New Dougco Ruling Stretches Logic, Hampers Choice

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. For those who don’t remember, that ruling placed the old Choice Scholarship Program (CSP) under permanent injunction, which is really just legalese for “killed it dead.” The district’s appeal of the Colorado Supreme Court’s decision, which could well provide an avenue to finally get rid of discriminatory Blaine Amendments in 38 states, is still hanging in limbo in the halls of the U.S. Supreme Court.

We talked some time ago about the legal quagmire surrounding Douglas County vouchers, and I think that background knowledge is important to understand where Judge Martinez’s recent decision fits in the current landscape. Here’s a refresher from that post:

…there are now two Dougco voucher programs out there. The original program, called the Choice Scholarship Program, is hanging out with SCOTUS for the time being. The new, secular-only version, called the School Choice Grant Program, has been moving forward in the meantime.

Now there are two additional complaints in the mix, both against the new School Choice Grant Program, with very different goals.

One of these complaints was filed last month by my dearest friends Taxpayers for Public Education (TPPE). This complaint argues that the permanent injunction placed by the Colorado Supreme Court on the original Choice Scholarship Program was not contingent on the inclusion or exclusion of faith-based schools. Instead, it was simply applied to the program as a whole. And because, according to TPPE, the new School Choice Grant Program is not substantively different from the old Choice Scholarship Program, the permanent injunction stands. Just for funsies, the complaint also accuses the district of being in contempt of court and orchestrating an elaborate legal conspiracy.

That brings us to the second complaint. This one was brought in April by the Institute for Justice, which is a group of conservative-leaning legal superheroes who have long defended educational choice (and worked on a bunch of other awesome issues) across the nation. Those paying careful attention will remember that after the ACLU and its friends sued Dougco for the original Choice Scholarship Program, IJ vigorously defended the program on behalf of a group of voucher students and parents. In fact, IJ attorneys delivered oral arguments in the case before the Colorado Supreme Court and were a driving force behind the SCOTUS appeal…

Judge Martinez’s latest order involves the first complaint described above. In essence, he is simply reaffirming the original permanent injunction that he himself placed on the program way back in 2011, which he does with some obvious satisfaction.

In fairness, enforcing the original injunction is what the Colorado Supreme Court ordered him to do… against the Choice Scholarship Program, not the new School Choice Grant Program. So why is the injunction being applied to the new program, which ostensibly addresses the constitutional concerns with the CSP? Because Judge Martinez agrees with Taxpayers for Public Education that the programs are really the same thing. Interestingly, he refers to the SCGP as a “new” program in the ruling before proceeding to say that:

Plaintiffs assert, and Defendants do not contest, that there are only a few differences between the two programs: in the SCGP, vouchers are called grants instead of scholarships, religious schools cannot be private school partners, the fictional Choice Scholarship School is eliminated, and the percentage of “per pupil revenue” (“PPR”) which will be given out as a voucher is increased. Other than these few changes, the essence of the CSP substantially remains intact…

So, other than the fact that the new School Choice Grant Program has made major changes to which schools can participate, altered how much money goes to those schools, and completely revamped the mechanisms through which students are counted and funded—basically all the biggest components of any educational choice program—the program is the same as the Choice Scholarship Program. Hmmm…

I’m no lawyer or judge (thank goodness!), but this argument strikes me as being highly questionable. By the broad logic applied by Judge Martinez, it seems that any private school choice program in Douglas County would be considered functionally identical to the Choice Scholarship Program because students would still receive funding through the district to attend private schools. Pass a local education savings account program under a new board 10 years from now? Nope, that’s the Choice Scholarship Program. Pass a completely redesigned local voucher program 20 years from now? That’s the CSP, too, silly. This kind of sweeping logic ignores an enormous amount of policy and constitutional nuance. To call it a stretch on the part of the lower court would be an understatement.

Judge Martinez defends the conclusion by arguing that the district promoted the new program as a continuation of the old and quoting a footnote in the 2015 Colorado Supreme Court decision. He argues that this footnote shows the high court knew that the plaintiffs were seeking a full injunction, not a rewrite to exclude faith-based schools under the CSP. And he’s right—sort of. Here’s what the relevant footnote says:

We do not suggest, of course, that grafting such limitations onto the CSP would necessarily render it compliant with section 7, or would even comport with the First Amendment. See infra ¶ 48 (discussing Colorado Christian University v. Weaver, 534 F.3d 1245, 1250, 1263 (10th Cir. 2008), which held that the “pervasively sectarian” distinction in Colorado’s scholarship programs violated the First Amendment). Regardless, Petitioners do not seek to rewrite the CSP so that it excludes religious schools (pervasively sectarian or otherwise); they simply desire a court order enjoining implementation of the CSP in its entirety.

Judge Martinez partially captures the second part of the footnote, but completely ignores the first. That’s a pretty serious omission given the fact that the first part a) makes clear that the court is discussing “grafting limitations” onto the CSP specifically and b) leaves open the possibility that a program excluding religious (or, in this case, “pervasively sectarian”) schools could be found constitutional. After all, if something is not “necessarily compliant” with the Blaine Amendment, it stands to reason that it is also not “necessarily uncompliant” with the same. In any case, the part of the footnote cited by Judge Martinez notes that plaintiffs sought to end the CSP itself, not every possible program that might look somewhat similar to it.

But irrespective of the tortured logic that led us to this point, here we are—and the legal mire surrounding vouchers in Douglas County continues to deepen. The district says it may appeal Judge Martinez’s decision, but that process will take time. We may be better off hoping that SCOTUS finally gets around to deciding whether it’ll hear the case—hopefully not in its current hyper-politicized, 4-4-split state—and makes the right decision to give Blaine the boot.

Even then, as Judge Martinez points out, the Colorado Supreme Court didn’t address all the complaints leveled against the CSP because it saw the alleged Blaine violation as enough to halt the program. Do you know what that means if the program is ever actually restarted? Yep, more lawsuits from those who can’t tolerate full-spectrum choice in education.

All this to stop a program designed to expand options for kids and families. It’s a crazy world we live in, friends. But if there’s one thing I know for certain, it’s that choice will inevitably win in the end. Take care, and I’ll see you next week!