Colorado Education Association v. Colorado State Board of Education.
2025 COA 56. No. 24CA1085. Licensed Personnel Performance Evaluation Act—Performance Evaluation Ratings for Teachers—Process for Nonprobationary Teacher to Appeal Second Consecutive Performance Evaluation Rating of Ineffective or Partially Ineffective—Deference Accorded to Agency Interpretation of Its Statute—Burden of Proof.
June 12, 2025
In 2010, the General Assembly enacted SB 10-191, which established a performance evaluation system that sorts teacher performance according to whether it demonstrates effectiveness or ineffectiveness. A teacher who demonstrates effectiveness for three consecutive years achieves nonprobationary status, which has more robust job protections than probationary status. But if a teacher who obtains nonprobationary status gets a rating that demonstrates ineffectiveness for two consecutive years, they lose their nonprobationary status and are returned to probationary status. The legislative scheme also expressly created two performance standards demonstrating effectiveness, “highly effective” and “effective,” and one performance standard demonstrating ineffectiveness, “ineffective.” But the statute also provides that the three prescribed performance standards are not an exhaustive list, and it explicitly authorizes the Colorado State Board of Education (board), in consultation with a council of educators appointed by the governor, to create additional performance standards. Further, the statute instructed the board to create and implement an appeal process for nonprobationary teachers who have received two consecutive ratings demonstrating ineffectiveness, and to promulgate rules. The board then adopted Department of Education Rule 3.3(B), which defines the three prescribed performance standards as well as a fourth performance standard, “partially effective,” defined as one of two ratings demonstrating ineffectiveness; and Rule 5.4., which limits the grounds for appealing a rating demonstrating ineffectiveness. Rules 3.3 and 5.4 survived a special legislative rule-review process separate from the annual rule review bill and became effective February 15, 2012.
In 2023, the board proposed non-substantive changes to Rules 3.3 and 5.4, such as renumbering for “clarity and consistency.” The Colorado Education Association (CEA) objected to Rules 3.3 and 5.4 and proposed substantive amendments to them. The board didn’t adopt any of the CEA’s requested changes, and the updated rules became effective on June 20, 2023. The CEA filed a suit challenging Rules 3.3 and 5.4 as being beyond the board’s statutory authority. The district court found that the CEA failed to meet its burden to prove that the two rules were invalid and denied its petition for review.
On appeal, the CEA asserted that the degree of deference the court of appeals should give the board in interpreting its statute was dramatically lowered by Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which overruled in part Chevron, USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), overruled in part by Loper, 603 U.S. 369. However, the Colorado Supreme Court has stated that Colorado’s framework for according deference when reviewing state-agency rulemaking is different than Chevron’s, and Loper does not call into question the propriety or constitutionality of Colorado’s framework.
On the merits, the CEA argued that by adopting Rule 3.3, the board exceeded its statutory authority because Rule 3.3 is contrary to the unambiguous language of CRS § 22-63-103(7). The CEA maintained that the board is authorized to create only additional categories of effectiveness, not new categories of ineffectiveness that could lead to a loss of nonprobationary status. However, the board’s adoption of Rule 3.3 was within the scope of its delegated authority, and the rule’s definition of “partially effective” as a rating demonstrating ineffectiveness isn’t contrary to the plain and unambiguous language of the statute. Therefore, the district court correctly denied the Rule 3.3 challenge.
The CEA also argued that the board exceeded its statutory authority by adopting Rule 5.4 because by limiting the grounds for appeal, the rule violates the statutory requirement that the appeals process must provide a teacher with the opportunity to demonstrate that they deserved an effective rating. Rule 5.4 allows only two grounds for a teacher to appeal an ineffectiveness rating: (1) the evaluator did not follow proper evaluation procedures, and (2) the data the evaluator relied on was for a different teacher. The court determined that Rule 5.4 does not violate the § 22-9-106(4.5)(b) requirement that the appeals process provide the teacher with an opportunity “to demonstrate that a rating of effectiveness was appropriate” because this language does not grant a teacher a broad right for an opportunity to demonstrate effectiveness on appeal; rather, it describes the teacher’s burden of proof in an appeals process established by the board. Second, viewing § 22-9-106(4.5)(b) together with Rule 5.4(A)(7) shows that the board acted within the scope of its delegated authority. And third, the legislature clearly delegated to the board the task of creating an appeals process, including the grounds on which an appeal could be made. Therefore, the CEA failed to show that the board exceeded its statutory authority in adopting Rule 5.4, and the district court properly denied its petition challenging the rule.
The judgment was affirmed.