A Denver judge says he’ll issue a ruling next week on a motion to halt the Douglas County voucher pilot until legal challenges surrounding the plan are resolved.

A voucher supporter believes a private school might better help her autistic child.
Diana Oakley testified Thursday about how a voucher could help her son. / File photo

Denver District Judge Michael A. Martinez made the announcement after three full days of testimony that concluded Thursday with the mother of a student with special needs explaining why she wants a voucher worth $4,575 in public money to send her son to private school.

Diana Oakley of Highlands Ranch said son Nathaniel, 13, has Asperger’s Syndrome, a form of autism, and is easily overstimulated – to the point where he “melts down” and falls to the floor in front of his classmates.

“Nathaniel doesn’t learn the way other children learn,” she said.”He doesn’t fit inside of a public school box. He just doesn’t learn that way.”

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Attempts to work with Eagle Ridge Elementary in Douglas County, a school where Oakley’s two other children thrive, have been unsuccessful in proving Nathaniel’s school experience, she said. He is academically below proficient and he has become the target of bullies. In April, another student hit him with a pair of nunchucks.

So Oakley researched schools and found Humanex Academy, a small private school in Englewood that focuses on children with special needs. But annual tuition is $17,900, which Oakley, an oncology nurse, said her family can’t afford on their own. She said husband Mark was out of work for two years before finding a job in South Carolina, where he now lives.

Even with the Dougco voucher and $2,000 in financial aid from Humanex, Oakley said she and her husband had to take out a line of credit on their home to make up the remaining $11,535 in tuition.

“It is a fabulous place to go,” she said of Humanex, where her son has twice shadowed students. “The other kids didn’t treat him like he was a freak … He is actually excited about school.”

Whether or not taxpayers should help pay for Nathaniel Oakley’s education at a private school – and that of 499 other students in the pilot, most of whom are enrolling in religious schools – is the crux of the now-consolidated lawsuits filed June 21 by a handful of Douglas County parents and civil-liberties groups including the American Civil Liberties Union.

Lawmaker: Public-private school partnerships nothing new

Attorneys for the defendants – the school district, state and four families, including the Oakleys – spent part of Thursday trying to prove that similar private-public educational partnerships already exist in Colorado.

State Sen. Keith King, R-Colorado Springs, who runs Colorado Springs Early College charter school, said he uses state per-pupil funding to pay for his students’ classes at the private Colorado Technical University. That’s allowed under the state’s concurrent enrollment law, which allows high school students to take college classes for credit while still in high school.

State Sen. Keith King, R-Colorado Springs
Sen. Keith King, R-Colorado Springs

As other examples, he cited the use of educational management organizations or EMOs, contract schools, state payment for students in residential treatment facilities and the state’s College Opportunity Fund, known as COF.

EMOs, which can be for-profit or not-for-profit, contract with a district or charter school to provide services. In some cases, an EMO provides virtually all of a school’s operations. An example is K-12 Inc., a Virginia-based company that contracts with the board of the online Colorado Virtual Academy charter school to provide that school’s administrative staff, curriculum and technology.

Through COF, the state provides stipends that college students take to participating colleges and universities in Colorado. The list of participating schools includes the private Colorado Christian University, which won a court fight to be part of the program.

“So under COF, state funding goes to these schools?” Geoffrey Blue, with the state attorney general’s office, asked King, who responded, “Yes.”

On cross-examination by plaintiffs’ attorneys, King said the examples he cited were authorized by specific state laws.

He also said his charter school did not discriminate on the basis of religion – something the private school partners in the voucher pilot would be allowed to do. And he agreed that neither online programs nor any of the colleges he cited were allowed to discriminate on that basis either.

Judge: ‘This situation cries out for a resolution’

Martinez isn’t being asked to decide whether the voucher pilot is legal – yet. Instead, he’s being asked to decide whether the program needs to stop while what’s expected to be a lengthy court battle continues.

To convince him, the plaintiffs’ attorneys have to show a “reasonable” probability of success on the merits of their case. But Martinez also has to weigh the disruption or harm that will result whether he agrees to stop the plan or allows it to continue.

So while arguing the legal points, the defendants’ attorneys have sought to show their side will suffer more if the program stops. That’s included Dougco Superintendent Elizabeth Fagen testifying about the disruption to district schools if 500 voucher students return after the start of the school year and private school operators listing the financial hardship of losing the voucher dollars.

Kurt Unruh, head of Valor Christian School in Highlands Ranch, signed an affidavit stating 61 voucher students have enrolled at his school, where annual tuition is $13,950. As many as 40 students would not be able to attend without the voucher, according to the affidavit, so Valor “stands to lose $558,000 in annual revenue, which would be a substantial financial hardship.”

Plaintiffs’ attorneys say Dougco leaders were not upfront with the private schools or parents about the legal challenge. And they say the district deliberately sped up distribution of voucher checks – more than $150,000 has gone out to private schools – to make it harder for a judge to shut the pilot down.

“We ask the court to stop this now before they pull yet more families and yet more schools into this,” said attorney Michael McCarthy.

Martinez seemed to agree with the sense of urgency, saying he planned to issue a written ruling next week despite presiding over a five-day trial.

“This situation cries out for a resolution ASAP,” the judge said.

Closing statements highlight key legal issues

Six sections of the Colorado Constitution

1. Article IX, Section 7: Aid to private schools, churches, sectarian purpose, forbidden

    “Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose …”
  • Plaintiffs: Public money is going to religious schools despite the fact the voucher checks are made out to parents, who can only spend the money at their chosen private school. “That’s an obvious ruse,” said attorney Matthew Douglas.
  • Defendants: The pilot is neutral to religion – religious and non-religious private schools can participate – and the choice of the school is up to the parent. “When parents choose, the circuit between school and religion is broken,” said attorney Eric Hall.

2. Article II, Section 4: Religious freedom

    “… No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent.”
  • Plaintiffs: Students attending religious schools cannot opt out of religious instruction, which is embedded in some schools’ curriculum, and, in most cases, could not opt out of religious services, though they can sit quietly and decline to participate.
  • Defendants: Families are aware of the religious schools’ instructional practices and are choosing to enroll in those schools.

3. Article IX, Section 8: Religious test and race discrimination forbidden

    “No religious test or qualification shall ever be required of any person as a condition of admission into any public educational institution of the state, either as a teacher or student; and no teacher or student of any such institution shall ever be required to attend or participate in any religious service whatsoever. No sectarian tenets or doctrines shall ever be taught in the public school …”
  • Plaintiffs: Some participating religious schools ask students about their faith as part of the admissions process and are allowed to discriminate on the basis of religion.
  • Defendants: A student may receive a voucher without regard to religion or acceptance by religious schools. Five of the 23 participating private schools are not religious.

4. Article IX, Section 2: Establishment and maintenance of public schools

    “The general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously.”
  • Plaintiffs: Families who want to participate in the voucher pilot have to be able to pay the difference between the voucher amount and private school tuition. So it’s not free.
  • Defendants: “If parents want to chose the scholarship program, they can, like other options they can chose,” said attorney Eric Hall.

5. Article IX, Section 3: School fund inviolate

    “The public school fund of the state shall, except as provided in this article IX, forever remain inviolate and intact and the interest and other income thereon, only, shall be expended in the maintenance of the schools of the state …”
  • Plaintiffs: Per-pupil funding allocated to Douglas County includes these monies, which can only be used for public schools.
  • Defendants: This section is intended to ensure the money doesn’t go to other parts of government besides education. Once districts get it, they can do what they want with it.

6. Article IX, Section 15: School districts – board of education

    “The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respective districts.”
  • Plaintiffs: “What this case represents is an example of the abdication of local control,” said attorney Michael McCarthy, describing Dougco as “washing its hands” of the education of the voucher students.
  • Defendants:“Douglas County has absolute control over this program,” said attorney Eric Hall. “Douglas County adopted it … and may amend policy at any time. This case is the embodiment of local control.”

Does Colorado or U.S. Constitution prevail?

Plaintiffs filed suit alleging violations of the state constitution, but defendants continually cited federal cases that they believe should guide the judge.

  • Plaintiffs:“There’s a reason that no other school district in the last 135 years in Colorado has tried to do what Douglas County is attempting to do with this program. That’s because the evidence overwhelmingly demonstrates the multiple ways in which this program violates the Colorado Constitution,” said attorney Matthew Douglas, describing the federal focus as evasive, “If you can’t win the fight you’re in, pick another fight.”
  • Defendants: “In every Colorado appellate court case interpreting our state’s religious clauses, our courts have looked to the closest federal precedent and have interpreted our cases in harmony,” said attorney Eric Hall. Added attorney Geoffrey Blue, “If this court should interpret the Colorado Constitution in the way plaintiffs request, it risks putting the Colorado Constitution in violation of the U.S. Constitution.”