Responding to claims that a private school voucher program is unconstitutional, lawyers for the Douglas County School District and parents hit back last month in a pair of briefs filed with the Colorado Supreme Court that argue the district is within its right to fund the “religiously neutral” program.

The briefs also contend the plaintiffs, who filed their briefs in May, do not have standing.

The voucher plan, which is on hold pending a decision by the Supreme Court, would allow Douglas County students to use public tax dollars to enroll in private — and often religious — schools. The purpose of plan was to provide parents with control over their student’s education, the briefs argue.

“A family may continue to attend their neighborhood school, or they may choose a charter school, home education, online education, open enrollment, a magnet school, or [the voucher program],” lawyers for Dougco schools wrote. “The [voucher program] is but one of about 30 strategies for improving educational choice in the District. If a family receives a scholarship, then the parents have further choice as to the partner school in which to enroll their child.”

The combined 109 pages, filed on behalf of the district, Colorado Department of Education and three Dougco families enrolled in the voucher program, argue that the district-created voucher program, known as the Choice Scholarship Program, should be permitted to launch.

In sum, the lawyers maintain Colorado’s “deep constitutional roots of local control” allow Douglas County to use their tax dollars any way the board of education there sees fit.

The Colorado Supreme Court agreed to hear the case earlier this year after a three-member appellate court overturned a lower court’s ruling that deemed the program unconstitutional.

The appellate court ruled the plaintiffs, including parents, clergy, and tax payers, did not have legal standing to bring the lawsuit. That decision will be one of six points the Supreme Court will consider in its ruling.

Other questions the Supreme Court will look to answer include whether the program violates Colorado’s Public School Finance Act of 1994 and four different sections of the Colorado Constitution.

According to the briefs, many of the constitutional questions have already been answered.

“Over 30 years ago, [the Colorado Supreme Court] in Americans United approved a program of public aid to Colorado students that enabled them to spend that aid at any qualified school of their choice, including private, religious institutions,” the brief says. “That decision was located squarely within this court’s jurisprudence holding that government must affirmatively accommodate religion and show a benevolent neutrality toward religious believers. [T]he legislature, department of education, and other Colorado school districts have approved and utilized scores of current programs spending public funds at private schools, including those that are religiously-affiliated, at all levels of education throughout Colorado.”

The defendants’ briefs is one of a few initial steps in what is expected to be a rather long and uncertain process. A date for oral arguments has not been set. Those arguments may not be heard until next year.

The voucher program, which was unanimously passed by the Dougco school board in 2011, would have allowed up to 500 Douglas County students to use 75 percent of the district’s per-pupil funding – or $4,575 at the time – to attend a participating private school approved by the district.

Students would have been able to use those funds to attend private religious schools.

Thirty-four private schools applied to participate in the voucher program. Dougco approved 23 of those schools.

Of the 23 schools, 14 were located outside Douglas County, and 16 taught religious doctrine.

The voucher program was modeled after other programs across the nation that have prevailed in court. It gave students the right to “receive a waiver from any required religious services at the [participating private school],” according to previous court documents filed by the district.

However, lawyers for the plaintiffs argue the waivers weren’t enough to meet constitutional muster.

From the briefs

One of the main objections to the voucher program was the inclusion of religious-run institutions. Critics saw this as a violation as of the Colorado’s Constitution as using public dollars for religious activities. But lawyers for the parents enrolled in the program claim the program is religiously neutral and any funds that go to a religious institution is by parent choice and incidental.

Other state supreme courts have rejected similar challenges to student-aid programs indistinguishable from Douglas County’s. … In Zelman, children in the Cleveland School District received scholarships they could use to attend private schools. A large majority of participating schools were religious, and the overwhelming majority of students selected religious schools. The Court nevertheless upheld the program because it was “neutral with the respect to religion … permit[ting] the participation of all schools within the district, religious or nonreligious.

[T]he District Court recognized the Program is designed “for the benefit of the students, not the benefit of the private religious schools.” And as the Court of Appeals held, it is “neutral toward religion.” Fund “make their way to private schools with religious affiliation by means of personal choices of students’ parents” and “any benefit to the participating schools” is merely “incidental.”

Lawyers for Dougco schools and the state argue in their brief that program fits within the larger context of school choice in Colorado. It compares the suburban voucher program to the seemingly popular Denver Preschool Program that collects tax revenue and provides families pre-kindergarten tuition credits. Denver families may choose to use their credits at religious programs.

The Denver Preschool Program allows residents to apply tax-derived funds toward tuition at any qualified preschool. All licensed preschools — for-profit, nonprofit, public, private, home-baed, religious, and regardless of location (inside or outside of Denver) — are eligible to participate.

The district also argues the Supreme Court is not the place to decide whether the program violates state school finance laws.

Indeed, their request is unprecedented; no private party has ever asserted a private right of action under the [School Finance] Act, given that the legislature created an explicit administrative system for resolving funding disputes. Were it otherwise, small groups of disgruntled parents, like [the] plaintiffs, would essentially transform Colorado’s courts into perpetual overseers of every spending decision made by local school districts.

‘Answer’ brief from Douglas County School District

‘Answer’ brief from Dougco parents