Challenging Suburban School Choice in Douglas County, Colorado

“Do not mess with suburbanites, because frankly we’re just not gonna take it anymore.”

That closing line from Tom Hanks’ tepidly reviewed comedy “The ‘Burbs” is truer than many realize. U.S. Secretary of Education Arne Duncan learned it last year when he criticized “white suburban moms.” Union leaders may soon face the same fate.

In 2011, parents in the Denver suburbs’ Douglas County School District were given the opportunity to use suburban school choice to choose private schools using their children’s public funds, courtesy of a district-wide voucher program. Opponents of school choice sued to block the program, a case the Colorado Supreme Court will hear Dec. 10.

Who created school choice in Douglas County and why?

What’s unique about the “DougCo” voucher program is its inception. This school choice opportunity was not granted by the state legislature, as is the case for other voucher programs across the country.

Members of the Douglas County School Board—from the left, Craig Richardson, Justin Williams, Meghann Silverthorn, Kevin Larsen (president), Doug Benevento (vice president), Judith Reynolds, and Dr. James Geddes—won a high-stakes election in Colorado in 2013 for their support of education reform and school choice. The Douglas County School Board is the only such body in the United States to authorize a school voucher program for district students.

The Douglas County public school board, by unanimous vote March 15, 2011, approved giving district students an opportunity to leave their public schools, with funding, if their parents decided a private school would better meet their needs. No doubt a controversial decision, Superintendent Elizabeth Fagen reasoned that she and the board were tasked to provide a quality education for the children living within their school zone boundaries; if parents determined their child had educational needs better suited for instruction at a private school, then Dr. Fagen and her public school board should make certain the child could access it.

Who’s suing the program?

On June 21, 2011, opponents of Douglas County’s vouchers filed a lawsuit against the program. In La Rue v. Colorado Board of Education, the ACLU, Americans United for Separation of Church and State, several Colorado organizations, and some taxpayers sued the Douglas County public school board, school district, Colorado Department of Education, and state school board to stop the program. Substantive amicus briefs supporting this lawsuit were filed by union leaders representing the Colorado Education Association, National Education Association and the American Federation of Teachers, who were unable to oust Douglas County voucher-supporting school board members through the electoral process.

Why are they suing?

Those opposing Douglas County’s suburban school choice program alleged Colorado’s constitution was violated by allowing parents to pay for private education with a portion of state funds allocated for their children’s education. They oppose parents using those funds at schools with religious affiliations, and oppose state allocated education funds being used at any school other than a public school—drawing a distinction that although the Douglas County school district is a public entity, the fact it allowed funds to be used at schools other than district schools is constitutionally impermissible.

What lead to this case being heard by the state’s highest court?

In the courts, opponents of the Douglas County voucher program won their case at the district level, though lost in the appellate court. The Colorado Appellate Court said that the three stated purposes of the voucher program—“to provide greater educational choice for students and parents to meet individualized student needs, improve educational performance through competition, and obtain a high return on investment of [District] educational spending”—were public purposes appropriate for public funding. Given that state allocated funds were distributed first to the school district (giving control over those funds to the district), then the school district distributed the funds to parents (giving control over those funds to parents), and then parents made their own personal decisions about which school to choose for their children, there could be no violation of Colorado’s state constitution even if parents chose a school with a religious affiliation. That same reasoning is what led the U.S. Supreme Court to deem vouchers constitutional in 2002.

The Colorado court recognized that the voucher program is neutral toward religion; parents choose, and they may or may not choose a school with a religious affiliation. As stated by Michael Bindas, Institute for Justice attorney representing parents who intervened in defense of the voucher program, “Neutrality and private choice are the hallmarks of a constitutional school choice program, and the Court of Appeals recognized that the Choice Scholarship Program satisfies both of those requirements.”

Furthermore, the voucher program was permissible because it was an additional method to provide education to children; it did not in any way obstruct the state’s obligation to provide a system of public schools, as opponents alleged. There was no violation of the state constitution’s public school funding provisions.

Although the Colorado Supreme Court will consider the case and hear oral arguments Dec. 10 in Denver, a final ruling is not expected till 2015. An amicus brief co-filed by the Friedman Foundation and Independence Institute can be read here.

What’s next for school choice in Douglas County…and beyond?

Parents and policymakers across the country are watching this case. It represents a clear tipping point to those who regard student learning as a higher priority than maintaining an education monopoly that is increasingly controlled by national and state bureaucrats and union leaders. Douglas County’s school choice program was created because the families and voters who live in that community recognized a need for vouchers and decided to meet that need.

It was a purely local decision, by locally elected and appointed policymakers. Their priority was to meet the educational needs of every student living in their community. Although they are proud of their high-performing public schools, they did not allow that pride to stand in the way of children who needed a different school option. They also did not believe it their right to be critical of parents making the decision to access a different educational option.

The Douglas County School Board and Superintendent Fagen trusted parents with the freedom to choose what was in the best interests of their children. The Colorado Supreme Court will soon decide whether parents’ freedom to choose educational options for their children is also supported by Colorado’s state constitution.

The ‘burbs have never been hotter.

UPDATE – December 11, 2015

In June 2015, the Colorado Supreme Court ruled the Douglas County, CO program unconstitutional. The county subsequently decided to take their case to the Supreme Court of the United States. For additional information on the Colorado Supreme Court ruling, click here. To read the amicus brief filed by the Friedman Foundation in support of Douglas County, click here.