Lawsuit from conservative group challenges Douglas County voucher program barring religious schools

A conservative legal group representing three Douglas County families filed a federal lawsuit Tuesday challenging a recently revamped school district voucher program that excludes religious schools.

The Arlington, Va.-based Institute for Justice is the same group that helped lead the defense of the original voucher program, which was open to faith-based schools.

The Colorado Supreme Court found that initiative to be unconstitutional, and the district’s attempt to convince the U.S. Supreme Court to take up the case is in limbo.

In March, a divided Douglas County school board approved a new-look pilot voucher program that members of the board’s conservative majority say meets the criteria of the state high court decision.

The affluent south suburban district’s School Choice Grant Program would be open to up to 500 students starting this fall. It’s unclear what kind of interest the program will generate, since the overwhelming majority of students who sought vouchers through the original program sought to enroll in religious schools that may no longer participate.

The new lawsuit gives fodder for critics who suggested the school board majority’s motivation in crafting the new program was to invite a lawsuit that might result in a more favorable legal outcome — or at least a shot at one.

The families named as plaintiffs in the new lawsuit want to send their children to Valor Christian High School in Highlands Ranch. Two of the three families have older children who were set to enroll at Valor in 2011 under the original voucher program but couldn’t because of a court injunction, said Michael Bindas, a senior attorney with the Institute for Justice.

“With this lawsuit, we hope to ensure that Douglas County’s School Choice Grant Program is open to all students, regardless of whether they wish to attend a religious or nonreligious school,” Bindas said in a statement. “Parents know better than anyone which school will work best for their child, and they should not be denied the choice of that school simply because it is religious.”

The complaint argues that the revamped voucher program “violates parents’ fundamental liberty to direct the education and upbringing of their children—a right protected by the Fourteenth Amendment to the U.S. Constitution. It also violates the governmental neutrality toward religion demanded by the Free Exercise and Establishment Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.”

Paula Hans, a district spokeswoman, said the program was written to meet the state constitutional limitations as outlined by the Colorado Supreme Court in its ruling. Though it is seeking to reverse that decision, the district “still seeks to maximize the ability of families to match their students with the best educational environment to meet their unique needs,” she said.

Bindas, however, criticized school district officials for excluding religious schools in the new program.

“I am disturbed by it and wish they had not adopted a program that engages in the very type of discrimination they’re making an issue of in the (U.S.) Supreme Court,” he said. “I don’t know what their motivations were … We are on record as saying this was a bad idea, and they should have waited for what happens in the U.S. Supreme Court.”

Board member Doug Benevento, who crafted the revised voucher program, responded that Bindas “has the benefit of sitting 2,000 miles away in a Washington D.C. think tank, and telling people to wait for the U.S. Supreme Court to get their kids the education they think their children need.” The board, he said, adopted a program allowed under the state Supreme Court decision.

“We were going to take the ground that was given to us,” he said.