Douglas County’s school voucher program does not violate the state constitution, the Colorado Court of Appeals said in a 2-1 ruling Thursday, overturning a lower court’s finding that the program is unconstitutional.

An audience member fills out a question card about the Douglas County voucher plan.
One of many audience members filling out a question card on the Douglas County voucher proposal in early 2011. <em>EdNews</em> file photo

The ruling won’t have an immediate impact on the district’s pilot Choice Scholarship Program, which would allow Douglas County students to attend private and even religious schools using public funds, district officials said. The program remains on hold.

But the district is hailing the ruling as a victory in a case that may have national ramifications.

“This is incredibly positive news and a huge victory for the students and parents of Douglas County,” said Douglas County Public Schools board President John Carson. “We know that each student learns differently, and our goal is to provide every parent with the opportunity to choose the best possible educational environment for their child.”

Plaintiffs in the case, including the Taxpayers for Public Education, vowed to appeal the ruling to the Colorado Supreme Court.

“We are disappointed but not discouraged,” said Anne Kleinkopf, a director of the organization. “We have every confidence the Colorado Supreme Court will read the facts and law in the same way the dissenting appeals judge and the same way the trial court did and will indeed find that the voucher program is illegal and unconstitutional.”

Douglas County board member Craig Richardson, an attorney, said he didn’t expect a Colorado Supreme Court ruling until 2014. The voucher pilot program will be on hold until the Supreme Courts issues its ruling, he said.

“The effect of going to the Supreme Court will be to stay the Court of Appeals reversal,” Richardson said.

Appellate Judges Steven Bernard, Dennis Graham and Jerry Jones issued the final ruling, with Bernard dissenting.

In Thursday’s ruling, Jones said “Plaintiffs failed to carry their burden of proving the unconstitutionality of the (voucher program) beyond a reasonable doubt, or by any other potentially applicable standard. None of them have standing to assert a claim under the (law). Accordingly, the district court’s judgment cannot stand.”

Kleinkopf said Bernard in his dissent argued that the voucher program violated the “no aid to sectarian” provisions of the Colorado Constitution. By casting a dissenting vote, Kleinkopft said Bernard sent a “strong signal that he believes his colleagues were wrong.”

In November, legal advocates for and against the district’s voucher program argued their case before the three-judge panel.

Proponents urged the appellate judges to overturn a lower court’s decision in August 2011 finding the voucher plan unconstitutional. Meanwhile, critics, including the American Civil Liberties Union and the Taxpayers for Public Education, argued that the initial ruling was sound.

Douglas County school board members approved the voucher pilot, which would use public dollars to help send students to private schools, by a 7-0 vote in March 2011. A Denver judge declared the plan unconstitutional last August and the district filed its notice of appeal with the Colorado Court of Appeals.

In April 2012, opening briefs were filed by the district and the state, its co-defendent in the suit. Taxpayers for Public Education and other plaintiffs then filed their responses.

Under the program, private schools, including private schools that are not located in Douglas County, can apply to participate.

Those private schools must satisfy a variety of eligibility criteria, some of which relate to academic rigor, accreditation, student conduct and financial stability, according to court records. Participating private schools must agree to allow the district to administer assessment tests to students enrolled in the choice scholarship program.

Thirty-four private schools applied to participate in the Choice Scholarship Program for the 2011-2012 school year and the district contracted with 23 of those schools. But the district court ruled halted the program before it began.

Of the 23 schools, 14 are located outside Douglas County, and 16 teach religious tenets or beliefs. Many are funded at least in part by and affiliated with particular religious organizations.  Many of the participating private schools base admissions decisions at least in part on students’ and parents’ religious beliefs and practices. Many also require students to attend religious services.

However, the voucher program – modeled after other programs across the country that have prevailed in court – gives students the right to “receive a waiver from any required religious services at the [participating private school],” according to court documents.

The district would administer the program under the Choice Scholarship Charter School, which would handle monitoring students’ class schedules and attendance at participating private schools. However, the charter school would not “have a building, teachers, or curriculum.”