Two lawsuits were filed Tuesday in Denver District Court in separate legal efforts to shut down Douglas County’s pilot voucher plan, set to launch this fall with up to 500 students.
District leaders, who are moving to finalize the structure of the first-of-its-kind plan, said they won’t pause in their activity unless ordered by a judge.
“We’re moving forward unless and until the court tells us not to,” said Robert Ross, legal counsel for the Douglas County School District. “The district is ready to vigorously defend our actions.”
The American Civil Liberties Union and Americans United for Separation of Church and State are providing the legal muscle for the first suit filed Tuesday, with a handful of Douglas County parents, the Interfaith Alliance of Colorado and two clergy who are Douglas County residents serving as plaintiffs.
“I think that if public education is as important to the future of our nation as I believe it to be, we have to speak up,” said James LaRue, named as lead plaintiff in the lawsuit with his wife Suzanne.
“I am not opposed to educational reform,” said LaRue, who helped start a charter school in Douglas County. “My concern is it seems so clearly to be trying to use public monies and transfer them to private religious entities.”
The second lawsuit, filed a few hours later, is brought by Taxpayers for Public Education, a Colorado non-profit formed earlier this year to oppose the voucher effort. Cindra Barnard, the group’s president, and her son, a high school senior, also are listed as plaintiffs.
Both suits name the same four defendants – the Douglas County school board, the Douglas County school district, the Colorado Department of Education and the State Board of Education.
“This is a program we believe lacks accountability, it is inequitable and it is financially flawed,” Barnard said. “And it will reduce funding for every public school student in the state of Colorado.”
She said the Denver law offices of Faegre and Benson and Boulder attorney Alexander Halpern are providing legal services at no cost to the group, though members are hoping for contributions.
The lawsuits came as Douglas County school board members were scheduled Tuesday night to consider creation of a charter school to serve as the administrative home for voucher students. Placing the students in a single charter – at least on paper – is intended to make it easier to track their funding and progress.
“Today is an important day with the voucher system,” Barnard said Tuesday, noting the board’s agenda might explain the otherwise coincidental timing of the two lawsuits.
Lawsuits seek immediate halt to pilot
Both lawsuits are asking Denver judges to put an immediate halt to the voucher plan, which has proven popular with parents and private schools.
In the first application window, nearly 500 eligible students applied for “choice scholarships” worth $4,575 in 2011-12 and 33 private schools sought to join as “partner schools.” As of Tuesday, district officials said they have signed contracts with 19 private schools and they’ve received 70 applications to fill 21 remaining student slots.
From the ACLU lawsuit:
- “As of the filing of this complaint, all but five of the 19 private schools that have been approved to participate in the Program are religious or sectarian schools.”
- “Of the five non-religious schools, one is for gifted students only and another is for special needs students. The remaining three schools run through eighth grade only.”
- Example: Evangelical Christian Academy “requires each parent and secondary student to sign a declaration of faith, including a written born-again believer’s testimony.”
- Example: Valor Christian High School’s application to the district “states the Bible is the foundation for all our programs. We will not compromise our Christian values.”
- Example: Denver Christian Schools’ AIDS policy “permits a team appointed by the school superintendent to recommend whether to admit, deny or withdraw an HIV-positive student.”
- Example: Front Range Christian School “states that homosexuality is a cause for termination.”
But Gregory M. Lipper, litigation counsel for Americans United for Separation of Church and State, said the legal issues are clear.
“What we’re arguing is that the Colorado constitution and the Colorado statutes are very clear that taxpayer money can’t be used to fund religious schools or religious education,” he said.
“We’re arguing the law is very clear as it is and, because we’re going to prevail at the end, we’re entitled to preliminary relief now. If we don’t get the relief now, the very harm we’re trying to prevent – the transfer of taxpayer money to religious schools – will happen.”
Ross, the district’s attorney, said Douglas County officials were not served a copy of the first lawsuit until Tuesday afternoon, as they were holding a press conference, and he was not aware of the second lawsuit until questioned by reporters. So he declined comment on specific allegations in the suits.
But he and John Carson, president of the Douglas County school board, said they are confident the voucher pilot will withstand legal scrutiny.
“We’re not endorsing any particular form of education,” Carson said. “We’re simply saying that our kids are important enough that they ought to be able to … seek a quality education at any school that they and their parents choose. That’s what this issue is about, pure and simple.”
The two lawsuits allege violations of the Colorado Constitution and the state’s Public School Finance Act, though they differ somewhat on which sections of which constitutional articles are being violated. Key points are similar:
- Douglas County is taking public funds provided by the state – money required by law to be spent on public schools – and using them to pay for tuition at private schools, most of them religious.
- Douglas County is ceding control of the instruction of its students to the private schools, which are not directed by elected school board members, and the district is not entitled to per-pupil funding for them.
- Colorado state board members and the Colorado Department of Education have assisted the district in developing the voucher program and agreed to the improper use of state funding.
Janelle Asmus, spokeswoman for the state Department of Education, said staff have provided “technical assistance” when Douglas County officials sought their help in the past year.
“The department made clear that it was not its role or responsibility to approve or disapprove any school option idea thus, underscoring the fact that these decisions were up to the local board of education,” Asmus said in a written statement.
“To date, neither CDE nor the state board of education has received any official proposal or waiver request from Douglas County Schools; therefore no approval or action has been taken.”
National voucher supporters, foes in fight
The lawsuits will pit familiar adversaries against each other, making Colorado courtrooms the playing field again for national voucher supporters and opponents.
- Lawyers say Dougco’s plan places too few restrictions on participating private schools. The district says that’s intended to allow those schools to continue to thrive, and parents know what they’re getting.
“Schools can discriminate on the basis of religion in admissions, they can have religious messages in any class be it math or biology, they can have religious services and force students to attend.”
— Gregory Lipper, plaintiffs’ attorney
“We in no way intended this process to affect any change to their curriculum or their practice. Written in the contract is that they won’t change their policies based on the students coming to them with these scholarships.”
— Christian Cutter, district staff
Tuesday afternoon, the Institute for Justice announced it will seek to intervene on the district’s behalf in the lawsuit filed by the ACLU and Americans United.
The Washington, D.C.-based Institute, which bills itself as the nation’s only libertarian public interest law firm, has joined voucher battles across the country. In 2003, it backed Colorado’s statewide voucher pilot, which was later deemed illegal by the state Supreme Court.
The group could bring needed resources to Douglas County’s fight, which district leaders say they hope to wage without tapping district funding.
Citing legal action as likely, Douglas County school board members created a legal defense fund to accept contributions when they voted 7-0 in March to approve the voucher plan.
“I don’t know if there’s much in there at all at this point,” Ross said Tuesday. “I imagine that, after this action by the ACLU, that will change.”
The ACLU and Americans United also weighed in on Colorado’s 2003 voucher plan – in opposition. Lipper, with Americans United, said the group keeps an eye on voucher activity across the country.
“Anecdotally, it seems like we’re starting to see more,” he said. “Some elected officials in some states seem to attempt to cast public schools as the problem. Our position is, to the extent there are things in public schools that need to be improved, the solution is to improve them – not to harm them further by taking their funding and putting it in the hands of religious institutions.”
Not all Douglas County families agree. Today, a lottery is scheduled to fill the remaining slots in the voucher pilot for fall. With 70 applications and only 21 seats, district officials say they’ll use the lottery to fill those spots and establish a rank order on a waiting list.
“It is our intent to deliver on this program,” said Christian Cutter, Douglas County’s assistant superintendent of elementary education.
But if a judge rules differently, he said, would-be voucher students will be welcomed back into Dougco public schools “with open arms.”
Video highlights from Douglas County press conference
How can they do that? A legal primer on vouchers in Colorado
This Q & A includes three key cases in the legal history of Colorado’s voucher efforts. Voters in 1992 and in 1998 rejected ballot initiatives for vouchers and tuition tax credits. A 2003 pilot approved by lawmakers was halted by the state Supreme Court before a single voucher was issued.
- How can taxpayer money be spent on private and religious schools?
In 2002, the U.S. Supreme Court ruled that providing parents with vouchers to pay tuition at private schools does not violate the First Amendment’s ban on mixing church and state. The nation’s highest court, in Zelman v. Simmons-Harris, concluded by a 5-4 vote that “neutral educational assistance programs that … offer aid directly to a broad class of individual recipients defined without regard to religion” are legal.
— Gregory M. Lipper, legal counsel for Americans United for Separation of Church and State, said the Zelman case isn’t relevant in the lawsuit filed Tuesday against Dougco’s voucher pilot by his group, the American Civil Liberties Union and others: “The Zelman decision addresses only a claim under the federal constitution. Our claims are entirely based on state law. So Zelman does not help them.”
- Isn’t there an amendment to the Colorado constitution that prohibits this?
The Blaine amendment states, in part, that no school district “shall ever…pay from any public fund or moneys whatever, anything in aid of any church…” Eric Hall, the Colorado Springs attorney who drafted the Douglas County policy, points to a 1982 case involving a state grant program to aid college students. In Americans United for Separation of Church and State Fund, Inc. v. State, the Colorado Supreme Court found the state aid benefited the student and not the institution. This distinction shapes the dollar flow – voucher checks sent to private schools are in the parents’ names and valid only if signed over by them.
— Lipper, legal counsel for Americans United, the plaintiff in that 1982 case, said there are important distinctions between that case and Dougco’s voucher pilot: “In that case, you actually had very specific steps taken by the government to avoid using taxpayer money to fund overtly religious messages. That’s not happening here. In Douglas County, there are no restrictions on what (religious) schools can do with the money.”
- So why was the 2003 Colorado voucher program stopped?
The state Supreme Court decision that struck down the Opportunity Contract program in 2004 did not address religion. Instead, the court found that the pilot program for students in 11 districts violated the local control vested in elected school boards by the state constitution. In Owens v. Colorado Congress of Parents, Teachers and Students, the court said the law “directs the school districts to turn over a portion of their locally raised funds to nonpublic schools over whose instruction the districts have no control.”
- How is Douglas County getting around that ruling?
Because it’s a decision by a local school board to include private schools within the district as an educational option, Hall said. The board could be cautious and designate that only locally raised taxes be used for the vouchers – on average, per-pupil funding in Colorado is 35 percent local property taxes and 65 percent state dollars. But Hall doesn’t believe that’s necessary: “I don’t see any barrier to a local district saying we’re providing an educational program that uses some state dollars, just like we use state dollars when we run any other educational program in our district.”
— Both lawsuits file Tuesday allege Douglas County is ceding control of instruction of students to private schools with its voucher pilot. The lawsuit filed by Taxpayers for Public Education says the district’s creation of a “voucher charter school” is “a pretense solely for purposes of obtaining funding from the state” and the district is not entitled to funds for students not enrolled in its schools.
Details of Douglas County’s voucher proposal
Who can participate
- Students currently attending Douglas County public schools who have been enrolled for no less than one year.
- Students must live in the Douglas County School District.
- In the pilot for 2011-12, up to 500 students may participate.
- Participating students will be required to take state exams at a time and place designated by the district.
How the money will flow
- 75 percent of per-pupil funding will follow the student to a participating private school – based on an expected per-pupil amount of $6,100, that’s $4,575 per student.
- The remaining 25 percent – an estimated $1,525 – will stay with the district.
- The value of the voucher or scholarship will be $4,575 or the actual cost of tuition, whichever is less.
- The district will write checks to the parents of participating students and those parents will sign them over to the private schools they’ve chosen.
- Parents will receive four equal payments annually. Payment could be withheld if the student, parent or private school is in violation of program rules.
- If 500 students participate, at $6,100 per student, that’s a total of $3.05 million – with $2.28 million going to private schools and $762,500 staying with the district.
How private schools can participate
- Nonpublic schools located within or outside the boundaries of the Douglas County School District could participate. Kindergarten programs are not included in the pilot.
- Schools will not be required to change their admissions criteria to participate but they would not be allowed to discriminate on the basis of disability or any other area protected by law.
- Schools must be willing to provide the option of a waiver to voucher students for the religious portion of their program.
- Schools must agree to provide attendance data and qualifications of teaching staff to the district.
- Schools will be expected to “demonstrate over time that its educational program produces student achievement and growth results … at least as strong as what district neighborhood and charter schools produce,” according to draft policy on the voucher plan.
- Schools must demonstrate financial stability, disclosing at least the past three years’ worth of audited financial statements and other financial data.
- Schools must demonstrate their facilities are up to building codes and that they have a safe school plan as required by law.
How the district will use the money
- Of the $762,500 possible in the pilot year for the district, $361,199 will be set aside for administrative overhead such as providing staff to monitor attendance and state testing of voucher students. A Choice Scholarship Office will be created to administer the program.
- The remaining $401,301 will be set aside for “extenuating circumstances,” including assisting a district school adversely impacted by the voucher pilot.