Douglas County #SchoolChoice Voucher Case Officially Ended

Not with a bang, but with a whimper...”

The years-long saga of the ongoing court battles over the Douglas County School Choice Scholarship program (in its various iterations) finally ended Thursday (25 January 2018) when the Colorado Supreme Court issued an Order dismissing the case as moot (after the newly-elected Douglas County School Board, including one of the original plaintiffs challenging the #SchoolChoice voucher program, jointly filed a motion to dismiss the lawsuit).

The Order of dismissal provided an anticlimactic ending to a series of court battles that made Colorado “Ground Zero” in #SchoolChoice litigation nationwide.

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.

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) disagreed that the CSP was in violation of the Constitution.

The Colorado Supreme Court ruling was later vacated on appeal to the U.S. Supreme Court, which on 27 June 2017 overturned the ruling that struck down the voucher program on grounds that it violated a constitutional provision barring any use of state funds with even incidental benefit to “sectarian” (religious) institutions (so-called “Blaine Amendment”) and remanded the case back to the Colorado Supreme Court for reconsideration.

The Colorado Supreme Court failed to take up the case until after the 2017 Douglas County School Board elections – which, predictably, proved decisive in ending the case.  Once the new school board majority (including one of the plaintiffs seeking to strike the program) took office, they swiftly moved for dismissal – which the Colorado Supreme Court (likely with a sigh of relief) granted.

The lesson for advocates of school choice?

Court majorities matter; 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.



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