Colorado Supreme Court Dismisses Challenge To Douglas County School Choice Program

John Kramer
John Kramer · January 26, 2018

Arlington, Va.— Yesterday afternoon (January 25, 2018), the Colorado Supreme Court dismissed a case challenging Douglas County, Colorado’s Choice Scholarship Program and vacated earlier decisions in the case, meaning that the legal landscape for educational choice in Colorado is right back where it was when litigation began in this case in 2011.

According to Michael Bindas, a senior attorney with the Institute for Justice, “The court’s action leaves the constitutional questions concerning educational choice in Colorado open for resolution in a future case.”

The Choice Scholarship Program was a local educational choice program adopted by the Douglas County Board of Education in March 2011 to “provide greater educational choice for students and parents to meet individualized student needs.” The program provided 500 scholarships that parents could use to send their child to any private school that participated in the program and that had accepted the child.

In June 2011, however, the American Civil Liberties Union, Americans United for Separation of Church and State, and several Colorado organizations and taxpayers sued the Douglas County Board of Education to stop the Choice Scholarship Program. The Institute for Justice intervened in the case to defend the program on behalf of three families with children who had received scholarships under it.

In August 2011, the Denver District Court held that the program violated the state constitution and enjoined its implementation. The Colorado Court of Appeals then reversed that decision and upheld the program in February 2013.

In June 2015, however, the Colorado Supreme Court reversed again, invalidating the program once more. According to a three-justice plurality of the court, the program violated Article IX, Section 7 of the Colorado Constitution—a “Blaine Amendment”—which prohibits government from making appropriations “to help support or sustain any school . . . controlled by any church or sectarian denomination.” The opinion ignored the fact that the Choice Scholarship Program was designed to aid Douglas County families, not schools, and that not a penny flowed to any school, religious or nonreligious, but for the private and independent choice of parents.

The Institute for Justice petitioned the U.S. Supreme Court to review the Colorado Supreme Court’s judgment, and on June 27, 2017, the nation’s highest court granted the petition.  It then issued an order vacating the Colorado Supreme Court’s judgment and sent the case back to that court for further consideration in light of Trinity Lutheran Church of Columbia, Inc. v. Comer, which the U.S. Supreme Court had decided the previous day. Such an order—called a “grant, vacate and remand” order—is warranted when the U.S. Supreme Court believes there is “a reasonable probability” that the lower court would resolve the case differently “if given the opportunity for further consideration” in light of an intervening Supreme Court decision in another case.

Before the Colorado Supreme Court could revisit the constitutional issues, however, political control of the Douglas County Board of Education flipped to an anti-educational choice majority, and on December 4, 2017, the newly comprised board repealed the Choice Scholarship Program. The board, along with the plaintiffs who had been challenging the program, immediately asked the Colorado Supreme Court to dismiss the case as moot and vacate the decisions of the lower courts in the case. Yesterday afternoon, the Colorado Supreme Court granted their request.

“Rather than allow the Colorado Supreme Court to rule and provide clarity on these important constitutional issues, the new anti-choice Douglas County Board of Education did everything it could to ensure that no decision would be rendered,” explained Bindas. “The board recognized that the court would likely rule in favor of the schoolchildren this time around and hold that educational choice is perfectly permissible, just as so many other state supreme courts have done.”

As a result of yesterday’s order, the legal landscape for educational choice in Colorado is back to where it was seven years ago, before the Choice Scholarship Program was adopted. According to Bindas, “The Institute for Justice stands ready to defend the next educational choice program that is adopted in the Centennial State. In the end, educational choice—and the children it serves—will win.”