The parties involved in Douglas County School District’s private school voucher lawsuit have been waiting since last December to hear whether the U.S. Supreme Court will hear their case. Now, it looks like they’ll have to wait even longer.
Nina Totenberg, who covers the Court for National Public Radio, said Tuesday that the eight-member Court, which has still not filled the vacancy left by the February death of Justice Antonin Scalia, is likely to avoid highly controversial cases until after another member is appointed. That means the Court may make not make a decision whether to even hear the voucher lawsuit until next year.
In 2011, the DougCo school board — then comprised of seven conservative board members — voted to allow district residents to obtain taxpayer-funded vouchers for their children that could be used for any private or religious school, even if the school wasn’t in Douglas County. Two years later, Taxpayers for Public Education, a nonprofit formed to fight the voucher program, filed a lawsuit against the policy, claiming it was illegal for taxpayer funds to pay for private and religious education.
The Colorado Supreme Court ruled that the voucher program, called Choice Scholarship, was unconstitutional because the Colorado constitution prohibits school districts from aiding religious schools.
Last December, the district decided to appeal the decision to the nation’s highest court.
The district went back to the drawing board earlier this year, eliminating religious schools from the scholarship program and renaming it the Choice Pilot Program. But that earned the district two more lawsuits: One, from Taxpayers for Public Education, criticized the use of taxpayer money for private schools; another, from a coalition of religious schools, challenged the district’s blocking such schools from receiving taxpayer-funded vouchers. The latter was rejected by a federal judge in June; the former was put on hold in August on order of a Denver District Court judge.
On Monday, Education Week described the DougCo voucher lawsuit as one of the top education cases before the court during a term that “may be the most significant in years” with regards to K-12 education. It’s one of two cases the Court could decide in the coming year on the issue of vouchers.
But Totenberg says the Court is likely to remain one justice short for most of the 2016-17 term, and that’s bad news for those hoping for a speedy ruling on the controversial voucher case.
That appointment a new Supreme Court Justice is tied up in the presidential election. Republican Senate Majority Leader Mitch McConnell of Kentucky has said he would not allow a Supreme Court nominee to be voted on by the Senate until the next president is sworn in.
If the Court, which is tied 4-4 ideologically, were to take up the voucher lawsuit and remain deadlocked at 4-4, the Colorado Supreme Court’s decision would stand.
Photo by NCinDC, via Creative Commons license, Flickr