Colorado Court of Appeals reverses lower court, upholds constitutionality of Douglas County School Choice program

The Colorado Court of Appeals reversed a lower court ruling and upheld the constitutionality of the Douglas County School Choice program in a ruling issued today (Thursday, 28 February 2013).

The Colorado Court of Appeals ruling in the case (Court of Appeals Nos. 11CA1856 & 11CA1857, “Taxpayers for Public Education v. Douglas County Board of Education”) struck down the Denver District court ruling that had permanently enjoined implementation of the Douglas County “Choice Scholarship Program” (a program providing scholarships for tuition at private or charter schools of the parents’ choice) on claims that the program violated the Colorado Public School Finance Act of 1994 and various provisions of the Colorado Constitution.  The higher court rejected both the plaintiffs’ standing to bring the suit in the first place, and the plaintiffs’ claims of constitutional violations – a resounding rebuttal to the lower court:

We conclude that plaintiffs do not have standing to seek redress for a claimed violation of the Act, and that the CSP does not violate any of the constitutional provisions on which plaintiffs rely.  Therefore, we reverse the district court’s judgment and remand the case for entry of judgment in defendants’ favor.

The court’s ruling does not come as a surprise (indeed, the Clear The Bench Colorado analysis of last November’s oral arguments before the Court of Appeals forecast a win for the appellants) but the extent of the higher court’s repudiation of Denver District Court Judge Michael Martinez is striking, particularly on the issue of the plaintiffs’ standing to bring suit under the School Finance Act:

The district court recited these factors but did not engage in any substantive analysis of them. Instead, the court conclusorily ruled that certain plaintiffs’ status as District students and parents of District students “confers a legal interest in the enforcement of the statutes enumerated in their claims.” In so ruling, the district court erred.

There is nothing in the language of the Act remotely suggesting that private citizens or groups have a right to seek judicial enforcement of its provisions.

The appeals court addressed – and resoundingly rejected – each of the plaintiffs claims alleging constitutional violations:

For clarity of analysis, we divide plaintiffs’ claims into three groups: (1) claims alleging violations of statutory and constitutional provisions which concern state schools generally – the Act and article IX, sections 2, 3, and 15; (2) claims alleging violations of constitutional provisions which concern aid to or support of religion and religious organizations – article II, section 4, and article IX, sections 7 and 8; and (3) the claim alleging a violation of article V, section 34, which concerns appropriations generally and appropriations to religious organizations specifically.

Claims based on the School Finance Act were rejected due to the plaintiffs lack of standing to bring a complaint in court, as noted above.

Claims that the “Choice Scholarship Program” violated the Colorado Constitution Article IX, Section 2 (“Thorough and Uniform System of Free Public Schools”) were also rejected by the Court of Appeals.

Interestingly, the court affirmed the role and responsibility of the elected school board as the presumptive constitutional authority in determining educational structure and content:

Pursuant to article IX, section 15 of the Colorado Constitution, the General Assembly created local school districts governed by boards of education. The directors of the boards are elected by qualified district electors, and “have control of instruction in the public schools of their respective districts.”

The court broadly rejected the plaintiffs claims of an Article IX Section 2 violation in no uncertain terms:

Plaintiffs misapprehend the constitutional mandate. It requires that a thorough and uniform system of free elementary through high school education be made available to students between the ages of six and twenty-one. See Lujan v. Colo. State Bd. of Educ., 649 P.2d 1005, 1025 (Colo. 1982) (this provision “is satisfied if thorough and uniform educational opportunities are available through state action in each school district”);

It plainly is not violated where a local school district decides to provide educational opportunities in addition to the free system the constitution requires. [emphasis added]

The court similarly rejected claims of a violation of Article IX, Section 3 (“Use of the Public School Fund”):

Article IX, section 3 requires only that money from the public school fund be “expended in the maintenance of the schools of the state” and “distributed amongst the several counties and school districts of the state, in such manner as may be prescribed by law.” It plainly applies to distributions made by the state, not local districts. And it requires distributions to the counties and school districts. Upon distribution by the state to the counties and school districts, the money from the fund belongs to the counties and school districts. Craig v. People in Interest of Hazard, 89 Colo. 139, 144-45, 299 P. 1064, 1066 (1931). [emphasis added]

The court similarly rejected claims of a violation of Article X, Section 15 (“Local Control”):

Further, the provision does not relate to instruction in private schools. As discussed above, participating private schools retain their character as private, not public, schools. It follows that article IX, section 15 does not apply to the CSP.

The court directed a significant amount of attention to plaintiffs claims that the CSP violated constitutional provisions restricting state support of religious institutions – and likewise rejected those claims:

The Colorado Constitution contains a number of provisions addressing the relationship between state government and citizens, on the one hand, and religion generally and religious institutions, on the other hand. Some of these provisions pertain to support for religion and religious institutions. Four are at issue here: article II, section 4; article V, section 34;12 and article IX, sections 7 and 8.

Based on analysis of the Colorado constitutional language alone, the court determined

we conclude that the CSP does not violate any of the subject provisions.

In order:

1. Article II, § 4 – Required Attendance or Support

Citing a similar grant program for higher education, since the CSP was “designed for the benefit of the student, not the educational institution” and “is available to all District students and to any private school which meets the neutral eligibility criteria” it did not violate the constitutional prohibition on state support of religious institutions.  The court further noted that inquiries into “the degree to which religious tenets and beliefs are included in participating private schools’ educational programs – is no longer constitutionally permissible” and, “Doing so violates the First Amendment,” concluding, “Simply put, a government may not choose among eligible institutions “on the basis of intrusive judgments regarding contested questions of religious belief or practice.”

The court rejected the plaintiffs claims that the CSP “required attendance” at religious instruction on its face, stating:

the fact remains that the CSP does not compel anyone to do anything, much less attend religious services. No student is compelled to participate in the CSP or, having been accepted to participate, to attend any particular participating private school. To the extent students would attend religious services, they would do so as a result of parents’ voluntary choices. Article II, section 4 clearly does not proscribe such choices.

2. Article IX, § 7 – No Aid to Religious Organizations

The district court ruled that the CSP violates this provision essentially for the same reasons it found a violation of article II, section 4. And essentially for the same reasons we have concluded that the CSP does not violate article II, section 4, we conclude that it does not violate article IX, section 7.2

Since the CSP “is intended to benefit students and their parents, and any benefit to the participating schools is incidental…”

“Such a remote and incidental benefit does not constitute . . . aid to the institution itself within the meaning of Article IX, Section 7.”  Zelman, 536 U.S. at 652

The court noted that “The CSP is neutral toward religion,and funds make their way to private schools with religious affiliation by means of personal choices of students’ parents.”

The majority opinion even gets in a dig at the dissenting opinion on this issue:

That reasoning, which is typical of the reasoning in the cases on which the dissent relies, is flatly at odds with our supreme court’s reasoning in Americans United, in which the court deemed the neutral character of the grant programs as essentially determinative.

3. Article IX, § 8 – Religion in Public Schools

The Court of Appeals noted that “this provision plainly applies to “public educational institution[s]” and “public school[s]” and rejected the district court’s (and plaintiffs) convoluted attempts to construct a public character for the private schools within the CSP.

The district court failed sufficiently to account for the fact that attendance at any of the participating private schools is not required by the CSP; such attendance is by parental choice. Moreover, as discussed above, participation in the CSP does not transform private schools into public schools.

Finally, the court’s ruling addressed plaintiffs’ claims that other constitutional provisions were violated by the school choice program.

The Denver District court ruling held that the CSP violated the Colorado Constitution’s Article V, § 34 – Prohibited Appropriations by interpreting a payment of state funds to private schools as an “appropriation” to “entities not under absolute state control” – including entities with a religious character.  The Court of Appeals rejected the district court judge’s reasoning, noting that “[t]he district court misconstrued the provision.”

Article V, section 34 is part of article V of the Colorado Constitution, which deals with the structure and powers of the General Assembly. See, e.g., art. V, § 1(1). Article V includes two provisions dealing with appropriations, sections 32 and 34. The appropriations encompassed by those sections clearly are appropriations by the General Assembly itself.

Since the funds are actually allocated by the school district, NOT the state directly,

No such disbursement would occur under the CSP. The General Assembly appropriates state money for elementary and secondary education to the Colorado Department of Education, which in turn distributes it to local school districts in the form of total per pupil revenue. At that point, ownership of the funds passes to the local school districts. Craig, 89 Colo. at 144-45, 299 P. at 1066; see § 22-54-104(1)(a). The District’s expenditure of funds under the CSP, therefore, does not constitute an appropriation by the General Assembly.

Since “the purpose of the [CSP] is to aid students and parents, not sectarian institutions.”

Any benefit to the participating private school is incidental, occasioned by the individual choices of students’ parents.


Plaintiffs failed to carry their burden of proving the unconstitutionality of the CSP beyond a reasonable doubt, or by any other potentially applicable standard. None of them have standing to assert a claim under the Act. Accordingly, the district court’s judgment cannot stand.

The judgment is reversed, and the case is remanded to the district court for entry of judgment in defendants’ favor.

Since both sides in the case have signaled their intent to appeal if not satisfied with the verdict, the ultimate resolution of the case will fall to the Colorado Supreme Court – most likely (the wheels of justice grind slowly) in another year or more.

 Additional References:

Clear The Bench Colorado‘s analysis of oral arguments before the Colorado Court of Appeals
(20 November 2012)

For another analysis of last November’s oral arguments (with more emphasis on policy implications over legal issues), read Education Policy Analyst Ben DeGrow’s superb summary.

Click here for a comprehensive review of the Douglas County Choice Scholarship Program (including program information, video and audio interview and news clips, news and commentary highlights and links to many legal documents in the case)

Bottom Line:
The Douglas County case also touches upon important constitutional issues such the separation of powers between branches and levels of government, establishment of religion, and collection and allocation of tax dollars, but ultimately comes down to a very basic and fundamental issue:
who decides how to educate Colorado’s children?

Clear The Bench Colorado believes that the decision should be in the hands of parents – NOT in the hands of the courts.

Cases such as this 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.

2 Responses to Colorado Court of Appeals reverses lower court, upholds constitutionality of Douglas County School Choice program

  • Mel Hilgenberg says:

    Matt Arnold for the Thomas Paine of this era! Douglas County BOE for the first Committee of Correspondence in the New American Revolution to reinstate the Constitutional rule of law with back pay. Who is education for? Students. Who should decide what that is? Their parents. Talk about revolutionary! Now, if they’d add home schoolers to the mix……

Leave a Reply

Your email address will not be published. Required fields are marked *