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Supreme Court ruling could make Colorado a school choice destination

By   /   January 26, 2015  /   No Comments

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A pending Colorado court decision expected in the spring on school choice could upset the status quo in K-12 education.


By Ben DeGrow | Watchdog Arena

Anticipation is building among school choice supporters for a Colorado court ruling that could create wide and deep ripples in the fabric of American K-12 education.

On Dec. 10, 2014, the Colorado Supreme Court heard oral arguments in the case of Taxpayers v. Douglas County Board of Education. The case’s third and decisive round of legal hearings will test whether an unprecedented local school choice program not only will survive, but also could multiply.

The ruling could embolden other local Colorado boards of education to offer parents educational options outside the public system, and inspire policymakers hoping to expand choice in other states.

New Choices Lost

In March 2011, a unanimous vote of the Douglas County school board made Colorado’s third-largest district the first in the nation to enact a local private school choice program. Created as a pilot, the Choice Scholarship Program offered 500 current district students a full 75 percent of the state’s per-pupil funding formula to underwrite tuition if they left to attend a private school partner of the parents’ choice.

Unlike most choice programs, enacted at the state level, the program was structured to benefit students regardless of a family’s income. Douglas County is a largely conservative and affluent area, a fast-growing suburban region connected to rural pockets that together serve more than 66,000 students grades K-12.

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Several hundred Dougco students had already begun attending a new private school with the promise of a $4,600 scholarship when Denver District Court Judge Michael Martinez put the program under a permanent injunction. A group of plaintiffs, led by the American Civil Liberties Union and Americans United for the Separation of Church and State, won their first-round court victory in August 2011.

Don Willson’s family was prepared to benefit from one of the 500 scholarships. While his older three children experienced “good success” in Douglas County’s public schools, his youngest struggled during her freshman year in one of the district’s large high schools. The injunction dashed residents’ hopes for financial aid.

“Our daughter never did take advantage of that scholarship opportunity,” Willson told AM 630 KHOW radio host Mandy Connell during a Dec. 11 interview.

Though covering a broad number of claims, the legal dispute has centered around a handful of state constitutional provisions that plaintiffs say forbid the use of public dollars from supporting “sectarian” schools and other institutions. Defendants argue that the program represents one choice among many offered by the district, and that participating families decide whether they want to use their scholarship in a religious or non-religious school.

Opponents of the program won the first round, but a privately-funded legal effort enabled the district to challenge Martinez’s ruling. The Court of Appeals’ February 2013 decision completely overturned the findings, concluding that the ACLU and its co-litigants lacked legal standing and failed to prove the program violated the state constitution.

However, the injunction was left in place.  More than three years have transpired with the Choice Scholarship Program dormant.

Though not in operation, the program still is generally popular. An April 2013 survey sponsored by the Independence Institute (full disclosure: my employer) found 55 percent of Douglas County voters favored the Choice Scholarship Program.

True “Local Control”

In 2004, a 4-3 Colorado Supreme Court majority struck down a state-enacted school voucher program, on the grounds that the legislation encroached on school boards’ “local control” to appropriate locally collected tax dollars. From the genesis of the Douglas County program, the school board and its supporters have established a contrast by hailing their program as the essence of local control.

A 2010 community task force’s research and recommendations led to the development of the Choice Scholarship Program and other parent-friendly policies. Grassroots support for the school board’s forward-thinking initiative continues through the group Great Choice Douglas County, which keeps its network of parents and taxpayers informed about local and national school choice developments. The organization also hosted a press conference in Denver right before the Dec.10 hearing.

Hopeful about the ruling, Great Choice spokesperson Pam Mazanec told Watchdog Arena, “It would be a victory for more opportunity for families to obtain the education that best fits their child.”

One attorney defending the program believes national legal trends are on Douglas County’s side.

“Across America, there is a steadily growing wave of school choice programs and judicial opinions upholding them,” said Institute for Justice attorney Michael Bindas, who represents families harmed by the lawsuit against the program.

Among the initial students IJ represented was Nate Oakley. The autistic middle-schooler experienced bullying at his public school but required financial support to enroll in Humanex Academy, a private learning environment designed to serve special needs kids. His family since moved out of state.

“With each new victory, we’re leaving the failed, one-size-fits-all approach to education behind and entering a future that respects the unique, individualized needs of every child,” Bindas added.

Future Destinations

In the meantime, some have made Douglas County a destination because of local school leaders’ exceptional commitment to offering families a wider range of options. That was an important part of the decision that brought Aaron Johnson and his family back to Castle Rock, the town where he grew up, after years living in the Washington, D.C. area.

“We chose Douglas County because we saw the emphasis placed on choice by the school board,” Johnson wrote in a Dec. 6 Denver Post guest column. “The Choice Scholarship program, as well as the growth of charter options, drew us here.”

Whether that full range of educational options remains intact is up to the state’s highest court. Bindas says that a ruling from the seven justices is expected this spring. That timing potentially would allow the Choice Scholarship Program to restart for the 2015-16 term, four years after it was originally launched.

“A win in this case would be a tremendous victory for Douglas County families—indeed, all families—who simply want the right to choose the schools that are best for their kids,” said Bindas. “We’re confident that the Colorado Supreme Court will recognize that right and the constitutionality of school choice programs that empower parents to exercise it.”

Mazanec says Great Choice Douglas County plans to stay engaged with the school board, parents, and taxpayers after the court resolves the case. She also believes a favorable ruling from the Supreme Court “would be a victory for all districts in Colorado,” emboldening other local boards to craft private school choice programs that fit the needs of their communities.

Even though his youngest daughter is now enrolled in college, Willson stated that he wants to continue speaking out for the program and those who may yet benefit.

“It’s something that will help kids in the future, and I’d just like to see the Supreme Court make the right decision here to allow parents and the local school district to make that choice,” he said.

This article was written by contributors of Watchdog Arena, Franklin Center’s network of writers, bloggers, and citizen journalists.


Ben DeGrow is senior education policy analyst and assistant research director for the Denver-based, free market Independence Institute, where he has authored more than 30 reports and numerous opinion-editorials. He has successfully recommended various policy changes supporting school choice and innovation while serving on Colorado and national task forces. Ben is married to Marya DeGrow, a fellow Hillsdale College alum and Independence Institute colleague. They are parents of three girls—two of whom are students in a Jefferson County public charter school, where Ben serves on the board of directors. Find him on Twitter: @bendegrow