The Douglas County School District’s former school voucher program spurred a years-long legal battle that was appealed to the U.S. Supreme Court, although the court ultimately did not take up the issue.
The DCSD Board of Education enacted what it called the Choice Scholarship Program in 2011. The program allowed parents to use state money for their children’s tuition at private schools, including faith-based institutions.
In response, the nonprofit Taxpayers for Public Education, a public education advocacy nonprofit, subsequently filed a lawsuit, saying the voucher program was a misuse of public funds. A Denver judge halted the program the same year it started.
In 2013, a state appeals court reversed the judge’s decision. And in 2015, the Colorado Supreme Court reinstated the ban, ruling that using public funds for religious schooling was illegal.
Also in 2015, the school district filed an appeal with the U.S. Supreme Court, which sent the case back to the Colorado Supreme Court.
The state Supreme Court then dismissed the case in early 2018, effectively ending the legal battle.
A school board with newly elected, anti-voucher candidates had voted to rescind the program in late 2017, less than two months before the court case’s dismissal.
Greg Vigil, chairman of the board at Arma Dei Academy in Highlands Ranch, is brimming with excitement about the Douglas County commissioners’ plans to spend millions of dollars on security measures and mental health programming in local schools.
The commissioners’ plans include a $10 million, one-time offering for physical security and mental health programming in schools, plus an ongoing $3 million — if matched by county schools — that will help fund school resource officers in the county.
He’s grateful, he said, that the financial offer was made to all school types, including private and faith-based schools like his, which served 210 students in kindergarten through eighth grade last school year.
“All taxpayers in Douglas County are essentially funding that account,” Vigil said. “Whether their kids go to private school or public school, at least their children are represented in the spending of those funds.”
Not everyone thinks the same way.
The commissioners’ plan for the money, which they approved at a May 28 board meeting in response to the May 7 shooting at STEM School Highlands Ranch, immediately sparked debate among citizens and school officials over the ethics and legality of offering public money to private schools.
The debate recalled the battle that ensued in 2011 when a reform-minded school board unsuccessfully tried to implement a voucher system that would have given county residents public money to use toward private school tuition.
County commissioners strongly believe — based on a 2017 U.S. Supreme Court ruling — they can legally offer public money to private schools when it comes to keeping students safe. Douglas County School District officials and some parents adamantly disagreed, saying the proposal is unconstitutional and will lead to a loss of public trust as to how tax revenue is spent. Colorado legal experts say differing interpretations could result in different outcomes on either side of the issue.
Commissioner Roger Partridge, typically a tempered voice on the board, made an impassioned plea following the May 28 meeting against allowing bureaucracy to derail the county’s plan.
“Every student life is precious — doesn’t matter what school type — and every teacher matters,” he said. “I really hope protecting a student life doesn’t come down to legality, whether it’s a public or private school, because that just disgusts me.”
Commissioner Abe Laydon, a land-use and business attorney, said the board consulted with legal counsel before deciding to include private schools in the allocation of money. They believe the U.S. Supreme Court ruling in Trinity Lutheran Church v. Comer allows the county to do so.
In that case, Missouri denied a church’s application for a state grant program in 2012 because it was a religious institution. The grant program helped nonprofits resurface playgrounds, but the state’s Constitution prohibited providing grants for churches or entities owned by a church.
Trinity Lutheran sued. The U.S. Supreme Court ruled Missouri could not deny the church based solely on its religious affiliation, saying that violated the First Amendment by hindering its free exercise of religion. Legal experts speculated then that the decision would affect policy in other parts of the country on the use of public funds for voucher programs or private schools.
Several local legal experts say the case could be interpreted in various ways to either support or reject Douglas County’s proposal.
Helen Norton, an expert in federal constitutional law at the University of Colorado Law School, said the Trinity Lutheran decision was narrow in scope and not necessarily meant to decide other cases.
The precedent, she said, could apply only to other cases that revolve around competitive state grant programs.
“Is what Douglas County is thinking about similar enough to this? Maybe,” she said.
Associate Professor Ian Farrell, with the Sturm College of Law at the University of Denver, said credible legal challenges could be made and points to Article 9, Section 7 of the state Consitution, which prohibits public aid to private schools and churches.
But “they could say this money is wholly unrelated and will not subsidize or support or give stamp of approval to the religious aspect of the school,” he said. “Therefore, the danger of the state being intertwined or enmeshed in that aspect of the religious school is not a problem.”
The University of Colorado Law School’s Richard Collins, who like Farrell is an expert in state constitutional law, said two provisions in the Colorado Constitution appear to forbid any public subsidy to any private party.
But beginning with decisions in the 1940s, he said, the state Supreme Court “found a dodge around these provisions whenever a government that wants to donate funds has a sufficient public purpose.”
“School safety,” Collins said, “likely qualifies.”
State constitutional provisions do exist that forbid public subsidies to religious entities, making subsidies for religious private schools by Douglas County invalid in the state’s eyes, he said.
But Collins believes the U.S. Supreme Court’s decision in the Trinity Lutheran case would likely trump the state Constitution.
“Based on that decision, the Colorado ban cannot be applied,” he said, “and the Douglas County plan is, in my opinion, valid for religious schools.”
Cindy Barnard, president of the nonprofit Taxpayers for Public Education, the citizens group that sued the Douglas County School District over its voucher program, agrees the Trinity Lutheran decision supports the commissioners’ view about the proposal’s legality.
She doesn’t believe the proposed money is enough to solve security issues in a county housing the state’s third largest school district. But she’s most concerned with what strings may be attached to the money, and said commissioners should leave decisions on how to spend the money to experts in the school system.
“I would say it’s decided,” she said of the legal questions in a June interview with Colorado Community Media. “Do I believe public dollars should stay in public schools for education? Yes. This is different. This is dollars that are being used to help kids.”
What private schools are saying
Officials at several Douglas County private schools, such as Valor Christian High School in Highlands Ranch, declined to comment about the county’s proposal.
Valor, which has roughly 1,100 students, already receives public money toward school safety in the form of a school resource officer. The contract between the sheriff’s office and the school obtained by Colorado Community Media shows that Valor, like public schools in the county, paid about half the cost of an SRO while the county paid the remainder.
Dan Gehrke, executive director of Lutheran High School in Parker, said he’s open to considering the county’s offer but needed to learn more.
He wasn’t sure how the public would view private schools’ use of public funds.
“If it falls under the same ideology of vouchers,” he said, “then certainly there’s going to be issues around it.”
The 525-student private school does not have private armed security or an SRO but works closely with Parker police, Gehrke said, particularly to discuss what they expect response times would be if an emergency takes place. He said Lutheran follows Douglas County School District safety protocols and is debating if it should hire private security instead of an SRO.
Officials at Arma Dei and Parker-based Southeast Christian School praised the county for acknowledging members of private schools as taxpaying citizens and providing them equal access to the funds.
Vigil emphasizes the school follows the district’s security guidelines and has internal protocols. But he hopes the money could help Arma Dei pay for a school resource officer, which it doesn’t have.
The county money could help Southeast Christian, which had 350 preschool through eighth-grade students in 2018, install new cameras and control access at the buidling’s main door, said Head of School Michelle Davis. She said the school has on-site security daily and keeps all doors except the main ones locked.
“I think public schools have done a better job of coming together and advocating for equal access in the last few years,” Davis said. “But what I appreciate was that we have leaders who are in place in our county who have a heart for private schools. I think the recognition was that all of us are taxpayers.”
What public schools, parents say
Several parents at the May 28 meeting, however, worried about the ethics and legality of providing public funds to private schools.
Kendra Sindelman, who has two sons at Prairie Crossing Elementary in Parker, said the county’s proposal called to mind the school district’s history with vouchers. She doesn’t believe schools that charge tuition should receive public funds.
“I would also ask that you refrain from allocating any funds to private schools,” she said.
A concern for Parker mother Emily Suyat, who has two children who will attend Chaparral High School, is accountability and how to ensure private schools are using the money appropriately.
School board President David Ray agreed.
“Adding private schools to your proposal complicates the process, given that elected officials do not govern these schools, nor are there any public accountability measure of these schools,” Ray told commissioners that night.
The school district urged the board of commissioners to slow down in approving the money at the May 28 meeting, calling the plan hasty and criticizing the makeup of two committees the county was forming, which would recommend how to spend the money. The district felt private schools would receive a disproportionate level of representation on the committees.
But JoeEllen Camden, a former special education teacher from an Illinois school district who spoke May 28, urged the community to put students’ safety first.
“I also completely and totally agree with protecting every child, whether it’s regular schools, charter school, private school — we need to get off that,” she said. “These children are our responsibility and I don’t care what faith, what creed or what color. They’re children.”
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