold that the Association is entitled to summary

judgment on both the declaratory judgment claims

because the Poudre Defendants’ use of the Restrictions is

unlawful and, under the nonprobationary portability

statute, the Poudre Defendants must provide a qualifying

teacher with nonprobationary status upon the teacher’s

compliance with the statutory requirements for

nonprobationary portability.

• We hold that Stanczyk is entitled to summary judgment

on the claim that the Poudre Defendants’ use of the

Restrictions unlawfully deprived her of the right to

nonprobationary portability, but that disputed issues of

material fact preclude the entry of summary judgment to

any party on the claim for a declaratory judgment that

she is entitled to nonprobationary status.

• We remand for further proceedings consistent with this

opinion.

3
¶6 First, we discuss the history of the statute granting teachers

the right to nonprobationary portability. Second, we summarize the

factual and procedural background of the case. Third, we

determine whether Stanczyk and the Association have standing to

assert the claims they pleaded against the Poudre Defendants.

Fourth, we explain the standard of review applicable to this case.

Fifth, we consider the district court’s grant of summary judgment to

the Poudre Defendants on the Association and Stanczyk’s claims for

declaratory judgment. Sixth, we consider the Association and

Stanczyk’s remaining claims.

I. The History of the Nonprobationary Portability Statute

A. Nonprobationary Status Replaced Tenure in Colorado

¶7 Before 1990, a teacher received tenure if he or she was

continuously employed in the same school district for three

academic years. § 22-63-112(1), C.R.S. 1989. Once tenured, a

teacher could be dismissed only for certain, enumerated reasons

relating to cause. § 22-63-116, C.R.S. 1989. Thus, with limited

exceptions, a tenured teacher was “entitled to a position of

employment as a teacher.” § 22-63-115, C.R.S. 1989; see Johnson

v. Sch. Dist. No. 1, 2018 CO 17, ¶ 3, 413 P.3d 711, 713.

4
¶8 In 1990, the Teacher Employment, Compensation, and

Dismissal Act (TECDA) eliminated all substantive references to

tenure from Colorado’s education statutes. Ch. 150, sec. 1,

§§ 22-63-101 to -403, 1990 Colo. Sess. Laws 1117-28; see Johnson,

¶ 4, 413 P.3d at 713-14. “TECDA instead created a distinction

between nonprobationary and probationary teachers, defining the

latter as ‘a teacher who has not completed three full years of

continuous employment with the employing school district and who

has not been reemployed for the fourth year.’” Sch. Dist. No. 1 v.

Masters, 2018 CO 18, ¶ 6, 413 P.3d 723, 726 (quoting

§ 22-63-103(7), C.R.S. 1990).

¶9 Nonprobationary teachers retained certain of the protections

afforded to tenured teachers under prior law. See id. at ¶ 7, 413

P.3d at 726. Sections of TECDA still in force today provide that

nonprobationary teachers can be dismissed only for enumerated

reasons. § 22-63-301, C.R.S. 2019; see § 22-63-302, C.R.S. 2019.

Additionally, before termination of their employment,

nonprobationary teachers are entitled to receive notice and an

opportunity to be heard by a neutral hearing officer. § 22-63-302;

see § 22-63-202(2)(c.5)(III)(B), C.R.S. 2019.

5
B. SB 191 Tied Nonprobationary Status to Performance

¶ 10 In 2010, Senate Bill 10-191 (SB 191) changed the way

Colorado teachers are evaluated and receive nonprobationary

status. Ch. 241, sec. 10, § 22-63-103, 2010 Colo. Sess. Laws 1070.

SB 191 rests on the belief that a “system to evaluate the

effectiveness of licensed personnel is crucial to improving the

quality of education in this state” and that “such a system [should]

be applicable to all licensed personnel in the school districts and

boards . . . throughout the state.” § 22-9-102(1)(a), C.R.S. 2019.

¶ 11 SB 191 created a uniform, statewide framework for evaluating

teachers, provided for development of statewide criteria to measure

teacher effectiveness, mandated annual teacher evaluations, and

required that fifty percent of a teacher’s evaluation score be based

on student academic growth. Ch. 241, sec. 5, § 22-9-105.5, 2010

Colo. Sess. Laws 1056-61.

¶ 12 As part of this framework, the General Assembly linked

nonprobationary status to teacher performance.

§ 22-9-102(1)(a)(V). To attain nonprobationary status, a teacher

must demonstrate three years of effectiveness, measured by the

6
statewide standards established in SB 191.

§§ 22-9-105.5(3)(d), -63-103(7), -63-203(1)(b), C.R.S. 2019.

C. SB 191 Established Nonprobationary Portability

¶ 13 SB 191 granted teachers who had attained nonprobationary

status the right to transfer that status from one district to another.

§ 22-63-203.5, C.R.S. 2019. Section 22-63-203.5 provides that a

nonprobationary teacher

who is employed by a school district and is
subsequently hired by a different school
district may provide to the hiring school
district evidence of his or her student
academic growth data and performance
evaluations for the prior two years for the
purposes of retaining nonprobationary status.

Id. (We refer to such evidence and evaluations as Required

Documentation.) Importantly, the statute says that “[i]f, upon

providing such data, the nonprobationary teacher can show two

consecutive performance evaluations with effectiveness ratings in

good standing, he or she shall be granted nonprobationary status in

the hiring school district.” Id. (emphasis added). Before the

General Assembly enacted section 22-63-203.5, school districts had

the sole discretion whether to grant nonprobationary status to a

nonprobationary teacher who relocated from another school district.

7
D. School Districts Can Obtain Exemptions from Certain of the
Statewide Mandates in the Education Statutes

¶ 14 School districts, the State Board of Education, and the

General Assembly have different and distinct roles in overseeing the

education of Colorado’s children. Under the Colorado Constitution,

school districts have the authority to control “instruction in [their]

public schools,” Colo. Const. art. IX, § 15, while the State Board of

Education possesses general supervisory power over Colorado’s

public schools, Colo. Const. art. IX, § 1(1). The General Assembly is

charged with “provid[ing] for the establishment and maintenance of

a thorough and uniform system of free public schools throughout

the state” (the Thorough and Uniform Clause). Colo. Const. art. IX,

§ 2.

¶ 15 In keeping with these differing roles, school districts may seek

an exemption from the State Board of Education from most, but not

all, of the statewide mandates set forth in title 22 of the Colorado

Revised Statutes. § 22-2-117, C.R.S. 2019. (The mandates for

which a school district may not obtain an exemption are listed in

subsections (1)(b) and (1.5) of section 22-2-117. Nonprobationary

portability is not one of them.)

8
¶ 16 To obtain an exemption from a statewide mandate, a school

district must obtain stakeholder support and provide public notice,

§ 22-2-117(1)(d), (2), and must satisfy the State Board of Education

that the exemption “would enhance educational opportunity and

quality within the school district and that the costs to the school

district of complying with the requirements for which the waiver is

requested significantly limit educational opportunity within the

school district.” § 22-2-117(1)(a).

II. Background

A. Underlying Facts

¶ 17 Stanczyk, a licensed teacher, worked in the Thompson School

District from 1995 through the 2015-16 school year. She attained

nonprobationary status in that district in the 1998-99 school year.

¶ 18 During her last year at the Thompson School District,

Stanczyk applied for several positions with the Poudre School

District (School District). Because the School District did not

accept paper applications, Stanczyk applied for the positions

though the School District’s online application system, known as

AppliTrack. Before Stanczyk could submit her completed

9
application through AppliTrack, she was required to confirm her

agreement with the following statement:

Any offers of employment extended by [School
District] to me are conditioned on signing a
probationary teacher contract and not
asserting the portability of nonprobationary
status I have acquired in another school
district, if any.

¶ 19 Following this language, Stanczyk had to click a box

acknowledging “I agree” that “I have read, understand, and agree to

all the terms above.” The AppliTrack form did not provide an “I

disagree” option. Stanczyk clicked the “I agree” box and submitted

her application. The School District’s website did not include an

explanation of how an applicant could avoid clicking “I agree” or a

statement of its policy on nonprobationary portability.

¶ 20 The School District offered Stanczyk a probationary teaching

position. Before signing her employment contract for that position,

Stanczyk visited the School District’s human resources office and

asked whether the School District permitted nonprobationary

portability. A person whose name and title do not appear in the

record allegedly conferred with a coworker and responded to

Stanczyk, “we don’t do that here.”

10
¶ 21 Victoria Thompson, the School District’s Human Resources

Director, however, asserted in an affidavit submitted in support of

the Poudre Defendants’ motion for summary judgment that the

School District “does not require applicants for teaching positions to

waive nonprobationary portability.” (We refer to Victoria Thompson

as “Ms. Thompson,” rather than as “Thompson,” to distinguish the

references to her from the references to the Thompson School

District.) Ms. Thompson said that the School District’s human

resources office can “allow the teacher to submit the application

without agreeing to the waiver provision.”

¶ 22 After Stanczyk visited the human resources office, she signed

a contract with the School District for a probationary position. The

contract said that Stanczyk would be “employed as a probationary

teacher under C.R.S. § 22-63-203” and that she had “voluntarily

waived [her] right under C.R.S. § 22-63-203.5 to assert the

portability of [her] nonprobationary status.” Additionally, the

contract specified that it was “voidable at the option of the [Poudre

School District R-1] Board of Education” if Stanczyk asserted “the

portability of [her] nonprobationary status acquired in another

school district.”

11
¶ 23 At the conclusion of the academic year, a supervisor told

Stanczyk that her contract with the School District would not be

renewed. A week later, Stanczyk informed Ms. Thompson by email

that she wished to exercise her right to nonprobationary portability,

specifically referencing section 22-63-203.5. Stanczyk attached to

the email her evaluations from the Thompson School District for the

2014-15 and 2015-16 school years, in which she had received

ratings of “Highly Effective” and “Effective,” respectively. Ms.

Thompson denied Stanczyk’s request to transfer her

nonprobationary status to the School District.

¶ 24 Ms. Thompson testified during her deposition that Stanczyk’s

request was “very incomplete.” Ms. Thompson did not

contemporaneously tell Stanczyk, however, that the School District

did not believe Stanczyk had submitted the Required

Documentation. While Ms. Thompson also said that Stanczyk had

waited too long to request portability, Ms. Thompson testified that

she did not feel comfortable specifying the School District’s deadline

to request nonprobationary portability.

¶ 25 Several days after Ms. Thompson denied Stanczyk’s request to

exercise her right to nonprobationary portability, the Poudre School

12
District R-1 Board of Education confirmed that Stanczyk’s contract

would not be renewed. Because the Poudre Defendants considered

Stanczyk to be a probationary teacher, they did not follow the

statutory procedure for terminating a nonprobationary teacher,

which would have afforded her notice and an opportunity to be

heard by a neutral hearing officer. § 22-63-302.

B. Procedural History

¶ 26 When her contract was not renewed, Stanczyk and the

Association, of which Stanczyk is a member, filed suit against the

Poudre Defendants. Stanczyk and the Association pleaded six

claims for relief seeking:

(1) a declaratory judgment that the Poudre Defendants must

grant nonprobationary status to Stanczyk and similarly

situated teachers who provide the Required

Documentation (First Claim for Declaratory Judgment);

(2) a declaratory judgment that the Poudre Defendants’ use

of the Restrictions violates Colorado law and is contrary

to public policy (Second Claim for Declaratory

Judgment);

13
(3) mandamus relief (if other relief is not available) to compel

the Poudre Defendants to grant nonprobationary status

to Stanczyk and similarly situated teachers who provide

the Required Documentation;

(4) a determination that section 22-63-203.5 creates a

statutory contract between the School District and its

teachers, and that the School District breached such

contract with Stanczyk and similarly situated teachers;

(5) a determination that the Poudre Defendants deprived

Stanczyk and similarly situated teachers of a property

interest in continued employment without due process of

law, in violation of the Colorado Constitution; and

(6) a determination that the Poudre Defendants’ use of the

Restrictions violates the guarantee of a “thorough and

uniform system of free public schools” set forth in the

Thorough and Uniform Clause and is therefore

preempted by section 22-63-203.5.

¶ 27 The parties cross-moved for summary judgment.

14
¶ 28 As relevant to this appeal, the Poudre Defendants contend

they were entitled to summary judgment because:

(1) Stanczyk and the Association lack standing;

(2) Stanczyk waived her right to nonprobationary portability

or, in the alternative, Stanczyk’s request for

nonprobationary portability was untimely and she did

not provide the Poudre Defendants with the Required

Documentation;

(3) the Poudre Defendants cannot be compelled to make the

discretionary decision whether Stanczyk submitted the

Required Documentation;

(4) because section 22-63-203.5 creates a statutory right,

and not a constitutional right, the Poudre Defendants

could not have denied Stanczyk due process rights; and

(5) section 22-63-203.5 does not create a statutory contract

or a property interest.

¶ 29 Stanczyk and the Association argued they were entitled to

summary judgment on their claims for declaratory relief because

there is no factual dispute that the Poudre Defendants unlawfully

deprive teachers of their right to nonprobationary portability, in

15
violation of section 22-63-203.5. They also contended that the word

“shall” in section 22-63-203.5 creates a statutory contract between

the School District and the nonprobationary teachers it hires.

Similarly, they argued that nonprobationary status is a property

right and that the Poudre Defendants unconstitutionally deprived

Stanczyk and similarly situated teachers of such property right

without due process of law. Finally, they asserted that if no other

relief is granted, they are entitled to mandamus relief because the

Poudre Defendants had a duty under section 22-63-203.5 to

provide nonprobationary status to Stanczyk and similarly situated

teachers.

¶ 30 The district court granted summary judgment to the Poudre

Defendants. The court determined:

(1) Stanczyk had standing to bring all six of her claims and

the Association had associational standing to join in

Stanczyk’s two declaratory judgment claims and her

claim that the Poudre Defendants’ use of the Restrictions

violates the Thorough and Uniform Clause;

16
(2) school districts may require teachers to relinquish their

right to nonprobationary portability as a condition of

employment;

(3) Stanczyk waived her right to nonprobationary portability

by signing the School District’s form employment

agreement;

(4) because Stanczyk waived that right, the Poudre

Defendants were not required to grant her

nonprobationary status;

(5) the Poudre Defendants’ use of the Restrictions did not

violate section 22-63-203.5 because local school boards

have general authority over teacher employment

decisions;

(6) Stanczyk could not succeed on her claims for breach of

contract and violation of her due process rights because

section 22-63-203.5 “does not create a contract with

teachers by operation of law and teachers do not have a

property interest in nonprobationary portability”; and

(7) Stanczyk and the Association “did not provide any

evidence that requiring teachers to waive their right to

17
request nonprobationary portability has any effect” on

whether the state’s public school system is “thorough

and uniform,” and therefore they could not succeed on

their claim arising under the Thorough and Uniform

Clause.

¶ 31 On appeal, Stanczyk and the Association again argue that the

Poudre Defendants’ use of the Restrictions violates the statewide

mandate codified in section 22-63-203.5.

¶ 32 The Poudre Defendants deny that their use of the Restrictions

is unlawful and assert that the district court correctly awarded

them summary judgment on Stanczyk’s claims because she waived

the right to nonprobationary portability. They also argue that

Stanczyk and the Association lack standing.

III. The District Court Correctly Decided the Standing Issue

Before we address the district court’s ruling on the merits, we

must consider the Poudre Defendants’ argument that Stanczyk and

the Association lack standing to bring their claims. Barber v. Ritter,

196 P.3d 238, 245 (Colo. 2008) (“Standing is a threshold issue that

must be satisfied in order for a court to decide a case on the

merits.”). “In determining whether a plaintiff has alleged an injury

18
sufficient to confer standing, an appellate court considers the

allegations in the complaint, as well as testimony and other

documentary evidence in the record.” Rechberger v. Boulder Cty.

Bd. of Cty. Comm’rs, 2019 COA 52, ¶ 8, 454 P.3d 355, 357.

“Whether a plaintiff has standing to sue is a question of law that we

review de novo.” Barber, 196 P.3d at 245.

¶ 33 Because Stanczyk and the Association jointly asserted all

claims pleaded in their complaint, we consider whether (1) Stanczyk

has standing as an individual and (2) the Association has

associational standing to assert the claims on behalf of its

members.

A. Stanczyk Has Standing to Assert All Six of Her Claims

¶ 34 To establish standing, an individual “must satisfy a two-part

test requiring (1) that the plaintiff ‘suffered injury in fact,’ and (2)

that the injury was to a ‘legally protected interest as contemplated

by statutory or constitutional provisions.’” Barber, 196 P.3d at 245

(quoting Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535,

538 (1977)).

¶ 35 Under the first prong of the test, “[t]he injury may be tangible,

such as physical damage or economic harm; however, it may also

19
be intangible, such as aesthetic issues or the deprivation of civil

liberties. Deprivations of many legally created rights, although

themselves intangible, are nevertheless injuries-in-fact.” Ainscough

v. Owens, 90 P.3d 851, 856 (Colo. 2004) (citation omitted).

Standing, however, is not established by an injury that is overly

“indirect and incidental” to the defendant’s action. Hickenlooper v.

Freedom from Religion Found., Inc., 2014 CO 77, ¶ 9, 338 P.3d

1002, 1007 (quoting Ainscough, 90 P.3d at 856).

¶ 36 As the district court correctly pointed out, it is undisputed

that the Poudre Defendants “denied Stanczyk’s request for

nonprobationary portability, and, therefore, allegedly caused her

injury.” The Poudre Defendants argue the opposite: that Stanczyk

cannot establish the first prong because “she caused her own injury

by affirmatively waiving her right to transfer her nonprobationary

status and subsequently waiting eight months to request

portability.” We disagree with the Poudre Defendants.

¶ 37 The Poudre Defendants rely on People in Interest of J.C.S., 169

P.3d 240, 245 (Colo. App. 2007), for the proposition that the injury-

in-fact requirement cannot be satisfied if the plaintiff caused the

injury to herself. In J.C.S., however, the division acknowledged that

20
Colorado has never adopted a “self-inflicted injury limitation on

standing.” Id. at 246. Rather, whether the plaintiff caused her own

injury is a consideration in determining whether the plaintiff can

prove causation. Id. Under J.C.S., the Poudre Defendants cannot

establish that Stanczyk lacks standing even if her injury was self-

inflicted. Thus, we agree with the district court that Stanczyk has

properly alleged an injury in fact.

¶ 38 Although the district court also addressed the Poudre

Defendants’ argument under the second prong of the standing

analysis — whether Stanczyk suffered an injury to a legally

protected interest — the Poudre Defendants do not pursue this

argument on appeal. We therefore deem their “legally protected

interest” argument abandoned. Armed Forces Bank, N.A. v. Hicks,

2014 COA 74, ¶ 38, 365 P.3d 378, 386 (“[A]rguments raised in the

trial court and not pursued on appeal are deemed abandoned[.]”

(citing People v. Dash, 104 P.3d 286, 293 (Colo. App. 2004))).

¶ 39 Thus, we affirm the district court’s determination that

Stanczyk had standing.

21
B. The Association Has Associational Standing to Join in
Stanczyk’s Claims for Declaratory Judgment and Claim
Arising Under the Thorough and Uniform Clause

¶ 40 We agree with the district court that the Association has

associational standing to join in three of Stanczyk’s claims — (1) the

First Claim for Declaratory Judgment (seeking a determination that

the Poudre Defendants must grant nonprobationary status

whenever a qualified teacher submits the Required Documentation);

(2) the Second Claim for Declaratory Judgment (seeking a

determination that the Poudre Defendants’ use of the Restrictions is

unlawful); and (3) the claim that the Poudre Defendants’ use of the

Restrictions violates the Thorough and Uniform Clause. Because

the Association does not challenge the district court’s ruling that it

lacks standing to assert the remaining claims, we consider only the

Poudre Defendants’ challenge to the Association’s associational

standing to join in the three claims listed above. See id. (explaining

we do not consider arguments that have not been raised on appeal).

[A]n organization has associational standing
when: (1) its members would otherwise have
standing to sue in their own right; (2) the
interests it seeks to protect are germane to the
organization’s purpose; and (3) neither the
claim asserted, nor the relief requested,

22
requires the participation of individual
members of the lawsuit.

Colo. Union of Taxpayers Found. v. City of Aspen, 2018 CO 36, ¶ 10,

418 P.3d 506, 510.

1. The First Claim for Declaratory Judgment as to the
Association

¶ 41 The Association seeks a declaratory judgment that the Poudre

Defendants must grant qualifying teachers nonprobationary status

if the teachers provide the Required Documentation. Under the

first prong of the standing analysis, an organization has

associational standing when its members have standing to sue in

their own right. Id. Because Stanczyk has standing to bring this

claim, so does the Association.

¶ 42 Under the second prong, we consider whether a declaratory

judgment addressing teachers’ exercise of their right to

nonprobationary portability would be germane to the Association’s

purpose. See id. We conclude it would be germane. See Kelley v.

Shelby Cty. Bd. of Educ., 198 F. Supp. 3d 842, 850 (W.D. Tenn.

2016) (Protecting teachers “from dismissal in violation of [state] law

[is] an interest germane to [a teachers’ union’s] organizational

purpose.”).

23
¶ 43 The Poudre Defendants further argue that the Association

lacks standing to assert the Second Claim because a teacher must

exercise the right to nonprobationary portability before the school

district hires the teacher and, thus, before the teacher is eligible to

join a teachers’ union. But, as we explain in Part V.A.2 below,

section 22-63-203.5 grants the right to nonprobationary portability

to nonprobationary teachers whom a school district has already

hired and who, therefore, are eligible to join the teachers’ union.

For these reasons, the Association meets the second prong of the

standing test.

¶ 44 Finally, under the third prong of the standing test, we

conclude that, from the Association’s perspective, the First Claim

for Declaratory Judgment does not require the participation of

individual teachers because a declaratory judgment that the Poudre

Defendants must comply with section 22-63-203.5 would impact all

Association members in Stanczyk’s position, and not Stanczyk

alone.

24
2. The Second Claim for Declaratory Judgment as to the
Association

¶ 45 The Association seeks a declaratory judgment that the Poudre

Defendants’ use of the Restrictions violates Colorado law. For the

reasons explained above, the Association meets all three prongs to

establish standing to assert this claim: Stanczyk has standing and

is a member of the Association; determining whether the Poudre

Defendants’ use of the Restrictions violates Colorado law is germane

to the Association’s purpose; and such a decision would apply to all

Association members similarly situated to Stanczyk.

3. The Association’s Third Claim that the Poudre Defendants
Violated the Thorough and Uniform Clause

¶ 46 The Association seeks a ruling that the Poudre Defendants

violated the Thorough and Uniform Clause by requiring teachers to

relinquish their right to nonprobationary portability as a condition

of employment.

¶ 47 For the same reasons why the Association has standing to

assert its claims for declaratory judgment, it also has associational

standing to join Stanczyk in asserting this constitutional claim.

¶ 48 Thus, we affirm the district court’s ruling on standing.

25
IV. We Review De Novo the District Court’s Decision to Grant
Summary Judgment to the Poudre Defendants

¶ 49 Summary judgment “is a drastic remedy, to be granted only

when there is a clear showing that the applicable standards have

been met.” Cary v. United of Omaha Life Ins. Co., 68 P.3d 462, 466

(Colo. 2003). A district court may grant summary judgment only if

the “pleadings, depositions, answers to interrogatories, and

admissions on file, together with [supporting and opposing]

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as

a matter of law.” C.R.C.P. 56(c).

¶ 50 The party moving for summary judgment bears the “burden of

establishing the lack of a triable factual issue, and all doubts as to

the existence of such an issue must be resolved against the moving

party.” Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo.

1988). If the moving party can establish the absence of record

evidence to support the nonparty’s case, the burden shifts to the

nonmoving party to show a triable issue of fact. Cont’l Air Lines,

Inc. v. Keenan, 731 P.2d 708, 713 (Colo. 1987).

26
¶ 51 When all parties move for summary judgment, the trial court

must “consider each motion separately, review the record, and

determine whether a genuine dispute as to any fact material to that

motion exists.” Churchey, 759 P.2d at 1340. “One party’s assertion

of undisputed facts cannot ‘be applied in connection with’ the other

party’s cross-motion for summary judgment.” Jones v. Samora,

2016 COA 191, ¶ 44, 395 P.3d 1165, 1174 (quoting Churchey, 759

P.2d at 1340). “If there are genuine disputes regarding facts

material to both motions, the court must deny both motions.”

Churchey, 759 P.2d at 1340.

¶ 52 “In reviewing a summary judgment order, an appellate court

applies the same standard as the district court.” City of Fort Collins

v. Colo. Oil, 2016 CO 28, ¶ 9, 369 P.3d 586, 590. Thus, we review a

trial court’s decision to grant a motion for summary judgment de

novo. S. Cross Ranches, LLC v. JBC Agric. Mgmt., LLC, 2019 COA

58, ¶ 11, 442 P.3d 1012, 1015. Our task on review “is to determine

whether a genuine issue of material fact existed and whether the

district court correctly applied the law.” Colo. Oil, ¶ 9, 369 P.3d at

590.

27
V. The District Court Erred in Awarding Summary Judgment to
the Poudre Defendants on Stanczyk and the Association’s
Declaratory Judgment Claims

¶ 53 Stanczyk and the Association’s claims for declaratory

judgment rest on their contention that the Poudre Defendants’ use

of the Restrictions violates section 22-63-203.5. But the district

court did not reach the merits of this argument. Rather, it awarded

summary judgment to the Poudre Defendants on the declaratory

judgment claims based upon its determination that the right to

nonprobationary portability is waivable and that Stanczyk waived it.

The district court misread section 22-63-203.5, however, and did

not need to reach the issue of whether the right to nonprobationary

portability can be waived.

¶ 54 We resolve the case by considering the more fundamental

question of whether the Poudre Defendants’ use of the Restrictions,

as reflected in the parties’ summary judgment motions and briefs,

violates section 22-63-203.5.

¶ 55 To determine whether the Poudre Defendants’ use of the

Restrictions is lawful, we first review the nonprobationary

portability statute. Second and third, we examine the Poudre

Defendants’ use of the Restrictions and, in doing so, determine

28
whether the Poudre Defendants violated section 22-63-203.5.

Fourth, we discuss the exclusive means by which the Poudre

Defendants could avoid the mandate of section 22-63-203.5. Fifth,

we consider the Poudre Defendants’ local control argument. We

then apply these analyses in determining whether the district court

erred in granting summary judgment to the Poudre Defendants on

Stanczyk and the Association’s declaratory judgment claims.

A. The Nonprobationary Portability Statute

1. Rules of Statutory Interpretation

¶ 56 The meaning of section 22-63-203.5 is a question of law that

we review de novo. Wolf Ranch, LLC v. City of Colorado Springs, 220

P.3d 559, 563 (Colo. 2009).

¶ 57 When we interpret a statute, “[w]e begin with the statutory

language itself and give the text its ordinary and commonly

accepted meaning.” Rooftop Restoration, Inc. v. Am. Family Mut. Ins.

Co., 2018 CO 44, ¶ 12, 418 P.3d 1173, 1176. “The language at

issue must be read in the context of the statute as a whole and the

context of the entire statutory scheme. Thus, our interpretation

should give consistent, harmonious, and sensible effect to all parts

of a statute.” Jefferson Cty. Bd. of Equalization v. Gerganoff, 241

29
P.3d 932, 935 (Colo. 2010) (citations omitted). “A ‘cardinal principle

of statutory construction’ is that no clause, sentence, or word is

‘superfluous, void, or insignificant.’” Falcon Broadband, Inc. v.

Banning Lewis Ranch Metro. Dist. No. 1, 2018 COA 92, ¶ 31, ___

P.3d ___, ___ (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)).

2. Section 22-63-203.5 Requires School Districts to Provide
Nonprobationary Status to Qualified Teachers Who Submit the
Required Documentation

¶ 58 The plain language of section 22-63-203.5 grants qualified

teachers the sole discretion to exercise the right of nonprobationary

portability: “[U]pon providing [the Required Documentation], the

nonprobationary teacher . . . shall be granted nonprobationary

status in the hiring school district.” (Emphasis added.) Thus, if a

qualified teacher provides a school district with the Required

Documentation, the hiring school district must provide the teacher

with nonprobationary status. See Colo. Real Estate Comm’n v. Vizzi,

2019 COA 33, ¶ 27, ___ P.3d ___, ____ (explaining that, absent a

clear indication of contrary legislative intent, the word “shall” in a

statute means that the General Assembly intended the listed action

to be mandatory).

30
¶ 59 This statutory right belongs to any qualifying teacher who (1)

was “employed by a school district”; (2) is “subsequently hired by a

different school district” (called the “hiring school district”); and (3)

submits the Required Documentation. § 22-63-203.5.

B. The Poudre Defendants’ Use of the Restrictions

¶ 60 The parties’ summary judgment motions and briefs reflect no

dispute that the Poudre Defendants imposed the Restrictions on

Stanczyk and other similarly situated teachers. First, the School

District’s online AppliTrack application form required teachers to

acknowledge their waiver of the right to nonprobationary portability

by clicking the “I accept” button before they could submit the

application. In her deposition testimony and affidavit, Ms.

Thompson claimed that a teacher could ask the School District’s

human resources department to override AppliTrack and “allow the

teacher to submit the application without agreeing to the waiver

provision.”

¶ 61 Yet the record shows that neither the AppliTrack form nor the

School District’s website indicated that a teacher could apply for a

job without waiving the right to nonprobationary portability or how

the teacher could do so. Thus, the record shows only that a teacher

31
must agree to waive nonprobationary portability to submit the

online application. The information the School District presented to

the public created the impression, intentionally or otherwise, that

the School District did not permit teachers to exercise the right to

nonprobationary portability.

¶ 62 Second, the School District used a form employment

agreement stating that, by signing, the teacher “voluntarily waived

[his or her] right” to assert nonprobationary portability and that the

contract is “voidable at the option of the [School District]” if the

teacher asserted the right to nonprobationary portability.

¶ 63 Although the parties disagree whether a teacher can

circumvent the Restrictions, there is no dispute that the Poudre

Defendants used the Restrictions to require teachers to relinquish

the right to nonprobationary portability as a condition of

employment. Even if teachers could somehow apply for

employment with the School District without agreeing to the waiver

language in the AppliTrack form, the Poudre Defendants would still

retain, through the form employment agreement, the power to hire

only those teachers who surrendered their right to nonprobationary

portability.

32
C. The Poudre Defendants’ Use of the Restrictions Violates
Section 22-63-203.5

¶ 64 A school district may not unreasonably restrict a teacher’s

exercise of the right to nonprobationary portability under section

22-63-203.5. The Poudre Defendants’ use of the Restrictions is

unreasonable because it reverts the portability decision from the

teacher back to the school district, thereby writing section

22-63-203.5 out of the statute book.

¶ 65 Before the General Assembly adopted section 22-63-203.5, if

an experienced teacher who had achieved nonprobationary status

wanted to accept a position with a different school district, the

teacher had no choice but to relinquish his or her nonprobationary

status (and the associated protections) — and start anew as a

probationary teacher — unless the hiring school district offered the

teacher a nonprobationary position. The decision whether the

teacher would receive nonprobationary status in the hiring school

district exclusively belonged to the hiring school district.

¶ 66 Section 22-63-203.5 changed the law by giving the teacher the

sole power to exercise the right of portability. But the statute has

significance only if teachers retain this power.

33
¶ 67 The Poudre Defendants’ use of the Restrictions enables them

to choose which of the School District’s teachers, if any, may enjoy

the benefits of 22-63-203.5 or even deny employment to all teachers

who try to exercise their right to nonprobationary portability. The

AppliTrack form, at best, discourages teachers from exercising their

right to nonprobationary portability. The School District’s form

employment contract, however, empowers the School District to

render a teacher’s employment contract void if the teacher attempts

to benefit from his or her statutory right to nonprobationary

portability.

¶ 68 For these reasons, we conclude that the Poudre Defendants’

use of the Restrictions violates section 22-63-203.5. Our holding is

narrow. Because we conclude the Poudre Defendants’ use of the

Restrictions is unlawful, we need not address the circumstances, if

any, under which a teacher — undeterred by the Restrictions — can

voluntarily waive the right to nonprobationary portability. See

Ritter v. Jones, 207 P.3d 954, 961 (Colo. App. 2009) (“[W]aiver of a

statutory protection must be voluntary.”). Nor need we consider

whether a school district may place reasonable restrictions, such as

34
a deadline to request nonprobationary status, on a teacher’s

exercise of the right to nonprobationary portability.

D. A School District May Obtain an Exemption from Section
22-63-203.5’s Mandate from the State Board of Education

¶ 69 The Poudre Defendants are not left without a remedy if they

wish to deny the right to nonprobationary portability to their

teachers. As discussed in Part I.D above, section 22-2-117

authorizes the State Board of Education to balance the school

district’s right to local control against a statewide mandate. If the

Poudre Defendants can satisfy the statutory criteria for obtaining

an exemption from the mandate set forth in 22-63-203.5, the State

Board of Education may grant such an exemption.

¶ 70 The enactment of the statute authorizing the State Board of

Education to exempt school districts from statewide statutory

mandates means that school districts may not deny teachers a right

guaranteed by statute without obtaining the State Board of

Education’s authorization. See People in Interest of R.J., 2019 COA

109, ¶ 8, 451 P.3d 1232, 1235 (explaining that the inclusion of

certain terms in a rule or statute implies the exclusion of others).

Thus, an exemption from the State Board of Education is the

35
exclusive means by which the Poudre Defendants may avoid

compliance with section 22-63-203.5. (The parties’ summary

judgment motions and briefs do not indicate whether the Poudre

Defendants sought the State Board of Education’s authorization to

circumvent section 22-63-203.5’s mandate.)

E. The Poudre Defendants’ Prerogative of Local Control Does Not
Include the Authority to Disregard the Statewide Statutory
Mandate of Nonprobationary Portability

¶ 71 The Poudre Defendants’ local control argument is

unconvincing. The Poudre Defendants argue that “holding

portability to be inalienable would fully usurp the [School] District’s

power to offer employment on the terms and conditions it deems

appropriate” and, therefore, would violate the Poudre Defendants’

prerogative of local control.

¶ 72 Local control does not permit a school district to ignore a

statewide statutory mandate without obtaining an exemption from

the State Board of Education. Taken to its logical extreme, the

Poudre Defendants’ argument would allow every school district in

Colorado to ignore section 22-63-203.5 — or any other statewide

statutory mandate. To paraphrase Justice Cardozo, this would

36
result in local control run riot. See A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495, 553 (1935) (Cardozo, J., concurring).

F. The Association, But Not Stanczyk, Is Entitled to Summary
Judgment on the First Claim for Declaratory Judgment

¶ 73 Stanczyk and the Association seek a declaratory judgment

that the Poudre Defendants must grant Stanczyk and similarly

situated teachers nonprobationary status if they provide the Poudre

Defendants with the Required Documentation. Given our

determination that the Poudre Defendants’ use of the Restrictions

violates section 22-63-203.5, we hold that the Association is

entitled to summary judgment on the First Claim for Declaratory

Judgment. The nonprobationary portability statute makes clear

that, if a qualified teacher complies with the requirements for

nonprobationary portability, the Poudre Defendants must grant the

teacher that status. It logically follows that the Poudre Defendants

cannot place unreasonable roadblocks in the path of a teacher’s

exercise of the right to nonprobationary portability.

¶ 74 Stanczyk is not entitled to summary judgment on the First

Claim for Declaratory Judgment, however, because the record

reflects disputed issues of material fact as to whether she provided

37
the School District with the Required Documentation. See Dep’t of

Nat. Res. v. 5 Star Feedlot Inc., 2019 COA 162M, ¶ 37, ___ P.3d ___,

___ (holding that the Court of Appeals may direct entry of summary

judgment in favor of the moving party where the non-moving party

did not come forward with evidence demonstrating a genuine issue

of material fact).

¶ 75 Section 22-63-203.5 states that a nonprobationary teacher

“may provide to the hiring school district evidence of his or her

student academic growth data and performance evaluations for the

prior two years for the purposes of retaining nonprobationary

status.” § 22-63-203.5 (emphasis added). Stanczyk alleges that

she provided the School District with the required student academic

growth data and performance evaluations. The Poudre Defendants,

however, contend that Stanczyk “failed to provide evidence of

student academic growth data from her prior two years.” Stanczyk

counters that her evaluations included “student academic growth

data” because these scores accounted for “50% of [her] overall

evaluation score as required by [statute].”

¶ 76 This factual dispute precludes resolution of the First Claim for

Declaratory Judgment on summary judgment as to Stanczyk.

38
¶ 77 In sum, we reverse the district court’s award of summary

judgment to the Poudre Defendants on Stanczyk and the

Association’s First Claim for Declaratory Judgment. We hold that

the Association is entitled to summary judgment on the First Claim

for Declaratory Judgment and that disputed issues of material fact

preclude the entry of summary judgment in favor of any party on

the First Claim for Declaratory Judgment as to Stanczyk.

G. Stanczyk and the Association Are Entitled to Summary
Judgment on Their Second Claim for Declaratory Judgment

¶ 78 Stanczyk and the Association seek a declaratory judgment

that the Poudre Defendants’ use of the Restrictions is unlawful.

Based on our determination that the Poudre Defendants’ use of the

Restrictions violates section 22-63-203.5, we hold that the district

court erred in granting summary judgment to the Poudre

Defendants on the Second Claim for Declaratory Judgment, and

that Stanczyk and the Association are entitled to summary

judgment on this claim.

39
VI. We Affirm the District Court’s Award of Summary Judgment to
the Poudre Defendants on Stanczyk and the Association’s
Remaining Claims

A. Mandamus Relief

¶ 79 A party may obtain mandamus relief only if other relief is

unavailable. See Gandy v. Williams, 2019 COA 118, ¶ 24, ___ P.3d

___, ___. Because we hold that Stanczyk is entitled to summary

judgment on the Second Claim for Declaratory Judgment, she may

not obtain mandamus relief. Thus, while our reasoning differs from

that of the district court, we affirm the district court’s holding that

the Poudre Defendants are entitled to summary judgment on

Stanczyk’s mandamus claim. See Steamboat Springs Rental &

Leasing, Inc. v. City & Cty. of Denver, 15 P.3d 785, 786 (Colo. App.

2000) (“An appellate court may affirm a correct judgment based on

reasoning different from that relied on by the trial court.”).

B. Breach of Statutory Contract

¶ 80 Stanczyk asserts that, by operation of law, section

22-63-203.5 creates a contract between her and the School District,

and that the School District breached such contract. We disagree.

¶ 81 In Masters, the Colorado Supreme Court analyzed when

provisions of the education statutes create a statutory contract

40
between teachers and their school districts. Masters, ¶ 22, 413

P.3d at 729. The court explained that, in prior education statutes,

the General Assembly had indicated its intention to grant teachers

statutory contract rights. Id. In TECDA, however, the General

Assembly removed

key language from TECDA’s predecessor
statute . . . . Whereas [the Teacher
Employment, Dismissal, and Tenure Act of
1967 (TEDTA)] made pervasive use of the term
“tenure,” TECDA omits it entirely. And
whereas TEDTA provided that under certain
circumstances a teacher is “entitled to a
position of employment as a teacher,” TECDA
uses no such entitlement language.

Id. at ¶¶ 20-21, 413 P.3d at 729 (citations omitted). The court,

therefore, concluded that “TECDA did not create a contractual

relationship” between teachers and their school districts. Id. at

¶ 22, 413 P.3d at 729. Because section 22-63-203.5 appears in the

same title and article of the Colorado statutes as TECDA, we

conclude that the nonprobationary portability statute also does not

create a statutory contract.

C. Due Process

¶ 82 Stanczyk contends that the Poudre Defendants violated her

due process rights by depriving her of a property right without

41
proper notice and an opportunity to be heard. “The United States

Constitution prohibits states from depriving any person of property

without due process of law.” Johnson, ¶ 25, 413 P.3d at 718 (citing

U.S. Const. amend. XIV). Therefore, if, as Stanczyk contends,

Colorado’s nonprobationary teachers have a property interest in

continued employment, the General Assembly could not deprive

them of that interest without due process.

¶ 83 The Colorado Supreme Court, however, has explained that

“because TECDA eliminated the word ‘tenure’ and other entitlement

and durational language, a nonprobationary teacher has no vested

property interest in salary and benefits.” Id. at ¶ 24, 413 P.3d at

717-18.

¶ 84 Stanczyk attempts to distinguish the court’s holding in

Johnson by arguing that the right to nonprobationary portability is

a different type of property right from “salary and benefits,” and

that the word “shall” in section 22-63-203.5 suggests the type of

durational language used in the earlier tenure statutes. We

disagree.

¶ 85 The use of “shall” alone did not create an entitlement in those

statutes; rather, the word established the property right only when

42
used in context. The Johnson court explained that “TEDTA

guaranteed that a tenured teacher ‘shall be entitled to a position of

employment as a teacher.’” Id. (quoting § 22-63-115, C.R.S. 1988).

The court concluded that the removal of this language from the

education statutes demonstrated the General Assembly’s intent to

eliminate that expectancy. Id. Thus, we conclude that Stanczyk’s

due process claim fails as a matter of law.

D. Violation of the Thorough and Uniform Clause

¶ 86 Stanczyk and the Association claimed that the Poudre

Defendants’ refusal to allow teachers to exercise the right of

nonprobationary portability violates the Thorough and Uniform

Clause. As the district court noted, however, they did not provide

any support for this position in their motion for summary

judgment. For this reason, the district court granted summary

judgment in favor of the Poudre Defendants on this claim. We

agree and affirm the district court’s decision on Stanczyk and the

Association’s claim arising under the Thorough and Uniform

Clause. See Armed Forces Bank, N.A., ¶ 38, 365 P.3d at 386.

43
VII. Conclusion

(1) We affirm the district court’s determination that Stanczyk

has standing to assert all six of her claims and the

Association has standing to join in Stanczyk’s declaratory

judgment claims and claim arising under the Thorough

and Uniform Clause.

(2) We affirm the district’s court award of summary

judgment in favor of the Poudre Defendants on

Stanczyk’s claims for breach of statutory contract, due

process, and mandamus relief.

(3) We affirm the district’s court award of summary

judgment in favor of the Poudre Defendants on Stanczyk

and the Association’s claim arising under the Thorough

and Uniform Clause.

(4) We reverse the district court’s award of summary

judgment in favor of the Poudre Defendants on Stanczyk

and the Association’s claims for declaratory judgment.

(5) We conclude that disputed issues of material fact

preclude the award of summary judgment to any party

44
on the First Claim for Declaratory Judgment as to

Stanczyk.

(6) We remand for further proceedings consistent with this

opinion, including (a) entry of summary judgment in

favor of the Association on the First and Second Claims

for Declaratory Judgments, (b) entry of summary

judgment in favor of Stanczyk on the Second Claim for

Declaratory Judgment, and (c) a trial on the merits on

the First Claim for Declaratory Judgment as to Stanczyk.

JUDGE WEBB and JUDGE DUNN concur.

45