Colorado Supreme Court takes appeal on constitutionality of Douglas County School Choice program

The Colorado Supreme Court announced Monday that it granted the petition for writ of certiorari (request to review an appeal) on the constitutionality of the Douglas County School Choice program.

The court’s long-expected decision to grant the review comes just over one year after an appellate court ruling that upheld the constitutionality of the Douglas County “Choice Scholarship Program” (Colorado Court of Appeals Nos. 11CA1856 & 11CA1857, “Taxpayers for Public Education v. Douglas County Board of Education”)  that had reversed a lower court ruling that had blocked implementation of the program in August 2011.

The legal battle over the constitutionality of the Douglas County “Choice Scholarship Program” – which allows K-12 students who reside in the Douglas County School District and have been enrolled in a Douglas County public school for at least one year to apply for a Choice Scholarship to attend the private or charter school of their choice – has gained national attention as the “ground zero” in the fight for school choice across the country.

Opponents of the school choice program (including the ACLU, Americans United for the Separation of Church and State, and a variety of front groups and individuals affiliated with local, state, and national teacher’s union and other special-interest groups) have argued that the school choice voucher program violated the state school finance act and provisions of the Colorado Constitution prohibiting “aid to or support of religion and religious organizations” with taxpayer funds.

However, the appellate court resoundingly rejected those arguments, relying not only on the clear language of the Colorado Constitution, but also upon relevant Supreme Court of the United States precedent in a similar case (Zelman v. Simmons-Harris, 2002).

The Appeals Court ruling stated that since the Choice Scholarship Program “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 “CSP is neutral toward religion,and funds make their way to private schools with religious affiliation by means of personal choices of students’ parents.”

As noted by Douglas County School District Board of Education Director Craig Richardson,

The Colorado Supreme Court’s decision to review the Court of Appeals decision in favor of DCSD “does not mean that the court disagrees with the Court of Appeals ruling,” Richardson said.

“It simply means that the court recognizes the importance of the case for our state and our country,” Richardson said.
(Colorado Supreme Court to Review Judicial Ruling that DCSD Scholarship Program is ConstitutionalColorado Observer, 17 March 2014)


Plaintiffs have until April 28th to file opening briefs in the appeal; respondents then have a month to file a response, after which plaintiffs have another month to reply.  Once all briefs and responses have been filed, the Colorado Supreme Court will set a date to hear oral arguments by both sides (so, it will be late Summer at the earliest, more likely early-to-mid Fall, before the case is presented to the court) and a ruling is unlikely to be issued until several weeks, even months, after that.

Based on the body of evidence presented in the trial court and appellate court arguments, the comprehensiveness and clarity of the analysis of constitutional and statutory issues in the appellate court ruling, and guiding Supreme Court precedent (Zelman) in a similar case, the new & improved (minus Mullarkey, Martinez, and Bender) Colorado Supreme Court is unlikely to reverse the substance of the Colorado Court of Appeals ruling (some technical issues, such as standing to bring the lawsuit, are subject to review as well).

Unfortunately, the implementation of a highly popular (and innovative) program to extend school choice in the 3rd-largest school district in the state, establishing a precedent for expanded educational opportunity for children across Colorado and nationwide, will have been delayed for several years, and at a significant cost (Note: the DCSD Board raised funds for the legal defense of the program through private contributions, not by using taxpayer money – learn more at Great Choice Douglas County).

 Additional References:

Clear The Bench Colorado analysis of Colorado Court of Appeals ruling (28 February 2013)

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 School Choice case not only may set a decisive precedent on parental choice in educating their children, it 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.


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