June
10th 2016
Dougco’s Voucher Lawsuit Muddle Explained

Posted under Colorado Supreme Court & Constitution & Courts & Douglas County & Legal Issues & School Choice & United States Supreme Court

I got a lot of questions yesterday about yet another ruling on the Douglas County voucher program. Was this good news? Was it bad news? Which lawsuit was this anyway? What the heck is going on in Douglas County?

It occurred to me after about the 50th question that stuff has gotten pretty complicated when it comes to vouchers in Dougco. We’re going to dedicate today’s post to clearing up the confusion. After all, there’s nothing worse than being perplexed over the weekend.

Let’s start from the beginning. Most everyone probably remembers that the original Dougco voucher program was shot down by the Colorado Supreme Court almost a year ago thanks to our state’s icky Blaine Amendment. That decision was appealed to the U.S. Supreme Court, but the whole process was complicated by the tragic (in so, so many ways) death of Justice Antonin Scalia and the fact that SCOTUS had already taken a Blaine-related case out of Missouri.

The case remains in limbo somewhere in the echoing hallways of the U.S. Supreme Court, which has yet to decide whether it will hear the case at all. It will likely remain undecided for some time. But Douglas County didn’t want to wait to get a voucher program up and running, so it approved a new version that excludes faith-based schools in March 2016.

For those of you keeping score, this means that there are now two Dougco voucher programs out there. The original program, called the Choice Scholarship Program, is hanging out with SCOTUS for the time being. The new, secular-only version, called the School Choice Grant Program, has been moving forward in the meantime.

Now there are two additional complaints in the mix, both against the new School Choice Grant Program, with very different goals.

One of these complaints was filed last month by my dearest friends Taxpayers for Public Education (TPPE). This complaint argues that the permanent injunction placed by the Colorado Supreme Court on the original Choice Scholarship Program was not contingent on the inclusion or exclusion of faith-based schools. Instead, it was simply applied to the program as a whole. And because, according to TPPE, the new School Choice Grant Program is not substantively different from the old Choice Scholarship Program, the permanent injunction stands. Just for funsies, the complaint also accuses the district of being in contempt of court and orchestrating an elaborate legal conspiracy.

That brings us to the second complaint. This one was brought in April by the Institute for Justice, which is a group of conservative-leaning legal superheroes who have long defended educational choice (and worked on a bunch of other awesome issues) across the nation. Those paying careful attention will remember that after the ACLU and its friends sued Dougco for the original Choice Scholarship Program, IJ vigorously defended the program on behalf of a group of voucher students and parents. In fact, IJ attorneys delivered oral arguments in the case before the Colorado Supreme Court and were a driving force behind the SCOTUS appeal.

So why in the world is IJ suing Dougco over the new iteration of a program it just got done defending? Because it believes the new School Choice Grant Program’s exclusion of faith-based schools violates the U.S. Constitution’s Free Exercise, Establishment, Equal Protection, and Free Speech clauses. IJ (rightly) believes that faith-based schools can, should, and must be included under private school choice programs—and has plenty of case law to back that belief up.

Colorado’s Supreme Court is a bit of an outlier when it comes to its declaration that faith-based schools cannot be included in private school choice programs. SCOTUS decided ages ago that because these programs provide aid to students and families who choose schools rather than to schools themselves, they are neutral with respect to religion and are therefore perfectly constitutional. Other states have applied similar logic when examining school choice programs in the context of their Blaine Amendments. Oklahoma recently upheld a special needs voucher program on these grounds. Before that, we had North CarolinaIndiana, and Wisconsin (and Ohio, which later became the basis of the U.S. Supreme Court ruling linked above).

To summarize, TPPE wants the new School Choice Grant Program to go the way of dinosaurs and disappear completely. IJ wants the program to be required to include faith-based schools. That’s right, there are two diametrically opposed suits against the same program.

And so we come full circle to yesterday’s ruling, which denied IJ’s request that the program be expanded to include faith-based schools. The federal judge, who delivered her decision from the bench, said that the law is still “unsettled” until SCOTUS decides to deal (or not deal) with the original Choice Scholarship Program. She also argued that IJ didn’t meet the standard of proving “irreparable harm” to its clients, a group of students and parents who wanted to use the vouchers at Valor, a faith-based high school.

No doubt this decision made the intervening parties—ACLU, TPPE, and Americans United for the Separation of Church and State—very happy. For obvious reasons, I’m significantly less enthused. But IJ has already said that it plans to appeal, so the legal fight is far from over.

Hopefully this information goes some way toward clearing up the confusion surrounding the ever-increasing complexity of the voucher issue in Douglas County. As always, I’ll be watching closely in the coming months.

2 Comments »

2 Responses to “Dougco’s Voucher Lawsuit Muddle Explained”

  1. Ed is Watching » New Dougco Ruling Stretches Logic, Hampers Choice on 11 Aug 2016 at 10:11 am #

    [...] talked some time ago about the legal quagmire surrounding Douglas County vouchers, and I think that background knowledge [...]

  2. Ed is Watching » What Might Gorsuch Mean for Education? on 07 Feb 2017 at 4:11 pm #

    [...] even more importantly, Gorsuch’s confirmation would likely be great news for those following the Douglas County voucher case. That case was appealed to the U.S. Supreme Court after the Colorado Supreme Court struck it down [...]

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