Colorado Judge Shuts Down Douglas County Voucher Program

Published September 14, 2016

A Denver, Colorado District Court judge has ordered the Douglas County School District (DCSD) to suspend its school voucher program.

The Douglas County Board of Education launched the Douglas County Choice Scholarship program in March 2011 to provide vouchers worth an average of $1,143 to students enrolled in a DCSD public school for at least one year to spend on private school tuition. The voucher program is “the country’s first district-created, nearly universal school voucher program,” EdChoice reports.

Ninety-five percent of the students in the district are eligible for the program.

Lengthy Court Battle

The American Civil Liberties Union (ACLU), Americans United for Separation of Church and State, and others sued the Douglas County board, school district, Colorado Department of Education, and Colorado State Board of Education over the voucher program in June 2011, alleging it violates the state constitution’s Blaine amendment, which prohibits public funding of religious schools.

The Institute for Justice (IJ) represented families receiving vouchers. According to IJ’s website, “It is parents—and not the government—who decide what school a child attends, and, importantly, the government neither encourages nor discourages parents from selecting a religious school.”

The case advanced to the Colorado Supreme Court, which ruled in June 2015 in favor of the ACLU and its fellow plaintiffs. IJ is currently petitioning the U.S. Supreme Court to review the decision because, according to IJ’s website, “It applies the Colorado Constitution in a way that conflicts with the U.S. Constitution—specifically, the Free Exercise and Establishment Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.”

Following the Colorado Supreme Court’s ruling on the program, DCSD created the School Choice Grant Program in March 2016, a voucher program for private schools that have no religious affiliation. Taxpayers for Public Education challenged the new program in May, arguing public money should not fund any sort of private school. In August, Second Judicial District Court Chief Judge Michael Martinez, the same judge who first deemed the voucher program unconstitutional five years ago, ordered the new program be shut down because, as he said in his decision, “There is no fundamental difference between the two programs that would warrant exemption under this court’s original injunction.”

DCSD said it will likely appeal Martinez’s ruling.

Contradictory Constitutions?

Tim Keller, an IJ attorney, says the Colorado Supreme Court ruling is in opposition to court precedent.

“The U.S. Supreme Court has repeatedly held that parents have a fundamental right to direct the education and upbringing of their children,” Keller said. “However, for many families, that right is illusory, because they do not possess the means to choose a private school but must accept whatever neighborhood public school they are assigned to attend.

“It is unconstitutional to discriminate against families who desire to educate their children in a religious school in an otherwise religiously neutral school choice program,” Keller said. “IJ also believes that it is unconstitutional to exclude religious options from school choice programs that are neutral with regard to religion and ensure that families have a genuine choice between religious and nonreligious educational options.”

Challenging Parental Rights

Ross Izard, senior education policy analyst at the Independence Institute, says those who oppose education choice are opposing parents’ rights.

“Few are willing to argue directly that parents do not have the right to chart the best educational course for their children or that those children lack the right to receive the type of education they need to build their own success stories,” Izard said. “Yet beneath all the rhetoric, this is exactly what opponents of educational choice are saying. This nation is built on the notions of fair opportunity and earned success.

“We should be doing everything in our power to live up to those ideals in the world of education, not prescribing what type of education each child should receive on the basis of how much his family earns or which school district he lives in,” said Izard.

Michael McGrady ([email protected]) writes from Colorado Springs, Colorado.