Local school board elections tend to be sleepy, sedate affairs with little more at stake than ego. Not in Douglas County, Colorado. This November, the choice between two philosophically opposed slates in a deeply divisive election could determine the constitutional future of private school choice.

How did we get here? In 2011, the Douglas County school board attempted to launch the nation’s first district-created universal voucher program, triggering a 6-year court battle. The case ricocheted through Colorado to the U.S. Supreme Court and back to Colorado again, where the state supreme court is set to reconsider its ruling against vouchers on the grounds of Colorado’s Blaine Amendment, which prohibits public funding of religious institutions.

The impact could reach far beyond Douglas County. After this summer’s U.S. Supreme Court ruling in Trinity Lutheran Church of Columbia v. Comer, Colorado’s Blaine Amendment—and similar amendments in 37 other states—may be on shaky constitutional ground. The Trinity precedent, the thinking goes, lit a path for the Douglas County case to strike down Blaine Amendments, in Colorado or even nationwide.

But that can only happen if the case moves forward. The Republican-backed “Elevate” slate has promised to see the case through to its final verdict, though candidates have not committed to implementing vouchers. The “CommuUNITY Matters” slate, with the backing of the American Federation of Teachers (AFT), promises to drop the case and opposes vouchers. Not surprisingly, both sides have attracted major attention, from voter mailers from right-leaning organizations to $600,000 in campaign donations by the AFT. The board majority hangs in the balance.

But the voucher case is hardly foremost in voters’ minds. Looming larger is the legacy of former Douglas County superintendent Elizabeth Celania-Fagen, who was appointed by the Republican-backed school board in 2010 and resigned in 2016. Fagen implemented an aggressive mix of reforms typically associated with low-performing, poor urban districts in this high-performing, affluent Denver suburb. Her tenure is now viewed almost universally as a costly failure, and as district morale and performance declined, school board politics have descended into tabloid territory.

For Douglas County, the question now is how to move forward in the wake of that chaos. For America, it’s whether the failure of one district’s reform initiative will claim as collateral the greatest legal opportunity for school choice in a generation.

From Republican Revolution to Legal Battle

If the U.S. Supreme Court eventually strikes down Blaine Amendments nationwide, that outcome can be traced back to a local utility board election. In 2009, shortly after Mark Baisley was elected vice chair of the Douglas County Republican Party, the local utility board president asked for his help, telling him that Democrats across the country had been leveraging utility boards to advance their agenda. So Baisley and his colleagues engaged in an e-mail campaign targeting Republican voters and “swept the race,” he said.

Supporting conservatives running for the local school board was a natural next step. “We had to figure out a bunch of stuff,” he recalled. “We had no primary. We had to figure out who was our slate. … But we finally got ourselves together and appealed to donors who we knew had interest in school choice.” Voter turnout skyrocketed by 70 percent in the 2009 school-board election, to 44,000 from 26,000 two years earlier, and the Republican-backed slate won all four open seats to gain a 4-3 majority. Within a few months, the board started exploring a homegrown voucher program for the 68,000-student district.

In March 2011, the board unanimously approved the “Pilot Choice Scholarship Program,” which was to provide up to 500 students with grants worth up to $4,575. The grants were to be used for tuition at approved local private, mostly religious, schools. Civil-liberties groups sued, and the Denver District Court halted the program in August, before it was implemented. Their argument: the voucher program violated the Blaine Amendment in the state constitution. Blaine Amendments, passed in the late 1800s amid a nationwide surge of anti-Catholic animus, prevent public money from flowing to religious schools and have proven a powerful impediment to the expansion of private school choice (see “Heading for a Fall,” legal beat, Winter 2016).

The legal battle has continued in the 6 years since. After the Denver District Court sided with voucher opponents, the district appealed and won before the Colorado Court of Appeals. Opponents then brought the case to the Colorado Supreme Court, who sided with the opponents. The district appealed to the U.S. Supreme Court, where the justices ordered the Colorado Supreme Court to rehear the case in light of the U.S. Supreme Court’s 2017 Trinity ruling. The Trinity case was filed by a Missouri church that had been denied a state grant to help pay for playground resurfacing, because state policy prevented any public funds from being given to religious organizations.

In Trinity, justices ruled 7-2 that Missouri’s policy violated the free exercise clause of the First Amendment, because Missouri could not discriminate in state funding “based on religious identity with respect to playground resurfacing.” However, justices did not make a broader judgment as to whether its Blaine Amendment could be used to bar religious institutions from receiving other forms of state aid. And so school choice advocates are watching the Douglas County case closely, hopeful that the Colorado court will either provide a salutary precedent for similar cases in other states or rule against the district and give the U.S. Supreme Court the opportunity to extend the logic of Trinity and rule all Blaine Amendments unconstitutional.

But whether the Colorado Supreme Court even hears the case again hinges on which slate of school-board candidates wins this November. But for Douglas County voters, these judicial consequences pale in importance next to the question of how to help the district recover from a failed reform initiative.

Reeling From a “Reign of Error”

In 2010, the Republican-backed board majority hired Elizabeth Celania-Fagen to advance policies near and dear to education reformers: higher standards, test-based teacher evaluation, and pay for performance. While the federal education department was pressuring states to adopt new standards and test-based teacher evaluations, Fagen wanted to go above and beyond in Douglas County. Dismissing “the Common Floor,” Fagen and her team generated a “Guaranteed and Viable Curriculum” aligned to “World-Class Outcomes.” And unimpressed by the statewide teacher evaluation system, Fagen and her team designed a “Continuous Improvement of Teacher Effectiveness” system tied partly to district-generated standardized assessments. Then, after the school board allowed the union-negotiated collective bargaining agreement to expire in 2012, the district tied all of this to a pay-for-performance framework.

In essence, Fagen’s agenda was the Common Core on steroids—with a constructivist twist. Constructivism, a student-centered approach typically associated with the progressive left, was an odd cultural fit for a conservative district like Douglas County. Local conservative education activist Cindy Reagor has lead a crusade against constructivism, objecting that at constructivism’s core “is the idea that everything is subjective and that there is no truth.”

But first-principles aside, there’s a profound pragmatic problem with building a test-based evaluation and pay system on a pedagogical approach that eschews direct, teacher-driven instruction. In one telling email, obtained and posted by Douglas County Parents (a political group opposing the board majority), Fagen critiques a photo intended for promotional use:

the one thing that bothers me is that we have a teacher in front of the class with a book…that’s the [antithesis] of us and what we aspire to offer our kids. 🙂 So…can that visual either move the teacher to the side without the book or just have kids with robot? I think it’s a key moment.

Teachers didn’t take kindly to their pay depending on both de-emphasizing direct instruction and improving student performance on standardized tests, and principals weren’t particularly eager to evaluate teachers based on a pedagogical approach that both teacher and principal often felt coerced into adopting. Morale plummeted.

A 2012 survey commissioned by the local teachers union tracked changes from 2007-08 to 2011-12 and found that the number of staff who felt the district was moving in the right direction fell from 77 percent to 14 percent; those saying that their district provided a positive work environment fell from 80 percent to 18 percent; and those saying that they felt valued as a district employee dropped from 70 percent to 19 percent. In 2015, another survey—admittedly hand-delivered by the union—found that only 6 percent of staff believed the district was moving in a positive direction, 5 percent supported the pay-for-performance system, and 1 percent expressed confidence in Fagen.

The dissatisfaction was also evident in a rising rate of teacher turnover, which nearly doubled between 2008 and 2016, when it reached almost 20 percent. Local news outlets ran letters to the editor from departing teachers who found the district environment untenable. Principal turnover at the district’s 87 schools also skyrocketed. In the two years before Fagen took office, 17 and 10 principals left; in her last two years in office, 37 and 42 principals left. Amid the shift in curricular emphasis, the personnel turnover, and the shift to Common Core-aligned tests, Douglas County lost its “accredited with distinction” status, and the number of schools on turnaround plans for poor performance went from zero to 11.

In 2015, a slate of three candidates running explicitly against Fagen and her reforms won by a convincing 18-point margin. In 2016, former board member Justin Williams said that while he took pride in hiring Fagen, he had concluded that “if we go forward in the next election in 2017 without having a superintendent change, we’re going to lose.”

Fagen resigned at the end of the 2015-16 school year, and no board member associated with her tenure is running for re-election this year. In fact, whereas the Republican-backed slate promises to carry the voucher court case forward, they eschew association with Fagen and the board that backed her. Elevate’s Grant Nelson says that what the union-backed CommUNITY slate “really wants to do is run against the incumbents. Part of why I’m running is that I don’t think they did a good job. When you have one employee and your one employee did a bad job, you didn’t do your job. … [Fagen] failed on many, many levels.”

Under the leadership of interim superintendent Erin Kane, founder and executive director of American Academy Charter School, the district is regaining a sense of stability and normalcy.

“I was a little skeptical when she came in,” one teacher said, “because she was from a charter… But she’s a good leader and a good human being, and I’ve heard [people] raving about her from both sides.” Kane’s first step was to tour every single school in Douglas County. And a 2017 survey by the district suggests that district morale is improving. While fewer than one-third of staff believe the district has a positive image, about two-thirds say morale is high and about 90 percent are proud to work at their school. But in the eyes of the community, it’s not just the school district that needs to put itself together again; it’s also the school board.

School Board Discord

As staff morale and school performance suffered, local politics around schooling became increasingly divisive and polarizing. I experienced a bit of this firsthand. After an email sent by the school district before the 2013 election included a link to a report commissioned by the district that Rick Hess and I had authored, an opponent candidate sued, alleging that the district’s fee had paid for the report and distribution of the report therefore constituted an illegal campaign contribution. That case made its way to the state Supreme Court, which dismissed the complaint this past summer, upholding an earlier opinion by the state Court of Appeals that had overturned a lower court ruling.

That alone might be controversy enough for a school district, but after the 2015 election yielded a divided board, discord rose to new heights. Of all the controversies and contentions, three stand out.

The “Weiner Defense”

The Douglas County School District started off 2016 with international tabloid coverage, when Britain’s Daily Mail ran an article titled: “Outrage after union tweets that elementary school teacher ‘looks like a penis’ – but then uses the ‘Weiner defense’ and says their account was hacked.”

During a “District Accountability Committee” meeting in January 2016, the local teachers union’s Twitter account tweeted that a teacher involved looked “like a penis” before calling him an insulting name. The union claimed its account had been hacked, a la Anthony Weiner, but Board President Meghann Silverthorn didn’t buy it. As she told local news outlets, the tweet was the live account of a meeting, and “you had to be physically present in the room to know what was happening in the meeting.”

Silverthorn and board Vice President Judith Reynolds sent a letter to AFT President Randi Weingarten, dismissing what they called the “Weiner Defense” and demanding an investigation. Weingarten replied, “Of course I will review, but there are many acts of the Douglas County School Board that I have found hurt children, educators, and the broader community.”

At the next meeting, the school board passed a resolution condemning the incident and calling for an investigation—but only after some heated debate, and even that bipartisanship was short-lived.

The Davis Affair

That same winter, local high-school student Grace Davis announced a walk-out protest for students to push for a “change in leadership.” After her school principal and district leaders failed to dissuade her from staging the protest, the school-board president and vice president, Silverthorn and Reynolds, met with Davis at her school. Unbeknownst to the board members, Davis recorded audio of the meeting.

Davis then alleged that she felt threatened and bullied by the Board members, which triggered a series of meetings and a call from opposing board members for Silverthorn and Reynolds to resign. The board ultimately agreed to commission an independent investigation, which cleared Silverthorn and Reynolds of any official violation. The Denver Post editorial board noted that while critics claimed that the “report is a whitewash based on technicalities,” it was “thorough and dispassionate, and provides a wealth of necessary facts for an informed judgment.” In the Post’s judgment, “Silverthorn and Reynolds did not intend to intimidate Davis.”

But the investigation failed to provide the community with closure. The next board meeting saw over 100 protestors, many wearing #IStandWithGrace t-shirts, chanting “resign,” and causing a half-hour delay in the meeting as some were led out of the room. The Post called the protestors’ behavior “out of line,” “overwrought,” and “an insult to the democratic process and free speech.” The affair is still very much an open wound, with one side feeling like the board members got away with bullying and the other side suspecting that Silverthorn and Reynolds were set up.

The Midnight Coup

Then, in August 2016, longtime board member Doug Benevento, who was first elected in the original 2009 Republican ascension, resigned from the school board. Or rather, he tried to.

The three opposition board members in the minority blocked a resolution to begin the search for a replacement, posing a process objection to his resignation. This culminated in the curious spectacle of a special board meeting that September during which Benevento voted to accept his own resignation. The conservative majority was changed to a 3-3 split, and the board was tasked with finding his replacement within 60 days.

At a board meeting shortly thereafter, one of the elected majority members left early, giving the elected minority a physical majority. When elected minority members motioned to fill the vacant seat with their candidate, Silverthorn and Reynolds walked out to deny the motion a quorum. Silverthorn later appointed a conservative successor to the open seat, which she was empowered to do in the absence of consensus. When new board member Steve Peck was sworn in that November, board minority members told the Denver Post they has not been informed about the ceremony. All four majority seats are up for grabs, including those held by Silverthorn and Reynolds.

Big Attention for a Small Election

Given all this tumult, it’s clear why both slates are running on platforms of restoring civility and trust. However, they differ markedly on how they would provide it. In my attempts to explore their positions and thinking, I reached out to candidates on both sides; only candidates aligned with the GOP-backed Elevate slate responded to my messages.

The opposition CommUNITY slate would almost certainly quell controversy by bringing ideological unity to the board. However, though a divided board may be challenging, “that’s what adults do,” said Elevate candidate Deb Scheffel. “They sit down and deliberate. That hasn’t occurred in a respectful way, but it’s important for kids to see adults model that.”

The slates also diverge on whether and how to raise taxes to increase school funding. The CommUNITY slate, noting that Douglas County’s low per-pupil rate means that teachers can sometimes get a $10,000 raise by switching to a neighboring district, promises to educate the community on the need to pass a tax increase in 2018. The Elevate slate says that it would ensure that the board has found all possible savings before asking the community to accept higher taxes.

The most black-and-white contrast is that CommUNITY promises to drop the court case on the voucher program, whereas Elevate promises to see it through to its conclusion. During a candidate’s forum, for example, CommUNITY candidate Kevin Leung said he opposes vouchers and was proud to serve as a plaintiff against the district to block the program. By contrast, Elevate members take no position on whether they’d implement the voucher program; for now, the question is whether to let the court rule. “I don’t understand how you could raise such an important constitutional question and not want to hear the answer,” said Elevate candidate Ryan Abresch.

For their part, some faith communities want to see that question answered. The Bishop of Colorado Springs sent a letter to his parishioners asking them to “implore the Holy Spirit to help guide you as you decide who will best protect and expand parental choice in Douglas County.” My Faith Votes and Colorado Family Action circulated a questionnaire that included a question on the court case and distributed candidate responses. Whereas all Elevate candidates answered their questions, all CommUNITY candidates declined to participate.

Meanwhile, CommUNITY’s biggest backer, the AFT, has spent some $600,000 on the race. In recent weeks, new campaign filings showed two AFT donations of $300,000 to a political committee supporting CommUNITY.

Jon Caldara, president of the right-leaning Independence Institute, said that the AFT “understands that this is the biggest race no one’s heard of, and that if Elevate wins, then Blaine Amendments could be stripped out of 38 constitutions. That’s amazing leverage, and the union can’t have that.”

But in a 2-1 Republican district, it’s not clear whether the value of union money will outweigh the cost of its public disclosure. At a recent candidates’ forum at a local high school, Elevate candidate Grant Nelson declared, “we’ve heard all along that it’s kids, not politics. But the $300,000 from the American Federation of Teachers is politics, not kids.” In response, CommUNITY candidate Krista Holtzmann called the union issue a distraction and held up mailers from the conservative Americans for Prosperity and a Republican-aligned political committee. “Another thing that’s a distraction from our students,” she said,” is the big dark money that is a part of our local school board race,” Nelson, in turn, raised both the AFT mailer and his eyebrows at Holtzmann and then at the audience.

Whether the candidates and the community like it or not, outside money is pouring in. This is not just a local school board race, but a national one. As Caldara said, “[for] anybody who cares about educational choice, about the incredible power of unions nationally and locally, about how a state that was red turns blue, this Douglas County fight is all of that in one tiny, explosive battle.”

Max Eden is a senior fellow at the Manhattan Institute.