Judge Stymies Douglas County School Choice – Again

The same Denver District Court judge who halted the Douglas County Choice Scholarship program five years ago (the Order Granting Permanent Injunction was issued 12 August 2011) stopped the successor program this month.

Denver District Court Chief Judge Michael Martinez ruled earlier this month to apply the permanent injunction in effect against the previous program against a new school choice program (the Choice Grant Pilot Program) approved in March by the school board (on a 4-3 vote). The new program was designed specifically to address the rationale used by the Colorado Supreme Court last year to ban the previous school choice program due to inclusion of religious (or “sectarian”) schools among those a parent could select.

Despite the lack of any religious or sectarian schools included in the new Choice Grant Pilot Program, the same opponents of school choice filed a lawsuit to stop the program (led by “Taxpayers for Public Education” and the American Civil Liberties Union) – decrying “use of public funds for private education.”

The lawsuit seeking to extend enforcement of the previous permanent injunction to the new program was actually the second lawsuit filed – another lawsuit was previously filed against the “new & improved” program alleging it is discriminatory for excluding religious schools from the program.  That lawsuit, filed in federal court by the Virginia-based Institute for Justice, was dismissed in July by U.S. District Court Judge Marcia Krieger, noting  “the law in this area is extremely unsettled” and the U.S. Supreme Court is considering a challenge to the Colorado Supreme Court ruling holding the original program unconstitutional.

The lawsuit leading to the permanent injunction took a somewhat convoluted path back to the courtroom of Judge Martinez.  The originally (randomly) assigned judge, Catherine Lemon, was recused “at the outset;” other judges rotated out; and the plaintiffs filed a motion requesting Judge Martinez, who been elevated to the Denver District Chief Judge, to assign the case to himself – which he did, on 24 June 2016 (exactly a month after the lawsuit was filed, and ten days after defendants filed their responses).  To call this unusual …would be an understatement.

Judge Martinez applied and enforced the original injunction against the Choice Scholarship Program (CSP) to the new School Choice Grant Program (SCGP) based on the argument that the new program “is in actuality a revision of the CSP:”

Plaintiffs assert, and Defendants do not contest, that there are only a few differences between the two programs: in the SCGP, vouchers are called grants instead of scholarships, religious schools cannot be private school partners, the fictional Choice Scholarship School is eliminated, and the percentage of “per pupil revenue” (“PPR”) which will be given out as a voucher is increased. Other than these few changes, the essence of the CSP substantially remains intact” (Order at 3)

Consequently, Judge Martinez held that because there is “no fundamental difference” between the programs, that the original injunction against the CSP could be applied to the SCGP.  Martinez acknowledged that “the Colorado Supreme Court focused its opinion on the issue of religious schools receiving public funding under article IX, section 7 of the Colorado Constitution and did not reach the remaining constitutional issues” but nonetheless applied the ruling to the new program lacking any such element because “the ultimate opinion of the Colorado Supreme Court was without limitation.” (Order at 4)

Therefore – despite the fact that the Colorado Supreme Court ruling (on an unusual 3-3-1 plurality split) striking down the original Choice Scholarship program did so entirely on the basis of alleging that the program ran afoul of the constitutional provision (described as a “Blaine Amendment”) prohibiting use of public funds “to help support or sustain any school… controlled by any church or sectarian denomination whatsoever” (Article IX, Section 7), and the complete absence of such elements in the SCGP – Judge Martinez ordered the CSP permanent injunction into effect against the SCGP and enjoining the Douglas County School Board from implementing the School Choice Grant Program.

So, school choice in Colorado (and nationwide) suffers a setback – at the hands of the same judge who dealt another setback five years ago.  It remains to be seen whether the setback is temporary, or more enduring; the U.S. Supreme Court may yet take up (and if it does, likely reverse) the appeal of the Colorado Supreme Court ruling striking down the original Choice Scholarship Program.  In any event, one thing is certain:
more court battles over school choice will be fought in both state and federal courts.

Articles/Commentary:

• Judge orders halt to Douglas County’s newest voucher program, Denver Post 3 August 2016
• Judge refuses to expand Douglas County voucher program to include religious schools, Denver Post (original article published 9 June 2016, updated with ruling 13 July 2016
• Douglas County’s long-running voucher effort hit with new legal challenges, Denver Post 25 May 2016
• Douglas County school voucher efforts draw another lawsuit, Denver Post 19 April 2016
• Douglas County narrowly OKs new school voucher program, Denver Post 15 March 2016