Appellate Court Questions During Oral Arguments.

On November 19th the Oral Arguments were heard in the Choice Scholarship Program. We have listened to the audio and transcribed just the questions that the judges had during the oral arguments. We have listed the time that the question was asked in the audio so you can forward to any question that you find interesting and listen the the answer.   Here is the link for the complete audio. 11CA1856 & 11CA1857 Larue v Colo State Bd of Education . The holidays are a busy time for everyone, especially teachers and parents, so we hope you find this informative and helpful.

Questions for Eric Hall (Arguing for Appellants):

02:59:  Mr. Hall, may I interrupt, please?  Do I understand correctly that the decision to create this program was the school board’s? And did the school board or the program itself or anyone associated with it solicit any of the schools that were eventually—that eventually became part of the program–did they say why don’t you apply?

05:00:  Mr. Hall?  I want to inquire, hopefully briefly, as to a procedural point I’d like to clear up, and that is whether we have a final order? We had a motion for preliminary injunction–I guess two motions for preliminary injunction–and a ruling on those motions and a ruling on a motion to dismiss–denying the motion to dismiss–and then at the end of the court’s order granting the preliminary injunction, the court made the injunction permanent.

05:30:  Is it your position, then, that the court’s ruling is final?  That in essence what the trial court did was have a trial on the merits of the case?

05:41:  And your clients had no objection to the court doing that, even though it was just a hearing and a motion for a preliminary injunction?

05:58:  I saw nothing in the record complaining about a lack of opportunity after the order was entered, to present additional evidence or anything like that.

06:05:  Alright, so there is no dispute here, at least from your perspective, that we have a final order, finally disposing of all the claims in the case?

06:14:  Ok, just so counsel is aware, I am going to ask for Appellees’ position on that particular issue, as well.

07:17:  Mr. Hall?  Is there anything in 104 that confers standing on private citizens?

08:27:  Pardon me, Mr. Hall, if I may, please. Didn’t Americans United expressly suggest that the outcome might be different if there were elementary and secondary schools involved as opposed to institutions of higher education?

08:52:  Well as I read Weaver, it appears to be focused at the concept of pervasive sectarian analysis, and that is a notion that the Supreme Court plurality in Mitchell said we shouldn’t be using anymore, but as you know, Justice O’Connor, in her concurring opinion, looked at it somewhat differently. And, so, that takes me to my next question:  Lemon was a school funding case, and Lemon also talked about the concerns about younger kids, and the influence of religious–overtly religious–education on younger kids being inconsistent with what we want to do with public monies. And Mitchell doesn’t–Mitchell doesn’t pretend to overrule Lemon, so where are we with that?

10:49:  Again if I may, I certainly understand the point and I think part of the emphasis was that, well if you look for religious differences among different religious beliefs then you get into trouble, but going again to Justice O’Connor’s concurring opinion when she seems to focus on money–the purpose that the money is used–as opposed to the nature of the institutions.  Isn’t what the trial court doing simply saying that the money is used for these purposes?

13:14:  So would, If Douglas County had said we want only non-sectarian schools in our program, would that have been constitutional in your view?

17:15:  Mr. Hall, how does that affect our analysis, though? I mean, that just might mean that there are a bunch of unconstitutional programs. How does the fact that these programs exist affect the constitutional analysis of this program?

18:21:   But that’s not the question. The question is, okay they do it, that doesn’t mean they can do it under the constitution; the fact that they do it is not legal authority for the proposition that they can constitutionally do it. This whole argument seems to me to be frankly some kind of oh, look what’s going to happen if  you strike this program down, we’ll be striking down programs left and right, but as judges that’s not supposed to enter our thinking. We have to deal with the program that’s here before the court and decide whether it’s constitutional and let the cards fall where they may. That’s just how it is. We don’t get to say, oh gee, that would be a bad result from a policy standpoint so we are just going to ignore the constitution.

21:05:  Counsel, do you intend to argue the Blaine Argument today?

21:08:  Alright, well I’m going to ask you about it. What I’m wondering, because I didn’t see it in your briefs, was, is there any legal authority, for a proposition that a court can strike down as unconstitutional, I presume under the federal constitution, a state constitutional provision, because the perceived motives of some of those who may have backed it were impure? Is there any case ever doing that?

21:40:  What case is that?

22:52:  Questions for Matt Douglas (Arguing for LaRue Appellees):

26:30:  Mr. Douglas, isn’t this program facially neutral?

26:55:  But on its face it’s neutral, and if it is neutral, can the court inquire about the degree of religious beliefs?

27:37:  But didn’t the court do exactly that? At one point in the order, the court said it wouldn’t inquire into the pervasiveness and then they went on page after page doing so and then expressly, numerous times, relied upon its findings regarding the pervasiveness of the indoctrination, as the court put it, for its holdings. Can the court constitutionally do that, under current US Supreme Court jurisprudence?

29:34:  But that was an inquiry under a provision that’s not an issue in this case.

30:39:  Mr. Douglas, as I understand this program, it doesn’t compel students to attend religious services.

31:21:  But how is it compulsion? You still have the parents making the choice. They don’t have to choose to participate in the program at all. They can simply opt for the public schools or one of many other options. Once they choose to participate in the program they don’t have to choose a religious school, the program does not require them to choose a religious school, the program, it seems to me doesn’t require anybody to do anything.

31:58:  Of course not, except that you are relying on provisions that expressly deal with compelled attendance and uses that sort of language, when there is no compelled attendance at any religious school here by the program. If anybody’s compelling it, it’s the parents.

32:22:  And I want to make sure we distinguish between these, because you’re kind of, in your analysis and your argument, you’re just throwing them all in there, and some of them talk about compelled attendance for example, some of them talk about aid to religious schools, a different issue, for example. So let’s make sure that we draw those lines.

33:05:  It was. It was.  But my question about that is would you agree, though, that regardless of whether–I don’t want to get into this issue whether the Colorado Constitution is different from the federal constitution in this regard, but that that sort of analysis is different than Zelman? I mean in Zelman, we had the same kind of program, and the court said that is not aid to religious organizations.

34:10:  Ok, but don’t they have to–doesn’t a neutral program, if it is constitutional at all, it has to be neutral, religiously speaking? Don’t they have to allow religions to practice religion as they see fit? They can’t say you can’t enforce your religious beliefs if you want to participate in this program.

35:16:  Mr. Douglas, I would like to steer you back to something you said earlier. You made a comment that this program was specifically tailored to bring in religious schools; could you explain that for me, please?

36:29:  Are any of the schools in the program recruited by any of the members of the school board or any of the members of the charter school?

38:37:  There’s a debate about that in the literature, right?

39:05 Questions for Michael McCarthy (Arguing for Taxpayers for Public Education and Barnard Appellees):

41:40:  Mr. McCarthy, if we allow standing in private citizens on this issue of public school finance, aren’t we really allowing them to be substitute Boards of Education?

43:26:  But the public school finance act doesn’t name them as protected parties in the least.

44:54:  Well, Mr. McCarthy, what evidence in the record is there that those students would not have otherwise attended a Douglas County public school if this program were not available?

45:27:  Alright, so there is no evidence. The court made a finding that money would be diverted and I am looking through the record for some evidence of that, and you’re just telling me there isn’t any. You just said there isn’t any. So in other words, if this program didn’t exist, there is no evidence in the record to show that these 500 students, assuming maximum participation in the program, they would have been in Douglas County Schools, they would have been getting the Per Pupil Revenue for those 500 students anyway. So how is it being diverted away from other districts they would have gotten the money anyway?

46:46:  That sounds to me like it’s a question of whether it violates, say, the no aid provision that we talked about before. But the court seems to have accepted the argument that this money was being diverted from other school districts, to the Douglas County District and then to private schools. But that’s only true if the money would not have gone to the Douglas County Schools anyway, and it would have.

47:59:  But here’s the problem with that:  they’re enriched, as you say, only if they wouldn’t have gotten the money anyway and I’m looking for something in the record that says they wouldn’t have, and you seem to be conceding the Douglas County School District would have gotten every penny of that money anyway. In other words, we don’t have this program, they still have these 500 students in the public schools of Douglas County, they get all the Per Pupil Revenue for those students, and so they have 100% of that money. It’s not being diverted from any other district.

50:52:  So public funds can never be used for any charter schools?

51:12:  But your argument here is this isn’t a charter school?

53:21:  I do have one question; I wanted to ask you the same procedural question that I asked the opposing council. Whether you agree that we do have a final disposition of all claims in this case.

54:25 Questions for Eric Hall (Arguing for Appellants) on Rebuttal:

56:55:  Mr. Hall, I noticed, though, that that particular statue, the contracting statute, has been amended–very recently, I believe this year. It used to provide that money can be spent on any service, and now it says it may be spent on a service.  Were you aware of that amendment?

57:54:  Mr. Hall, I want to get to something Mr. McCarthy talked about, which is this Charter School. And of course it is referred to as the “sham charter school.”  Well, there isn’t a building, there aren’t any teachers, there’s no curriculum.  In what sense is it a school?

58:31:  And as I understand the record, though, the state department of education has not  yet-or-and maybe they’re kind of in a state of limbo here, but  they haven’t yet made a determination as to whether it will indeed count students that are enrolled, technically speaking, in that charter school.  Is that right?

59:09:  Before we leave that, Mr. Hall, if I may, please. If it’s not a school, why call it one? Why not just say that there is an administrative office over here and this officer has this obligation? Because when you start calling it a school, doesn’t that suggest that there are other things going on?

59:52:  So there is a school-related purpose for the non-existent school?

1:01:13:  I am more familiar with the Romer case. But in those cases, doesn’t the court look to whether there is any objectively reasonable explanation or intent that would support the provision?  That is, they don’t really delve too deeply into the subjective intent of certain people who may have been for or against a particular provision. They looked, they do a more objective analysis under equal protection, is there any rational basis here? Can we conceive of objectively speaking of a rational basis? Isn’t that the analysis?

DougCo Parent Alliance does not certify this transcription.  As volunteers, we have done our best to provide an accurate transcription of the questions asked by the Appellate Court Judges, but we recommend readers listen to the audio.

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