Colorado’s High Court rules in favor of DougCo schools—but not vouchers

Updated below to add statement from Douglas County School District.

The Colorado Supreme Court on Monday handed the Douglas County School District its second legal victory in a week, rejecting a campaign finance complaint filed against the district that was linked to the controversial 2013 election.

That year, four pro-reform candidates ran for seats on the district’s board of education.

Two of the four, first elected in 2009, voted to allow district students to receive vouchers they could use at any private school, including religious ones, and even schools outside the district. The board also severed its long-standing relationship with the Douglas County teachers’ union, ending collective bargaining for district teachers.

Also in 2013, eager to champion new reforms, the district paid $30,000— half of it came from taxpayer funds, the other half from the district’s foundation— to the conservative American Enterprise Institute to pay for a study. That study became known as the Hess Report, named after AEI researcher Frederick Hess. 

An email sent by an AEI research assistant, as explained in the High Court’s recent ruling, asked the district to “tell us what you want us to focus on, what is most worth of attention, what you’d like to see written about and what your general angle on it and the paper is.”

Even when including dissenting opinions, the report countered each one with an argument for why those opinions were unfounded, according to a ruling by an administrative law judge.

The 22-page report was issued in September, 2013, about two months before the November election. The State Supreme Court found it relevant that the Hess Report described the DougCo reform agenda as “perhaps the nation’s boldest attempt at suburban school reform”; “unusually ambitious,” and  “remarkable in the annals of contemporary school reform.”

Also included in the report: profiles of the existing board members, including those up for election that year, and information about “murmurs” involving the potential defeat of the two incumbents. “There are murmurs that the [American Federation of Teachers] might spend substantial sums to defeat them … The November results promise to say a great deal about where matters stand in [Douglas County], and may shed light on the position of teachers[‘] unions in conservative communities across America,” the report read.

A link to the Hess Report was sent out via a routine weekly email to 85,000 Douglas County parents and residents on Sept. 18, 2013.

Then came a campaign finance complaint.

Julie Keim, who was then a candidate for the school board, filed it, claiming the report constituted a campaign contribution, either cash or in-kind to the incumbent school board members.

An administrative law judge reviewing the complaint ruled the report could be considered a contribution and implied it was political in nature, not an independent review.

The judge said in her ruling that “AEI was hired to write a report of which the District would approve, and not an independent review,” that the “Hess Report was commissioned and published as a means to support . . . the reform agenda and any candidates who would further that agenda,” and that “the District spent public funds to influence the outcome of the Board election when it commissioned and paid $15,000 for the Hess Report.”

School districts are not allowed to make campaign contributions to candidates.

The District appealed to the Colorado Court of Appeals, which in 2015 sided with the District, focusing on the definition of a contribution “given, directly or indirectly, to a candidate.” Plainly speaking, the report wasn’t “given” to the candidates for their use, the Appeals Court ruled.

The three-member Appeals Court ruling wasn’t unanimous.

The two-member majority, authored by Judge Richard Gabriel, said the report did not meet the definition of a contribution, which it called something of value given directly or indirectly to promote a candidate’s election. However, in a dissent, Judge Daniel Taubman* noted the definition used by the majority is not contained in state law. (Gabriel, now a member of the Colorado Supreme Court, did not participate in today’s otherwise unanimous High Court ruling.)

While the Supreme Court ruled that the Hess Report counted as a “thing of value” under the state’s definition of a contribution, because it wasn’t given directly or indirectly to the candidates, it did not qualify as a contribution.

Keim, who did not return a phone call for this story, noted in 2015 that at least one candidate used the Hess Report on a campaign website although she did not identify the candidate. The two incumbents up for re-election in 2013 were Meghann Silverthorn and Doug Benevento, who resigned his seat last year.

Through a district spokesperson, William Trachman, DCSD Legal Counsel said today that “We are pleased that the Colorado Supreme Court unanimously upheld the lower court’s ruling, finding that the Douglas County School District did not violate any campaign finance laws. We are happy this matter is now resolved.”

Four seats are up for election in this fall’s school board contest, including for two incumbents, Judith Reynolds and Steve Peck, who was appointed to finish out Benevento’s term last year.

So far, two candidates have filed for those seats. Board seats are elected district-wide.

The High Court’s ruling comes just a week after the U.S. Supreme Court ordered the Colorado Supreme Court to reconsider its ruling that the district’s voucher program is unconstitutional.

Correction: a previous edition incorrectly identified the Court of Appeals judge who wrote the dissenting opinion.

Photo by Jeffrey Beall, via creative commons license Flickr.