Colorado justices see potential ‘paradigm shift’ in school voucher case

DENVER — Is the state constitutional provision that requires Colorado to educate its children ultimately about providing educational instruction or about providing tax money to pay for educational instruction?

It’s a question weighed during oral arguments in Taxpayers for Public Education v. Douglas County School District by Colorado’s Supreme Court justices on Wednesday. They were considering whether vouchers and other choice programs could fundamentally alter what public schooling means in Colorado.

Justice Nancy Rice asked attorneys for the district whether Douglas County’s Choice Scholarship Program represents a “paradigm shift” in public education, from funding schools that any child can attend for free, to collecting and allocating tax money that parents can direct to whatever educational option they choose.

“You’re saying that public education is almost a funding mechanism,” she said.

Four attorneys presented oral arguments and fielded questions from justices in a one-hour session. That exchange, plus findings from the lower courts and a blizzard of amicus briefs, will inform the court’s decision, expected sometime next year.

[pullquote]We’ll go from funding schools that any child can attend for free to collecting and allocating tax money that parents can direct to whatever educational option they choose — so public education becomes almost a funding mechanism…[/pullquote]

“Watching the oral arguments in a Supreme Court case is like looking at the tip of an iceberg,” said Ben DeGrow, senior education policy analyst at the Independence Institute, a free-market think-tank.

“I thought the judges in this case asked both sides some tough and fair questions.”

At issue is a pilot program in Douglas County that courts suspended weeks before school began in the fall of 2011. The district proposed to give 500 students in the south metro county 75 percent of their per-pupil allotment, or $4,575, to pay for private school. A shell charter school was set up for these students, to allow the district to collect state funds.

Most, but not all, of the “private school partners” approved for the program were religious schools, each of which in its mission statement spelled out a commitment to a Christian or Jewish education.

Citizen groups and parents cried foul and filed suit. “We affirmatively support the right of parents to send their children to religious schools, but they can’t do it with taxpayer money,” said Mark Silverstein, legal director for the Colorado ACLU.

In August 2011, Denver District Court Judge Michael Martinez issued an injunction that suspended the Choice Scholarship Program, citing the Colorado Constitution’s prohibition of state aid to religious institutions.

In February, the Colorado Court of Appeals voted 2-1 to reverse the District Court’s ruling, saying that the Choice Scholarship Program did not violate the Constitution’s prohibition against spending public money on religious activities.

The appeals court also said the plaintiffs in the case – Taxpayers for Public Education, a citizen group, along with Douglas County students and parents and other nonprofits – had no standing to make claims under the Public School Finance Act of 1994.

The state Supreme Court’s decision will have implications across the state, as newly conservative school boards in Jefferson and Larimer counties have made no secret of their intent to promote school choice.

“There’s a wait-and-see attitude” among districts, DeGrow said. A Supreme Court ruling favorable to school-choice proponents “may change the calculus” of which districts follow Douglas County’s lead and how they structure their programs.

Justice Gregory R. Hobbs asked how upholding the Douglas County program would square with school districts’ need to cover operating costs and the longstanding practice that parents “paid taxes to keep the public schools going” even if they chose to send their children to religious schools.

If large amounts of money are diverted away, “What happens to our free public school system?” Hobbs asked.

“There is not a nickel from this program that is being diverted from any other school district,” said attorney James Lyons, who represented Douglas County Schools. “This is money that parents choose to take with them.”

The U.S. Supreme Court has ruled that a private educational choice made by families and benefiting students, rather than institutions, “breaks the link” between public money and religious entities, Lyons said.

Attorney Michael McCarthy, representing Taxpayers for Public Education, said the program’s structure violated both the state Constitution and the Public School Finance Act’s definition of a school.

“The invalidity of the charter school is key here,” he said. “It was an artifice. Without that artifice, Douglas County can’t claim that money.”

In effect, he argued, Choice Scholarship students would be in two places at once: enrolled in a Douglas County charter school in order to qualify for state money, while being educated at a private school that receives that per-pupil allotment.

The charter school has no classrooms, no textbooks, no principal, McCarthy said. “It is a mirage … a false front from an old Western movie.”

Michael Bindas, an attorney for the Virginia-based Institute for Justice, who argued for the Douglas County district, said, “Singling out religion for unfavorable treatment including excluding religious options from student aid programs is impermissible under the First Amendment.”

In throwing out the District Court order, Court of Appeals Judge Jerry Jones ruled that the Douglas County program was “neutral toward religion generally and religiously affiliated schools specifically.”

Lyons described the charter school as “an administrative convenience” that allows students in the Choice Scholarship Program to be managed by the District while collecting the full allocation of public funds.

“How is it even a school?” Rice asked.

Supreme Court decisions take as long as they take, Silverstein said, especially in split decisions in which dissenting jurists must wait until the majority opinion is in draft before they begin, “so they know what they’re dissenting against.”

Bindas’s organization represented three families whose children were enrolled in the Choice Scholarship Program. All of them opted to stay in private schools even after the court halted the program in August 2011, after the school year had begun. “The schools bent over backward” to accommodate families, he said.

To avoid this kind of disruption, Bindas said, the pro-voucher side hopes that a decision in their favor is rendered in time to re-start the program before school begins in August.

Correction: The original version of this story referred to the U.S. Constitution as mandating a public education. It is the Colorado Constitution we meant to cite.


  1. There is no provision in the US Constitution requiring “the nation to educate its children.” Go back and read the document yourself.

  2. The U.S. constitution does NOT say we must education. The Colorado State Constitution has language requiring a free public education. In fact, that is probably why it is explicitly in out state constitution – because any power not granted to the federal government belongs to the state. Which is why the Department of Education at th federal level needs to be shut down.

  3. […] A December 12 Colorado Independent story by Lisa Greim on the Douglas County Choice Scholarship Program’s hearing before the Colorado Supreme Court included a comment from senior education policy analyst Ben DeGrow about what a favorable ruling might mean: “There’s a wait-and-see attitude” among districts, DeGrow said. A Supreme Court ruling favorable to school-choice proponents “may change the calculus” of which districts follow Douglas County’s lead and how they structure their programs. […]

  4. Not to put too fine a point on the whole thing, but it simply boils down to an attempt to run-around the 1st Amendment to the Constitution of the United States, concerning the “establishment” of superstitious ignorance and arrogantly stubborn stupidity – i.e., “religion”. Of this farce is allowed to continue, any crack-pot nut-cult in Colorado can start itself a “religious school”, and take YOUR TAX MONEY to teach such total foolishness and nonsense as might happen to be the “doctrine” of that “faith”.

    The United States – of which Colorado is ONE, not the only entity per se – is a SECULAR CIVIL GOVERNMENT. It IS NOT, and NEVER SHOULD BECOME nothing more than a mouth-breathing, knuckle dragging, “theocracy”.

  5. Vouchers are a choice. A voucher may or may not be used. If used, it may or may not be used at a religious school. To say that vouchers violate the 1st Amendment is like saying that the state cannot fund highways because someone might use them to drive to church. ACLU is just looking for ways to be ridiculous here!

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