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Appeals Court Weighs Dougco Choice Program: Will Families Be Able to Give Thanks?

While some Douglas County students will have to wait even longer for an extra reason to give thanks, at least they can know for now their case was argued well.

The school board in Dougco, Colorado’s third-largest school district serving more than 60,000 students, gained national notoriety for the unprecedented step of adopting a private school choice program. District leaders have demonstrated both a consistent confidence in their ability to educate well the vast majority of students who come through their doors, as well as the humility to accept that some families may be better served by educational options the school district can’t directly provide. These include families who want more math and science in the curriculum, who have students with special needs, or who seek an educational program more in line with their values.

On the afternoon of Monday, November 19, the Colorado Court of Appeals gave an hour listening to arguments from attorneys in the case of Larue v Colo State Board of Education. At issue is the fate of the Douglas County Choice Scholarship Program, unanimously adopted by the school board in March 2011, and parent-directed educational opportunity for 500 students in the program’s pilot phase.

Three months after the program was enacted, a pair of groups (including the ACLU) filed suit to shut it down. In August 2011, Denver District Court Judge Michael Martinez came down hard with a permanent injunction, leaving many students and families in the lurch just as school was getting underway. Some, like Nate Oakley, found temporary accommodations to continue in their new private school. Others received help getting placed back into district schools. More than a year has passed to provide a formal challenge to Martinez’s legal claims.

A three-judge Court of Appeals panel — made up entirely of Republican Gov. Bill Owens appointees — yesterday gave 30 minutes each to arguments from both sides. Attorney Eric Hall did an able job pleading the case for the school district choice program and the families it was designed to serve. His counterparts Matt Douglas and Mike McCarthy tag-teamed in defense of the anti-choice side.

Some of the finer legal arguments are available to dig into, from Clear the Bench Colorado and a collection of legal documents from the case posted by the Independence Institute’s Education Policy Center. But Hall’s essential argument for why the program is constitutional and ought to be reinstated included the following key points:

  • The choice between religious and non-religious schools afforded by the program is neutral and directed by parents, not school officials;
  • Schools’ participation in the program is governed by 12 consistent criteria of eligibility, all of which serve a secular purpose; and
  • The state currently operates 22 public-private partnerships, 17 of which include funds being directed to private religious schools.

On the last point Judge Jerry Jones pressed Hall somewhat, saying it’s not the court’s main role to worry about the impacts their ruling might have on other existing programs but to get it right from a constitutional perspective.

Interestingly, Jones also pushed the other side’s attorneys at least as hard. McCarthy had to concede that no evidence came out at trial that shows the choice scholarship recipients would otherwise have attended school in another district. With that admission, the claim that the private school choice program would deplete funds to enrich Douglas County is greatly weakened.

Judge Dennis Graham also expressed skepticism that the citizens who filed the lawsuit against the school board had standing to challenge the program’s legality under the School Finance Act. If the court follows that skepticism to its logical conclusion, then nearly half of the plaintiffs’ case is taken down.

But that still leaves the argument about whether the Choice Scholarship Program violates various Blaine Amendment provisions in the Colorado constitution. The plaintiffs’ attorney Douglas sought to make the point that the program constitutes “aid” to religious schools.

Hall reiterated that the program stands under the U.S. Supreme Court’s test for parental choice in the 2002 Zelman ruling. However, his counterpart drew a couple key distinctions with the Cleveland program reviewed in the 2002 case and — including the fact that schools participating in the Dougco program can choose to discriminate enrollment based on religious affiliation.

Personally, I think it’s a strength of the program that it was designed to encroach as little as possible on private schools’ affairs. After yesterday, I am cautiously optimistic that the Colorado Court of Appeals will overturn the 2011 injunction. When will we know? As the Denver Post reports, Judge Graham said a decision will come in “due course.” My best guess is that we will most likely see a ruling come February or March.

No matter the decision reached by the three-judge panel, though, the case is sure to reach the Colorado Supreme Court for a final determination. Hopefully then families in Douglas County — and maybe even in some other reform-minded districts — will be able to express gratitude for a legal result that recognizes the fundamental power of parental choice and rewards the groundbreaking, carefully-crafted innovation of a remarkable school board.