Arguments begin in Douglas County School District voucher case

Judge raises burden of proof for plaintiffs

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The judge hearing the case against the Douglas County School District’s voucher program dealt a blow to the plaintiffs in the court’s first hours, elevating their burden of proof in their effort to stop the district’s school choice scholarships.

Following opening statements from both sides, Denver District Court Judge Michael Martinez announced plaintiffs in the case of Larue v. the Douglas County School District must present compelling evidence to undo actions already taken by the school district to create Colorado's first voucher program.

The injunction being sought was not preliminary in nature, Martinez said, and plaintiffs would have to meet the burden of proof to seek a mandatory injunction.

A mandatory injunction sets a higher standard for the plaintiffs and would have a more far reaching impact, said Michael Bindas, lead attorney for the Institute for Justice, which represents parents who intervened in the case to side as defendants with the Douglas County School District.

While a preliminary injunction seeks to prevent an action from moving forward, a mandatory injunction must present a persuasive argument to “undo what’s been done,” Bindas said.

“(Martinez) is saying the plaintiff is really asking for final resolution,” Bindas said. “The burden is much higher. It’s much more difficult to persuade the court to reverse a process that has already begun.”

Opening arguments began Aug. 2 in the preliminary injunction for Larue v. the Douglas County School District by attorneys from the American Civil Liberties Union and a local taxpayers group who seek to halt the district’s school choice scholarship program until its merits can be heard in a trial. If approved, an injunction would put a stop to the program already in place for the coming school year.

The Douglas County School District board of education approved the scholarship program in March, paving the way to distribute choice scholarships to 500 students within the district. The scholarships are being compared to school vouchers, amount to 75 percent of participating students’ state-issued per-pupil funding and will divert nearly $3 million in public funding to private schools, including religious institutions.

Court testimony disclosed the district originally intended to begin distributing scholarships in September but instead began issuing checks around the beginning of July. The lawsuits challenging the program were filed in late June and the preliminary injunction was filed at about the same time the district began sending scholarships to its private partner schools.

By the time the court began hearing arguments in the case, the district had distributed more than $208,000 in school choice scholarships, said Randy Barber, Douglas County School District media and events director.

In their opening arguments, defense attorneys argued the scholarship families and participating private schools have made education choices and investments that relied on the issuance of the scholarships. To put a stop to the program would place an undue hardship on the players involved.

“The court is required to balance the hardships,” said Jim Lyons, representing the school district. “By sitting on their own rights they allowed the status quo to change.”

On the first day of the hearing, Martinez heard testimony from four plaintiff witnesses, including two district parents whose involvement in the district began when their now-teenage children began elementary school. Kevin Leung, who was appointed to the school’s district accountability committee and in 2009 made an unsuccessful bid for a seat on the school board, testified about the unfolding events that led to the launch of the program.

Among the events was an early June request by the school board for a review of a School Choice charter school. All charter school applications are reviewed by the district accountability committee before going before the school board for final approval, Leung said. That review typically takes several weeks.

In the case of the choice charter application, the committee was given 48 hours to review the application, Leung said. The formation of a choice charter school, which has no building, staff or teachers but acts as an administrator for the state-issued school funding, was at the heart of much of the first day’s testimony.

“We cannot afford to take money we do not have to fund a private school education,” Leung said. “Those parents clearly have the resources if they choose to send (their children) there. For every single student taken out of public school we are going to have to lay off teachers and downsize because we have fewer students. The school district is trying to take money out of the public school system and it’s hurting us.”

The mandatory injunction hearing is expected to last three days. For updates from the court room, follow us at twitter.com/rhondamoorenews.

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