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Voices: One year since Dougco voucher ruling

Cindy Barnard, a Douglas County parent who became a plaintiff in the lawsuit suspending the district’s voucher pilot, looks back at the year since a judge halted the plan.

August 12, 2011 was a great day for public education. One year has passed since Judge Michael Martinez ruled to halt the Douglas County School District’s voucher program. I thought I’d write a brief history, a summary of Judge Martinez’s ruling, and discuss where we are today in the battle to support public education.

The district created a “School Choice Task Force.” The first meeting, invitation only, was held in June 2010. Invitees to this private meeting included folks from the Independence Institute. I was invited to the July meeting and, wanting to make sure that neighborhood schools were considered a choice, I joined the neighborhood school subcommittee. I attended subcommittee meetings but was unable to attend the two general meetings held in August and September. Minutes were not taken at any of the general meetings and the public was not invited until the third meeting in August.

The subcommittee on “Option Certificates” presented their work at the October meeting. Before this time, I believed that all committees were simply brainstorming and that committees were comprised of volunteers. That is until Eric Hall, Colorado Springs attorney, presented the Option Certificate Program in board policy format. I began to understand that this subcommittee was not all volunteer or simply brainstorming. Needless to say, I was not the only person working on the Task Force that was shocked at the presentation of the voucher program.

Upon further investigation, it became apparent that the Option Certificate Program was following guidelines and a formula for implementation put forth by the American Legislative Exchange Council, also known as ALEC. A summary of our research of ALEC can be found in our Connecting the Dots document. Clearly, the direction for our once high-performing school district was now being heavily influenced by a powerful outside national organization, not Douglas County citizens.

Taxpayers for Public Education formed very quickly. Our mission: to advocate and support public education. We began speaking in opposition to the program at school board meetings, to friends, family and anyone we met on the street. A frenzy of letter-writing campaigns targeting Douglas County school board members, the Colorado Department of Education, the State Board of Education and to legislators went, for the most part, unanswered.

The Douglas County school board voted to move forward with the Option Certificate Program on March 15, 2011. Upon the advice of the Colorado Department of Education, the program was renamed the “Choice Scholarship Program.”

Taxpayers for Public Education, after working tirelessly within district channels to try to stop the program, filed suit against the Douglas County School District, the Colorado Department of Education and the Colorado State Board of Education on June 21, 2011.

A hearing for a preliminary injunction was heard in Denver District Court on August 2-4, 2011. Judge Martinez not only ruled to grant our request for a preliminary injunction, he granted a permanent injunction, thus stopping the illegal voucher program. The judge supported his decision with very extensive findings of fact, all of which are supported by direct citations to documents or testimony. The judge also very carefully analyzed the facts and law of the important legal precedents and either carefully matched them or carefully distinguished them from the district’s voucher program. A summary of the key points in his findings are as follows:

  • The judge ruled in our favor on six different points of law. The court found that the voucher program violates: (1) Art. IX sec 7 of the Colorado Constitution, because the school district can’t give money to aid schools controlled by churches and sectarian institutions; (2) Art. II sec 4 of the Colorado Constitution, violation of “no compelled support” of religious sects clause; (3) Art. X sec 8 of the Colorado Constitution, forbidding religious test for admission to public school, required attendance at religious service at public school, and teaching of religious tenets at public school; (4) Public School Finance Act requirement of “uniform” funding; (5) Art. V sec 34 of Colorado Constitution, forbidding appropriation of educational funds for sectarian institutions; and (6) Art. IX sec 3 of the Colorado Constitution prohibiting public school fund from being used for anything but public schools.
  • The judge also ruled against the two affirmative defenses that the district and the state put forward, ruling that the U.S. Constitution does not prevent a court from enforcing the specific provisions of the Colorado Constitution, and that the other public-private programs that the state kept pointing to were irrelevant to this program.

As expected, in April 2012, the Douglas County school board filed an appeal in hopes of overturning the district court’s decision. Because Judge Martinez originally found in our favor on six different points of law, if any of these legal bases are upheld, the injunction will stand. All of the parties have now submitted briefs to the state Court of Appeals, and we await the appellate court’s notification of a hearing date.

The Douglas County School District is quickly approaching $1 million in legal fees alone for the voucher program. In round numbers, $82,000 was spent to develop the program and, as of July 2012, $828,000 has thus far been spent in defense of the program. And the legal fees will continue to mount.

In addition, the district distributed over $300,000 to private schools in July and August 2011, after the lawsuit had been filed. To date, $25,162 has not been returned to the district by private schools.

Douglas County school board members passed a resolution to establish a legal defense fund simultaneously with their vote to implement the illegal voucher program. Private donations from organizations outside Douglas County have accounted for $805,000 of the $807,446 contributed to the fund. The district’s recently-hired community relations officer, Cinamon Watson, formerly worked for ALEC. The outside influences continue to mount as well.

Not accounting for the district’s own personnel resources that have been involved in the development and defense of the illegal voucher program, the outstanding balance of $127,368 represents local and state tax dollars earmarked for the education of Douglas County public school students.

Our fabulous attorneys with Faegre Baker & Daniels and Alex Halpern have generously donated their time and expertise and have absorbed many of our expenses. However, we do have a significant legal bill to pay in order to continue to fight the illegal voucher program. I thank you in advance for your continued support.

Yes, August 12, 2011 was a great day for public education. And as we pass the anniversary of Judge Martinez’s decision, we at Taxpayers for Public Education are very aware that the privatization of public education is a national issue and an issue we will continue to fight.

About our First Person series:

First Person is where Chalkbeat features personal essays by educators, students, parents, and others trying to improve public education. Read our submission guidelines here.

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