Archive for the 'Constitution' 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
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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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. Continue Reading »

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April
8th 2016
The Washington Charter Phoenix Rises

Posted under Constitution & Courts & Legislation & Public Charter Schools & Union

I have a love-hate relationship with the courts—a fact well known to my readers. From Douglas County vouchers to tire scraps in Missouri to Thompson union battles (even though logic eventually prevailed in that case) to decisions on teacher tenure and forced tribute payment by non-union members, I often find myself befuddled by the apparent lack of ability (desire?) on the part of some courts to do stuff that makes sense.

But even among all that silliness, one decision really stands out as the most surprising in the last couple of years: a decision by the Washington Supreme Court to declare the state’s charter school law unconstitutional. Huh?

I wrote last September about the unpleasant surprise that was the Washington Supreme Court’s charter school ruling. I simply couldn’t wrap my head around the idea of a court striking down something as firmly rooted as charter schools.

According to the National Alliance for Public Charter Schools, there are more than 6,700 public charter schools in America. Those schools serve 2.9 million kids across more than 40 states.  In Colorado alone, charters serve 108,000 kids—about 12 percent of all public school kids in the state—in 226 schools. Charter laws have been around for more than 25 years. Until Washington, the laws had withstood legal challenges in every state where they’d been brought, including Colorado.

Charter schools are not some new-fangled experiment or radical idea. They are an inerasable part of the American public school system. Well, except in Washington, where a panel of unelected judges decided that an obscure ruling from 1909 provided enough of a legal platform to outlaw them entirely. Or at least they thought that would be the result. Continue Reading »

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March
24th 2016
Colorado Supreme Court Takes on Huge Tenure-Related Case

Posted under Constitution & Courts & Denver & Teachers & Union

We just can’t stop talking about court cases, can we? First, we covered an interesting Blaine Amendment case out of Missouri. Then things took a turn for the sad (and scary) with Justice Antonin Scalia’s untimely death, and we looked at what that loss might mean for important education cases before the U.S. Supreme Court. Then Douglas County up and restarted its voucher program, this time without religious schools—a decision that has since caused no small amount of edu-drama.

Today, we’re going to look at another exciting development: The Colorado Supreme Court’s decision to grant certiorari to the very important tenure-related Masters case. That’s a really big deal.

I’ve been talking about the Masters case ever since the Denver Classroom Teachers Association and a group of non-probationary teachers started down that lonely road back in 2014. We celebrated when a Denver District Court judge shot down the union’s arguments. We covered the union’s opening arguments in the subsequent appeal. Then I neglected to post on the disappointing appeal outcome as I wallowed in grief and frustration about the ruling.

Why is Masters so important? Let me explain. 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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