A plaintiff in the Douglas County School District voucher case says the state appeals court erred in several areas Feb. 28 in upholding the voucher program. The process to take the case to the Colorado Supreme Court is under way.
An attorney on the other side, representing families who had originally received vouchers, says the program’s design keeps private schools and government separate, ensuring its constitutionality.
The two sides likely will get a chance to argue those points again, though the case doesn’t automatically move to the higher court. It first must be approved for review by a certiorari, an order from a higher court that directs the lower court to send the case to it.
The Colorado Supreme Court receives more than 900 certiorari petitions annually stemming from Court of Appeals decisions, and agrees on average to hear one of every 14 petitioned cases.
Director of Taxpayers for Public Education Anne Kleinkopf, among the plaintiffs in the lawsuit against DCSD and the Colorado Department of Education, has no doubt this petition will be granted.
“The issues are of such great public importance and they are such novel legal issues,” she said.
A Colorado Court of Appeals three-judge panel ruled 2-1 that the voucher, or Choice Scholarship Program, is legal. It also said the plaintiffs lacked legal standing to bring suit, that the program doesn’t violate the state constitution’s requirement of a uniform system of free public schools and that it does not provide aid to religious schools.
DCSD implemented the pilot program, allowing parents to use a portion of public school funds toward private school tuition, in March 2011. A Denver District Court judge ruled in August 2011 that the program violated the Colorado Constitution and school finance act, and the case was appealed.
The appeals court said the state board of education is charged with enforcing the school finance act, not private citizens.
Kleinkopf believes the district court got it right the first time.
“The trial court found that taxpayers and the individual plaintiffs all had the legal right to sue as taxpayers under the Colorado Public School Finance Act because, in fact, that is all about the proper disbursement of tax monies,” she said. “And we as taxpayers are being hurt by the violation of that statute.
“It doesn’t make any constitutional or statutory sense at all to have the only party able to sue under statute being the very party that’s being sued for violations of the statute.”
Kleinkopf also takes issue with the appeals’ court ruling that the program doesn’t violate the Colorado Constitution in giving public funds to religious institutions.
But Michael Bindas, an attorney from the Institute for Justice who’s representing three of the voucher families, said the program is not religious in nature. Only one of his three clients chose a religious school for their student.
“There are two critical components to a constitutional school choice program,” he said. “The first is that it has to be religion neutral, (that) religious and non-religious schools alike are free to participate in the program.
“The second critical component is private choice. The fact is, under the program, not a penny flows to any school — religious or non-religious — but for the private and independent choice of parents.”
Kleinkopf is most concerned by what she views as the program’s potential for divisiveness.
“Basically what they’re doing is funding two separate systems of schools, one a set of religious schools where students have to be admitted based on certain religious criteria,” she said. “Another is the public school system itself, which is in fact free and open to all students.”
Bindas sees it differently.
“The constitution provides a floor, not a ceiling, and the government is free to offer options beyond what the constitution requires,” he said. “What the Douglas County program does is simply offer families within the district different options.”
Bindas is representing the voucher families at no cost.