Two months after Colorado’s highest court rejected the Douglas County School District’s controversial school voucher program, officials in the wealthy, high-achieving suburban district announced Wednesday they will ask the U.S. Supreme Court to consider the case.
The district also gained a key ally in the Colorado Attorney General’s Office, which will be filing its own petition backing the district’s Choice Scholarship Program, district officials said.
The district’s move is not a surprise. District leaders all but promised to take the step after the Colorado Supreme Court held in a 4-3 judgment June 29 that the program violated a state constitutional provision barring spending public money on religious schools.
District officials also followed through on their pledge to enlist elite legal help, announcing their team would be headlined by Paul Clement, a former U.S. solicitor general who has been mentioned as a potential Republican appointee to the U.S. Supreme Court.
The AG’s office signing on is another boost to the district. After the state Supreme Court ruling, Republican AG Cynthia Coffman issued a statement lamenting districts “now have one fewer tool to support parents in choosing the education that best fits their children’s needs.” A spokesman for the AG said the office would not be issuing any statements Wednesday commenting on its involvement in the Dougco case.
“When the Colorado Supreme Court’s opinion was announced in late June, we promised a careful, thorough and rigorous legal analysis to determine our next steps,” school board president Kevin Larsen said in a statement. “Today we announce that we will be seeking U.S. Supreme Court review of our case. To achieve that end, we have retained the very best legal minds in the country to make our argument that the June 29 opinion runs afoul of the United States Constitution.”
Mixed legal results on vouchers
Just about every program nationwide that uses public money to subsidize private education has been tested in court, with mixed results but the majority surviving, analysts say. Framers of the Dougco pilot program modeled it on an Ohio voucher program that weathered a U.S. Supreme Court challenge.
Legal experts disagree on whether the nation’s highest court will take the Douglas County case. Some say it’s unlikely the court would wade into a case brought solely on a state constitutional matter. Others argue the anti-Catholic roots of Colorado’s law – similar to those in more than 35 other states – and other issues make it a strong candidate and could plow new ground beyond traditional arguments over the First Amendment.
The district has signaled it will argue that prejudiced history taints the law enough that it violates the 14th Amendment’s equal protection clause. Opponents of the voucher program point to precedent holding that state courts can interpret their own constitutions to recognize broader rights than what might be afforded under the U.S. Constitution.
The involvement of Clement — who as U.S. solicitor general from 2005 to 2008 represented the federal government in U.S. Supreme Court arguments — is another wrinkle.
Larsen said Clement will be supported by a “dream team” of lawyers involved in the state court proceedings and scholars from “the highest ranking law schools in America.”
Alan Chen, a constitutional law expert at the University of Denver’s Strum College of Law, said Wednesday he does not believe the Colorado Attorney General’s Office involvement will factor in whether the court takes the case. While crediting Clement’s stature and experience, Chen said he remains skeptical the court will grant the review because the case is built entirely on state constitutional law.
Mark Silverstein, legal director for the ACLU of Colorado, which represented most of the individual plaintiffs, noted that the Attorney General’s office has been involved from the beginning. The State Board of Education was one of the defendants and was represented by the AG’s office.
Silverstein said he “wants to see what they write and how they frame the issue” in the petition to the Supreme Court before commenting further.
An unorthodox voucher program
The Dougco voucher case has endured a long and bumpy road. The district established the Choice Scholarship Program in 2011 after a conservative takeover of the school board, reasoning that competition can lift all schools even in a district consistently ranked as one of the state’s top academic achievers.
While most voucher programs are restricted to low-income students or those with special needs, Douglas County invited all families to apply — although the program was limited to 500 slots. Sixteen of the 23 participating private schools were religious; 14 were outside the county.
In 2011, the first 304 students were about to enroll when a lawsuit brought it to a halt. Voucher opponents prevailed in Denver District Court. But in 2013, the Colorado Court of Appeals upheld the program’s constitutionality in a 2-1 vote, setting the stage for state Supreme Court arguments.
In the prevailing opinion, Supreme Court Chief Justice Nancy Rice cited Colorado’s “stark constitutional provision” forbidding the use of public money to fund religious schools. Although the money came in the form of financial aid to students, the prohibition is not limited to direct funding, she wrote.
School board member Craig Richardson said in an interview the decision to continue the legal fight is consistent with the district’s “broader strategic vision of freedom.” That, he said, includes empowering parents to choose their children’s schools and extends to the district’s teacher pay-for-performance system.
“The district is proceeding because it’s good for the Douglas County School District to proceed,” Richardson said.
District looking at proceeding with secular schools
He said the district has yet to complete a separate legal review of whether it can move ahead with the voucher program with changes. The district previously floated the possibility of revamping the program as early as this fall, but ran out of time before the school year began.
One question the district is evaluating, Richardson said, is whether moving forward only with secular private schools would meet the legal parameters of the state Supreme Court ruling. Given that most students chose to enroll in religious schools, it’s unclear how much appeal that would hold.
The decision to petition the high court – and assemble the high-powered legal team — also will send legal costs soaring beyond the $1.2 million the district already has reported. District officials say private donations have covered all costs.
“We continue to have as our goal that all legal costs associated with this case will be funded with the generous contributions of private donors who similarly believe in choice and competition in K-12 education and are not affiliated with any religious institutions,” Richardson said. “We strongly believe this is not a cause to which we want to put taxpayer dollars.”
The district faces a deadline at the end of September to ask for a U.S. Supreme Court review. Richardson said the district plans to ask for a month’s extension to file but will move forward even if that is denied.