Colorado appellate court rules parents/taxpayers have no standing to challenge district’s private school voucher program
Taxpayers for Public Education v. Douglas Cnty. Sch. Dist., Nos. 11CA1856 /11CA1857 (Colo. App. Ct. Feb. 28, 2013)
Abstract: In a 2-1 split, a three-judge panel of the Colorado Court of Appeals has ruled that the plaintiffs, who include students, parents, taxpayers, and non-profit organizations, lacked standing to challenge the Douglas County School District’s (DCSD) Choice Scholarship Program (CSP), which provides vouchers for private school tuition under Colorado’s Public School Finance Act of 1994 (PSFA). The panel also rejected, on the merits, the plaintiffs’ claims that the CSP violates a number of state constitutional provisions.
Facts/Issues: In March 2011, the Douglas County school board adopted the CSP to begin in the 2011-12 school year. Under the CSP, a family could receive a voucher consisting of public funds to use to send their student to a private school in Douglas County, including religious schools, as well as other private and religious schools outside of Douglas County. Later in 2011, the plaintiffs filed suit, originally in two groups which were consolidated by the district court, claiming that the CSP violated the PSFA and various provisions of the state constitution. The defendants moved to dismiss for failure to state a claim. The plaintiffs moved for a preliminary injunction, claiming that the CSP violates the PSFA because DCSD will impermissibly use state funds distributed by the state department of education to pay for private school tuition at private schools.
The district court rejected the defendants’ challenge to the plaintiffs’ standing to seek judicial enforcement of the PSFA, and found that the CSP violated the PSFA because it “effectively result[ed] in an increased share of public funds to [DCSD] rather than to other state school districts.”
Following the hearing on the plaintiffs’ motion, the district court found that the CSP violated the PSFA and most of the state constitutional provisions at issue. Consequently, the district court granted the plaintiffs a permanent injunction, rather than the preliminary injunction originally sought by the plaintiffs, blocking implementation of the CSP. DCSD appealed the decision to the Colorado appellate court.
Ruling/Rationale: The panel’s majority reversed the district court’s judgment, and remanded the case back to the district court for entry of judgment in the defendants’ favor. In so ruling, the appellate court concluded that the plaintiffs do not have standing to seek redress for the claimed violation by the CSP of the PSFA. The majority also concluded that the CSP does not violate any of the constitutional provisions raised by the plaintiffs.
For clarity, the appellate court divided the plaintiffs’ claims into three groups:
“(1) Claims alleging violations of statutory and constitutional provisions which concern state schools generally – the PFSA and Article IX, sections 2, 3, and 15 of the State Constitution;
“(2) Claims alleging violations of constitutional provisions which concern aid to or support of religion and religious organizations – Article II, Section 4, and Article IX, Sections 7 and 8; and
“(3) The claim alleging a violation of Article V, Section 34 of the State Constitution, which concerns appropriations generally and appropriations to religious organizations specifically.”
Claim 1 – Standing and Control Claims
Standing Under the PSFA. In Colorado, to establish standing, a plaintiff must show that (1) he incurred an injury-in-fact; and (2) the injury was to a legally protected interest. The panel focused its inquiry on the second requirement.
Looking to determine whether the PSFA gave a particular plaintiff a legally protected interest, the panel found that the PSFA did not expressly authorize a private cause of action to enforce its provisions. The panel then looked at three factors to determine whether a private cause of action is clearly implied: “(1) whether the plaintiffs are within the class of persons intended to be benefited by the [PSFA]; (2) whether the [General Assembly] intended to create, albeit implicitly, a private right of action; and (3) whether an implied private right of action would be consistent with the purposes of the [PSFA].” The panel found the district court erred in ruling that certain plaintiffs’ status, as students and parents of students, “confers a legal interest in the enforcement” of the PSFA. The panel stated that assuming those plaintiffs were within the class of persons intended to be benefited by the PSFA, the court’s examination of the other two factors does not support the existence of a private cause of action.
As to the other two factors, the panel said that there is nothing in the language of the PSFA remotely suggesting that private citizens or groups have a right to seek judicial enforcement of its provisions, and expressly committed such enforcement to the State Board. Also, other mechanisms are provided to ensure compliance with its funding scheme, none of which contemplate private enforcement. The panel stated that where, as here, a statute provides a means of enforcement, the designated remedy ordinarily excludes all others. The panel also found that recognizing a private right of action is not consistent with the PSFA’s purposes. In light of this, the panel was persuaded that allowing private citizens to act as substitute boards of education by challenging districts’ actions in court would interfere with the state agencies’ efforts to meet their statutory obligations, and introduce uncertainty into a process where little can be tolerated.
Consequently, the panel concluded that the plaintiffs do not have standing to bring a private cause of action seeking enforcement of the PSFA. The court made the point to state that even taxpayer status does not give plaintiffs standing in statutory cases, only in the context of alleged constitutional violations. Because the panel majority found the plaintiffs lacked standing to bring a claim under the PSFA, it did not address the merits of that claim.
Control of Schools Under State Constitutional Provisions. Article IX, Section 2 provides for “the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.” The plaintiffs contend that the district court erred in rejecting their claim when it found they had not presented “sufficient evidence that [the CSP] prevents students from otherwise obtaining a free education in Douglas County.” Specifically, the plaintiffs contend an error because (1) students participating in the CSP are not educated gratuitously (as the CSP may cover only part of a participating student’s private school tuition); (2) educational programs at the participating private schools vary; and (3) by retaining 25% of per-pupil revenue pursuant to the CSP, the DCSD receives money that otherwise would go to other school districts. In analyzing this claim, the panel first disposed of a procedural argument made by the defendants about the plaintiffs’ failure to cross-appeal an adverse ruling.
Returning to the merits of the plaintiffs’ contentions, the panel reviewed whether the CSP is constitutional, and concluded that because the legislative acts of local school boards are similar enough in nature to those of the state legislature, such acts do not merit different treatment, and, thus, the CSP was entitled to a presumption of constitutionality. As a result, the plaintiffs could only prevail on their Article IX, Section 2 claim if they proved the CSP was unconstitutional beyond a reasonable doubt.
However, the panel found that the plaintiffs failed to carry that burden, stating that the provision’s mandate to provide a thorough and uniform system of free public schools “plainly is not violated where a local school district decides to provide educational opportunities in addition to the free system the constitution requires.” The panel also pointed out that the mandate is not violated “merely because some students’ parents may choose to have their children forego the available opportunity to attend a school within the system the constitution requires.”
As to the other two aspects of the plaintiffs’ claim, i.e., variances in private educational programs and retention of per-pupil revenue, the panel questioned whether these contentions had been preserved for review. After a review of the parties’ motions, arguments at the hearing, and plaintiffs’ proposed findings, the panel found that these claims fail as well.
Use of Public School Funds. Regarding the Article IX, Section 3 claim, the panel concluded that this particular constitutional provision was not applicable to the money used to fund the CSP because once the state distributes money from that Public School Fund “to the counties and school districts, the money from the [Public School] fund belongs to the counties and school districts.” The panel found the district court erred in its assumption that once a district receives public school fund money from the state, all money the district then expends is subject to the restriction of this provision. The panel stated that this provision is “expressly a restriction on the use of only certain money – that of the public school fund.” “Perceiving no plain, palpable, and inevitable conflict between the CSP and Article IX, Section 3,” the panel concluded that the Plaintiffs did not meet their burden of establishing the unconstitutionality of the CSP under that provision.
Local Control. Article IX, Section 15 provides that the directors of the boards of education of local school districts “shall have control of instruction in the public schools of their respective districts.” The panel agreed with the district court that this provision “is aimed at ensuring that the state does not encroach upon the prerogative of local school districts to control the instruction in the public schools within their respective districts,” and does not relate to instruction in private schools, and thus, not to the schools participating in the CSP.
Claim 2 – Religion Claims
These claims involve religion generally and religious institutions, and the operation of four specific state constitutional provisions on them. The defendants urged the panel to hold that these provisions are substantively indistinguishable from the Establishment and Free Exercise Clauses of the U.S. Constitution’s First Amendment. And as such, the panel would have no choice but to reject the plaintiffs’ claims under the state constitution because the U.S. Supreme Court rejected a First Amendment challenge to a virtually identical school choice program in Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
However, the panel here determined that it would not consider the issue of whether the state constitution’s religion provisions were co-extensive with those of the federal constitution, because it did not need to do so to resolve the merits of plaintiffs’ claims. For the same reason, the panel did not address DCSD’s arguments about the constitutionality of the “Blaine provisions” (the religion provisions), and their alleged discriminatory purpose, because the panel concluded that the CSP does not violate any of the subject provisions. The panel then turned to the merits of the Religion claims.
Required Attendance or Support. Article II, Section 4 prohibits “required [ ] attend[ance] or support [of] any ministry or place of worship, religious sect or denomination against his consent.” The panel disagreed with the district court’s reasoning that the CSP violated this prohibition because affiliated schools would be receiving taxpayer money, thereby compelling them to support “indoctrination and religious education” at those schools.
Relying primarily on the reasoning in Americans United for Separation of Church and State Fund, Inc. v. State, 648 P.2d 1072 (Colo. 1982), in which the Colorado Supreme Court rejected a challenge to a program similar to the CSP under this “compelled support” provision, the panel here found that the CSP has a “check and balance system” allowing for periodic review of participating private schools’ records to assure compliance. Also, the panel determined that the district court’s review of the degree to which religious tenets and beliefs are included in participating private schools’ educational programs was no longer constitutionally permissible, given, as here, that the program at issue is “neutral toward religion generally and toward religion-affiliated schools specifically.” The panel said that “[t]o the extent students would attend religious services, they would do so as a result of parents’ voluntary choices. [This provision] clearly does not proscribe such choices.”
No Aid to Religious Organizations. Article IX, Section 7 prohibits any public funds to be appropriated to any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, etc., controlled by any church or sectarian denomination whatsoever. Here, the panel’s majority disagreed with the district court, and found that the CSP does not violate this constitutional provision. The majority noted that the CSP “is intended to benefit students and their parents, and any benefit to the participating schools is incidental, and that “[s]uch a remote and incidental benefit does not constitute … aid to the institution itself within the meaning” of this constitutional provision.
Religion in Public Schools. Article IX, Section 8 provides that “[n]o religious test or qualification shall ever be required of any person as a condition of admission into any public educational institution of the state … shall ever be required to attend or participate in any religious service whatsoever, [and n]o sectarian tenets or doctrines shall ever be taught in the public school ….” The panel disagreed with the district court’s analysis on the grounds that the district court “failed sufficiently to account for the fact that attendance at any of the participating private schools is not required by the CSP; such attendance is by parental choice, and participation in the CSP does not transform private schools into public schools.”
Claim 3 – Prohibited Appropriations
Lastly, the panel took up the Article V, Section 34 claim. This provision, which deals with the structure and powers of the General Assembly with appropriations, provides that “[n]o appropriations shall be made for … educational … purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association.” The panel concluded that this provision was not applicable because DCSD’s expenditure of funds under the CSP did not constitute an appropriation by the state legislature.
In conclusion, the panel found that the plaintiffs could not carry their burden to prove the unconstitutionality of the CSP beyond a reasonable doubt, or by any other potentially applicable standard. As such, the district court’s judgment could not stand.
The Dissenting Opinion
The Dissent focused its discussion solely on Article IX, Section 7. That article (which provides that the state will provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state) is more stringent than the religious clauses contained in the First Amendment. As a result, it was the Dissent’s opinion that the CSP failed to pass state constitutional muster. In the Dissent’s view, Section 7’s language “prohibits public school districts from channeling public money to private religious schools.” According to the Dissent, Article IX, Section 7:
[E]stablishes greater protection against the establishment of religion in Colorado’s public elementary, middle, and high schools than does the First Amendment’s Establishment Clause; [D]oes not offend the Establishment Clause, the First Amendment’s Free Exercise Clause, or the Fourteenth Amendment’s Equal Protection Clause; [B]ars transferring public funds to private religious elementary, middle, and high schools; and [R]enders the Choice Scholarship Program, created by Douglas County School District RE-1, unconstitutional.
Taxpayers for Public Education v. Douglas Cnty. Sch. Dist., Nos. 11CA1856 /11CA1857 (Colo. App. Ct. Feb. 28, 2013)
[Editor's Note: Interestingly, on page 59 of the opinion, the majority took time to criticize some of the amicus curiae submitted to the Court. The panel majority noted that some of the amicus briefs raised contentions based on constitutional and statutory provisions that were not raised by the plaintiffs, which the majority noted "is not the proper role of amici curiae." The majority also pointed to those amicus briefs that "urge us to affirm or reverse the district court’s judgment purely for policy reasons, without regard for the governing law." The majority concluded that "[b]ecause making decisions based on such reasons is not part of the courts’ constitutional function, these arguments are improper.”
In August 2011, Legal Clips provided a summary of the district court’s decision, where the court issued a permanent injunction prohibiting DCSD from implementing Colorado’s Choice Scholarship Program. ]