The Douglas County School District's plea for the U.S. Supreme Court to hear the voucher case will be among 10,000 such requests the court receives annually. It grants and hears oral argument in less than 1 percent of those cases.
But the school district believes it has a niche that may secure it an audience before the nation's highest court.
The Colorado Supreme Court ruled 4-3 against the district's Choice Scholarship Program on June 29, agreeing with a lower court that the program constituted aid to religious institutions — a violation of the Colorado Constitution. The district almost immediately announced it intends to try to take the case to the U.S. Supreme Court.
The district believes a section of the state's constitution referred to in the ruling is bigoted in origin and therefore unconstitutional. The Blaine Amendments' inclusion in 37 state constitutions makes it a federal-level issue, the district contends.
The amendments prohibit public funding of religious schools and organizations. Courts so far have struck down previous efforts to show that the Blaine Amendments' historical and arguably prejudicial origins render them unconstitutional. Some believe the amendments are rooted in anti-Catholic sentiment.
“I think everyone must acknowledge at the outset the likelihood of the Supreme Court taking any case is low,” said attorney Eric Hall, who represents the school district in the voucher case. “However, I think this is one of those cases where the chances are higher than normal.
“For a number of years, the U.S. Supreme Court has been interested in these Blaine Amendments. (This) case tees up Colorado's Blaine Amendment very crisply and would permit the court to take up this issue that's never before been squarely presented.”
Republican Congressman James Blaine proposed the amendment to the federal Constitution prohibiting states from funding religious education in 1875. Though it never became federal law, most states passed laws banning the use of public funds to support sectarian private schools.
Michael McCarthy, the attorney for voucher opponents and plaintiffs Taxpayers for Public Education, is ready to take the case further.
“We have a team that's worked on this case for four years; we're going to stick with our client,” he said, but added he won't try to predict whether the U.S. Supreme Court will hear it. “I never underestimate my adversaries, and particularly my adversaries in this case. Anything could happen.
“It's not a case that's going to settle. It's a very important policy and legal issue. It's sort of all or nothing.”
DCSD's attorneys must submit a writ of certiorari — a request for judicial review — to the U.S. Supreme Court.
Both Hall and McCarthy said they'd be honored to argue the case before the U.S. Supreme Court.
“I'd love to have a chance to do that, but my client would very much prefer I not have that opportunity,” McCarthy said, but added he could continue to represent Taxpayers for Public Education at no charge, as his firm has done to date. “I believe in the underlying notion of public education and really saw the voucher program as it was formed by Douglas County to be a genuine threat. I believe in what I'm doing.”
Hall, who was a teacher in both public and private schools before he became an attorney, said he was disappointed by the state court's ruling.
“I continue to believe the Court of Appeals (which supported the voucher plan) got it right on all the constitutional issues,” he said.
The school district so far has spent $1.2 million on the case. School leaders say all the money has come from private donations.
The June 29 ruling reversed a February 2013 decision by the state appeals court, but reinforced a 2011 ruling by a Denver judge.
Taxpayers for Public Education initially filed the suit in 2011 against DCSD and the Colorado Department of Education. The pilot program allowed up to 500 students' parents to use state-provided per-pupil revenue toward tuition at private, mostly religiously affiliated schools.