Colorado Supreme Court Continues to Evolve on School Vouchers and Standing
| Publication year | 2016 |
| Pages | 21 |
| Citation | Vol. 45 No. 1 Pg. 21 |
Articles
Appellate Law
Colorado Supreme Court Continues to Evolve on School Vouchers and Standing
By Christopher Jackson.
Substantive review of this article was performed by Jessica Ross.
About the Author
Chris Jackson is an attorney at Sherman & Howard L.L.C. who practices appellate and commercial litigation—cml.jackson@gmail.com. He has participated in cases before the U.S. Supreme Court, several federal courts of appeals, the Colorado Supreme Court, and the Colorado Court of Appeals. Before entering private practice, he was a law clerk for the Honorable Roger L. Gregory of the U.S. Court of Appeals for the Fourth Circuit.
This article discusses the Colorado Supreme Court’s recent decision in Taxpayers for Publication Education v. Douglas County School District, analyzing the opinion and its effects on both the state constitution and Colorado’s standing doctrine.
The Colorado Supreme Court fired another salvo in the so-called "voucher wars" in June 2015, declaring in a fractured opinion that Douglas County’s school voucher program violated the state constitution’s prohibition against providing public aid to religious institutions. In Taxpayers for Public Education v. Douglas County School District, [1] a plurality of the Court reversed the court of appeals, held that the voucher program could not continue, and offered a new framework to assess whether litigants have standing to bring similar claims in state court. This article summarizes the Court’s opinion and offers guidance for practitioners on these two issues, which will continue to evolve over the next few years.
Background of the Case
In March 2011, the Douglas County School District instituted its "Choice Scholarship Pilot Program, " which created a system under which students could use taxpayer funds to pay a portion of their private school tuition, including tuition at religiously affiliated schools. To participate in the program, students needed to not only apply for a scholarship through the school district, but also gain admittance to a participating private school, known as a "Private School Partner." The program didn’t directly transfer money from the state to the Private School Partners; instead, Douglas County wrote a check for $4, 575 to the parents of each participating student, and the parents were obligated to endorse the check "for the sole purpose of paying for tuition at the Private School Partner."[2] Sixteen of the 23 participating private schools were religious in character, and 93% of scholarship recipients enrolled in a religious school.[3]
Taxpayers for Public Education and others filed suit against the Douglas County School District, alleging the program violated both Colorado’s Public School Finance Act of 1994 and the state constitution. After a three-day hearing, the trial court agreed with the petitioner-plaintiffs and issued an order enjoining the program from continuing. In a split decision, the Colorado Court of Appeals reversed, holding that the petitioners did not have standing to bring their claim and that, in any event, the program did not violate the Colorado Constitution.
The Supreme Court’s Decision
The Colorado Supreme Court agreed to review the case on a writ of certiorari, and on June 29, it issued its opinion reversing the court of appeals. In a plurality opinion written by Chief Justice Rice, the Court first addressed the issue of standing. Reviewing previously established law, the Court noted that to establish standing, a plaintiff must "show that he suffered an injury in fact" and must also "demonstrate that his injury pertains to a legally protected interest."[4] Turning to the second prong of the standing inquiry, the Court held that the plaintiffs’ alleged injury did not implicate a legally protected interest. In the context of a challenge to a state statute, the Court said, the legal-interest question "turns on whether the plaintiff has a claim for relief under the statute at issue."[5] Finding that the Public School Finance Act of 1994 did not explicitly provide for a private right of action, the Court asked whether it could infer one. Applying the three-factor test laid out in its previous decision in Allstate Insurance Company v. Parfrey, [6] the Court held that the legislature did not intend to create a private cause of action, and that inferring such a right would be inconsistent with the purpose of the legislative scheme.[7]
Turning to taxpayer standing—a right flowing from a taxpayer’s interest in having his tax dollars spent in accordance with the law—the Court announced what amounts to a new legal rule: it held that taxpayer standing only applies to constitutional challenges to government action; a taxpayer cannot come into court to allege that the government violated a statute.[8] At the same time, the Court recognized that in this case, the plaintiff-petitioners were challenging the program as contrary to the state constitution; as a result, the Court held, that claim could go forward.[9]
On the merits, the plurality determined that Douglas County’s program violated Article IX, § 7 of the Colorado Constitution, which prohibits counties and school districts from "mak[ing] any appropriation, pay[ing] any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school . . . controlled by any church or sectarian denomination whatever . . . ."[10] Noting that § 7’s "prohibitions are not limited to direct funding, " the Court held that "this stark constitutional provision makes one thing clear: A...
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