Resilience Leads to an IJ Victory in Douglas County

April 1, 2013

Resilience is an attribute of “The IJ Way,” and there was resilience in spades in our latest school choice victory: a February decision from the Colorado Court of Appeals upholding the Douglas County Choice Scholarship Program.

The Choice Scholarship Program is a local school choice program adopted by the Douglas County Board of Education (south of Denver) in March 2011 to “provide greater educational choice for students and parents to meet individualized student needs.” Adopted as a pilot program, it provides 500 scholarships that parents can use to send their children to any private school, religious or non-religious, that participates in the program and has accepted the child.

As Liberty & Law readers know, however, opponents of choice are a determined bunch. The notion that parents—rather than government—might choose a child’s school is anathema to groups like the ACLU and Americans United for Separation of Church and State, which filed a lawsuit challenging the Choice Scholarship Program in the summer of 2011.

IJ, however, is an even more determined bunch. We marched off to the Centennial State and intervened in the lawsuit on behalf of three Douglas County families—the Doyles, Andersons and Oakleys—who received scholarships under the program. Alongside the school board and state of Colorado, we mounted a vigorous defense. In August 2011, however, after a marathon three-day hearing, the Denver District Court ruled against us and halted the program.

Every loss hurts, but, for two reasons, this one was especially stinging. First, the trial court ruled against us on not one, two or even three—but six—distinct legal grounds. Second, the court issued its opinion just days before classes were to begin, yanking the rug out from under the scholarship families at the eleventh hour.

At IJ we do not take defeat lightly. When we get knocked down, we get up and hit back . . . harder. That is exactly what we did in Douglas County. Realizing we had to run the table and win all the legal arguments in order to resurrect the program, we prosecuted a comprehensive appeal in coordination with the school board and state.

And run the table we did. In February, the Colorado Court of Appeals issued a 60-page opinion holding that the Choice Scholarship Program “does not violate any of the constitutional provisions on which” it was challenged. The court emphasized the fact that the program is “neutral toward religion”—allowing religious and non-religious schools alike to participate—and that any “funds [that] make their way to private schools with religious affiliation” do so “by means of personal choices of students’ parents.” These two features—neutrality and private choice—are the hallmarks of a constitutional school choice program.

The Court of Appeals’ decision was a victory not just for Douglas County families, but for all Colorado families who simply want the right to choose the schools that are best for their kids. Although the case is not yet over, if this decision stands it will pave the way for other Colorado school districts to follow the path Douglas County has blazed.

More than anything, however, the victory is a testament to IJ’s resilience—and to why we count resilience as one of the characteristics that define The IJ Way.

Michael Bindas is an IJ Washington Chapter senior attorney.

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