Colorado Supreme Court reverses Court of Appeals, strikes down Douglas County Choice Scholarship Program

The Colorado Supreme Court, in a stunning reversal of the Colorado Court of Appeals ruling from February 2013, declared the Douglas County School Choice Voucher Program a violation of the Colorado Constitution, in a ruling released earlier today (Monday, 29 June 2015).

The unusual plurality ruling (essentially, a 3 +1 vs. 3 judgment) in the case (13SC233, Taxpayers for Public Education v. Douglas County School District) split along the issues of whether the plaintiffs even had standing to bring the case on statutory grounds (a 6-1 majority held that they did not) and on whether the Choice Scholarship Program (CSP) violated the Colorado Constitution, Article IX Section 7 (prohibiting expenditure of public funds “to help support or sustain” certain schools).  Three of the Colorado Supreme Court justices (Chief Justice Rice, Justice Hobbs and Justice Hood) held that the CSP violated the Colorado Constitution; one (Justice Marquez) held that the CSP violated the School Finance Act on statutory grounds, and joined in the judgment.  Three justices (Justice Eid, joined by Justice Boatright and Justice Coats) agreed that the plaintiffs lacked standing on statutory grounds, and disagreed that the CSP was in violation of the Constitution.

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…”  

Majority Upholds Court of Appeals on “Standing to Sue” on Statutory Grounds

Interestingly, a strong majority on the court (6-1) upheld the Colorado Court of Appeals ruling that the plaintiffs lacked standing to bring suit on statutory grounds (relying on the School Finance Act) while it was “uncontested that Petitioners have taxpayer standing to raise their state constitutional challenges.” [Marquez Concurrence at 1] Only Justice Marquez, in a concurring opinion, held that “standing to sue” extended to statutory, as well as constitutional, grounds, stating:

I perceive no principled basis in our case law to draw distinctions between a taxpayer’s standing to bring a statutory claim as opposed to a constitutional claim.  Whether the expenditure allegedly runs afoul of a constitutional or a statutory provision, in the context of taxpayer standing the core legal interest at stake is identical: It is the taxpayer’s economic interest in ensuring that his tax dollars are expended in a lawful manner.   [Marquez Concurrence at 1]

Justice Marquez also held that the CSP violated the School Finance Act on statutory grounds alone, and thus would not rule on the constitutional issues, ensuring that only a plurality (rather than an actual majority) held the CSP in violation of the Colorado Constitution, concurring in the judgment only.

Plurality Holds CSP in Violation of Colorado Constitution

A mere plurality of three justices – Chief Justice Nancy Rice, retiring Justice Gregory Hobbs, and recently-appointed Justice William Hood III – held the Choice Scholarship Program violates the Colorado Constitution (specifically, Article IX Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden).

As a side note: Clear The Bench Colorado raised the issue of a potential conflict of interest with Hood ruling in cases brought by his former law partner, Marc Grueskin, at the time of Hood’s appointment to the Colorado Supreme Court by Governor Hickenlooper.  Grueskin was the attorney for amicus curiae National Education Association in this case, which should have at least raised the potential for Hood’s recusal, in whole or part, from the proceedings.  Not that ethical considerations hold much weight in Colorado courts.

The three-judge plurality held that the Choice Scholarship Program

1. “conflicts with the plain language of Article IX section 7
2. is “distinguishable” from “a grant program that awarded money to students attending religious universities” and
3. is not subject to case law precedent upholding similar programs on First Amendment grounds

Conflict with Article IX Section 7 “Plain Language”

The Colorado Constitution features broad, unequivocal language forbidding the State from using public money to fund religious schools; specifically,

Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose. [Art. IX Sec. 7]

The plurality, although admitting that “[t]o be sure, the CSP does not explicitly funnel money directly to religious schools, instead providing financial aid to students” [Ruling at 20], broadly held that “anything in aid of any religious institution” that in any way contributes to “help[ing] support or sustain any school… controlled by any church or sectarian denomination whatsoever” [Ruling at 20; emphasis added in the ruling] constitutes impermissible use of public funds for “sectarian purpose.”

The plurality similarly brushed aside objections that non-religious schools are among the options available in the CSP, and that selection of any particular school is entirely at the discretion of the students and parents:

It is true that the CSP does not only partner with religious schools; several Private School Partners are non-religious. The fact remains, however, that the CSP awards public money to students who may then use that money to pay for a religious education. In so doing, the CSP aids religious institutions.”  [Ruling at 21]

Americans United Grant Program Distinguishable?

A previous ruling by the Colorado Supreme Court (Americans United, etc v. State of Colorado) upheld the constitutionality of a scholarship grant program “that awarded public money to college students who attended religious universities” – which presumably should have constituted guiding precedent in this case, as well.  However, the plurality held that the Americans United case was sufficiently distinguishable from the CSP that it was “not dispositive of – and indeed has minimal bearing on – the present dispute.” [Ruling at 23]

The plurality notes the finding in Americans United that the grant program was “designed to assist the student, not the institution” (Id. at 1083) and continued: “[f]acially, that is true of the CSP as well. Yet in Americans United, we tethered this observation to the fact that grant recipients could not attend ‘pervasively sectarian’ institutions.” [Ruling at 24]

Note, however, that the 10th Circuit held that the “pervasively sectarian” distinction in Colorado’s scholarship programs violated the 1st Amendment.  Colorado Christian University v. Weaver, 534 F.3d 1245, 1250, 1263 (10th. Cir. 2008)

The plurality proceeded to note a number of other distinctions between CSIP (the college grant program at issue in Americans United) and the CSP, from the obvious (CSIP is for college, while CSP is for primary education) to the irrelevant (CSIP includes grants for tuition at public universities, a condition that does not apply to public primary schools) to the programmatic (CSIP bars reduction of college funds spent on students to offset grant money, while CSP has no explicit prohibition on offsets) to, finally, conditions on a university governing board’s membership (applying under CSIP, but not a CSP requirement).

Based on these distinctions, the plurality “reject Respondents’ argument that Americans United requires us to uphold the CSP.”

First Amendment Issues Inapplicable to Choice Scholarship Program?

Similarly, the plurality held that previous federal First Amendment case law applying to school choice programs – specifically, the 2002 U.S. Supreme Court Zelman case and the 2008 10th Circuit Colorado Christian University v. Weaver case – are not “availing” in this case.

The plurality held that since “section 7 is far more restrictive than the Establishment Clause regarding governmental aid to religion” then “Zelman’s reasoning, rooted in the Establishment Clause, is irrelevant to the issue of whether the CSP violates section 7.” [Ruling at 28]

In a rather interesting twist of logic, the plurality rejected the applicability of Colorado Christian v. Weaver on the basis of the court’s holding that “exclusion of ‘pervasively sectarian’ institutions constituted religious discrimination” – arguing that the holding “is simply inconsequential to the legality of the CSP, which does not distinguish among religious schools.” [Ruling at 29]

“Accordingly,” the plurality stated, “we conclude that both Zelman and Colorado Christian are inapposite to the present case. Therefore, our decision that the CSP violates section 7 does not encroach upon the First Amendment.” [Ruling at 31]

Three Justices Dissent

As occurs far too often in Colorado jurisprudence, to find the law one must read the dissent. Justice Allison Eid authored a strong dissent, joined by Justices Boatright and Coats.

Justice Eid’s dissent began by condemning the “breathtakingly broad interpretation” that Article IX Section 7 prohibitions extend to any expenditure even “incidentally or indirectly” benefiting religious schools, noting that such an expansive ruling would invalidate not only the CSP but “numerous other state programs” too:

“The plurality’s interpretation barring indirect funding is so broad that it would invalidate the use of public funds to build roads, bridges and sidewalks adjacent to such schools, as the schools, in the words of the plurality, “rely on” state-paid infrastructure to operate their institutions.”  [Dissent at 1]

Justice Eid asserted that Article IX Section 7 bars only public expenditures made “to help support or sustain” church or sectarian schools, and “does not suggest, as the plurality would have it, that any program that provides public money for other purposes – for example, to assist students – is constitutionally suspect simply because the funds indirectly or incidentally benefit church or sectarian schools.” [Dissent at 1]

She continues that “[s]uch a reading is contrary to Americans United for Separation of Church and State Fund Inc. v. State, 648 P.2d 1072, 1083 (Colo. 1982), in which we upheld a state grant program similar to the CSP on the ground that “the aid is designed to assist the student, not the institution.” [Dissent at 2]

Most importantly, Justice Eid notes that “Americans United mirrors long-standing Establishment Clause doctrine, under which a program “of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals” is “not readily subject to challenge” because the “circuit between government and religion [has been] broken.”  Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002).

Justice Eid notes that the plurality selectively excerpts words from Article IX Section 7 to expansively prohibit “any government expenditure that indirectly benefits religious schools” despite the fact that the actual language “bars the expenditure of public funds “to help support or sustain” certain schools” – and thus “does not suggest, as the plurality believes, that government funds that are directed to a student but happen to have an incidental beneficial effect on certain schools are also forbidden.” [Dissent at 3]

Indeed, as Justice Eid suggests, such an expansive interpretation would readily lead to the absurd result that any expenditure of public funds whatsoever – including, as noted above, any public infrastructure such as roads or bridges which could indirectly benefit such institutions – would be prohibited.

Justice Eid noted that the U.S. Supreme Court ruled in Zelman that “such incidental advancement is ‘reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits” and was likewise consistent with the Colorado Supreme Court’s own previous ruling in Americans United :

“Such a remote and incidental benefit,” … “does not constitute, in our view, aid to the institution itself within the meaning of Art. Ix Section 7.”  Americans United  at 1083-84  [emphasis added in dissent, at 4]

Justice Eid continued to note that “much of what the plurality relies on to distinguish Americans United from this case has been rendered unconstitutional by subsequent developments in the law. See Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1269 (10th Cir. 2008) (striking down the portion of the state grant program at issue in the Americans United case that precluded aid to “pervasively sectarian” institutions as unconstitutionally discriminatory among religions and as unconstitutionally invasive of religious belief and practice).  [Dissent, footnote 2 at 7]

Our View:

The Colorado Court of Appeals, as we previously noted, got it right two years ago:

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 Colorado Supreme Court plurality stretched the prohibitions on government spending to “support or sustain” sectarian schools past the point of absurdity; applying the same logic found in their ruling, every conceivable expenditure of public funds could be challenged on the basis of providing “incidental or indirect” support to sectarian schools (which could certainly make for interesting fodder for anyone opposing any given state government program).

Sadly, this latest Colorado Supreme Court ruling reaffirms the court’s status as a judicial hellhole lacking respect for the rule of law and the constitutional rights of Colorado citizens.

Articles/Commentary:

• Colorado Supreme Court rejects Douglas County voucher program, Denver Post 29 June 2015
• Colorado Supremes Reject Dougco Choice Program, Education Policy Center 29 June 2015
• Colorado Supreme Court Rules Douglas County Vouchers Unconstitutional, Friedman Foundation for Educational Choice, 29 June 2015