Douglas County School Choice

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 Unitedwe 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 hears appeal on constitutionality of Douglas County School Choice program

The Colorado Supreme Court heard oral arguments last month (10 December 2014) on a challenge to the constitutionality of the Douglas County School Choice program, in what could be a precedent-setting case for school choice nationwide. Last month’s oral arguments took place just over two years after the Colorado Court of Appeals heard similar arguments in the preceding case, which resulted in an appellate court ruling that upheld the constitutionality of the Douglas County “Choice Scholarship Program” (Colorado Court of Appeals Nos. 11CA1856/11CA1857, “Taxpayers for Public Education v. Douglas County Board of Education”) issued on 28 February 2013, that reversed a lower court ruling that had blocked implementation of the program in August 2011.

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…”  

Issues “Reframed”

The appeal to the Colorado Supreme Court “reframed” several issues and again attempted to re-argue the “benefit to religious organizations” claim previously rejected by the Court of Appeals.  The Colorado Supreme Court granted certiorari (agreed to review) six distinct issues or arguments advanced by the plaintiffs:

  • Standing to bring private action under the School Finance Act
  • Challenging the use of a “Charter School” administrative entity to channel CSP funds
  • Standard for challenging constitutionality (“presumptive” or “beyond reasonable doubt”)
  • “Diversion of funds” to schools controlled by churches or religious organizations
  • “Compelled-support” or “compelled-attendance” at religious services in some CSP-grant schools
  • Requirement for titular “charter/public” students to receive religious instruction in some schools

Arguments:

  • Standing to bring private action under the School Finance Act

The Colorado Court of Appeals had held that[t]here is nothing in the language of the Act remotely suggesting that private citizens or groups have a right to seek judicial enforcement of its provisions.”  Appellants conceded that the statutory language conferred responsibility for enforcement on the State Board of Education, but argued “collusion” between the SBE and the Douglas County School Board (because the SBE had responded to a DCSB request to review and offer an advisory opinion on the Choice Scholarship Program prior to implementation – despite the fact that offering such review and opinion is precisely one of the functions assigned to the SBE).  Appellants argued that because the State Board of Education did not act to challenge the program, the right of enforcement devolved to private parties – a position characterized as “backup surrogate standing?” by a visibly skeptical Justice Hobbs (generally considered part of the “liberal” wing of the court).  Remaining justices also appeared skeptical about any “private right of enforcement.”

Prognosis: Based on the arguments presented, questions by the justices, case filings, and previous rulings, Appellants seem unlikely to prevail on the “standing” issue – which could derail the entire appeal, preserving the lower court (Colorado Court of Appeals) ruling in favor of school choice.

  •  Challenging the use of a “Charter School” administrative entity to channel CSP funds

Appellants asserted that the CSP’s “Choice Charter School” – which the Douglas County School Board conceded was an “administrative convenience” – is invalid as a mechanism for funding student enrollment and attendance at other schools participating in the choice scholarship program, calling it a “sham” and a “false front” to enable public education funds to go to private partner schools.  Appellants claimed that the “Choice Charter School” failed to meet requirements of the School Finance Act and Charter School Act, and “the program therefore fails.”

Appellees countered that the construction of the program followed the rules and regulations promulgated by the State Board of Education, and the choice of how to set up the program fell under the purview of the elected school board.  Since enforcement of the rules is the “exclusive province” of the State Board of Education, there is no “private right of enforcement” on this claim, either.

Prognosis:  Again, given that regulatory responsibility and enforcement authority seems to lie exclusively with the SBE, which has accepted the CSP as compliant with legal requirements, this claim is likely to fail and the Colorado Supreme Court is likely to uphold the judgment of the Court of Appeals.

  •  ”Diversion of funds” to schools controlled by churches or religious organizations

Appellants repeatedly referred to “depletion of resources” available for “public education” – an “export” of funds from Douglas County Schools “into the hands of private parties.”  Appellants maintained that the SFA and Colo. Constitution contain an “absolute prohibition on the use of funds for anything but public education.”  In sum, “public tax dollars can’t fund choice of parents to have their kids attend religious schools.”

Appellees countered that education funds are primarily to benefit students, not institutions – and that public education funding is tied to (and follows) students, per the SFA.  Appellees noted that funds are not diverted from any school district, and that the amounts available to parents/kids participating in the choice scholarship program are actually less than the “per-pupil” formula allows – which means that not only is there no diminution of funds available for “free public education” but that funds left available actually increase.

Prognosis: given the math, this is probably the weakest claim advanced in the appeal, and likely to fail.

  • Restrictions on “public funding” of schools with religious characteristics or under control of religious organizations (“No Aid” clauses of Colorado Constitution)

Appellants argued a “specific prohibition” of any aid or funding to schools with a religious character, including “teaching sectarian tenets” or religious institutional control.  These arguments mirrored those previously advanced before the Colorado Court of Appeals, and rejected by that court.

Appellees countered that other programs use public funds for private schools, including those of religious character, at various levels (such as the “Colorado Opportunity Fund” college scholarships).  Noting that the program is neutral with respect to religion and for a public purpose (education), it provides “no aid to religious institutions” but is for the benefit of students.  Appellees noted federal jurisprudence that singling out – for inclusion or exclusion – programs on the basis of religion violates both the Freedom of Exercise and Equal Protection clauses of the U.S. Constitution; one “can’t exclude religious groups from educational aid programs otherwise available to the public” (Everson v. BOE, 1947).  Moreover, since the choice of which school to attend using the “choice scholarship” is solely at the discretion of the parent, “the link between public funds and schools is broken if made by an individual’s choice.” (per the 2002 U.S. Supreme Court Zelman case)  Ultimately, the program enables public students making a private choice – a right secured under both the Colorado and U.S. Constitution.

Prognosis: Since little new argument on the “support to religious institutions” issue was advanced before the Colorado Supreme Court that differed substantially from arguments before the Colorado Court of Appeals, and since the appeals court ruling dealt with the issues so comprehensively in rejecting those arguments in their February 2013 ruling, it appears likely that the lower court’s ruling in this regard will be affirmed.

Summary Analysis:

It is interesting to note that the very definition of what constitutes “public” education arose multiple times, in questions from several justices.  In particular, several justices seemed to recognize (and the appellees also pointed out) that there is an ongoing “paradigm shift” and major changes in the delivery of education.  Several justices seemed at least willing to consider that the “old model of schools” is no long the only, or even dominant, option.  Some asked, concerning delivery of “public” education, if it’s necessary that “public” education MUST be in government schools?

The Colorado Supreme Court’s ruling in this case may go a long way towards answering that question.

Additional References:

Articles/Commentary:

Colorado Supreme Court takes appeal on constitutionality of Douglas County School Choice program

The Colorado Supreme Court announced Monday that it granted the petition for writ of certiorari (request to review an appeal) on the constitutionality of the Douglas County School Choice program.

The court’s long-expected decision to grant the review comes just over one year after an appellate court ruling that upheld the constitutionality of the Douglas County “Choice Scholarship Program” (Colorado Court of Appeals Nos. 11CA1856 & 11CA1857, “Taxpayers for Public Education v. Douglas County Board of Education”)  that had reversed a lower court ruling that had blocked implementation of the program in August 2011.

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 (including the ACLU, Americans United for the Separation of Church and State, and a variety of front groups and individuals affiliated with local, state, and national teacher’s union and other special-interest groups) have argued that the school choice voucher program violated the state school finance act and provisions of the Colorado Constitution prohibiting ”aid to or support of religion and religious organizations” with taxpayer funds.

However, the appellate court 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).

The Appeals Court ruling stated that since the Choice Scholarship Program “is intended to benefit students and their parents, and any benefit to the participating schools is incidental…”

“Such a remote and incidental benefit does not constitute . . . aid to the institution itself within the meaning of Article IX, Section 7.”  Zelman, 536 U.S. at 652

The court noted that “CSP is neutral toward religion,and funds make their way to private schools with religious affiliation by means of personal choices of students’ parents.”

As noted by Douglas County School District Board of Education Director Craig Richardson,

The Colorado Supreme Court’s decision to review the Court of Appeals decision in favor of DCSD “does not mean that the court disagrees with the Court of Appeals ruling,” Richardson said.

“It simply means that the court recognizes the importance of the case for our state and our country,” Richardson said.
(Colorado Supreme Court to Review Judicial Ruling that DCSD Scholarship Program is ConstitutionalColorado Observer, 17 March 2014)

Analysis:

Plaintiffs have until April 28th to file opening briefs in the appeal; respondents then have a month to file a response, after which plaintiffs have another month to reply.  Once all briefs and responses have been filed, the Colorado Supreme Court will set a date to hear oral arguments by both sides (so, it will be late Summer at the earliest, more likely early-to-mid Fall, before the case is presented to the court) and a ruling is unlikely to be issued until several weeks, even months, after that.

Based on the body of evidence presented in the trial court and appellate court arguments, the comprehensiveness and clarity of the analysis of constitutional and statutory issues in the appellate court ruling, and guiding Supreme Court precedent (Zelman) in a similar case, the new & improved (minus Mullarkey, Martinez, and Bender) Colorado Supreme Court is unlikely to reverse the substance of the Colorado Court of Appeals ruling (some technical issues, such as standing to bring the lawsuit, are subject to review as well).

Unfortunately, the implementation of a highly popular (and innovative) program to extend school choice in the 3rd-largest school district in the state, establishing a precedent for expanded educational opportunity for children across Colorado and nationwide, will have been delayed for several years, and at a significant cost (Note: the DCSD Board raised funds for the legal defense of the program through private contributions, not by using taxpayer money – learn more at Great Choice Douglas County).

 Additional References:

Clear The Bench Colorado analysis of Colorado Court of Appeals ruling (28 February 2013)

Clear The Bench Colorado‘s analysis of oral arguments before the Colorado Court of Appeals
(20 November 2012)

For another analysis of last November’s oral arguments (with more emphasis on policy implications over legal issues), read Education Policy Analyst Ben DeGrow’s superb summary.

Click here for a comprehensive review of the Douglas County Choice Scholarship Program (including program information, video and audio interview and news clips, news and commentary highlights and links to many legal documents in the case)

Bottom Line:
The Douglas County School Choice case not only may set a decisive precedent on parental choice in educating their children, it also touches upon important constitutional issues such the separation of powers between branches and levels of government, establishment of religion, and collection and allocation of tax dollars, but ultimately comes down to a very basic and fundamental issue:
who decides how to educate Colorado’s children?

Clear The Bench Colorado believes that the decision should be in the hands of parents –
NOT in the hands of the courts.

Cases such as this highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering (let alone deciding) issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government.  This is not it.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

 

Colorado Courts 2013 Year in Review

A year-end restrospective on an impactful 2013 in Colorado courts

Another tumultuous year has come and gone for the Colorado judiciary – and although Colorado Citizens and taxpayers have again been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people – and the rule of law - this last year has also seen some striking victories in the Colorado Courts.

Some cases from previous years continue to impact events and conditions in the state, and others continue to slog their way through the courts (the wheels of justice can turn slowly).

After the Colorado courts decided the boundaries for Congressional districts (once the state senate reprised the 2000 playbook of abdicating responsibility to send it to the courts) and state legislative districts (when the Colorado Supreme Court approved the legislative maps drawn by the Colorado Reapportionment Commission in 2011), Colorado’s electoral destiny in 2012 was almost a foregone conclusion.

Colorado Courts (specifically, Denver District Court Judge Michael Martinez) rejected a constitutional challenge to the ‘FASTER’ Colorado Car Tax (on the basis of violations of Article X, Section 20 – Taxpayer’s Bill of Rights, TABOR) although that ruling is being appealed (and Judge Martinez is among the most-overturned judges on the Denver District Court).

Ironically, the Colorado Supreme Court and Court of Appeals started 2013 by moving into the palatial new ‘Colorado Judicial Center’ (at significant taxpayer expense and incurring massive new “non-debt” debt) in violation of the TABOR requirement to seek voter approval before incurring debt - a monument to an imperial, unaccountable state judiciary.

On the positive side, 2013 saw some tremendously impactful rulings in Colorado courts:

Three years ago, the outcomes of those cases would have been different.  Three years ago, thanks to your help, Colorado citizens sent a loud and clear message to the judiciary: rule based on the constitution and the law, not political whims.  That’s all we want.  Oh, and BTW: we’re watching.

We’ve kept the pressure up.  Judges know this.  There are good judges out there, and they have continued to do good work.  There are judges who do the right thing when they know they’re being watched.  And there are judges who continue to violate the Constitution and push their personal preferences before the law and your rights, no matter how much light is shined upon them.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

Merry Christmas from Clear The Bench Colorado!

Merry Christmas from Clear The Bench Colorado!

In the spirit of the season today, no commentary or analysis on Colorado Supreme Court rulings that have taken money out of your pocketeroded your constitutional rights, or usurped the powers of other branches of government.

Not even any reminiscing on the courtroom victories Colorado citizens have achieved over the past year (thanks, in large part, to the ongoing efforts of Clear The Bench Colorado – see, “Activist saves Colorado from massive tax hike) such as the court ruling upholding the Douglas County School Choice program, another court ruling overturning the Lobato school funding lawsuit, and the court battles key in the Colorado Recall Election victories - victories that would NOT have been possible a mere few years ago, before the advent of Clear The Bench Colorado.

Just a simple message and best wishes for a Merry Christmas and Happy New Year!

Enjoy your Christmas present, but please act to save your Christmas future -

Continue to support Clear The Bench Colorado with comments (Sound Off!) and contributions.
Freedom isn’t free – nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

“Four More Years?” Clear The Bench Colorado 4th anniversary today, still state’s only judicial accountability organization

“Time flies when you’re having fun…”

Hard to believe, but it has already (only?) been 4 years since the founding of our state’s only effective judicial accountability organization, Clear The Bench Colorado.

Starting as nothing more than an idea – knowing that Colorado judges are accountable to the people, that Colorado voters deserve more information on our state’s powerful 3rd branch of government – Clear The Bench Colorado has effected a much-needed (and long-overdue) awakening about the role and importance of Colorado’s judiciary.

Clear The Bench Colorado played a role in “encouraging” the self-removal of two of the worst state supreme court justices in Colorado history (Chief Justice Mary Mullarkey quit the bench in 2010 rather than face the voters, and Justice Alex Martinez quit the bench after receiving the lowest voter approval of any supreme court justice in state history some time after the 2010 elections) – resulting in a much-improved composition of our state’s highest court.

In fact, over the last couple of years, court challenges have achieved the ONLY significant victories for freedom in Colorado – since CTBC’s founding, overturning the Amazon Tax, overturning the CU Gun Ban, upholding the Douglas County school choice program, and (most recently) overturning unconstitutional legislation restricting petition-gathering for ballot initiatives.

Cases still pending in Colorado courts include a challenge to the unconstitutional FASTER car tax (er, “fee”), the statewide school funding case (called the “SuperBowl of school funding litigation” –with potentially ‘devastating consequences’ for Colorado’s budget), and challenges to recent “gun control” legislation and challenges to rules restricting free speech.

Clear The Bench Colorado helped Colorado voters to “Know Your Judge” with substantive evaluations of judicial performance prior to the November 2012 and 2010 elections – the ONLY source of reliable, substantive information on judges appearing on the ballot.

Statewide legislative elections in 2012 were significantly impacted (if not effectively pre-determined outright) by results of the Colorado Supreme Court’s December 2011 rulings on the reapportionment of state legislative districts – leading to lopsided majorities for Democrats in both chambers of the state legislature, despite actually receiving fewer votes overall (45% to 48.5% of total votes/candidates)

BOTTOM LINE:

Few, if any, grassroots organizations have had as much impact on the political and civic arena as has Clear The Bench Colorado over the last four years.

Will Clear The Bench Colorado continue to help reform Colorado’s judiciary by promoting transparency and accountability, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts, over the next four years?

Will Colorado be able to count on CTBC’s useful and substantive evaluations of judicial performance in coming elections?

The choice is yours, Colorado.

We can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

Colorado Court of Appeals reverses lower court, upholds constitutionality of Douglas County School Choice program

The Colorado Court of Appeals reversed a lower court ruling and upheld the constitutionality of the Douglas County School Choice program in a ruling issued today (Thursday, 28 February 2013).

The Colorado Court of Appeals ruling in the case (Court of Appeals Nos. 11CA1856 & 11CA1857, “Taxpayers for Public Education v. Douglas County Board of Education”) struck down the Denver District court ruling that had permanently enjoined implementation of the Douglas County “Choice Scholarship Program” (a program providing scholarships for tuition at private or charter schools of the parents’ choice) on claims that the program violated the Colorado Public School Finance Act of 1994 and various provisions of the Colorado Constitution.  The higher court rejected both the plaintiffs’ standing to bring the suit in the first place, and the plaintiffs’ claims of constitutional violations – a resounding rebuttal to the lower court:

We conclude that plaintiffs do not have standing to seek redress for a claimed violation of the Act, and that the CSP does not violate any of the constitutional provisions on which plaintiffs rely.  Therefore, we reverse the district court’s judgment and remand the case for entry of judgment in defendants’ favor.

The court’s ruling does not come as a surprise (indeed, the Clear The Bench Colorado analysis of last November’s oral arguments before the Court of Appeals forecast a win for the appellants) but the extent of the higher court’s repudiation of Denver District Court Judge Michael Martinez is striking, particularly on the issue of the plaintiffs’ standing to bring suit under the School Finance Act:

The district court recited these factors but did not engage in any substantive analysis of them. Instead, the court conclusorily ruled that certain plaintiffs’ status as District students and parents of District students “confers a legal interest in the enforcement of the statutes enumerated in their claims.” In so ruling, the district court erred.

There is nothing in the language of the Act remotely suggesting that private citizens or groups have a right to seek judicial enforcement of its provisions.

The appeals court addressed – and resoundingly rejected – each of the plaintiffs claims alleging constitutional violations:

For clarity of analysis, we divide plaintiffs’ claims into three groups: (1) claims alleging violations of statutory and constitutional provisions which concern state schools generally – the Act and article IX, sections 2, 3, and 15; (2) claims alleging violations of constitutional provisions which concern aid to or support of religion and religious organizations – article II, section 4, and article IX, sections 7 and 8; and (3) the claim alleging a violation of article V, section 34, which concerns appropriations generally and appropriations to religious organizations specifically.

Claims based on the School Finance Act were rejected due to the plaintiffs lack of standing to bring a complaint in court, as noted above.

Claims that the “Choice Scholarship Program” violated the Colorado Constitution Article IX, Section 2 (“Thorough and Uniform System of Free Public Schools”) were also rejected by the Court of Appeals.

Interestingly, the court affirmed the role and responsibility of the elected school board as the presumptive constitutional authority in determining educational structure and content:

Pursuant to article IX, section 15 of the Colorado Constitution, the General Assembly created local school districts governed by boards of education. The directors of the boards are elected by qualified district electors, and “have control of instruction in the public schools of their respective districts.”

The court broadly rejected the plaintiffs claims of an Article IX Section 2 violation in no uncertain terms:

Plaintiffs misapprehend the constitutional mandate. It requires that a thorough and uniform system of free elementary through high school education be made available to students between the ages of six and twenty-one. See Lujan v. Colo. State Bd. of Educ., 649 P.2d 1005, 1025 (Colo. 1982) (this provision “is satisfied if thorough and uniform educational opportunities are available through state action in each school district”);

It plainly is not violated where a local school district decides to provide educational opportunities in addition to the free system the constitution requires. [emphasis added]

The court similarly rejected claims of a violation of Article IX, Section 3 (“Use of the Public School Fund”):

Article IX, section 3 requires only that money from the public school fund be “expended in the maintenance of the schools of the state” and “distributed amongst the several counties and school districts of the state, in such manner as may be prescribed by law.” It plainly applies to distributions made by the state, not local districts. And it requires distributions to the counties and school districts. Upon distribution by the state to the counties and school districts, the money from the fund belongs to the counties and school districts. Craig v. People in Interest of Hazard, 89 Colo. 139, 144-45, 299 P. 1064, 1066 (1931). [emphasis added]

The court similarly rejected claims of a violation of Article X, Section 15 (“Local Control”):

Further, the provision does not relate to instruction in private schools. As discussed above, participating private schools retain their character as private, not public, schools. It follows that article IX, section 15 does not apply to the CSP.

The court directed a significant amount of attention to plaintiffs claims that the CSP violated constitutional provisions restricting state support of religious institutions – and likewise rejected those claims:

The Colorado Constitution contains a number of provisions addressing the relationship between state government and citizens, on the one hand, and religion generally and religious institutions, on the other hand. Some of these provisions pertain to support for religion and religious institutions. Four are at issue here: article II, section 4; article V, section 34;12 and article IX, sections 7 and 8.

Based on analysis of the Colorado constitutional language alone, the court determined

we conclude that the CSP does not violate any of the subject provisions.

In order:

1. Article II, § 4 – Required Attendance or Support

Citing a similar grant program for higher education, since the CSP was “designed for the benefit of the student, not the educational institution” and “is available to all District students and to any private school which meets the neutral eligibility criteria” it did not violate the constitutional prohibition on state support of religious institutions.  The court further noted that inquiries into “the degree to which religious tenets and beliefs are included in participating private schools’ educational programs – is no longer constitutionally permissible” and, “Doing so violates the First Amendment,” concluding, “Simply put, a government may not choose among eligible institutions “on the basis of intrusive judgments regarding contested questions of religious belief or practice.”

The court rejected the plaintiffs claims that the CSP “required attendance” at religious instruction on its face, stating:

the fact remains that the CSP does not compel anyone to do anything, much less attend religious services. No student is compelled to participate in the CSP or, having been accepted to participate, to attend any particular participating private school. To the extent students would attend religious services, they would do so as a result of parents’ voluntary choices. Article II, section 4 clearly does not proscribe such choices.

2. Article IX, § 7 – No Aid to Religious Organizations

The district court ruled that the CSP violates this provision essentially for the same reasons it found a violation of article II, section 4. And essentially for the same reasons we have concluded that the CSP does not violate article II, section 4, we conclude that it does not violate article IX, section 7.2

Since the CSP “is intended to benefit students and their parents, and any benefit to the participating schools is incidental…”

“Such a remote and incidental benefit does not constitute . . . aid to the institution itself within the meaning of Article IX, Section 7.”  Zelman, 536 U.S. at 652

The court noted that “The CSP is neutral toward religion,and funds make their way to private schools with religious affiliation by means of personal choices of students’ parents.”

The majority opinion even gets in a dig at the dissenting opinion on this issue:

That reasoning, which is typical of the reasoning in the cases on which the dissent relies, is flatly at odds with our supreme court’s reasoning in Americans United, in which the court deemed the neutral character of the grant programs as essentially determinative.

3. Article IX, § 8 – Religion in Public Schools

The Court of Appeals noted that “this provision plainly applies to “public educational institution[s]” and “public school[s]” and rejected the district court’s (and plaintiffs) convoluted attempts to construct a public character for the private schools within the CSP.

The district court failed sufficiently to account for the fact that attendance at any of the participating private schools is not required by the CSP; such attendance is by parental choice. Moreover, as discussed above, participation in the CSP does not transform private schools into public schools.

Finally, the court’s ruling addressed plaintiffs’ claims that other constitutional provisions were violated by the school choice program.

The Denver District court ruling held that the CSP violated the Colorado Constitution’s Article V, § 34 – Prohibited Appropriations by interpreting a payment of state funds to private schools as an “appropriation” to “entities not under absolute state control” – including entities with a religious character.  The Court of Appeals rejected the district court judge’s reasoning, noting that “[t]he district court misconstrued the provision.”

Article V, section 34 is part of article V of the Colorado Constitution, which deals with the structure and powers of the General Assembly. See, e.g., art. V, § 1(1). Article V includes two provisions dealing with appropriations, sections 32 and 34. The appropriations encompassed by those sections clearly are appropriations by the General Assembly itself.

Since the funds are actually allocated by the school district, NOT the state directly,

No such disbursement would occur under the CSP. The General Assembly appropriates state money for elementary and secondary education to the Colorado Department of Education, which in turn distributes it to local school districts in the form of total per pupil revenue. At that point, ownership of the funds passes to the local school districts. Craig, 89 Colo. at 144-45, 299 P. at 1066; see § 22-54-104(1)(a). The District’s expenditure of funds under the CSP, therefore, does not constitute an appropriation by the General Assembly.

Since “the purpose of the [CSP] is to aid students and parents, not sectarian institutions.”

Any benefit to the participating private school is incidental, occasioned by the individual choices of students’ parents.

Conclusion:

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 judgment is reversed, and the case is remanded to the district court for entry of judgment in defendants’ favor.

Since both sides in the case have signaled their intent to appeal if not satisfied with the verdict, the ultimate resolution of the case will fall to the Colorado Supreme Court – most likely (the wheels of justice grind slowly) in another year or more.

 Additional References:

Clear The Bench Colorado‘s analysis of oral arguments before the Colorado Court of Appeals
(20 November 2012)

For another analysis of last November’s oral arguments (with more emphasis on policy implications over legal issues), read Education Policy Analyst Ben DeGrow’s superb summary.

Click here for a comprehensive review of the Douglas County Choice Scholarship Program (including program information, video and audio interview and news clips, news and commentary highlights and links to many legal documents in the case)

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

Clear The Bench Colorado believes that the decision should be in the hands of parents – NOT in the hands of the courts.

Cases such as this highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering (let alone deciding) issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government.  This is not it.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

2012 Year in Review: Colorado Courts Continue to Play Politics

Colorado Courts Continue to Play Politics in 2012…

Another tumultuous year has come and gone for the Colorado judiciary – and once again, Colorado Citizens and taxpayers have been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people – and the rule of law.

2012 saw the advancement of a  frivolous, groundless, and vexatious politically-motivated lawsuit  attempting to overturn a Colorado Constitutional Amendment (the Taxpayer’s Bill of Rights, colloquially known as “TABOR”) through the Federal courts (with oral arguments on a Motion to Dismiss in February, and proceeding to trial on a ruling in July).  The District Court judge still has not issued a ruling in the case, but whatever the ruling, the case is almost certain to be appealed, and may ultimately end up before the U.S. Supreme Court.

Some good news came from the Colorado judiciary in March, as the Colorado Supreme Court upheld the Colorado Court of Appeals in striking down the CU Gun Ban.  Unfortunately, the University of Colorado administration introduced policies designed to circumvent the ruling shortly thereafter, and the self-defense rights of Colorado citizens within the CU demesne continue to be threatened with the backing of many (if not most) of the CU Regents.

More good news in April, as a (Federal) court struck down Colorado’s unconstitutional “Amazon Tax” (as predicted by Clear The Bench Colorado Director Matt Arnold in testimony before its passage in 2010).

In May, the Colorado Car Tax (a.k.a. FASTER vehicle registration “fee”) was challenged in court as a violation of the state Constitution (the case is still winding its way through the courts).

In September, the Colorado Supreme Court rejected Ward Churchill’s attempt to force the University of Colorado to reinstate him (Churchill recently announced his intent to appeal all the way to the U.S. Supreme Court).

Clear The Bench Colorado helped Colorado voters to “Know Your Judge” with substantive evaluations of judicial performance prior to the November elections – the ONLY source of reliable, substantive information on judges appearing on the ballot.

Remaining statewide elections were significantly impacted (if not effectively pre-determined outright) by the results of the Colorado Supreme Court’s December 2011 rulings on the reapportionment of state legislative districts – leading to lopsided majorities for Democrats in both chambers of the state legislature, despite actually receiving fewer votes overall.

Colorado courts continued to be a central battlefield for Education policy, as the ‘Lobato’ case advanced to the Colorado Supreme Court in the “Super Bowl of school funding litigation” and the Douglas County school choice voucher program case advanced to the Colorado Court of Appeals.  (Interestingly, the Denver District Court judges involved in each case – Judge Sheila Rappaport in the ‘Lobato’ case, and Judge Michael Martinez in the Douglas County school choice case – are both scheduled to appear on the 2014 ballot).

Cases such as Lobato (particularly Rappaport’s biased ruling) and the politicized nature of the court’s involvement in the congressional redistricting and state legislative reapportionment cases – highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government. Deciding issues of policy – instead of fairly and impartially upholding the law – is not it.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

Friday Funnies: …and a Leftist Judiciary! (reprise, again)

Welcome to the 2012 Christmas edition of the Clear The Bench Colorado Friday Funnies!

Another tumultuous year has come and gone for the Colorado judiciary – and once again, Colorado Citizens and taxpayers have been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people – and the rule of law.

Last year closed with Colorado courts deciding the boundaries for Congressional districts (after the state senate reprised the 2000 playbook of abdicating responsibility to send it to the courts) and state legislative districts (following the Colorado Reapportionment Commission’s public hearings on re-setting the boundaries of our state legislative districts over the summer), both of which played a prominent role in determining Colorado’s electoral destiny in 2012.

Colorado courts were also a central battlefield for Education policy, as one Denver District judge threw out Douglas County’s attempts to enable greater school choice, and another Denver District judge declared the state system of funding schools “unconscionable” while advancing the power of the courts to determine “proper” levels of school funding (despite the Constitution’s delegation of that power to the legislative branch) – although that decision is likely to be overturned after an expensive – and long - appeal to the Colorado Supreme Court.

The first stages of the court appeal seeking to preserve school choice concluded last month (Nov 2012) with oral arguments before the Colorado Court of Appeals (a ruling by the 3-judge panel isn’t expected until early next year, most likely late January or February).

Meanwhile, the ‘Lobato’ school funding lawsuit – called the “Super Bowl of school funding litigation” – continues to slog its way through the courts as well.

Earlier in the year, after two years of legislative inaction failed to repeal or roll back the unconstitutional and unpopular tax increase, the ‘FASTER’ Colorado Car Tax was challenged in court as a violation of the Colorado state Constitution (specifically, Article X, Section 20 – Taxpayer’s Bill of Rights, TABOR).

Another, wider-ranging challenge to TABOR is still being fought out in Federal court: the notorious “Fenster’s Folly” frivolous anti-TABOR lawsuit (which not only challenges TABOR in particular, but more generally citizens’ right to petition under a flawed reading of the “republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government“) which multiple U.S. Supreme Court cases have ruled non-justiciable (meaning, not subject to determination by the courts).

One major ruling by the Colorado Supreme Court DID uphold the law – and the rights of Colorado citizens – when striking down the University of Colorado’s illegal gun ban (March 2012).  Unfortunately,  the CU administration (backed by the CU Board of Regents) moved almost immediately to circumvent the court’s ruling and continue to violate state law by promulgating policies banning guns in certain areas (not authorized by statute) and additional gun ban legislation (unfortunately backed by many on the CU Board of Regents) to further restrict and roll back hard-fought self-defense rights is coming.

Finally, to close out the year, the Colorado Supreme Court and Court of Appeals moved into the palatial new ‘Colorado Judicial Center’ (at significant taxpayer expense and incurring massive new “non-debt” debt, without required voter approval) just one week before closing for the holidays.

All of these issues were comprehensively documented by Clear The Bench Colorado over the last year – while the “mass media” and the majority of the state’s “news” organizations gave them short shrift.

Clear The Bench Colorado also continued the public service of providing comprehensive, well-referenced evaluations of judicial performance in 2012 – again, in contrast to the “official” taxpayer-funded “Blue Book” rubberstamp “reviews” disseminated at great expense (and, when put out at polling locations, in violation of state law) by the Colorado Office of Judicial Performance Evaluation.

Although remaining mindful that what’s at stake – holding our judiciary accountable for serial violations of our constitutional rights (to vote on taxes, even when taxes are called “fees”defend our property against unjust seizurebear arms in self-defense; and too many others to list) is serious business, all work and no play makes Matty a dull boy.

Although still awaiting payment over two year later after “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) was once again ordered to pay Clear The Bench Colorado thousands of $ in legal fees (owed since the judge’s original ruling in July 2010 found CEW’s complaint to be “frivolous, groundless, & vexatious”) brings a rueful chuckle, the following video (even if focused on the national level) elicited a hearty laugh:

…and a Leftist Judiciary!

While still afflicted with the (black-robed) ghosts of Christmas past in our Christmas present, we can still act to save our Christmas future. Continue to support Clear The Bench Colorado with comments (Sound Off!) and contributions. Freedom isn’t free – nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

CTBC Analysis of Oral Arguments in Douglas County School Choice Voucher Program at Colorado Court of Appeals

The Colorado Court of Appeals held oral arguments yesterday (Monday, 19 November) on a challenge to Denver District Court Judge Michael Martinez’ ruling in the Douglas County Choice Scholarship Program trial.  The appeal, led by the Douglas County School Board and joined by the state of Colorado and several affected families, was held at the Colorado Supreme Court/Colorado Court of Appeals hearing room at  100 W. Colfax Avenue, Denver 80202 (the Denver Post building).

In that ruling, Judge Martinez decreed that the Douglas County Choice Scholarship Program violated multiple sections of the Colorado Constitution (Article IX, Section 7 Aid to Private Schools, Churches, Sectarian Purpose, ForbiddenArticle IX, Section 8 Religious Test and Race Discrimination Forbidden Sectarian Tenets, and Article II, Section 4, Religious Freedom) as well as the state school financing act.

Monday’s oral arguments before the Colorado Court of Appeals, in which each side had 30 minutes to make their case, were recorded and posted online shortly after the hearing.

Attorney for the appellants (Douglas County School Board) Eric Hall opened with a description of the school choice scholarship program that touched upon the key legal issues at the heart of the appeal:

The program offers an additional educational choice to students who have been enrolled in Douglas County Public Schools for at least a year.  No family must participate in it; and it in no way hurts the opportunity of any student to receive a free public education.

Key points:

  • additional educational choice (not replacing constitutionally mandated “free public education”)
  • no family must participate (program participation is non-compulsory)
  • no harm to or diversion of resources from existing system of free public education

Hall continued:

Through the Choice program, the district offers aid to parents, on a neutral basis, without regard to religion. As a neutral program, it neither favors nor disfavors any private school, religious or non-religious.

Key Point:
The test of constitutionality established in the 2002 U.S. Supreme Court Zelman case allows education vouchers to be used for schools including religious schools IF the overall program is neutral towards religion and IF the choice to attend religious schools is entirely left up to the parent:

This Court’s jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice. See, e.g., Mueller v. Allen, 463 U. S. 388. Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits.

The fact that the program disburses funds directly to the parent, to use towards any school they choose, also addresses the Colorado constitutional prohibition on “direct aid” to religious institutions (Article IX, Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden) since the aid is to the parent/student, not directly to the school.

Hall then addressed the provisions of Colorado’s School Finance Act, highlighting the aspect of local control (Section 104(1)(a)):

Finance Act funds flow to local districts… the amounts and purposes for which such Finance Act means are budgeted and expended shall be in the discretion of the district.

Key Point: 
The Douglas County School Board has the statutory authority to decide on how to allocate school funding dollars within the district.

[At this point, Judge Jones asked if the School Finance Act provided for standing of individuals to bring suit under the provisions of the Act; Hall responded that the Act does not provide such standing (indeed, explicitly rejects it) and noted that Denver District Court Judge Michael Martinez had erred in allowing individuals standing to bring a Finance Act claim.]

Hall then characterized opposition to the School Choice Scholarship program as being based on objections to the fact that

private and religious schools can participate… they assert public funds can’t be spent in this way.

Hall noted that a 1982 Colorado Supreme Court case (Americans United) held that “public funds can be spent at private and religious schools by means of a neutral program of private choice.”

[Judge Jones then brought up a question (based on a number of cases, including Lemon, Weaver, and Mitchell) concerning the "influence of overtly religious education on younger kids... being inconsistent with what we want to do with public monies."

Hall responded that, based on the Weaver case, "any sort of indoctrination doctrine is not only discarded, but unconstitutional" (as a 1st Amendment violation)]

Hall concluded by noting that the court “should apply the Zelman test” – with “genuine private choice” as the key criterion, recognizing that any incidental benefits to institutions with a religious character are attributable to parent choice, not impermissibly mandated by the program itself, and noted the existence of several state programs providing funds to schools with a religious component:

“Public funds can and do flow to institutions with a religious component” under current state practice and law.

Plaintiffs attorneys divided their time in oral arguments between addressing constitutional/religious issues and School Finance Act issues.

Attorney Matt Douglas first addressed the constitutional/religious objections to the Douglas County School Choice Scholarship program.

Douglas began by asserting that the program violates several specific articles of the Colorado Constitution with respect to the establishment of religion.  He further asserted that the appellants “must prove that the trial court was wrong on ALL of the constitutional provisions” to overturn that court’s judgment.

Douglas stated that the Colorado Constitution “specifically prohibits state funding of religious education” (under Article IX, Section 7 Aid to Private Schools, Churches, Sectarian Purpose, Forbidden and Article II, Section 4, Religious Freedom).

Douglas characterized the routing of educational aid through a charter school construct and via direct disbursement to the parents as a “sham” designed to “get around the plain language of the Colorado Constitution.”

[Judge Graham at this point asked, "Isn’t this program facially neutral?"  (When told "no" he followed with "can the court inquire as to nature of religious beliefs if the program is facially neutral?  Isn't that exactly what the trial court did?") . Graham questioned whether the trial court's reliance on “pervasiveness of indoctrination” for judgment  was constitutionally permissible.]

Douglas argued that the court “can & should” render judgment on this basis, that the trial court viewed “whether sectarian tenets are being taught, period” which he said is allowed under federal case law.

Douglas noted that the trial court found that funds for tuition does constitute “aid to schools” (impermissible under the Colorado Constitution, Article IX Section 7).

[Judge Jones interjected at this point that the same kind of program was found NOT to constitute "aid to schools" in the Zelman ruling.]

Douglas countered that if ANY of the schools in the program don’t “admit all” regardless of religion, then the entire program is discriminatory.

 

Attorney Michael McCarthy addressed the public school finance issues and School Finance Act for the Plaintiffs

McCarthy opened by asserting that the purpose and intent of constitutional and statutory provisions for public school finance is to “prevent depletion of public school finance resources” – arguing that the Douglas County School Choice Scholarship program “will gut public school finance in Colorado” and, if allowed to proceed, would grow beyond the initial limited scope and “operate to materially deplete financing available to public schools” not only in Douglas County, but throughout the state.

Judge Graham again raised the issue of standing, noting the absence of explicit language allowing individual standing in the School Finance Act and asking

if we allow standing in private citizens, aren’t we really allowing them to be substitute Boards of Education?”

McCarthy responded that “no express cause of action is needed – other avenues exist” and that ultimately, standing was predicated on the test established by Justice Rovira,

“did plaintiff incur injury in fact, related to a constitutional right?”

The majority of the remainder of McCarthy’s time was taken up with a discussion on whether or not funding was diverted to or from other school districts, and whether students leaving the Douglas County public schools constituted a net loss (in funding) to the district. (Judges Graham and Jones, in particular, seemed skeptical).

McCarthy concluded by proclaiming,

Choice isn’t the preeminent constitutional value in this case – or in this state.

He argued that the School Finance Act requires a specific spending formula, and that a transfer of 75% of the per-pupil funding to students attending private schools constitutes an “illegal transfer” since the private schools are ‘not public, not free & uniform, not subject to local control.”

 Oral arguments concluded with rebuttal by appellants’ attorney Eric Hall.

Hall noted that the trial court had ruled in favor of plaintiffs on Article IX Sections 2 and 15; however, Article IX Section 3 creates a “trust obligation” to school districts – which can spend funds as they like (within discretion).

Hall highlighted the absurdity of insisting that “public funds can ONLY be spent on public schools” -
if true, then NO expenditures to private entities (including contracting services on everything from janitorial to legal services) would be allowable.  School districts, he continued, “can and do buy services from private entities.”

Analysis:

Based on the body of evidence and argument presented at yesterday’s hearings and throughout the appeals process, the trial court’s ruling appears likely to be overturned, in whole or in part.  On the (admittedly esoteric) issue of standing to bring claims under the School Finance Act, it was clear that a majority (if not all) of the judges were skeptical at best, making it likely that those claims will be disallowed (rendering the trial court’s judgment in those areas moot).

On the core constitutional issues (respecting religious freedom and prohibiting public funds for support or sustaining of sectarian institutions), governing case law (from the 2002 U.S. Supreme Court Zelman case to the 1982 Colorado Supreme Court Americans United case and several others touched upon in filings and at argument) is clear that so long as the overall program is facially neutral (containing neither preferences for or against either secular or religious schools) and that school funds are spent in pursuit of education meeting secular criteria under local district control, the choice of individual students (parents) to attend schools with a religious component does NOT constitute “support” of the institution (nor, since the choice to attend a given school is left to individual program participants, does it “compel” sectarian attendance).

Moreover, since the program merely provides an additional choice among several options as an expansion to (not replacement of) the existing constitutionally mandated system of “free public education” and does not result in a net loss to the public system’s funding (indeed, it results in a 25% per-pupil surplus to the district), claims of damage under the School Finance Act lack justification.

The court’s ruling (to be issued “in due course”) will most likely be published in February or March of next year.

Since both sides in the case have signaled their intent to appeal if not satisfied with the verdict, the ultimate resolution of the case will fall to the Colorado Supreme Court – most likely (the wheels of justice grind slowly) in another year or more.

 Additional References:

For another analysis of yesterday’s oral arguments (with more emphasis on policy implications over legal issues), read Education Policy Analyst Ben DeGrow’s superb summary.

Click here for a comprehensive review of the Douglas County Choice Scholarship Program (including program information, video and audio interview and news clips, news and commentary highlights and links to many legal documents in the case)

Archives