Published Online: August 15, 2011

Judge Blocks Colorado District's Voucher Program

A Denver judge has granted a motion to halt the Douglas County voucher pilot pending further court action, a ruling that could send hundreds of students back to district schools.

In a 68-page ruling issued late Friday afternoon, District Court Judge Michael Martinez finds merit in six of eight legal challenges raised by attorneys representing a handful of Douglas County parents and groups including the American Civil Liberties Union.

“This court is not prepared to mandate that Colorado taxpayers fund private religious education,” the judge wrote, noting the voucher plan “violates both financial and religious provisions” of the Colorado Constitution.

Those challenging the pilot, which would have used public money to help enroll 500 students in private schools this fall, declared “victory.”

“This decision is a huge victory for taxpayers and families in Douglas County,” said Cindy Barnard, a Douglas County parent and president of Taxpayers for Public Education, one of the plaintiffs. “The judge carefully listened to both sides and his ruling is proof that the voucher program is illegal.”

Douglas County officials vowed to continue the court fight in support of the voucher pilot, officially known as the Choice Scholarship Program.

At a press conference at Rock Canyon High School, Douglas County school board president John Carson said he believes the Colorado Supreme Court will uphold the pilot.

“The court’s ruling today limits the opportunity for Douglas County parents to determine the best school fit for their children,” Carson said. “This ruling is not what the people of Douglas County wanted or what we know is in the best interest of our students.”

Impact on Families, Schools

District officials notified voucher families of the ruling by letter, saying their children will be welcomed with open arms if they decide to return to district schools. Classes already are in session.

Of the 500 voucher students, 304 have confirmed acceptance into a private school, district spokesman Randy Barber said Friday. That means the other 196 are somewhere in the admissions process. Another 16 students are on a waiting list for vouchers.

Some of the students already have started classes at their private schools and about $300,000 in voucher payments have gone out, Barber said. It was not immediately clear whether the judge’s ruling means the private schools will have to return those dollars.

If so, some private school leaders have lamented the impact on their schools. Terry Martin, academic director of Woodlands Academy, said she may have to lay off teachers. Kurt Unruh, head of Valor Christian School, said in an affidavit filed in court last week that as many as 40 students would not be able to attend without vouchers.

So Valor, which charges $13,950 in annual tuition, “stands to lose $558,000 in annual revenue, which would be a substantial financial hardship,” he said.

And Diana Oakley, who testified during a recent three-day injunction hearing, said she would have to home-school her son, who has a form of autism, because her family couldn’t afford private school without a voucher and she did not want to return him to his neighborhood school, where he was bullied.

Martinez, in his ruling, said he “in no way diminishes” the impact an injunction will have on voucher families.

But he also wrote that, “this interest is outweighed by the substantial disservice to the public interest that would result from the implementation of an unconstitutional program affecting approximately 58,000 students and the taxpaying residents of Douglas County.”

Ruling Takes on Religious Issues

Douglas County school board members voted 7-0 on March 15 to launch the pilot, the first serious effort in Colorado to create a voucher plan since the Colorado Supreme Court struck down a 2003 effort by state lawmakers.

The state’s highest court did not address religion in its ruling, deciding the 2003 plan was unconstitutional because it stripped locally elected school boards of their constitutional control over instruction.

But Martinez tackles religion head-on in his decision, finding a clear violation of the constitutional prohibition against using public money “in aid of any church” or “for any sectarian purpose.” This provision is known as the Blaine amendment.

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At least 16 of the 21 private schools participating in the voucher plan are religious and the pilot places no limits on the schools’ use of public money to support or promote religion.

“In fact, because of the interplay between the participating private school partners’ curriculum and religious teachings, any funding of the private schools, even for the purpose of providing education, would further the sectarian purpose of religious indoctrination,” the judge wrote.

He also dismisses an argument from attorneys for the defendants—the district, its school board, the Colorado Department of Education and the State Board of Education—that he should not stray from interpretations of the U.S. Constitution.

In 2002, the U.S. Supreme Court upheld a Cleveland voucher program that includes religious schools, finding that it was “religion neutral” because it allowed participation by religious and non-religious schools.

But, “ignoring the detailed language of Colorado’s religious constitutional provisions and labeling them ‘no broader than the federal Establishment Clause’ would render them of no value,” Martinez wrote.

The defendants’ assertion “is premised on the idea that the framers of the Colorado Constitution must have debated, drafted and ratified these provisions without purpose.”

Voucher Supporters: Fight Goes On

The judge also disagreed with the defendants’ argument that the voucher pilot closely resembles existing public-private education partnerships, such as concurrent enrollment programs in which high school students enroll in private college classes.

“The court is not persuaded by defendants’ sweeping generalization” that stopping the voucher plan “will put these programs in jeopardy,” Martinez wrote. “The court finds that these statutorily enacted programs are factually and legally dissimilar.”

As part of his ruling, the judge also denied a motion to dismiss the lawsuit filed by the plaintiffs.

Douglas County’s voucher pilot has drawn national attention, in part because it involves an affluent district with high-performing schools. Most voucher programs nationally target students with special needs or those from low-income families.

Family income is not a factor in Douglas County’s plan. At the injunction hearing, a district administrator said 13 voucher students qualify for federal meal assistance, an indicator of poverty.

Facebook pages for two Douglas County groups that sprang up around the voucher pilot were buzzing into the night Friday, with congratulatory messages for Taxpayers for Public Education and commiserating exchanges on Great Choice Douglas County, which backed the pilot.

From EdNews Colorado

“The fight goes on,” promised those on Great Choice.

The voucher debate is likely to enliven Douglas County’s first school board meeting of the new academic year, a community forum scheduled Tuesday at Mesa Middle School.

In a message on its website, the district’s position is clear: “Despite today’s ruling, the district believes the Choice Scholarship Program will stand up to further legal scrutiny,” it reads, and refers to a website, ChoiceLegalFund.org, set up to support the legal battle.

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