Denver Judge Halts Nation’s First District-Level Vouchers

Published August 15, 2011


A Denver district judge temporarily stopped the first district-level school voucher program in the country, sending several hundred students scurrying to find new schools after the school year had begun. Advocates from both sides are readying themselves for a long legal battle. 
Judge Michael Martinez ruled those suing to stop the vouchers “are in danger of real, immediate, and irreparable injury” because “property rights or fundamental constitutional rights are being destroyed or threatened with destruction.” He put an injunction on the program pending further litigation. The Douglas County School District plans to appeal, as do their codefendants, the state of Colorado and three voucher recipients, said district spokesman Randy Barber.  
Lawyers from the American Civil Liberties Union and Americans United for Separation of Church and State had argued the program diverts funds from public school students and creates a state subsidy of religion by supporting students at religious schools.  
In 2002, the U.S. Supreme Court ruled in Zelman v. Simmons-Harris that since individuals and not the state decide whether they will use the vouchers at religious schools, vouchers do not violate the Constitution’s prohibition against the federal government establishing a religion.
The Colorado Supreme Court has previously ruled similarly, said Michael Bindas, senior attorney for the Institute for Justice and legal counsel to three families who received vouchers. 
“This is a religiously neutral program that operates on private parental choice, and it’s very clear under Colorado and U.S. case law that such a program is permissible,” Bindas said.  
Money-Saving Reform 
The ruling followed a three-day preliminary hearing in early August, three months after claimants first filed suit and six months after the Douglas County School Board unanimously approved administering vouchers through a charter school in their district. The district had already sent initial tuition checks totaling approximately $300,000 to the parents of 304 children enrolled in the pilot and matched to private schools.   
Districts around Colorado are watching the Douglas County case and will likely consider similar programs if it holds up in court, said Pam Benigno, director of the Education Policy Center at the Colorado-based Independence Institute. Douglas County, like other districts around the state and nation, has experienced reductions in school funding and property taxes. That vouchers cost less than per-pupil spending for public schools makes them a good financial move, she said.  
“On one side you have a handful of taxpayers who don’t like that parents can choose to use these scholarships at a school of their choice, and on the other you have families who received these scholarships months ago and have made decisions in reliance on that and have had that ripped away from them at the eleventh hour,” Bindas said.  
‘Parents Ought to Have That Choice’ 
Five hundred children had been accepted into the pilot program through a lottery. The district contracted through a charter school with 19 approved private schools to educate the enrolled students, giving private providers approximately $4,600 per child, or about 75 percent of the state’s per-pupil allotment. The remaining 25 percent was slotted for administrative costs and to benefit local public schools.  
“If services might be provided better by a private school, parents ought to have that choice,” said Douglas County School Board President John Carson. The board wants to strengthen public and local schools through competition, he said, and offer parents more options to tailor their child’s education as they see fit.  
Douglas County School District is Colorado’s third largest, with more than 61,000 students enrolled this fall. It is the highest-performing district in the state on standardized tests. Household income in the Denver suburb is nearly double the national median, and the district offers charter, magnet, and virtual schools.
The district has paid for its legal fees through donations amassed at and a $500,000 private, matching grant from the Daniels Fund, Barber said, and is assessing its ability to continue doing so to avoid sticking taxpayers with the tab.
“We knew setting up a program this innovative and also seeing the cases that had come before with choice offerings that it was likely we would face a challenge in court,” he said. “We believe in the long run it will stand up.”