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Flurry of filings in Dougco voucher lawsuits

Plaintiffs in two lawsuits challenging the Douglas County voucher pilot are asking for an immediate halt to the plan, arguing it must be stopped before any public dollars flow to private schools.

“Once the money is illegally diverted away from public schools, the bell can’t be unrung,” said Gregory M. Lipper, attorney for Americans United for Separation of Church and State, one of the plaintiffs.

Americans United, along with the American Civil Liberties Union, the Interfaith Alliance of Colorado and a handful of Douglas County parents, filed the motion for a preliminary injunction on Tuesday.

Taxpayers for Public Education, a group of Douglas County parents and residents who are the plaintiffs in the second lawsuit opposing the voucher pilot, filed a similar motion Wednesday.

In addition to the preliminary injunction, both sets of plaintiffs have asked Denver District Judge Michael Anthony Martinez to consolidate the two lawsuits into one, noting the “cases share common questions of law and fact,” according to court documents.

Martinez has yet to rule on the motion to consolidate or the request for a preliminary injunction. He’s also considering a motion for change of venue, filed by two defendants – the Douglas County School District and its school board – who want the legal action moved out of Denver and into Douglas County.

“A judge in Douglas County should hear it because this is where it’s all going on,” said school district spokesman Randy Barber.

Court dockets show the Americans United lawsuit is set for a status review with Martinez on July 13; both lawsuits have status reviews with the judge on July 19 and 26.

District, board want legal action moved to Douglas County

Douglas County school leaders filed their motions for change of venue in both lawsuits on July 1.

Eric Hall, a private attorney who advised district leaders on the creation of the voucher pilot last year, filed the motions, arguing “all the actions giving rise to this lawsuit have taken place” in Douglas County.
Both lawsuits name the district and school board, along with two other defendants – the Colorado Department of Education and the State Board of Education.Hall denies that the state entities have taken action related to the program and wrote that two meetings, on Jan. 5 and March 7, between state and district officials were “informal.”

“The only ‘decisional acts’ by public officers have been taken in Douglas County by the Douglas County Board and the Douglas County administration,” he wrote.

But Lipper, with Americans United, said his plaintiffs will oppose the district’s effort to move the lawsuits to Douglas County.

The legal action belongs in Denver, he said, because state entities are “implicitly or otherwise approving the Douglas County program and will be funding the Douglas County program.”

“It’s state money being used and so the county voucher program could not be happening if the state weren’t providing the money to fund it,” Lipper said. “And so the state is an important part of this case and that’s why Denver is absolutely an appropriate forum for the case.”

Hall, who also helped create a 2003 statewide voucher pilot, later struck down by the Colorado Supreme Court, received more than $8,000 for his work on the Dougco pilot.

Wednesday, Barber said Hall’s legal expenses – and those of two others at the Denver firm of Rothgerber, Johnson & Lyons who have entered appearances in the lawsuits – would be paid from a legal fund created when Dougco board members voted 7-0 to support the voucher pilot.

Barber said the fund has a balance of $600 but that district leaders are “very optimistic” that figure will  increase.

Plaintiffs request immediate halt to voucher pilot

In the pilot, 500 Douglas County students will receive four checks totaling $4,575 to be used for tuition at a participating “partner” private school starting this fall.

That figure represents 75 percent of the per-pupil funding that Douglas County is to receive in 2011-12. The other 25 percent would go to a charter school created by the district to manage the program.

But per-pupil funding comes from a combination of state and local taxes and other revenues. In their motion for a preliminary injunction, Taxpayers for Public Education note that local sources account for 33 percent of the per-pupil funding that Dougco receives and state sources account for 67 percent.

“If the voucher program is not stopped, the Douglas County School District will funnel over $3,000,000 in public funds it receives from the Colorado Department of Education to private schools in direct violation … of the Colorado Constitution, and the Public School Finance Act,” the motion states.

“Plaintiffs seek a preliminary injunction prohibiting defendants from taking any further action to implement the voucher program.”

Similarly, plaintiffs in the second lawsuit seek an injunction declaring the pilot is likely to be found unconstitutional.

Fourteen of the 19 private school partners are religious and “will use these taxpayer funds for religious education and indoctrination,” the motion contends.

District and state officials have “expressly authorized them to use taxpayer funds to discriminate in both enrollment and hiring on the basis of religious beliefs, sexual orientation and medical conditions,” it continues.

“Defendants also have approved the use of taxpayer funds to require participating students to attend religious worship services and swear an oath to the particular faith favored by the schools … ”

None of the defendants – Dougco, its school board, the state board or the CDE – has yet filed responses to the motions.