Appeals Court Upholds Voucher Plan That Would Fund Religious Schools In Colorado

Ruling Will Be Appealed To Colorado Supreme Court, ACLU And Americans United Say

Feb 28, 2013

A Colorado appeals court ruled 2-1 today that a voucher plan adopted by the Douglas County School District does not violate the Colorado Constitution by diverting taxpayer money to pay students’ tuition at religious and other private schools.

Americans United for Separation of Church and State, the American Civil Liberties Union of Colorado and the national ACLU criticized the ruling.

“This misguided decision fails to enforce the Colorado Constitution’s strict prohibitions against public funding of religious education,” said Alex J. Luchenitser, associate legal director for Americans United. “It’s clear that this voucher plan will funnel taxpayer money primarily into the coffers of religious schools.” 

The organizations challenged the program on behalf of a group of parents, clergy and other taxpayers. A lower court had previously struck down the plan.

“While families have the right to decide where their children should attend school, the state cannot finance religious education at private institutions,” said Heather L. Weaver, staff attorney for the ACLU Program on Freedom of Religion and Belief. “Public education funds should be used to help improve our public schools, not to promote religion in violation of the state constitution.”

AU and the ACLU plan to file an appeal before the Colorado Supreme Court.

“The Colorado Court of Appeals got it wrong today when it found that Douglas County’s scheme to underwrite the religious education of children was constitutional,” says Mark Silverstein, Legal Director for the ACLU of Colorado.  “We hope and expect that the Colorado Supreme Court will ultimately decide this case and affirm the district court’s ruling that diverting taxpayer money to pay students’ tuition at primarily religious, private schools is a clear violation of the religious liberty provisions of the Colorado Constitution.” 

“The decision fundamentally misinterprets prior Colorado Supreme Court cases interpreting the religion clauses of the Colorado Constitution,” said attorney Matthew J. Douglas of the Denver office of the international law firm Arnold & Porter LLP, who argued the appeal and is serving as cooperating counsel for the ACLU and Americans United. “Ultimately these issues should be decided by the Colorado Supreme Court.”

The so-called “Choice Scholarship Pilot Program” offered tuition vouchers worth $4,575 to 500 students to spend at religious and other private schools. For the purposes of obtaining state per-pupil educational funds, Douglas County still counted these children as “public school students” attending an imaginary school that exists only on paper.

In reality, the voucher money was spent at district-approved “Private School Partners.” As of the filing of the lawsuit, 18 of the 23 approved Private School Partners are religious.

Dissenting from the 2-1 decision, Colorado Court of Appeals Judge Steve Bernard wrote, “In my view, [the Colorado Constitution] prohibits public school districts from channeling public money to private religious schools. I think that the Choice Scholarship Program is a pipeline that violates this direct and clear constitutional command.”

The lawsuit, LaRue v. Colorado Board of Education, argues that the voucher plan violates the Colorado Constitution’s ban on the use of public funds for religious schools and state laws that require educational funds to pay for public education and remain under government control.

The plaintiffs are represented by Douglas, Timothy R. Macdonald, and Michelle K. Albert of Arnold & Porter LLP; Luchenitser and Ayesha N. Khan of Americans United; Weaver and Daniel Mach of the ACLU Program on Freedom of Religion and Belief; and Silverstein and Sara Rich of the ACLU of Colorado.