The Colorado Supreme Court on Wednesday churned through a list of constitutional arguments for and against the Douglas County voucher program — and any one of which could decide the fate of the choice system.
But the case could also be determined on one central question: what constitutes a public education in the 21st century.
The oral arguments centered around whether the program violates the state’s school funding and charter school laws, whether the program is designed to benefit the student or religious institutions, and whether the plaintiffs — a group of parents and taxpayers — have legal standing to challenge the program.
Justices fired questions at lawyers on both sides of the case about the role of the Colorado Department of Education, whether Colorado school districts are required to provide religious programs along with non-religious programs to students, and what role the state plays in public education.
“Is this a paradigm shift?” Chief Justice Nancy Rice asked James Lyons, the lawyer representing Douglas County schools. “Are you saying public education is just a funding mechanism? … Is all education now public [and parents] can just choose?”
“Not exactly,” Lyons answered. But, he continued, public education has undergone radical changes that the framers of the state’s constitution could not have imagined 140 years ago.
Developed after a conservative majority took control of the Douglas County School Districts Board of Education, the voucher program would allow some families in the affluent school district to use public tax dollars to pay for tuition at private schools.
If the state’s highest court agrees with an appeals court that found the voucher system is constitutional, the program, which has been put on hold since 2011, could be operational by the beginning of next school year. And it could open up the possibility that similar programs could launched across the state.
If the court sides with a trial court that found the program unconstitutional, it would be more in line with a 2004 state Supreme Court decision that halted a statewide voucher program that would have provided similar scholarships to low income families. But that case was not mentioned during Wednesday’s hearing.
Arguing for the plaintiffs, Michael McCarthy said the voucher program violated state law because it was dependent upon a charter school, created by the district solely to pass public funds to private and often religious institutions.
“The charter school is a mirage,” McCarthy said. “There are no classrooms. There is no principal. There are no textbooks. It is little more than a false front from an old western movie.”
McCarthy stressed that the program benefited the religious institutions more than the students.
He pointed to testimony from one private religious school operator who testified under oath that the only reason his school participated in the program was to collect the revenue.
But Lyons, arguing on behalf of Douglas County schools, said the charter school was a mechanism used by the district to fulfill state requirements like testing and met the legal definition of a charter school. But he said the district could fulfill those requirements in other ways.
On the question of whether public tax dollars can be used at religious institutions, lawyers for the plaintiffs said the answer is a resounding no.
But lawyers for the school district argued that because the money is given directly to parents and not the private school, the voucher system passes constitutional muster.
Lyons pointed out to the Denver Preschool Program and the Colorado Opportunity Fund as just two examples of programs that collect taxes from residents and distributes the money directly to students or their parents, who then choose which educational institution — religious or not — to give the money to.
“All of those programs would be thrown into jeopardy” if the court permanently disbands the Douglas County voucher program, Lyons said.
Lyons also said that a driving philosophy behind the program is parent choice. Choice, he said, is not only a Colorado value but also fosters competition and better schools.
Before the justices can answer the constitutionality question about the voucher program, they must first decide whether the parent organization the Taxpayers for Public Education that is behind the lawsuit can sue the state to stop the program from launching.
“What is the injury that allows the citizens to challenge the setting up of this charter school?” Justice Gregory Hobbs asked McCarthy, the lawyer for the Taxpayers for Public Education.
He answered the program would siphon away $3 million from Douglas County schools.
Further, McCarthy argued his parents have the right to challenge the program because it appeared, based on evidence provided at the trial court, that the Colorado Department of Education, the organization tasked with regulating school finance, was working in tandem with Douglas County schools and was therefore not a viable agency to hold the district accountable.
Lyons countered parents only received 75 percent of their individual per pupil funding and that CDE was merely advising Douglas County schools and that the program was halted before the department could throughly vet and regulate the program.
It’s unknown when the court will issue its ruling, but it will likely be next year.