Court Battles Shape School Choice in Colorado – and Nationwide

The continuing saga of the ongoing court battles over the Douglas County School Choice Scholarship program (in its various iterations) highlight the central (and increasing) role of the courts (as opposed to elected school boards, or the state legislature in whom constitutional authority for making education policy and resourcing decisions is vested) in deciding how – and under what conditions –  our children receive an education.

Citizens of Colorado (and other states) hold elections every year to send representatives to different venues to consider and decide on policy (and allocate resources) for their children’s education: in odd-numbered years, for local school boards; in even-numbered years, for the state legislature, which has the sole constitutional authority to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.

Yet ultimately, the decisions about how education is funded, and how schools are run, are being made in neither of these arenas, but in the courts.

When an elected majority on the Douglas County School Board decided to create a school choice scholarship program in 2011, it was instantly challenged in court by diehard opponents of school choice, who sought to stop the program before it could educate any child outside the public school system.  The challenge revolved around whether an elected school district board has “the broad authority to contract with private schools for the provision of a public education to public school students” [per Education Policy Center] under the guise of opposition to “public funding” of education options outside the “public school” system.  One might think that making decisions about the provision of public education is precisely why county residents elect a school board, but apparently (at least in the view of the plaintiffs, and the courts in Colorado) those decisions are better made by appointed judges.

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

Unfortunately, all too often the answer from the courts has been: we judges do.

The odyssey of the Douglas County effort to create more school choice options is illustrative.

Beginning in 2011, when anti-choice activists brought the legal challenge in Denver District Court, Judge Michael Martinez  blocked implementation of the program just as the school year was starting – leaving many parents scrambling to find alternative education choices for their children enrolled in (and relying on) the choice scholarship program.  Judge Martinez later made the original temporary injunction permanent, effectively sidelining the program through the appeals process.

Even when that ruling was overturned by the Colorado Court of Appeals, which reversed the District Court and affirmed the constitutionality of the school choice scholarship program two years later (Opinion announced 28 February 2013), the injunction remained in place, as the anti-choice losers in that case almost immediately appealed to the Colorado Supreme Court.

Of course, “immediate” in terms of court calendars can take a while: it was over a year later before the Colorado Supreme Court formally granted the Writ of Certiorari, accepting the appeal on 18 March 2014 – which opened yet another long process of legal wrangling.

It wasn’t until the end of the year (following submission of extensive legal briefs by both sides) that the Colorado Supreme Court heard oral argument in the case – which had gained national attention as the “ground zero” in the fight for school choice across the country.

Ultimately, it would be another half a year (29 June 2015) before the Colorado Supreme Court issued its decision: an unusual 3-3-1 split plurality decision reversing the Court of Appeals: 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.

Even that decision remains pending appeal before the U.S. Supreme Court, challenging whether the Colorado constitutional provisions (known as “Blaine Amendments”) on which the decision was based are themselves unconstitutional under the First Amendment.

Meanwhile, while the appeal of the original program – which included sectarian schools – was pending, the Douglas County School Board attempted to address those concerns with a new iteration of a school choice program excluding religious schools from participating (which, ironically, drew challenges from both sides of the spectrum: one challenging discrimination against religious schools, another one challenging the existence of any school choice scholarship program whatsoever, even if it did exclude religious schools – the pretense for the original challenge).  Coming full circle, the latter challenge ended up before the same judge (Denver District Court Michael Martinez) who again applied the permanent injunction to the new, non-religious school choice program – effectively killing any attempt to expand school choice in Colorado pending SCOTUS taking on (and ultimately deciding) the appeal of the Colorado Supreme Court decision.

The lesson for advocates of school choice?

Challenging entrenched education establishment special interests is a protracted, drawn-out and resource-intensive battle – with enormous stakes.  After all… it’s for the children.



One Response to Court Battles Shape School Choice in Colorado – and Nationwide

  • Excellent article. And now to add insult to injury, ex. Chief Justice of the Colorado Supreme Court and now counsel for the Plaintiffs in Kerr v. Hickenlooper has invited a school district [JE1J of Crested Butte ] on-board to conform with the Orders of the US Court of Appeals and US Supreme Court. [] The issue was/is that the current Plaintiffs were not proper parties to file the suit so JE1J, along with two other school boards, were invited to join the suit, pro-bono! How is it that a school board can commit the voters of the District to a lawsuit that is trying to end TABOR, which the majority of voters approved and still support? They didn’t even have a vote of the District to get their input. This is just another back-door effort by Bender [aka Bendusover] and his cronies to further their attacks on TABOR. He is not happy enough with his bovine definition of “fee” which has cost the taxpayers over $950M per year since that “judicial legislation” was instituted. [Barber v. Ritter]

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