Monday Media Review: School choice, school funding lawsuits highlight courts’ inappropriately rising role in education policy

Continuing coverage of the pair of lawsuits seeking to have the courts decide educational policy in Colorado (the Douglas County school choice case, and the Lobato statewide educational funding case) over the weekend highlights the increasing role of the courts (as opposed to elected school boards, or the state legislature in whom constitutional authority for making education policy & resourcing decisions is vested) in deciding how – and under what conditions –  our children receive an education.

Friday’s Denver Post published a guest commentary (“Lobato case is crucial to education“) that was nothing more than a special-interest plea for more money (that the state does not have) by the same people (a pair of school superintendants) who in one breath admit that “we find ourselves failing” but blame their failure solely on a “lack of resources” (never mind the successful accomplishments of other schools, particularly – but not only – charter and private schools less dependent on state funding).

The guest commentary fails utterly to substantiate a link between educational funding and performance, and fails to make the case for how “Colorado’s school funding system… is constitutionally inadequate” – since the Constitution leaves such questions of policy up to the state legislature, NOT the courts.

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).

The authors are correct in one regard:

In terms of the future of public education, Lobato is the most important case ever tried in Colorado.

If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.

  • Douglas County school choice lawsuit:

Saturday’s Colorado Springs Gazette editorial (“Backward voucher ruling favors oppression“) was a scathing indictment of Denver District judge Michael Martinez’ ruling to stop the Douglas County school choice program via permanent injunction, calling it “a decision to segregate and oppress.”

The editorial correctly points out a fatal flaw in Judge Martinez’ ruling, which ignored governing constitutional precedent (Zelman v. Simmons-Harris, No. 00-1751, decided 27 June 2002, U.S. Supreme Court) holding that voucher programs did NOT violate the U.S. Constitution’s Establishment Clause:

In Colorado, education money attaches to children. With each child who enrolls, a public school gets more than $6,000 for the year.

Vouchers issue the money to parents. At that point, the money belongs to the parent and child. They are free to spend it at almost any accredited school, religious or otherwise.

The key point – that educational choice belongs to the parent, not to the government (especially, not to the courts) – bears repeating:

Once state money is converted to a voucher and given to a child, it’s no longer the government’s. It belongs to the child, who is subject to the will of a parent or guardian. Parents and guardians have the right to choose whether their children are schooled in secular or religious settings.

The Gazette’s editorial concludes by endorsing an appeal to a higher court: “Let’s hope this ignorant, backward ruling is soon overturned.”

Sunday’s Denver Post editorial (“The latest hurdle for school choice“) chimed in with (surprising!) support for the Douglas County school choice program in principle, but sounded a more cautionary note on the prospects for appellate success:

And while Douglas County officials have said they intend to appeal Denver District Judge Michael A. Martinez’s ruling, the language of his opinion – along with the current makeup of the Colorado Supreme Court – does not leave much room for optimism.

The Post’s editors have a point – they certainly are intimately familiar with the political predilections of the Colorado Supreme Court, as they are the court’s current landlords (a possible factor in the Post’s non-coverage of last year’s judicial retention elections) – but if the DougCo school board first takes their case to the Colorado Court of Appeals, which has largely been a bright spot for actually upholding the law in Colorado – they may have a decent shot at success, and will in any case build up a good record for where the case may ultimately be decided in the U.S. Supreme Court.

Finally, this morning’s (Monday) Parker Chronicle (online) reported on the first step of the appeal process (“Douglas County School District launches appeal process“):

The district announced it filed a stay of the permanent injunction filed against its choice scholarship pilot program, designed to deliver school vouchers to 500 district students. The program was stopped on Aug. 12 with the decision by Denver District Court Judge Michael Martinez, who ruled it unconstitutional in part because it routes public education money to private, religious schools,
In a news release issued Aug. 19, the district calls its motion “the first legal step in a planned appeal” of Martinez’s ruling.

Clearly, the fight for choice – and control – of education in  Colorado’s courts is just beginning.

These cases highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government.  This is not it.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free –nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

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