Douglas County voucher program challenge headed to Colorado Supreme Court

The Colorado Supreme Court has agreed to hear the appeal of a lower-court decision okaying Douglas County's controversial school voucher plan, which allows parents to use taxpayer dollars to enroll their kids at religious schools.

That's great news for the ACLU of Colorado, which has been battling the Dougco vouchers in court for three years. And even though the principles on which the dispute pivots seem simple, legal director Mark Silverstein acknowledges that the case is plenty complex.

We've included LaRue v. Colorado Board of Education, the ACLU's 2011 lawsuit, at the bottom of this post. But here's an excerpt that summarizes the argument against the voucher plan.

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.

The suit was filed in June 2011, and that August, a Denver District Court judge granted the ACLU's request for a preliminary injunction, thereby putting the voucher program on hold. At the time, Silverstein argued that an appeal of this ruling would be a waste of taxpayer dollars, but the plaintiffs didn't agree -- and last year, the Colorado Court of Appeals found in favor of Douglas County by a 2-1 margin.

In explaining the rationale for this decision, Silverstein admits that "it's a bit complicated. For many years, it was believe that the First Amendment to the federal constitution would forbid voucher programs like this. But in the early 2000s, the U.S. Supreme Court said a voucher program that gives the money to the parents doesn't violate the federal constitution. So there are communities in some other states where voucher programs are operative, and they allow parents to take a public taxpayer-paid subsidy and use that to send their kids to private schools, including private religious schools.

"But Colorado is among a number of states that have provisions in its constitution that are much more specific," he goes on. "And since the Supreme Court's rulings in the early 2000s, there have been several cases around the country where vouchers have been challenged under state constitutional law" -- the Douglas County case among them.

Now, the ACLU, which quickly challenged the appeals court ruling, will have a chance to make its arguments before the Colorado Supreme Court.

What's next? Silverstein notes that "there will be a briefing schedule. We'll file a brief, the defendants and interveners will file a response brief, and we'll have an opportunity to reply. That will be unfolding over the next several months. Then, the court will set a date to hear oral arguments, and at some point after that, we'd expect the court to issue its ruling."

The ACLU's attorneys are in the midst of determining how best to frame their appeal. But the approach will have at its foundation what Silverstein describes as the organization's "belief that parents have the right to send their kids to private schools, and private religious schools -- but we don't believe they should be able to use public taxpayer money to do that" under the Colorado constitution.

Here's the original 2011 lawsuit against the Douglas County voucher program.

LaRue v. Colorado Board of Education

Send your story tips to the author, Michael Roberts.

More from our Education archive circa August 2011: "School voucher program stopped: Dougco appeal would waste taxpayer money, ACLU says."

KEEP WESTWORD FREE... Since we started Westword, it has been defined as the free, independent voice of Denver, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts