Archive for the 'Courts' Category

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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February
7th 2017
What Might Gorsuch Mean for Education?

Posted under Congress & Courts & Educational Choice & Federal Government & Legal Issues & United States Supreme Court & Vouchers

President Trump has always been a wild card. It’s been very hard to say what he would or would not do—and in some ways it still is. But one of the central promises of his campaign was that he would nominate a great justice to replace Justice Antonin Scalia, who died tragically almost exactly year ago. To his credit, he has kept that promise by selecting Neil Gorsuch to fill Scalia’s empty seat.

Education is still a bit of a question mark when it comes to the Trump administration. There have been all sorts of rumors and ideas floating around, but none has yet coalesced into a cohesive vision of how the federal government will interact with K-12 education. The crystal ball is further clouded by Betsy DeVos’s sharply contested nomination to head the U.S. Department of Education.

It’s been sad to watch the conversation about DeVos, a lifelong philanthropist who has donated her time and money to increasing opportunities for those who need them, devolve into a shouting match that sidesteps reality and avoids real conversations about what DeVos should or shouldn’t do should she be confirmed. As Rich Lowry wrote for National Review, “We now know that working to give poor kids more educational opportunities is considered a disqualifying offense for the Left.”

Fortunately, even as the battle over DeVos continues to rage following her historically close confirmation, I think we have good reason to be hopeful on a couple of educational fronts thanks to Gorsuch’s nomination. Continue Reading »

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November
9th 2016
So… What Happens Now? Thoughts on What President Trump Means for Education

Posted under Accountability & Colorado Department of Education & Colorado Supreme Court & Courts & Education Politics & Educational Choice & Every Student Succeeds Act & Federal Government & State Board of Education & United States Supreme Court

Something happened last night. I was already in bed, of course, but I could hear strange shouting downstairs. I couldn’t quite make it out, but it sounded like someone saying, “Wisconsin?! What?!” This morning I found my dad still awake, sitting in an arm chair with bleary eyes and a strange expression that I’m not sure I’ve seen on his face before. It was weird. It was really, really weird.

I am, of course, referring to Donald Trump’s utterly astonishing victory over Hillary Clinton in last night’s presidential election. He deserves a hearty congratulation for defying the political odds and, in the end, pulling off exactly the kind of map-changing, crushing victory he said he’d accomplish. Truthfully, I never thought I would write the words “President-elect Trump.” But here we are. 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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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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June
9th 2016
Independence Institute Stands Up (Again) for Tenure Reform

Posted under Colorado General Assembly & Colorado Supreme Court & Courts & Denver & Legal Issues & State Legislature

I have double good news for my fellow policy nerds on this fine Thursday morning. First, the Colorado State Board of Education voted yesterday to continue disaggregating student subgroup data for accountability purposes. I had some rather strong thoughts on the issue, so this decision makes me smile.

The conversation will continue, and, if Chairman Durham’s comment in the official CDE press release is any indication, may even lead to some thoughtful new approaches. In the meantime, I’m pleased to know that we won’t be sweeping challenging populations of students under the rug or compromising taxpayer accountability to satisfy the edu-blob.

Maybe even more exciting, though, is the fact that the Independence Institute has fired its next salvo in the war to protect teacher tenure reform in Colorado. Continue Reading »

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April
20th 2016
Vergara Overturned (For Now), But the Conversation Continues

Posted under Accountability & Courts & Teachers & Tenure & Union

Two weeks ago, I expressed my ambivalence toward the courts (again) while talking about a creative workaround for a Washington Supreme Court decision declaring charter schools unconstitutional. I then mistakenly allowed myself to believe we would be free of legal discussions for a while. No such luck. And this time, stuff’s complicated.

Last week, a California Court of Appeals panel overturned the now-famous Vergara v. California ruling. For those who don’t remember, this ruling struck down California’s teacher tenure statute along with other seniority-based policies like the state’s last-in-first-out (LIFO) dismissal policy, which paid no heed to effectiveness. Why? Because the court determined that those policies disproportionately harm low-income and minority students, thereby violating the California Constitution’s requirement that the state provide a “meaningful, basically equal educational opportunity” to all students.

A raft of evidence presented by the plaintiffs—a groups of students—and their attorneys showed that seniority-based personnel policies, and especially policies like tenure that make it nearly impossible to let ineffective teachers go, are bad ideas. 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
31st 2016
Expected but Disappointing: SCOTUS Splits on Important Union Tribute Case

Posted under Courts & Education Politics & Teachers & Union

Good afternoon, fellow policy nerds. I’m a little strapped for time today thanks to some exciting stuff going on at the Capitol. The drama surrounding the School Finance Act continues, and I’m going to be watching the second half of SB 148’s Senate Education Committee hearing. If you’ll recall, I’m sort of a fan of that bill. So is my policy friend Ross Izard, who took to the Denver Post to make the case for the bill. (Funny how often Ross’s and my viewpoints line up, isn’t it?)

Anyway, we don’t have much time to chat this afternoon, so today’s post will be a short one. That’s probably for the best; nobody likes to dwell on bad news.

Back in February, I wrote about what Justice Scalia’s tragic death might mean for some important education-related cases before the U.S. Supreme Court. I (and every other education wonk in the country) predicted then that the 4-4 split between conservative and liberal justices could spell serious trouble for the very important Freidrichs case, which deals with forced payment of “agency shop fees” by teachers. I wrote:

The most immediate ramifications of the tie vote rule work in favor of unions, and particularly the teachers unions. Tough questions asked from the bench during oral arguments in the Friedrichs case led many to believe that a decision against agency shop fees was all but inevitable. Such a decision would have been a significant victory for teachers and other workers forced to pay tribute to deeply political (i.e., Democratic) unions with which they disagree, and would have put a big dent in teachers union budgets in many states across the nation (though unfortunately not Colorado). Justice Scalia’s untimely departure has changed all that. A tie now seems unavoidable, which will result in the unions getting to keep their forced tribute payments for now. Ick.

Unfortunately, that prediction turned out to be accurate. Continue Reading »

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