ACLU nudges voucher case forward

Groups petition Supreme Court to accept case, overturn lower court ruling


The American Civil Liberties Union took the next step in the process of moving the Douglas County school voucher case to the Colorado Supreme Court on April 11.

The ACLU and Americans United for Separation of Church and State filed a petition asking the court to accept the case. It also asked the court to overturn the recent Colorado Court of Appeals ruling upholding the Douglas County School District’s pilot program.

The lower court ruled in a split decision Feb. 28 that the district’s Choice Scholarship Program is constitutional, and said the plaintiffs lacked standing to file a suit alleging otherwise.

Americans United attorney Alex Luchenitser said the appeals court’s ruling isn’t as significant as that of the Denver District Court in August 2011, which declared the program unconstitutional.

“The Supreme Court was going to have the final word on this, no matter how the Court of Appeals ruled, so the Court of Appeals ruling really isn’t that important,” he said. “The Supreme Court doesn’t have to give any deference to anything the Court of Appeals did. It does have to give deference to the factual findings of the trial court. So we were disappointed (by the Court of Appeals ruling), but we’re not sure how much difference it’s going to make.”

The pilot program initiated in March 2011 granted a limited number of Douglas County students state school funding to use at private schools, most of which were religious. Proponents say it broadens educational options for students, but opponents say it blurs the line that separates church and state and pulls funding from traditional schools.

Though the program has been suspended since the 2011 ruling, the DCSD school board remains confident they ultimately will prevail.

“The ruling (from the Colorado Court of Appeals) was a huge victory for the students and parents of Douglas County and we are confident that the court will once again reject the arguments made by the ACLU,” board president John Carson wrote in an emailed statement. “We know that each student learns differently, and our goal is to provide every parent with the opportunity to choose the best possible educational environment for their child. The Choice Scholarship Program will give our students one more choice to achieve educational success and to prepare for the exciting opportunities that lie ahead in (the) 21st century.”

Carson recently said he was encouraged by the Indiana Supreme Court’s decision to uphold a similar program there, but attorneys for the plaintiffs say there are important differences between the two cases.

“First of all, Colorado’s constitutional provisions are much stricter than Indiana’s in terms of prohibiting public funding of religious schools,” Luchenitser said. “There also are factual differences between these two programs.”

The Indiana program included both religious and non-religious schools, but in Douglas County’s version, options for high school students — except for those with special needs — are limited to religious schools.

“This program favors religious schooling over non-religious,” Luchenitser said, “and gives parents incentives to enroll their children in religious schools.”

Attorneys representing Douglas County families who originally received vouchers says the program’s design keeps schools and government separate, ensuring its constitutionality.

A separate suit against DCSD and the Colorado Department of Education was filed by the nonprofit Taxpayers for Public Education; the trial court consolidated the two.


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