School voucher program stopped: Dougco appeal would waste taxpayer money, ACLU says

"School Vouchers on Hold" read a weekend headline in the print Denver Post.

But while plaintiffs, including the Colorado branch of the American Civil Liberties Union, technically requested a preliminary injunction to stop the Douglas County Choice Scholarship Program, Judge Michael Martinez's ruling (read it below) will be permanent if Dougco doesn't appeal -- and the ACLU feels doing so would be ill-advised.

"We would hope they wouldn't appeal," says ACLU spokeswoman Rosemary Harris Lytle, "because of the tremendous liability that's already been placed on the taxpayers in that county."

Back in June, the ACLU, its Colorado chapter and Americans United for Separation of Church and State, supported by individuals like lead plaintiff James Larue and organizations such as the Interfaith Alliance, sued to stop the voucher program prior to its implementation. This excerpt from the document sums up the primary objections:

The Program, enacted by the Douglas County Board of Education on March 15, 2011, takes public funds provided by the State of Colorado -- which are required by law to be spent on public schools -- and uses them to pay for tuition at private schools. The vast majority of these private schools are religious, are controlled by churches or other religious institutions, and discriminate in both employment and admissions on the basis of religion. Many of them require students to receive religious instruction and attend religious worship services...

In diverting millions of dollars in public funds intended solely for public education to instead finance overtly religious and private education, the Douglas County School District also cedes control over this education to the private-school aid recipients, resulting in a taxpayer-funded education that deviates substantially from the legal standards and requirements governing the public education provided by the District itself. The private schools participating in the Program are not controlled or directed by any local board of education or elected directors, and the education they provide differs in material respects from the District's -- including, among others, teacher certification, background, educational goals, curriculum, and approved textbooks.

Judge Martinez didn't agree with every complaint offered up by the plaintiffs, but he embraced the vast majority of them. Toward the end of his ruling, he writes:

The Court finds that, not only have Plaintiffs presented sufficient evidence to establish a reasonable likelihood of success on the merits, Plaintiffs have demonstrated that the Contracting Statute does not permit school districts the broad authority to contract with private schools for the provision of a public education to public school students, thereby creating a clear and certain right to mandatory or permanent injunctive relief.

Martinez's use of the word "permanent" is important, believes the ACLU's Harris Lytle.

"Our request was for a preliminary injunction that would stop the program while we and Douglas County looked at the law," she notes. "But the effect of the judge's ruling... if you read it, it's a permanent injunction. So this stops now.

"Judge Martinez upheld the fact that the Choice program was unconstitutional because the Colorado constitution says giving taxpayer funds to religious organizations is unlawful," she continues. "It doesn't matter what scheme or what kind of acrobatics you use to try to do it: It's still unconstitutional. The bottom line is, the Colorado constitution prohibits state funds from going to private religious organizations.

"The ruling also upheld our opinion that local school districts are the ones responsible for educating their students with public funds. They're responsible for setting educational policies, for standards, for curriculum. And if you give public dollars to a local school district, they must set those standards -- not private school partners. You can't give them public money and then let them turn over the responsibility for educating public school students to religious private schools."

Prior to the ruling, and immediately following it, the Post and other news agencies reported about the hundreds of students who will probably have to find new schools just as the academic year is slated to get underway. But Harris Lytle feels the responsibility for this disruption shouldn't be placed on the plaintiffs.

"The well-understood principles of public education were totally ignored by the Douglas County School Board and its administrators -- so they're the ones who did a disservice to those families," she maintains. "They knew all along that this was unconstitutional -- that it was a stretch. And they knew they were putting those families and those students in jeopardy. They're the ones who put them in jeopardy, by coming up with a plan that almost anyone could look at and say, 'This is unconstitutional.'

"We're not reveling in the fact that those students and families are now scrambling or disappointed or being inconvenienced," she stresses. "But we think it's the Douglas County School Board that should be apologizing to them for even trying to push this in the first place -- because they knew it was unlawful."

Harris Lytle adds that the plaintiffs "support the choice of parents to send their children to a private or religious school. The suit was never about that. It was only about sending public-school dollars to private organizations. And we also had an underlying message that, to me, really resonates because of the ruling -- that public schools and the public-school experience are the bedrocks of our democracy, and they must be supported by our public dollars. To do it differently would change what this country and its long-held system of public education is all about."

Look below to read Judge Martinez's ruling:

James Larue vs Colorado Board of Education

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