How a Colorado school board race has national implications for education and religious liberty

A wise man once said that all politics is local. Nowhere is that aphorism better illustrated than Douglas County, Colorado, where education politics and an ongoing constitutional fight over educational choice have converged to create perhaps the most consequential school board election in modern American history. Here, in a largely suburban county thousands of miles removed from the national stage of Washington, D.C., the futures of tens of thousands of students across America may well be decided.

Colorado is no stranger to titanic school board fights. In 2015, a massive recall election marked by massive spending and deliberate deception by the teachers union and its allies in Jefferson County generated national headlines. Other districts saw unprecedented flows of cash from outside groups hoping to overturn choice-minded majorities, often through dark money channels that obscured their true origins.

Douglas County, Colorado’s third-largest school district, faced its own battle in 2015—a battle that resulted in three of seven school board seats being lost to opponents of broad parental choice. Since then, the district has been “in a constant state of conflict.” The remaining four seats are up for grabs this November, and the loss of even one of these seats to opponents of educational freedom would result in a majority opposed to full-spectrum parental choice.

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Meanwhile, an enormously important constitutional fight over parental choice has intersected with the school board race. In 2011, Douglas County enacted the Choice Scholarship Program, a unique pilot program that would have allowed up to 500 students to attend participating private schools, including faith-based private schools, using publicly funded scholarships. The program was immediately challenged under Colorado’s state constitutional Blaine clause, which prohibits aid to “sectarian” institutions.

 

Blaine clauses exist in more than three dozen states. Rooted deeply in a history of religious suppression—first against incompatible Protestant denominations and later against Catholic immigrants in the decidedly religious early public school system—these clauses are often used as a sort of failsafe by opponents of publicly funded private school scholarship programs. When these opponents’ political influence falls short and duly elected representatives enact such programs, they utilize expensive constitutional challenges to subvert the legislative process.

The Supreme Court of the United States already has ruled private school scholarship programs constitutional under the U.S. Constitution’s Establishment Clause because they are governmentally neutral with respect to faith-based schools. Aid is provided to parents who, in turn, select the schools they believe to be right for their children. Various state supreme courts have used similar logic when evaluating similar programs under their state constitutions.

Despite this jurisprudence, the Colorado Supreme Court in 2015 struck down the Choice Scholarship Program in large part because of Colorado’s Blaine clause. The district subsequently appealed to the Supreme Court of the United States, where a critical question was posed: Do the First Amendment’s religious protections prohibit the use of Blaine clauses to exclude faith-based private schools from scholarship programs simply because of their beliefs?

The high court’s 7-2 ruling in Trinity Lutheran v. Comer stopped short of fully addressing this question. But the court did hold that “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.” Shortly thereafter, the high court vacated the Colorado Supreme Court’s decision in the Douglas County case and remanded it for reconsideration in light of Trinity Lutheran.

It is not yet clear how the constitutional questions posed by the Douglas County case will ultimately be resolved. It is clear, however, that the ponderous pace of the court system may well take that resolution past November 2017. Should an anti-choice majority take control of the board and change the course of the legal conversation before a definitive answer to this constitutional question is reached, the nation could lose its best opportunity to finally place a bookend on a conversation about religious discrimination that dates back hundreds of years.

Four Douglas County school board candidates for the November 2017 election—Randy Mills, Ryan Abresch, Debora Scheffel, and Grant Nelson—have made clear that in addition to quelling the conflict that has plagued the district in recent years, they intend to see this constitutional debate through to conclusion.

These candidates believe communities across Colorado and the United States have a vested interest in seeing the Blaine issue resolved once and for all. Their opponents, on the other hand, come from movements deeply opposed to the kind of parental choice created by the Choice Scholarship Program. One opposition candidate, Kevin Leung, is a named plaintiff in the suit against the program.

It can be easy to be caught up in the grandeur of the national stage while ignoring local politics. But sometimes the real battles exist at the local level. In 2017, thousands of educational futures hang on a school board race in a county you’ve likely never heard of. All politics may be local, but the same is not always true of consequences.

Ross Izard (@RossIzard) is the senior education policy analyst at the Independence Institute, a free-market think tank headquartered in Denver, Colorado.


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