Law & Courts

Facing Lawsuits, Colo. District Defends First-of-Its-Kind Voucher Plan

By Nancy Mitchell, Education News Colorado — June 22, 2011 6 min read
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But if a judge rules differently, he said, would-be voucher students will be welcomed back into the Douglas County public schools “with open arms.”

Two lawsuits filed Tuesday in Denver District Court seek to shut down Douglas County’s pilot voucher plan, set to launch this fall with up to 500 students.

District leaders, who are moving to finalize the structure of the first-of-its-kind plan, said they won’t pause in their activity unless ordered by a judge.

“We’re moving forward unless and until the court tells us not to,” said Robert Ross, legal counsel for the Douglas County School District. “The district is ready to vigorously defend our actions.”

The American Civil Liberties Union and Americans United for Separation of Church and State are providing the legal muscle for the first suit, with a handful of Douglas County parents, the Interfaith Alliance of Colorado and two clergy who are Douglas County residents serving as plaintiffs.

“I think that if public education is as important to the future of our nation as I believe it to be, we have to speak up,” said James LaRue, named as lead plaintiff in the lawsuit with his wife Suzanne.

“I am not opposed to educational reform,” said LaRue, who helped start a charter school in Douglas County. “My concern is it seems so clearly to be trying to use public monies and transfer them to private religious entities.”

The second lawsuit was brought by Taxpayers for Public Education, a Colorado non-profit formed earlier this year to oppose the voucher effort. Cindra Barnard, the group’s president, and her son, a high school senior, also are listed as plaintiffs.

Both suits name the same four defendants—the Douglas County school board, the Douglas County school district, the Colorado Department of Education and the State Board of Education.

“This is a program we believe lacks accountability, it is inequitable and it is financially flawed,” Barnard said. “And it will reduce funding for every public school student in the state of Colorado.”

She said the Denver law offices of Faegre and Benson and Boulder attorney Alexander Halpern are providing legal services at no cost to the group, though members are hoping for contributions.

The lawsuits came as Douglas County school board members were scheduled to consider creation of a charter school to serve as the administrative home for voucher students. Placing the students in a single charter—at least on paper—is intended to make it easier to track their funding and progress.

“Today is an important day with the voucher system,” Barnard said Tuesday, noting the board’s agenda might explain the otherwise coincidental timing of the two lawsuits.

Lawsuits Seek Immediate Halt to Pilot

Both lawsuits are asking Denver judges to put an immediate halt to the voucher plan, which has proven popular with parents and private schools.

In the first application window, nearly 500 eligible students applied for “choice scholarships” worth $4,575 in 2011-12 and 33 private schools sought to join as “partner schools.” As of Tuesday, district officials said they have signed contracts with 19 private schools and they’ve received 70 applications to fill 21 remaining student slots.

But Gregory M. Lipper, litigation counsel for Americans United for Separation of Church and State, said the legal issues are clear.

“What we’re arguing is that the Colorado constitution and the Colorado statutes are very clear that taxpayer money can’t be used to fund religious schools or religious education,” he said.

From the ACLU Lawsuit

“As of the filing of this complaint, all but five of the 19 private schools that have been approved to participate in the Program are religious or sectarian schools.”

“Of the five non-religious schools, one is for gifted students only and another is for special needs students. The remaining three schools run through eighth grade only.”

Example: Evangelical Christian Academy “requires each parent and secondary student to sign a declaration of faith, including a written born-again believer’s testimony.”

Example: Valor Christian High School’s application to the district “states the Bible is the foundation for all our programs. We will not compromise our Christian values.”

Example: Denver Christian Schools’ AIDS policy “permits a team appointed by the school superintendent to recommend whether to admit, deny or withdraw an HIV-positive student.”

Example: Front Range Christian School “states that homosexuality is a cause for termination.”

“We’re arguing the law is very clear as it is and, because we’re going to prevail at the end, we’re entitled to preliminary relief now. If we don’t get the relief now, the very harm we’re trying to prevent—the transfer of taxpayer money to religious schools—will happen.”

Ross, the district’s attorney, said Douglas County officials were not served a copy of the first lawsuit until Tuesday afternoon, as they were holding a press conference, and he was not aware of the second lawsuit until questioned by reporters. So he declined comment on specific allegations in the suits.

But he and John Carson, president of the Douglas County school board, said they are confident the voucher pilot will withstand legal scrutiny.

“We’re not endorsing any particular form of education,” Carson said. “We’re simply saying that our kids are important enough that they ought to be able to … seek a quality education at any school that they and their parents choose. That’s what this issue is about, pure and simple.”

The two lawsuits allege violations of the Colorado Constitution and the state’s Public School Finance Act, though they differ somewhat on which sections of which constitutional articles are being violated. Key points are similar:

Douglas County is taking public funds provided by the state—money required by law to be spent on public schools—and using them to pay for tuition at private schools, most of them religious.

Douglas County is ceding control of the instruction of its students to the private schools, which are not directed by elected school board members, and the district is not entitled to per-pupil funding for them.

Colorado state board members and the Colorado Department of Education have assisted the district in developing the voucher program and agreed to the improper use of state funding.

Janelle Asmus, spokeswoman for the state Department of Education, said staff have provided “technical assistance” when Douglas County officials sought their help in the past year.

“The department made clear that it was not its role or responsibility to approve or disapprove any school option idea thus, underscoring the fact that these decisions were up to the local board of education,” Asmus said in a written statement.

“To date, neither CDE nor the state board of education has received any official proposal or waiver request from Douglas County Schools; therefore no approval or action has been taken.”

National Voucher Supporters, Foes in Fight

The lawsuits will pit familiar adversaries against each other, making Colorado courtrooms the playing field again for national voucher supporters and opponents.

Tuesday afternoon, the Institute for Justice announced it will seek to intervene on the district’s behalf in the lawsuit filed by the ACLU and Americans United.

The Washington, D.C.-based Institute, which bills itself as the nation’s only libertarian public interest law firm, has joined voucher battles across the country. In 2003, it backed Colorado’s statewide voucher pilot, which was later deemed illegal by the state Supreme Court.

The group could bring needed resources to Douglas County’s fight, which district leaders say they hope to wage without tapping district funding.

Citing legal action as likely, Douglas County school board members created a legal defense fund to accept contributions when they voted 7-0 in March to approve the voucher plan.

“I don’t know if there’s much in there at all at this point,” Ross said Tuesday. “I imagine that, after this action by the ACLU, that will change.”

The ACLU and Americans United also weighed in on Colorado’s 2003 voucher plan—in opposition. Lipper, with Americans United, said the group keeps an eye on voucher activity across the country.

“Anecdotally, it seems like we’re starting to see more,” he said. “Some elected officials in some states seem to attempt to cast public schools as the problem. Our position is, to the extent there are things in public schools that need to be improved, the solution is to improve them—not to harm them further by taking their funding and putting it in the hands of religious institutions.”

Not all Douglas County families agree. Today, a lottery is scheduled to fill the remaining slots in the voucher pilot for fall. With 70 applications and only 21 seats, district officials say they’ll use the lottery to fill those spots and establish a rank order on a waiting list.

From EdNews Colorado

“It is our intent to deliver on this program,” said Christian Cutter, Douglas County’s assistant superintendent of elementary education.

But if a judge rules differently, he said, would-be voucher students will be welcomed back into the Douglas County public schools “with open arms.”

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Republished with permission from ednewscolorado.org. Copyright © 2011 Public Education & Business Coalition. For more information, visit www.ednewscolorado.org.
A version of this article appeared in the July 13, 2011 edition of Education Week as Facing Lawsuits, Colo. District Defends First-of-Its-Kind Voucher Plan

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