If At First You Don’t Succeed?: Pro-Voucher Group Attempts To Circumvent Colorado Supreme Court

Yesterday Americans United asked a federal court in Colorado to dismiss an attempt by a pro-voucher group to circumvent the Colorado Supreme Court by filing a case in federal court. The plaintiffs are a group of Douglas County parents who argue that the district’s voucher plan, which applies only to secular schools, as mandated by the Colorado Supreme Court, violates the U.S. Constitution. But if you are thinking that this isn’t our first time addressing this issue in Colorado, you are right.    

In 2011, the Douglas County School District created a school-voucher program that diverted state taxpayer dollars from public schools and allowed the money to go toward tuition at private religious schools. We filed a lawsuit, explaining that the program violated the Colorado Constitution and state statutes by giving public funds to religious and other private schools. A group of Douglas County parents intervened, supporting Douglas County and the school voucher program.

The Colorado courts agreed with us, and the case went up to the Colorado Supreme Court, which ruled that the voucher program is forbidden by the Colorado Constitution. The intervening parents and the school district, both unhappy with the decision of the Colorado Supreme Court, asked the U.S. Supreme Court to weigh in. The U.S. Supreme Court won’t act on the request for review until it decides another case concerning public funding of religious institutions, Trinity Lutheran Church of Columbia v. Pauley.

Instead of waiting, however, the same lawyers who represented the intervening parents filed a new case. But this time, they are suing the Douglas County School District for modifying the voucher program to exclude religious schools in the wake of the Colorado Supreme Court’s ruling. And this time, the case is in federal court. Seeing this as another bite at the apple by two sides who agree with each other, we asked the court to allow us to intervene to explain why both sides are wrong and to protect the rights of our clients and many other Colorado taxpayers and parents. The district court allowed us to do so and denied a request by the pro-voucher lawyers to force the School District to include religious schools in the voucher program. We have now asked the court to dismiss the case.

Voucher plans require taxpayers to subsidize sectarian education. (RNS photo)

As our motion explains, there is no reason for the court to hear the case. Indeed, there are compelling reasons why the court should not. First, courts should not reward parties who get a judgment that they don’t like in state court and then try again in federal court. Such one-parent-said-no-ask-the-other tactics would only lead to confusion, inconsistent decisions, and an enormous waste of resources. This is especially the case when, as here, the adverse parties (the Douglas County parents and the Douglas County School District) actually agree. Courts benefit from the opposing nature of litigation – vigorous prosecution and full-throated defense present the strengths and weaknesses of each side of an issue. But when the parties aren’t actually opposed, the court isn’t given all of the information it needs to make its decision.

In addition, settled case law simply doesn’t support the view of the Douglas County plaintiffs and the Douglas County School District. The Supreme Court already decided, in 2004, that states can fund public or secular private education without being forced to fund religious education.

At Americans United, we support the freedom of religious exercise and expression. We also recognize, however, that true religious freedom is threatened when the government gets in the business of funding religious education. We will continue to fight to make sure that the institutions getting state funds are institutions that exist for all citizens – regardless of religious beliefs.