Rocky Mountain High

Americans United, Allies Win Colorado Court Case Over School Voucher Subsidies For Religious Schools

Members of the Douglas County, Colo., School Board had ambitious plans to begin privatizing education.

Earlier this year, the board voted unanimously to implement a voucher plan. Under the so-called “Choice Scholarship Pilot Program,” up to 500 students would be given tuition vouchers worth $4,575 to spend at religious and other private schools.

The board, aware that its plan was unconventional, maintained that the students were really attending a charter school. They were duly enrolled in an imaginary “school” with no teachers, no books and no building – which then immediately farmed out the students to private institutions.

Board members insisted that the scheme would foster “choice” and unleash market forces in Douglas County. But the ruse came crashing down Aug. 12 when a Colorado court put a stop to it.

Ruling in a lawsuit brought by Americans United, the American Civil Liberties Union and the ACLU of Colorado, Judge Michael A. Martinez of the District Court of Denver County wasted no time striking down the scheme. Agreeing with the arguments put forth by Americans United and the ACLU, Martinez declared that the voucher plan violated five separate provisions of the Colorado Constitution as well as a state law.

“Plaintiffs have established, by a preponderance of the evidence, that the Scholarship Program violates both financial and religious provisions set forth in the Colorado Constitution,” wrote Martinez.

The judge went on to note that the voucher scheme, among its other flaws, violates the Colorado Constitution and state laws in the following ways: It requires participating students to attend religious services and receive religious instruction, it provides tax aid to churches and religious institutions and it relies on religious qualifications for admission into participating schools.

Americans United lauded the ruling in the LaRue v. Douglas County School District case.

“The evidence overwhelmingly demonstrated that the voucher program illegally uses taxpayer money to promote religion and that it provides virtually no meaningful choice to families who don’t want to put their children in religious schools,” said Alex J. Luchenitser, senior litigation counsel for Americans United. “It’s hardly a choice when the overwhelming majority of private schools participating in the program are religious.”

AU attorneys, led by Legal Director Ayesha N. Khan and Litigation Counsel Gregory Lipper, noted in court documents that under the program, most of the money would end up in the coffers of religious schools. In the courtroom, the opposition to vouchers was led by attorneys Timothy R. Macdonald and Matthew J. Douglas of the firm Arnold & Porter LLP.

Martinez held a three-day hearing on the matter in early August and entertained testimony from the plaintiffs. During day one, plaintiffs Cindy Barnard and Kevin Leung, who have children in the district, testified that they worry that the voucher plan will drain scarce resources from the public schools.

“This is taking money from public schools and funding religious and private schools,” Leung said. “This is going to cost our school district precious resources that we do not have.”

Voucher opponents pointed out that most of the schools in the program are religious. Of the 23 private schools taking part in the program, 16 have a denominational affiliation. However, some of the non-religious private schools are limited to gifted or special-education students, putting them off limits to most students in Douglas County.

All of the high schools enrolled in the program that are open to students who are labeled gifted or with special needs have religious affiliations. Students were left with no real “choice,” and the court noted that Christian Cutter, the assistant superintendent of elementary education, “confirmed that without the religious schools’ participation, there would not be much of a Scholarship Program.”

On their websites, several of the schools boasted about the religious content of their programs. Valor Christian High School promised that “the Bible is the foundation for all of our programs.” Southeast Christian School called itself “unashamedly creationist.” Front Range Christian School vowed that if any instruction conflicted with the Bible “the Bible will always take precedence.”

In addition, many of the religious schools maintained discriminatory policies. They restricted admission to fellow believers and imposed restrictive, theologically based codes of behavior on students and staff. One institution, Denver Christian Schools, even maintains the right to expel any student who is HIV positive.

In an effort to get around these concerns, board members inserted language into the voucher plan asserting that no student could be forced to take part in religious worship. But Martinez had no problem seeing through this ruse. The opt-out mechanism, he noted, “is illusory” because religious schools could still require students to “respectfully attend” services (although not participate in them).

The program has other flaws. Fourteen of the participating private schools aren’t even located in Douglas County. Many opponents also charged that the county was abdicating its responsibility to provide public education.

State education officials also seemed unsure what to do with the program. Since Douglas County was spending state money on the voucher scheme, Colorado officials were required to sign off on the plan. They seemed reluctant to do so and informed the county that they needed some time to study the program.

Americans United and other opponents, meanwhile, filed suit. Representing taxpayers in the county, AU and its allies charged that the voucher plan violated Colorado laws that require educational funds to pay for public education and that mandate that such funds remain under government control.

In an effort to save the program, Douglas County education officials pointed to a separate state law that allows public schools to contract with other entities to provide “educational services.” But Martinez was not persuaded. The legislative history of the law, he asserted, makes it clear that it was intended to permit schools to contract for certain services they don’t offer, such as foreign-language instruction, not turn all education over to a private body.

How did Douglas County get to this pass? While the county has always been conservative, its swing into the reactionary column came a few years ago when a breed of ultra-conservative Republicans pulled off a putsch within the county GOP.

The Colorado Independent reported that a group of well-heeled Republican activists recruited school board candidates in 2009 and poured money into the election, blitzing voters with a barrage of mailings making dubious claims. Opponents, even fellow Republicans, were tarred as stooges for the teachers’ union.

Since the school board elections are non-partisan, the county GOP unit issued messages identifying candidates by “blocs.” As the Independent reported, “The language of the email text attempts to frame the election as a clear battle between the GOP-endorsed conservatives and those endorsed by the teachers’ union (people who must then be ‘liberals’).”

In the run-up to the election, the extreme faction played hardball, constantly raising right-wing bugbears like unions and health-care reform and making references to President Barack Obama. On a blog, one conservative activist wrote, “If you like Government Health Care, unionized Charter Schools and Barack Obama, go with the union picked candidates. If you don’t want Government Health Care, unionized Charters or the direction the country is heading, go with the Republican endorsed candidates.”

Days before the election, John Ransom, chair of the county GOP, issued an email asserting, without citing any evidence, that organizations tied to “ACORN and other extreme left-wing causes” were operating in the county to help elect a moderate Republican slate.

The Independent reported that Ransom’s evidence for the ACORN connection was that a local political group that received some funding from the American Federation of Teachers hired a woman who once ran an ACORN affiliate in Denver.

“I mean, there’s definitely alignment,” Ransom said.

“If these groups defeat our Republican-endorsed local School Board candidates: Doug Benevento, John Carson, Dan Gerken and Meghann Silverthorn,” wrote Ransom in an email, “then there is no telling what else they will try to do in our County.”

The campaign worked. On election night, the ultra-conservative slate was swept into power. Members began studying privatization options and asked Eric V. Hall, a Colorado Springs attorney who has advised a number of private schools throughout the state, to craft a plan. Hall, a former public and private school teacher, is one of the founders of Thomas MacLaren Charter School in Colorado Springs.

What happens next? Martinez had been asked to issue a preliminary injunction to stop the plan from taking effect before the school year started. But he found that the evidence against the program was so strong that he issued a permanent order blocking it. Education officials in Douglas County have vowed to appeal. Many observers believe the matter will end up before the Colorado Supreme Court.

Americans United and other voucher opponents are gearing up for the appeal while they savor the victory. One of the plaintiffs, Jamie LaRue, reacted to the ruling by explaining his rationale for getting involved in the case on his blog.

“The purpose of public education is to communicate an organized and shared body of secular knowledge, and the fundamental skills of literacy and numeracy, to ALL the general populace,” LaRue wrote. “A well-educated citizenry is good for all of us. If parents choose to pursue a private religious education for their children, they remain free to do so. They just don’t get to use public money. That money was dedicated by the community for purposes clearly defined as a public good, not to further private religious beliefs.”

After the decision came down, LaRue said in a press statement, “When I pay my taxes, I want to be sure that my money is benefitting all Coloradans, not just those of a particular faith. This ruling confirms that our taxpayer dollars should be used to give all of Colorado’s schoolchildren an equal chance at a good education.”

Meanwhile, the case is attracting national attention. Conservative columnist George Will attacked Martinez’s ruling in a syndicated piece that ran in newspapers in late August. Other advocates of “school choice” have rallied to the Douglas County School Board’s side.

Americans United Executive Director Barry W. Lynn said the organization will press the lawsuit through to final victory.

“Colorado’s constitution is clear: Taxpayers can’t be required to support religious schools,” Lynn said. “We intend to see that this provision is enforced.”