Survey of School Choice Court Battles Around the Nation

Although Colorado has been at the epicenter of court battles over school choice in recent years, the state is hardly unique as a legal battleground.  Around the nation, opponents of education reform use lawsuits as the favored weapon to stymie school choice in the face of public opinion increasingly trending towards increased opportunity and options – with surveys showing that most Americans favor school choice policies.

Perhaps because school choice opponents are losing the battle in the courts of public opinion, the fights have increasingly shifted to courts of law, where outcomes are time-consuming, expensive, and uncertain; and all too dependent on the whims of presiding judges.

Litigants on both sides of the school choice battle attempt to increase the odds of success by venue-shopping, bringing lawsuits in jurisdictions deemed most favorable to their position; but ultimately, should such policy decisions be in the hands of judges at all?  


Among the current school choice cases nationwide, the ongoing battle over the Douglas County School Choice Scholarship program (with appeals pending in both state and federal courts, including a likely review by the U.S. Supreme Court) is perhaps the most potentially far-reaching.

The Douglas County school choice program has been in legal limbo almost since its inception; the original legal challenge to the program was filed shortly before it went into effect in 2011, with Denver District Court Judge Michael Martinez issuing an injunction to halt the program almost immediately thereafter.  Almost two years later, the Colorado Court of Appeals reversed the lower court and upheld the school choice program. However, on appeal from that appeal, the Colorado Supreme Court, in an unusual 3-3-1 plurality decision, struck down the school choice program on a combination of constitutional and statutory grounds.  Currently, a petition for certiorari (request for review) remains pending before the Supreme Court of the United States (at issue:  whether it violates the Religion Clauses or Equal Protection Clause of the United States Constitution to invalidate a generally-available and religiously-neutral student aid program simply because the program affords students the choice of attending religious schools).  


Meanwhile, a statewide tax-credit program in Florida has been subjected to legal challenges even longer (some elements of the program were challenged in 2009; the lawsuit was expanded in 2014 before being dismissed in May 2016).  However, that case (along with another challenge to the constitutionality of state tax credit scholarships, brought by the teacher’s union) is pending before the state court of appeals.


The Nevada Supreme Court recently heard oral arguments in twin challenges to that state’s education savings account (ESA) program – among the first major legal challenges to the ESA concept (as opposed to the more widespread voucher program approach).  Similar to the challenge to Colorado’s  Douglas County Choice Scholarship program, opponents object to the use of ESA (or voucher) funds to pay tuition at schools with religious affiliation (like Colorado, the Nevada state constitution has a Blaine Amendment barring use of state funds for “sectarian” schools).  However, like Colorado, proponents argue that since the choice of which schools to attend (and hence, where ESA or voucher funds are spent) lies with the parents, the state is not “propping up religious institutions in violation of the state constitution.”  

National Impact:

Each of these cases, alone, could have tremendous impact on the fate of school choice programs nationwide.  The fact that all of them are likely to be decided in the next year (or so; notoriously, the wheels of justice grind slowly) trebles the potential impact, and could prove decisive for the fate of school choice programs nationwide. Advocates – and opponents – of school choice have a protracted, drawn-out and resource-intensive (legal) battle ahead – with enormous stakes.  After all… it’s for the children.


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