Three families who want to use the Douglas County School District voucher program to send their children to a private Christian high school in Highlands Ranch plan to appeal a federal judge's ruling that the program cannot be expanded to include religious schools.
The families, one each from Castle Rock, Parker and Highlands Ranch, want to send their children to Valor Christian High School. The families are represented by the Institute for Justice, a Virginia-based nonprofit law group that filed a suit in April.
But on June 9, U.S. District Judge Marcia Krieger ruled the Choice Grant Pilot Program couldn't be expanded to include sectarian institutions.
"It was an unfortunate outcome, but by no means the end of the road," said Michael Bindas, lead attorney for the families, who said an appeal is in the works.
The state affiliate of the American Civil Liberties Union and Taxpayers for Public Education, a nonprofit public education advocacy group that opposed the program, praised the outcome, saying public monies should not support private, religious schools.
"The ruling is a legal setback for those who are trying to misappropriate public school funds to pay for religious schools," said Anne Kleinkopf of Taxpayers for Public Education in a statement.
In Douglas County, members of the school board remain divided over the program's merit.
"Obviously, we in the district tried to create a program in response to what the Colorado Supreme Court told us was permissible," school board President Meghann Silverthorn said, referring to an earlier decision in which the state's top court ruled public funds could not be used to support any "sectarian" institutions. "...I believe strongly in parents' role as the primary educators and decision-makers for their children, and the district's role in facilitating those choices."
But school board member David Ray lamented the expense and attention focused on a program with little support. He said he understands no private schools have indicated they want to participate and notes only six students have shown an interest. It was unclear as of press time if that number included the students in the lawsuit.
"Unfortunately, $14,336 has already been expended just to reactivate and defend this program . . . ," Ray said. "Also unfortunate is that the litigation around this issue will continue, expenses will continue to be incurred and funds diverted that are intended for students in public schools."
Most of the more than $1 million in legal fees incurred by the district to defend the original voucher program has been paid for by private donations, Silverthorn said.
The voucher dispute dates to 2011, when the school board approved the Choice Scholarship Program. Designed to accommodate 500 students, it allowed students' parents to use state-provided, per-pupil money toward tuition at private schools, including religiously affiliated institutions.
Taxpayers for Public Education subsequently filed a lawsuit against the district to stop it. A Denver judge halted the program that same year, but in 2013 a state appeals court reversed that decision. The state's top court in June 2015 issued the ruling saying using public funds for religious schooling was illegal.
The district filed an appeal with the U.S. Supreme Court in September and is waiting to hear if the court will take the case.
In March, however, the school board amended the original voucher program to prohibit money from being used at religious schools and renamed it the School Choice Grant Program. And in April, the three families sued for an injunction to allow the program to be used for religious institutions until the constitutionality of the voucher program was decided.
They argued the exclusion of religious options from the program violates the Free Exercise, Establishment, Equal Protection and Free Speech clauses of the U.S. Constitution, as well as the Due Process Clause, which guarantees the fundamental right of parents to control and direct the education and upbringing of their children.
Krieger said the law on the matter was too murky and undecided to issue the injunction, according to Bindas.
Bindas said he plans to appeal the ruling to the 10th Circuit Court and hopes to have a favorable decision before the start of the upcoming school year.
The American Civil Liberties Union of Colorado supported Krieger's ruling in a statement following the decision.
"... the court agreed that this case is a clear attempt to circumvent the Colorado State Supreme Court decision of last year striking down the original Douglas County school voucher program as a violation of the Colorado Constitution," the ACLU statement reads. "The Court also expressed serious doubts as to whether the case should go forward, given that the plaintiffs and the defendants clearly want the same result - to direct taxpayer funds to private, religious schools. While denying the plaintiffs' motion for preliminary injunction, the Court invited motions to dismiss the case outright, which we intend to file.
"As we've argued throughout this case, and as the Colorado Supreme Court affirmed, parents are free to send their children to private, religious schools if they wish, but taxpayers should not be forced to pay for it."
Taxpayers for Public Education filed a separate motion in Denver district court May 24 to halt the new program, saying the old and new voucher programs were essentially the same, therefore the rulings apply to both.
As of now, the original School Choice Grant Program remains in effect. But as of June 10, the deadline for applications, only six students had signed up to participate, school district attorney Rob Ross said.