Archive for the 'Blaine Amendments' Category

August
25th 2017
Summer break was exciting for school choice!

Posted under Blaine Amendments & Colorado Supreme Court & Constitution & Courts & dougco & Douglas County & douglas county school district & Educational Choice & School Board & School Choice & United States Supreme Court

It has been a long summer break, but I’m back watching over education in Colorado!  And, oh my, what a summer it has been for school choice!

On June 26, the Supreme Court of the United States ruled 7-2 in favor of tire scraps.

Huh?  Tire scraps?

That’s right, tire scraps.

A private, church-affiliated preschool in Missouri applied for the provisioning of tire scraps for playground resurfacing under a state grant program, but was turned down because of their church affiliation under the Missouri State Constitution’s Blaine clauses.  The school challenged the decision in court.  The case, Trinity Lutheran v. Comer, made it all the way to our country’s high court, which decided that First Amendment freedom of religion rights supersede the discriminatory Blaine clauses of Missouri’s State Constitution.  The U.S. Supreme Court’s decision means that just because the preschool was affiliated with a church, that should not prevent them from being eligible for the State’s tire scrap grant program.

Okay, why should Colorado care about tire scraps in Missouri?

In light of this ruling, the U.S. Supreme Court decided not to rule on another Blaine-related case—the case regarding Douglas County School District’s Choice Scholarship Program (CSP).

Let’s back up for a moment.  In 2011, a Denver District Court judge placed an injunction on the CSP.  The decision was overturned by the Colorado Court of Appeals in 2013.  That decision was petitioned to the Colorado Supreme Court, which struck down the CSP 4-3, with three of the four justices in the majority citing Blaine clauses.  The case was then appealed to the Supreme Court of the United States.

Moving back to this summer, the U.S. Supreme Court vacated the Colorado Supreme Court’s decision on the CSP, ordering the Court to reconsider the case given the Trinity Lutheran ruling.  The case was then sent back down to the District Court.  Why exactly?  It’s hard to say.  Could this be a political maneuver to test the will and ability of the plaintiffs to see the case through?  Perhaps we’ll never know.

And that’s where things stand now.  School choice advocates are anxiously awaiting the ultimate ruling on the CSP which may take several months…

…which brings us to yet another obstacle: school board elections are just over two months away, and the current majority on the Douglas County School Board that supports the ongoing case is in danger of being voted-out in November.  In fact, if they lose just one seat out of the four that are up for election, the Board may flip.

The importance of the Douglas County School District’s ongoing commitment to the pursuit of the CSP case cannot be understated.  I will be keeping a close watch on the upcoming election, knowing that it is perhaps the most important election related to school choice in our country’s recent history.

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April
19th 2017
Trinity Lutheran Gets Its Day in Court

Posted under Blaine Amendments & Colorado Supreme Court & Courts & Douglas County & Educational Choice & Legal Issues & SCOTUS

This week is a big week in the world of education law. Today, the U.S. Supreme Court will take up its first case related to state constitutional Blaine clauses. We talked about these ugly little pieces of constitutional language in some detail last week when I highlighted the Independence Institute’s new paper, Blaine’s Shadow: Politics, Discrimination, and School Choice. Check out that paper if you need some historical background on Blaine clauses and what they mean for education today.

Before you ask, the court isn’t considering the Dougco voucher case tomorrow. We’re still waiting to find out whether SCOTUS will hear that one. Instead, the high court will hear oral arguments in Trinity Lutheran v. Pauley, which deals with a Blaine-related case out of Missouri. We’ve talked about that case in passing over the year or so since I wrote about it in detail, but a refresher is probably in order. From my previous post:

Here’s the skinny: Missouri runs a program under which organizations can apply to the state for grants. That’s not unusual. But here’s the trick: these “grants” do not come in the form of money. They come in the form of scrap rubber. That rubber is used by organizations to replace hard playground surfaces with soft, bouncy pads—a significant improvement over the concrete my dad used to play on. If you’ve met my dad, you know what kind of impact (heh) repeatedly hitting one’s head against concrete playground surfaces can have.

Trinity Lutheran Church runs a preschool in Missouri. That preschool has a playground, and that playground is surfaced with gravel. Gravel is admittedly better to fall on than concrete, but it’s still not great. It is, after all, made of rocks. With this safety concern in mind, the church’s preschool applied to the Missouri Department of Natural Resources for scrap rubber that it could use to resurface the playground.

The department’s response? “No can do. You’re religious.” It then fervently pointed to the state’s Blaine Amendment and walked away.

The problem here is a nuanced one. The Playground Scrap Tire Surface Material Grant Program is supposed to operate on the basis of neutrality. But Trinity Lutheran asserts that the department actively discriminated against its preschool simply because it is a religious organization, thereby violating its First Amendment rights.

Trinity Lutheran provides an opportunity for SCOTUS to consider whether this kind of application of state constitutional Blaine clauses violates the government’s First Amendment responsibility to maintain neutrality with respect to different religions. Continue Reading »

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April
12th 2017
History! Blaine’s Shadow Tells an Important Story

Posted under Blaine Amendments & Colorado Supreme Court & Constitution & Courts & Douglas County & Educational Choice & Legal Issues & Vouchers

James G. Blaine. You’ve heard that name before, right? Of course you have. I’ve written about Congressman Blaine a number of times, usually in the context of Douglas County’s ongoing legal battle against so-called “Blaine Amendments” through its first-of-its-kind local voucher program. Or maybe I should say programs (plural), as the district’s other voucher program made things pretty complicated for a while before a debatable court decision and a new decision by the board put an end to most of the legal craziness.

But while we’ve talked a fair amount about Blaine and the state constitutional clauses named after him, I’m not sure we’ve ever really known the full story. There’s a lot of important history and drama and politics buried behind the simple narrative that most folks just don’t know.  Ross Izard, my favorite policy nerd, set out to tell that story—and to explain why it matters from a constitutional perspective—in his most recent issue paper, Blaine’s Shadow: Politics, Discrimination, and School Choice Continue Reading »

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August
11th 2016
New Dougco Ruling Stretches Logic, Hampers Choice

Posted under Blaine Amendments & Colorado Supreme Court & Courts & Douglas County & Educational Choice & Legal Issues & Vouchers

Yesterday, we celebrated the continuing success of public school choice by taking a look at some very encouraging findings in Colorado’s public charter school sector. I mentioned in the post that despite the rapid expansion of charter schools, demand is far outstripping supply when it comes to school choice—there are thousands of students on charter waiting lists and in lottery pools across the state.

Yet even as I type this, between 10,000 and 15,000 seats sit empty in Colorado private schools. Each of those seats represents the opportunity to change a student’s life, but that doesn’t stop choice opponents from fighting tooth and nail to shut down any attempt to open the door to those opportunities.

Sadly, these opponents scored another win against choice in Douglas County last week when 2nd Judicial District Court Chief Judge Michael Martinez—the very same judge who blocked the original Dougco voucher program in 2011—ruled that the district’s new local voucher program, which excludes faith-based schools, is still bound by the Colorado Supreme Court’s sweeping 2015 ruling under Colorado’s Blaine Amendment. Continue Reading »

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April
22nd 2016
Catching up on Some Exciting Policy Work

Posted under Blaine Amendments & Colorado General Assembly & Edublogging & Private Schools & Public Charter Schools & School Choice & State Legislature

It’s Friday! Birds are chirping, the sun is shining, and Little Eddie is wearing shorts at work. That’s right, shorts. I’ll be putting those shorts to good use this afternoon when I head to the Denver zoo for a fun safari.

You probably guessed that all of that information is leading to the part where I say that today’s post will be quick and easy. You are correct. There’s a ton of stuff to talk about, including a disturbingly Masters-like state supreme court ruling on teacher tenure in North Carolina, the Colorado Senate Education Committee’s laudable work in passing Senate Bill 16-188 on equitable charter funding last night, and a whole raft of new and interesting research. We’ll get to all that—or at least a lot of it.

For now, though, I think it would be good to catch you up on some of the very cool work being done by my policy friends at the Independence Institute. In fact, let’s do that with a list. Everyone likes lists. Continue Reading »

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March
18th 2016
Dougco Restarts Its Voucher Program, Minus Religious Schools

Posted under Blaine Amendments & Douglas County & School Board & School Choice

Just last week, we covered some Jeffco-tinted news about a student walkout/protest in Douglas County School District.  But those aren’t the only waves Dougco has made recently, or even the most important. No, the most exciting news to come out of the district is that the conservative board majority voted Tuesday to restart its local voucher program, the first of its kind in the nation.

This time, however, those pesky religious schools will have to sit out—along with any of the kids who wanted to attend them. The new program, now called the School Choice Grant Program, explicitly prohibits religious schools from participating. It also revisits the old program’s contentious charter school funding mechanism (and funding amounts), though that’s a conversation for another day. For now, let’s focus on the religious aspect.

Most of you already know about the original Choice Scholarship Program, so we won’t spend a lot of recounting all of the details. It’s been a while since we talked about the Dougco case’s legal slog in any detail, though, so I think it’s a good idea to pause and consider what’s going on here and what it means. Continue Reading »

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February
15th 2016
Justice Scalia’s Passing Leaves Me Sad and Worried

Posted under Blaine Amendments & Constitution & Courts & Union

I would normally start a Monday morning post with a cheerful message. Nobody wants doom and gloom on the first day of the week. Unfortunately, today’s post will have to tackle a decidedly sadder and more concerning event: the surprising death over the weekend of U.S. Supreme Court Justice Antonin Scalia.

For those who don’t follow the proceedings or makeup of the U.S. Supreme Court closely, Justice Scalia was an intellectual and legal titan. Appointed to SCOTUS by Ronald Reagan in 1986, he almost single-handedly led a “conservative revolution” on SCOTUS that has left an indelible imprint on the high court’s thinking and reasoning. A staunch believer in constitutional originalism, he supported the idea that the U.S. Constitution ought to be read in light of what it actually says, not interpreted through the warped lens of the political fads of any given administration or era (imagine that).

In many ways, one could argue that it was Scalia who brought the intellectual firepower needed to push constitutional originalism into the mainstream. His ideas, critiques, and arguments will echo for decades to come, and have forever changed the conversation surrounding constitutional law in America. One day 100 years from now, long after I’ve grown up and lived out my life, my great-grandchildren will learn about Antonin Scalia and the inerasable impression he left on the United States—an impression he left while earning the respect and admiration of even those who vehemently disagreed with him.

Simply put, Justice Scalia was a superhero. To conservatives and believers in the constitution as the Founding Fathers wrote it, he is something of a father figure. He will be dearly missed. Rest in peace, Justice Scalia, and thank you for your service and commitment to our nation.

Sadly, there will be little time to grieve Justice Scalia’s death. Continue Reading »

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January
22nd 2016
Begging for Tire Scraps: SCOTUS Takes MO Blaine Case

Posted under Blaine Amendments & Constitution & Douglas County & State Legislature

Yesterday, we talked Dougco. Because I’m a fan of loosely connected thematic writing, we’re going to do the same today in a more peripheral sense. Don’t worry, today’s post will include markedly less discussion about the nether regions of the male body.

Some of you may remember that there was a pretty important—and pretty disappointing—Colorado Supreme Court decision about Dougco’s local voucher program last June. The program was struck down under an incredibly broad interpretation of our state’s Blaine Amendment. The decision was so sweeping, in fact, that Justice Allison Eid had this to say about it in a dissenting opinion:

Today, the plurality interprets Article IX, Section 7 as prohibiting the expenditure of any state funds that might incidentally or indirectly benefit a religious school. This breathtakingly broad interpretation would invalidate not only the Choice Scholarship Program (“CSP”), but numerous other state programs that provide funds to students and their parents who in turn decide to use the funds to attend religious schools in Colorado. 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.

Yikes! But things weren’t all bad. The Colorado Supreme Court’s decision to strike down the program opened a potential pathway to challenging discriminatory Blaine Amendments across the country before the United States Supreme Court (SCOTUS). And sure enough, Dougco appealed the decision, this time under the legal guidance of legal superstar and former U.S. Solicitor General Paul Clement.

Getting SCOTUS to grant a writ of certiorari, or “cert” for short, is tough. The high court receives about 8,000 applications for cert each year, of which it grants roughly 80. In other words, SCOTUS takes up approximately one percent of the cases it reviews each year. Obviously, this indicates that the court is a wee bit selective about the cases it takes. So, as compelling as Dougco’s case is, the odds of it reaching SCOTUS have always been long. We won’t know for sure whether SCOTUS will hear the case until sometime next month. (NOTE: The Supreme Court’s website update its figures for cert applications and acceptance after publication of this blog. The numbers above reflect the revised figures.) 

In the meantime, however, SCOTUS has decided to talk about Blaine Amendments by taking up a case out of Missouri. Continue Reading »

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