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

The Colorado Supreme Court heard oral arguments last month (10 December 2014) on a challenge to the constitutionality of the Douglas County School Choice program, in what could be a precedent-setting case for school choice nationwide. Last month’s oral arguments took place just over two years after the Colorado Court of Appeals heard similar arguments in the preceding case, which resulted in 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”) issued on 28 February 2013, that 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 (ACLU, Americans United for the Separation of Church and State, various front groups and individuals affiliated with local, state, and national teacher’s union and other special-interest groups et al) have argued that the school choice voucher program violated the state School Finance Act and Colorado Constitution provisions prohibiting ”aid to or support of religion and religious organizations” with taxpayer funds. The Court of Appeals 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), holding that funds disbursed in such programs “benefit students and their parents, and any benefit to the participating schools is incidental…”  

Issues “Reframed”

The appeal to the Colorado Supreme Court “reframed” several issues and again attempted to re-argue the “benefit to religious organizations” claim previously rejected by the Court of Appeals.  The Colorado Supreme Court granted certiorari (agreed to review) six distinct issues or arguments advanced by the plaintiffs:

  • Standing to bring private action under the School Finance Act
  • Challenging the use of a “Charter School” administrative entity to channel CSP funds
  • Standard for challenging constitutionality (“presumptive” or “beyond reasonable doubt”)
  • “Diversion of funds” to schools controlled by churches or religious organizations
  • “Compelled-support” or “compelled-attendance” at religious services in some CSP-grant schools
  • Requirement for titular “charter/public” students to receive religious instruction in some schools


  • Standing to bring private action under the School Finance Act

The Colorado Court of Appeals had held that[t]here 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.”  Appellants conceded that the statutory language conferred responsibility for enforcement on the State Board of Education, but argued “collusion” between the SBE and the Douglas County School Board (because the SBE had responded to a DCSB request to review and offer an advisory opinion on the Choice Scholarship Program prior to implementation – despite the fact that offering such review and opinion is precisely one of the functions assigned to the SBE).  Appellants argued that because the State Board of Education did not act to challenge the program, the right of enforcement devolved to private parties – a position characterized as “backup surrogate standing?” by a visibly skeptical Justice Hobbs (generally considered part of the “liberal” wing of the court).  Remaining justices also appeared skeptical about any “private right of enforcement.”

Prognosis: Based on the arguments presented, questions by the justices, case filings, and previous rulings, Appellants seem unlikely to prevail on the “standing” issue – which could derail the entire appeal, preserving the lower court (Colorado Court of Appeals) ruling in favor of school choice.

  •  Challenging the use of a “Charter School” administrative entity to channel CSP funds

Appellants asserted that the CSP’s “Choice Charter School” – which the Douglas County School Board conceded was an “administrative convenience” – is invalid as a mechanism for funding student enrollment and attendance at other schools participating in the choice scholarship program, calling it a “sham” and a “false front” to enable public education funds to go to private partner schools.  Appellants claimed that the “Choice Charter School” failed to meet requirements of the School Finance Act and Charter School Act, and “the program therefore fails.”

Appellees countered that the construction of the program followed the rules and regulations promulgated by the State Board of Education, and the choice of how to set up the program fell under the purview of the elected school board.  Since enforcement of the rules is the “exclusive province” of the State Board of Education, there is no “private right of enforcement” on this claim, either.

Prognosis:  Again, given that regulatory responsibility and enforcement authority seems to lie exclusively with the SBE, which has accepted the CSP as compliant with legal requirements, this claim is likely to fail and the Colorado Supreme Court is likely to uphold the judgment of the Court of Appeals.

  •  “Diversion of funds” to schools controlled by churches or religious organizations

Appellants repeatedly referred to “depletion of resources” available for “public education” – an “export” of funds from Douglas County Schools “into the hands of private parties.”  Appellants maintained that the SFA and Colo. Constitution contain an “absolute prohibition on the use of funds for anything but public education.”  In sum, “public tax dollars can’t fund choice of parents to have their kids attend religious schools.”

Appellees countered that education funds are primarily to benefit students, not institutions – and that public education funding is tied to (and follows) students, per the SFA.  Appellees noted that funds are not diverted from any school district, and that the amounts available to parents/kids participating in the choice scholarship program are actually less than the “per-pupil” formula allows – which means that not only is there no diminution of funds available for “free public education” but that funds left available actually increase.

Prognosis: given the math, this is probably the weakest claim advanced in the appeal, and likely to fail.

  • Restrictions on “public funding” of schools with religious characteristics or under control of religious organizations (“No Aid” clauses of Colorado Constitution)

Appellants argued a “specific prohibition” of any aid or funding to schools with a religious character, including “teaching sectarian tenets” or religious institutional control.  These arguments mirrored those previously advanced before the Colorado Court of Appeals, and rejected by that court.

Appellees countered that other programs use public funds for private schools, including those of religious character, at various levels (such as the “Colorado Opportunity Fund” college scholarships).  Noting that the program is neutral with respect to religion and for a public purpose (education), it provides “no aid to religious institutions” but is for the benefit of students.  Appellees noted federal jurisprudence that singling out – for inclusion or exclusion – programs on the basis of religion violates both the Freedom of Exercise and Equal Protection clauses of the U.S. Constitution; one “can’t exclude religious groups from educational aid programs otherwise available to the public” (Everson v. BOE, 1947).  Moreover, since the choice of which school to attend using the “choice scholarship” is solely at the discretion of the parent, “the link between public funds and schools is broken if made by an individual’s choice.” (per the 2002 U.S. Supreme Court Zelman case)  Ultimately, the program enables public students making a private choice – a right secured under both the Colorado and U.S. Constitution.

Prognosis: Since little new argument on the “support to religious institutions” issue was advanced before the Colorado Supreme Court that differed substantially from arguments before the Colorado Court of Appeals, and since the appeals court ruling dealt with the issues so comprehensively in rejecting those arguments in their February 2013 ruling, it appears likely that the lower court’s ruling in this regard will be affirmed.

Summary Analysis:

It is interesting to note that the very definition of what constitutes “public” education arose multiple times, in questions from several justices.  In particular, several justices seemed to recognize (and the appellees also pointed out) that there is an ongoing “paradigm shift” and major changes in the delivery of education.  Several justices seemed at least willing to consider that the “old model of schools” is no long the only, or even dominant, option.  Some asked, concerning delivery of “public” education, if it’s necessary that “public” education MUST be in government schools?

The Colorado Supreme Court’s ruling in this case may go a long way towards answering that question.

Additional References:


One Response to Colorado Supreme Court hears appeal on constitutionality of Douglas County School Choice program

  • Theresa says:

    Common core money still follows the child even if they go to a private school, choice school and even with a voucher for all children have been made into Title I or educationally deprived (Anita Hoge, 2015). This is to confuse the voters to think that they are avoiding the Common Core push by the Federal government. Also our kids privacy will be open due to Obama unlocking the protections of Ferpa. 3rd parties can get information to include the identity theft predators; however this administration has no respect for American children.

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