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Dougco, state file voucher defense

Updated to include additional court filings from the plaintiffs on Monday. See the changes.

Douglas County school district leaders have sent initial voucher payments totaling $158,519 to private schools on behalf of 140 students, according to court documents filed in a pending lawsuit over the district’s “choice scholarship” or voucher pilot.

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Attorneys for the school district and the state on Friday filed a joint motion to dismiss the lawsuit and a combined response to the plaintiffs’ request to halt the pilot while legal issues are resolved.

In the documents, the attorneys argue there’s no legal basis to halt the pilot – even temporarily – and they say doing so would cause “massive disruption” for the 500 voucher students, their families and all schools involved.

“Months ago, scholarship students withdrew from their prior schools; those slots have now been filled … Parents have paid tuition, bought uniforms and school supplies, and generally re-arranged their lives to permit their child to attend a partner school of their choice,” the documents read.

“Douglas County has signed contracts with families and partner schools … In short, the evidence will show massive disruption will occur to families, partner schools and Douglas County schools if this court tries to unwind this program at this late date.”

Denver District Court Judge Michael A. Martinez has scheduled a three-day hearing on the plaintiffs’ motion for a preliminary injunction to begin Aug. 2. Some Douglas County schools begin the new school year on Aug. 1 and all are back in session by Aug. 10, according to court records.

Meanwhile, some of the 22 private schools so far approved by the district begin their classes on Aug. 15. At least 15 of the 22 schools are religious.

‘Let the pleadings speak for themselves’

Randy Barber, spokesman for the Douglas County School District, said late Friday that district officials would have no comment on Friday’s filings or the legal proceedings.

Instead, he wrote in an email, “We will let the pleadings speak for themselves.”

In the documents, the district’s private attorneys argue that the lawsuit filed June 21 by a handful of Douglas County parents and groups such as the American Civil Liberties Union should be dismissed.

“Plaintiffs sketch a picture of Colorado’s education system in which school districts are hermetically sealed off from the private sector, especially religious entities,” the attorneys wrote. “This picture does not reflect reality.”

For example, they argue that the Colorado Supreme Court has interpreted Colorado’s religion clauses consistent with the First Amendment for almost thirty years, citing a 1982 case in which the court allowed a grant program for college students to be used at some religious institutions.

The case, Americans United for Separation of Church and State v. Colorado, was filed by one of the plaintiffs in the Douglas voucher case. Attorneys for Americans United, however, say the district is ignoring important distinctions between that case and the 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,” Gregory M. Lipper, lead counsel for Americans United, told EdNews. “That’s not happening here. In Douglas County, there are no restrictions on what (religious) schools can do with the money.”

Voucher pilot is “neutral toward religion”

But district and state attorneys say a 2008 case decided by the U.S. Court of Appeals for the Tenth Circuit renders that argument moot. The case involved Colorado Christian University, which had been denied participation in a state scholarship program because of its religious nature.

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The appellate court found in favor of the university, declaring its exclusion unconstitutional in part because the program discriminated against religion.

Dougco’s voucher pilot “is neutral toward religion,” the defendants argue. “The district in no way promotes one private school partner over another, religious or non-religious.”

Instead, the $4,575 voucher – or 75 percent of per-pupil funding – follows a student to the private school of the family’s choice.

“As partner schools and families were accepted into the program, parents began to investigate and choose which partner school in which to enroll their child,” according to the filings. “The district plays no role in this but rather leaves it entirely up to families to select partner schools.”

District and state attorneys also say the state already allows “similar public-private educational partnerships,” including contract schools, charter schools, online education and home-schooling.

They also are critical of the plaintiffs for filing their legal action months after the voucher pilot was approved March 15 by a 7-0 vote of the Douglas County school board.

“During this entire public, well-reported process, plaintiffs sat on their hands. They did nothing … ,” the documents read. “Now, at this late date, on the eve of school starting, plaintiffs ask this court for a preliminary mandatory injunction to unravel everything that has already occurred.

“Plaintiffs’ tardy request will result in massive disruption of lives throughout Douglas County and beyond.”

Plaintiffs: State could take money back in 2012

Attorneys for the plaintiffs say Dougco and state officials are arguing as if federal law – not the Colorado Constitution and state law – were at issue in the case.

“They are wrong,” the plaintiffs’ wrote in their reply, filed Monday. “A proper focus on Colorado law, as interpreted by Colorado courts, confirms that the voucher program is unlawful.”

For example, the case involving Colorado Christian University involved a federal appeals court determining the college grant program violated the federal constitution, not the state constitution.

“The Tenth Circuit did not purport to interpret, let alone overrule, the Colorado Supreme Court’s interpretation of the Colorado Constitution,” the plaintiffs argue. “That task is reserved for the Colorado courts.”

And while Dougco and state officials contend there will be “massive disruption” if the program is stopped, the plaintiffs argue that will occur if the voucher pilot is allowed to continue.

In particular, they say state officials have made it clear in court records that the Colorado Department of Education will not decide whether to officially “count” voucher students for funding purposes until Dougco is audited in 2012.

“The state reserves the right, in 2012, to clawback the millions of dollars that the district intends to spend between now and then,” the plaintiffs state.

“Thus, if the court does not enjoin the program now, it could be abruptly terminated when the state conducts its audit in 2012, when students are already enrolled and immersed in the private schools,” they argue.

“Students in the program would need to be reintegrated in the public schools, or parents would be forced to pay the remaining private school tuition on their own. Public school enrollment and curricula would be disrupted. And the district could face the obligation to return millions of education dollars to the state.”