Three civil liberties organizations Thursday asked the Colorado Supreme Court to overturn an appeals court ruling that upheld Douglas County’s Choice Scholarship program, a voucher program that would allow public school students to attend private schools — including those with a religious affiliation.

A scene from Douglas County's voucher lottery in June. The plan is on hold with an appeals court ruling not likely for months.
A scene from Douglas County’s voucher lottery. The plan is on hold with a Colorado Supreme Court hearing not expected any time soon. <em>EdNews</em> file photo

Americans United for Separation of Church and State, the American Civil Liberties Union of Colorado and the American Civil Liberties Union filed a petition Thursday with Colorado’s high court, asking it to accept the case and overturn a 2-1 Colorado Court of Appeals ruling that upheld the program by determining it did not violate the state’s Constitution.

The groups say that the voucher plan illegally diverts taxpayer money to religious schools in violation of the Colorado Constitution.

“The Colorado Constitution is very clear on this question: Public funds may not subsidize religious institutions,” said Alex Luchenitser, associate legal director of Americans United. “We’re urging the Colorado Supreme Court to accept this case and strike down this misguided scheme.”

But Douglas County Board of Education President John Carson said the appeals court ruling was clear in declaring the district’s Choice Scholarship Program constitutional. Furthermore, he said the appeals court rejected all statutory claims made by the plaintiffs.

“The ruling was a huge victory for the students and parents of Douglas County and we are confident that the Court will once again reject the arguments made by the ACLU,” Carson said in a prepared statement. 

Carson defended a parent’s right to choose the best school for their child.

“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,” Carson said. “Douglas County provides many options for students including the finest neighborhood schools in America, a superb array of charter schools, and a world-class variety of learning opportunities. The Choice Scholarship Program will give our students one more choice to achieve educational success and to prepare for the exciting opportunities that lie ahead in 21st Century.”

The Choice Scholarship Program, initiated as a pilot, offered tuition vouchers worth $4,575 to 500 students to spend at 23 schools that had been vetted by the school district. The program remains on hold pending the Colorado Supreme Court ruling.

“Taxpayers in Colorado should not be compelled to subsidize religious education,” said ACLU of Colorado Legal Director Mark Silverstein.

Heather Weaver, staff attorney for the ACLU Program on Freedom of Religion and Belief, said parents can elect to send their children to religious schools, but not on the public dime.

“We are hopeful that the Colorado Supreme Court will accept this case and vindicate the religious liberty right of taxpayers to ensure that public funds do not support religious institutions,” Weaver said.

lower court struck down the plan, but the Court of Appeals overturned that decision in February in a 2-1 ruling.

The latest lawsuit, LaRue v. Colorado Board of Education, argues that the voucher plan violates the Colorado Constitution’s ban on the use of public funds for religious schools, as well as state laws that require educational funds to pay for public education and remain under government control.

“This case raises issues important to the constitutionally mandated public-education system in Colorado, which is facing serious financial difficulties,” said attorney Matthew Douglas, of the Denver office of the international law firm Arnold & Porter, which  argued the appeal.

“If the Court of Appeals’ decision stands, the result could be widespread public funding of religious education throughout the state, as other school districts would be able to enact voucher programs similar to Douglas County’s. We believe the Colorado Supreme Court should weigh in on this important issue and enforce the Colorado Constitution’s clear prohibition of such funding.”

The plaintiffs are represented by Douglas, Timothy Macdonald and Michelle Albert of Arnold & Porter; Luchenitser and Ayesha Khan of Americans United; Weaver and Daniel Mach of the ACLU Program on Freedom of Religion and Belief; and Silverstein and Sara Rich of the ACLU of Colorado.

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 in August 2011 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.

In February, the Court of Appeals overturned the ruling — continuing one of the most watched court battle over school vouchers in the country.

Under the Choice Scholarship 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.”

LaRue vs. Douglas County School District