Douglas County voucher case heads for Colorado Supreme Court

On hold for more than three years, a Douglas County program using taxpayer money to send children to private schools has a date Wednesday at the Colorado Supreme Court — with the future of district-run voucher programs in the state hanging in the balance.

Oral arguments are set in a legal battle that began in 2011 after a newly elected conservative school board introduced a pilot voucher program in a wealthy county with strong public schools.

Opponents prevailed in Denver District Court in their initial legal challenge. But in February 2013, the Colorado Court of Appeals upheld the constitutionality of the Choice Scholarship Program, setting the stage for a showdown before the state’s highest court.

The argument over vouchers is by now a familiar one. Proponents contend parents deserve greater choice, which leads to competition and better schools. Opponents frame vouchers as illegal subsidies of religious institutions that rob money from public school systems.

The Douglas County case could turn on any number of issues, from whether the state constitution allows funneling money to religious schools to whether the original plaintiffs have standing to make a claim under a state law governing how Colorado public schools are financed.

The pilot voucher program, the first of its kind in the state, was delayed by the initial court challenge in 2011 just as the first 304 students awarded vouchers worth $4,575 were about to enroll.

Most voucher programs nationwide are restricted to low-income students or those with special needs, but Douglas County opened the door to all.

Of the 23 private schools accepted into the program, 16 were religious and 14 were outside Douglas County. More than nine in 10 students taking part chose religious schools.

Opponents point to language in the Colorado constitution that prohibits public money from supporting or sustaining a school “controlled by any church or sectarian denomination whatsoever.”

“We say the drafters of the constitution could hardly have written the prohibition in a way that is more clear,” said Mark Silverstein, legal director of the American Civil Liberties Union of Colorado, an original plaintiff. “It says no public money going to religious schools. No how, no way.”

The appellate court’s 2-1 majority ruling found the program is neutral toward religion, and noted participation is voluntary.

Even though the program allows students to opt out of religious activity, district lawyers say in court briefings that attendance at religious services or religious instruction cannot be compelled because the program is voluntary and parents choose the schools.

Dick Komer, an attorney with the Arlington, Va.- based Institute for Justice, which represents parents of children who enrolled in the program, said courts have recognized a difference between directly supporting religious institutions and involving parents in the process.

“There is a growing recognition that it’s one thing to provide institutional aid to private schools,” Komer said. “It’s a whole other kettle of fish to create a school choice program where you provide aid to individual families and then they select how they use that aid.”

Anne Kleinkopf, a board member of Taxpayers for Public Education, a Douglas County-based group and another original plaintiff, said the state constitution does not distinguish between direct and indirect support.

“There is no wiggle room,” she said.

Through a spokeswoman, Douglas County school administrators and board members declined interviews before this week’s arguments. The district says the court fight has cost $1.2 million so far, with more than $1.1 million in private donations raised to cover the cost.

In 2004, the state Supreme Court rejected a statewide pilot voucher program, ruling that it violated the state’s local control requirements.

If the high court affirms the district-level voucher program in Douglas County, it would open the door to others at districts statewide.

The use of public money for students to attend private schools is on the rise nationally through vouchers, scholarship tax credits and educational savings accounts.

Twenty-one voucher programs exist in 11 states and the District of Columbia, according to the pro-voucher Alliance for School Choice.

Just about every program that uses public money to pay for private education has been challenged. A 2012 analysis by the Denver-based Education Commission of the Statesidentified 29 court cases dating to 1983, with the results closely split. The majority of programs survived.

“A lot of times, it’s just a crapshooter depending on what court you’re in,” said Emily Workman, a policy analyst with the group.

Eric Gorski: 303-954-1971, egorski@denverpost.com or twitter.com/egorski

This story has been corrected in this online archive. Originally, due to a reporter error, Dick Komer’s name was misspelled. It has been corrected.