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Arguing, and waiting, in Dougco voucher case

Legal advocates for and against Douglas County’s school voucher program argued Monday before the Colorado Court of Appeals, engaging in lively exchanges with the attentive three-judge panel.

Eric Hall, the Colorado Springs attorney who helped Dougco craft its Choice Scholarship Program, appeared on behalf of the district and the state to argue the appellate judges should overturn a lower court’s decision finding the plan unconstitutional.

Attorneys Matt Douglas, representing Dougco resident James LaRue and the American Civil Liberties Union, and Michael McCarthy, representing Taxpayers for Public Education, argued the August 2011 ruling by Denver District Judge Michael Martinez declaring the plan unconstitutional is sound.

Judges Steven Bernard, Dennis Graham and Jerry Jones frequently interrupted the attorneys as they spoke for their allotted 30 minutes per side, asking questions that ranged from the general to the technical.

Jones, referring to the charter school created to serve as the administrative home of the voucher students, noted it has no building, no teachers and no textbooks.

“Well, there isn’t a building … in what sense is it a school?” he asked Hall.

“It was used by the district as an administrative convenience, we’ve always said that,” Hall replied.

Bernard followed with, “If it’s not a school, why call it that?”

Both sides came in for scrutiny, with the justices questioning the voucher opponents just as closely.

Graham asked whether those opposing the program – Dougco residents and taxpayers – had the legal standing to sue under the School Finance Act. Opponents argue the program violates that act and the Colorado Constitution.

And he questioned whether the program, which would use taxpayer dollars to help send Dougco students to religious and non-religious private schools, wasn’t therefore neutral.

Hall contended it was, noting “it neither favors nor disfavors any private schools” since all private schools wishing to accept voucher students must sign the same contract with the district and abide by the same 12 conditions of eligibility.

Douglas argued it was not, since the participating schools were allowed not to accept students who didn’t meet their entrance requirements and students were required to participate in the schools’ religious curriculum and activities.

At other points, the arguments focused on legal procedure, such as whether a final order was ever issued by Martinez, and prevailing case law, with the two sides pointing to different court decisions as precedent on point.

Attention didn’t flag in the packed audience, which includes four Dougco school board members. At the end of the oral arguments, Graham said the judges would rule “in due course.”

Attorneys for both sides said that, given the complex legal issues and the coming winter holidays, they expect a decision after Jan. 1 and possibly as late as February or March.

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