Denver District Court Judge Michael Martinez has granted an injunction that effectively halts the Douglas County voucher pilot until legal challenges to the first-of-its-kind plan are resolved.
Martinez issued the ruling today, following last week’s three-day hearing on a motion for preliminary injunction filed by a group of parents and civil-liberties organizations suing to shut the pilot down.
In his ruling, Martinez wrote of the voucher pilot, formally known as the Choice Scholarship Program, and its private partner schools:
“Plaintiffs have established, by a preponderance of the evidence, that the Scholarship Program violates both financial and religious provisions set forth in the Colorado Constitution,” he said.
“This evidence includes testimony … confirming that the Scholarship Program, among other things, (1) requires participating students to attend religious services and receive religious instruction; (2) provides aid to churches and religious institutions; and, (3) utilizes religious tests or qualifications for admissions into partner schools.”
The judge’s 68-page ruling also denies a motion by the defendants – the Douglas County School District, its school board, the Colorado Department of Education and the State Board of Education – to dismiss the lawsuit.
“This decision is a huge victory for taxpayers and families in Douglas County,” said Cindy Barnard, president of Taxpayers for Public Education, one of the plaintiffs.
Dougco officials indicated Friday they will appeal the ruling.
At a 5 p.m. news conference at Rock Canyon High School, Douglas County board president John Carson vowed to continue the legal fight, saying he believes the Colorado Supreme Court will ultimately uphold the pilot.
“This ruling is not what the people of Douglas County wanted or what we know is in the best interest of our students,” Carson said.
Douglas County sent letters to voucher students’ families notifying them of the ruling. The letters tell families their students will be welcomed back to district schools with open arms if they choose to return.
It was not immediately clear whether the judge’s order means schools already receiving voucher dollars – about $300,000 in voucher payments already have been made – will have to return that money.
Douglas County school board members approved the pilot, which would use public money to help send 500 students to private schools this fall, on a 7-0 vote on March 15. On June 21, two separate lawsuits – later consolidated by the judge – were filed in Denver alleging violations of the Colorado Constitution and the state’s School Finance Act.
“What we’re arguing is that the Colorado constitution and the Colorado statutes are very clear that taxpayer money can’t be used to fund religious schools or religious education,” Gregory M. Lipper, attorney for Americans United for Separation of Church and State, one of the plaintiffs, said at the time.
“We’re arguing the law is very clear as it is and, because we’re going to prevail at the end, we’re entitled to preliminary relief now. If we don’t get the relief now, the very harm we’re trying to prevent – the transfer of taxpayer money to religious schools – will happen.”
Dougco officials moved forward with the pilot, including holding a lottery for remaining voucher seats and distributing voucher checks to parents in early July. Randy Barber, district spokesman, said today that about 265 families have received $300,000 to date.
Under the pilot, 75 percent of the per-pupil funding Dougco receives – or $4,575 per student in 2011-12 – goes to parents in the form of checks mailed to the participating private schools they’ve chosen. The other 25 percent – or $1,525 – goes to a charter school created by the district to serve as the administrative home of the voucher students.
Barber said 500 students – the pilot’s cap – have accepted scholarships, with 11 on a waiting list. Of the 500, 304 students have confirmed acceptance at the 21 private schools participating in the program. That likely means the other 196 students are still in the admissions process.
Private schools must apply to participate in the pilot. Barber said several more are close to district approval so that 21 figure is likely to increase. At least 18 schools are religious.
One of the schools most popular with voucher families is Valor Christian High School, where annual tuition is $13,950. Kurt Unruh, Valor’s head of school, said in an affidavit filed in court last week that as many as 40 students would not be able to attend without the voucher. So Valor “stands to lose $558,000 in annual revenue, which would be a substantial financial hardship.”
In addition to their religious argument, the plaintiffs say the pilot violates the constitutional provision calling for “free public schools throughout the state” because parents have to make up the difference between the voucher and private school tuition. They also say the district is abdicating its constitutionally-granted local control over instruction by sending students to private schools.
Defense attorneys say the voucher pilot is simply another form of school choice for parents.
“If parents want to chose the scholarship program, they can, like other options they can chose,” attorney Eric Hall said in closing arguments last week.
As for religion, Hall and others point to a 2002 U.S. Supreme Court ruling, Zelman v. Simmons-Harris, upholding a Cleveland voucher program that included religious schools. The court found the program constitutional because it was “religion neutral,” meaning religious and non-religious private schools could participate.
That ruling has paved the way for numerous voucher initiatives, including a 2003 program approved by state lawmakers that would have provided vouchers to students in 11 low-performing districts. The Colorado Supreme Court later struck down the program, finding it violated a provision of the state constitution giving control of instruction to locally elected school boards.
Dougco’s plan is the state’s first county-driven voucher pilot and it has drawn national attention, including articles in the Los Angeles Times and the Wall Street Journal.
That’s because most voucher plans across the country focus on students with special needs or those from low-income families, with vouchers seen as a way to help those students enroll in better schools.
But Douglas County, one of the country’s most affluent counties, is also home to a high-performing school district. And the pilot pays no attention to family income – as of last week’s hearing, 13 voucher students qualified for federal meal assistance, an indicator of poverty.
“If Douglas County persuades the courts to sign off, it could transform the debate about vouchers nationwide, potentially turning them into a perk for families who want more than even high-performing public schools offer,” wrote Wall Street Journal reporter Stephanie Simon in an article headlined, “County Ups the Ante in Voucher Debate.”