Update – Douglas County school board members did not publicly discuss the voucher pilot at Tuesday’s meeting though they heard public comment from those urging them to appeal the judge’s ruling and from those questioning any further action. Wednesday, district spokesman Randy Barber said decisions on further legal action and the recovery of $300,000 in voucher payments may come by week’s end.

Douglas County school district officials on Monday were still sorting through the implications of a judge’s order Friday putting a halt to their voucher pilot – including whether the district is on the hook for $300,000 already sent out in voucher payments.

Douglas County School Board President John Carson
Douglas County School Board President John Carson made the rounds of radio and news shows Monday discussing the district's plans to appeal. / File photo

Part of the confusion stems from the fact that the parents and civil-liberties groups who filed a lawsuit to stop the pilot sought only a preliminary injunction, which would have suspended the pilot while the legal challenges were resolved.

Denver District Judge Michael Martinez granted the preliminary injunction and went even further, declaring the evidence presented in a three-day hearing warranted the injunction stopping the Choice Scholarship Program be made permanent.

In other words, that’s it, the legal argument is over unless the district decides to appeal. At least that’s how the 68-page ruling is being interpreted.

“We are done unless the district makes a move,” said Cindy Barnard, a Douglas County parent who was one of the plaintiffs and who is president of Taxpayers for Public Education. “The next move is in the district’s hands.”

District spokesman Randy Barber said district officials “were a bit surprised that he went to a permanent injunction” though “we knew it was going to end up in the appeals court eventually.”

Dougco school board members are reviewing their legal options, including whether to work through the state court of appeals or to go straight to the state’s highest court and ask to be heard. They could announce a decision at their first meeting of the new school year, tonight at Mesa Ridge Middle School.

If not, Barber said district leaders hope to make their decision by week’s end.

Unclear if families, private schools must return money

Figuring out what to do about the 500 voucher students, including the 304 already accepted into private schools, as well as the $300,000 that have gone out in voucher payments, may take longer.

In his ruling, Martinez said he was returning the district to the status quo, which he defined as “the absence of the scholarship program.”

But he also noted the plaintiffs “have expressly not asked the court to direct the disenrollment of scholarship recipients already attending private partner schools or the return of funds already expended.”

That sounds as if students already enrolled in private schools can keep the payments – equaling one quarter of the $4,575 total voucher – already made.

But what about students who’ve already started private school, believing the voucher money was on its way? Or families who can’t afford private school without the remaining three voucher payments?

Barber said those are the kinds of questions that kept district phones ringing Monday as voucher families tried to work through their options.

The district’s contract with its private school partners says any voucher payments to the schools are pro-rated, meaning they keep the money only for the period of time a voucher student actually attended. The schools have to repay any remaining balance within 45 days of a student’s decision to leave.

So Dougco officials may easily recoup payments made for students who return to district schools. It’s not clear what the district may do, if anything, to recover the first voucher payments for students who stay with their private schools.

At the injunction hearing, leaders of some private schools testified about the hardship they would endure if the voucher program were stopped.

Kurt Unruh, head of Valor Christian High School in Highlands Ranch, said as many as 40 students were likely to leave without vouchers, which would cost the school $558,000. Valor’s annual tuition is $13,950. Unruh did not return a message seeking comment Monday.

Tuesday, Barber said the district is not likely to seek a clarification of the judge’s ruling, as previously stated, but is consulting with its own lawyers to interpret the different issues.

State uncertain about appeal, will audit Dougco as usual

Janelle Asmus, spokeswoman for the Colorado Department of Education, said the state will audit the district as usual this spring and, as usual, the district must have spent money in accordance with state law and State Board of Education regulations.

If any problems are found, the district will have the opportunity to fix the problem, she said.

“If (money) was spent outside of the confines of the law, for example, we would give them an opportunity to rectify that problem,” she said.

The CDE, a defendant in the lawsuit, has not decided its next legal steps, including whether it might join Dougco in an appeal.

“That doesn’t stop us from marching forward with our oversight responsibilities,” Asmus said, “and we will conduct our audit as we usually do.”

Dougco leaders established a legal fund when they approved the voucher pilot 7-0 on March 15, acknowledging the program would likely face a court battle. On Monday, Barber said the last available balance for the fund was more than $50,000. He did not know if the Friday ruling had sparked more donations.

Attorneys for the plaintiffs say they’re ready for an appeal.

Mark Silverstein, legal director for the American Civil Liberties Union of Colorado, pointed out the judge agreed with the plaintiffs on nearly every legal issue.

“It was a very good day for us and a very good day for the Colorado Constitution,” he said.

National groups – pro, anti-voucher – ready for appeal fight

Alex Luchenister, senior litigation counsel for Americans United for Separation of Church and State, one of the plaintiffs and a frequent party to voucher legal battles across the country, said, “I don’t know if I’ve ever seen a decision that found a program violates as many constitutional provisions as this program does.”

Martinez, appointed to the bench by Gov. Bill Owens in 2000

Attorneys for the district and the state repeatedly urged the judge to consider a 2002 U.S. Supreme Court ruling which upheld a Cleveland voucher program that includes religious and non-religious schools.

Martinez, however, said disregarding the more specific religion provisions of the Colorado Constitution would be akin to saying the state’s founders “must have debated, drafted and ratified these provisions without purpose.”

Luchenister said most state constitutions have much stricter limits on public aid to religion than the federal constitution, “at least it is currently interpreted by the Supreme Court.”

“A number of states have struck down voucher programs under their state constitutions, including most recently before Colorado, Arizona in 2009,” he said, referring to a case also cited by Martinez.

And while the U.S. Supreme Court may be the nation’s highest court, he added, “the U.S. Supreme Court doesn’t have any right to interpret state constitutions – each state has its own constitution and each state supreme court has the ultimate authority to interpret their own state constitution.”

Attorneys supporting the voucher pilot, however, are just as adamant that they can win.

“The court’s decision is surprising given existing Colorado and U.S. Supreme Court precedent that would clearly uphold the scholarship program,” said Michael Bindas, with the Institute for Justice, which represented Dougco families receiving vouchers and which also joins voucher legal battles nationwide. “We are confident that the court’s attempt to rationalize away that precedent will be corrected on appeal.”

Barber said district staff members have fielded phone calls questioning the district’s decision to appeal.

“We feel strongly that providing students with choice is the thing that we should do,” he said. “We think that eventually it will stand up in court.”

Voucher pilot, ruling likely to influence November election

Ramifications of the school board’s voucher decisions are likely to reverberate through the November school board elections.

Three of seven school board seats are up for grabs, with two incumbents supporting the pilot – Craig Richardson and Justin Williams – filing paperwork to campaign to keep their seats. Cliff Stahl, the incumbent in the third seat, is not expected to seek re-election.

Williams’ opponent, Susan McMahon, has come out in support of the judge’s ruling, giving voters in northeast Douglas County a clear choice on the issue.

All votes involving the voucher pilot, from approval of the pilot to the creation of a charter school to run it, have been 7-0. McMahon issued a press release Saturday calling the judge’s decision a “win.”

“I fully support options for choice within the public school system and believe we should continue to enhance our system of public, charter, and innovation schools,” she said.  “But I disagree wholeheartedly when it comes to giving our tax dollars away to private schools, many of which are not even in Douglas County.”

Monday, McMahon said she wants to “get back to focusing on our children.”

“I made my decision to run for school board because I choose to represent the needs and the concerns of many people in the community that may feel the board rushed into a policy that the judge said was illegal,” she said. “I want to return the focus on how we meet the needs of all of the children in the community.”

A poll of 500 likely Douglas County voters conducted in April, weeks after the March 15 vote approving the voucher pilot, showed a divided community.

Asked whether they favored or opposed the “private school scholarship program,” 49 percent said they strongly favored or favored the program while 47 percent said they strongly opposed or opposed the program.

The response was less positive, however, when the question involved adding $1 million for the scholarship program to a proposed tax ballot question this fall.

Asked whether they favored or opposed such a question, 52 percent said they strongly opposed or opposed it while 44 percent said they strongly favored or favored it. The poll had a margin of error of 4.38 percent.