Colorado Supreme Court justices asked pointed questions about the potential impact of voucher programs on public schools, among other issues, during the long-awaited oral arguments surrounding the Douglas County School District's choice scholarship program.
The court could take up to nine months to issue its decision, though it has ruled in as little as a month on some cases. The ruling will apply to all other courts in the state.
The chambers were packed Dec. 10, with requests for seats exceeding the room's 195-seat capacity. The demand prompted the court to livestream the proceedings.
Among those with a front-row seat for the arguments were John Carson, who was president of the DCSD board when the program was implemented in 2011, former board member Justin Williams, current board president Kevin Larsen and board member Rich Robbins.
Justices hit both sides with questions during the hour-long session, which included 30 minutes of argument each from attorneys for DCSD and plaintiffs Taxpayers for Public Education.
The parent-led Taxpayers for Public Education initially filed the suit in 2011 against DCSD and the Colorado Department of Education after the district implemented its pilot program designed for 500 students. It allowed the students' parents to use state-provided per-pupil revenue toward tuition at private, mostly religiously affiliated schools. A Denver judge ruled the program violated both the Colorado Constitution and school finance act in August 2011, halting program.
The Colorado Court of Appeals reversed the lower court's decision in February 2012. Taxpayers for Public Education then appealed to the Supreme Court.
On Dec. 10, Justice Gregory Hobbs asked if money used for the program could impact the founding fathers' intent to provide a free, universal education.
"What happens to our fine public school system?"
James Lyons, attorney for the school district, said the funds parents would use in the program already are set aside for students. Under the pilot program, 75 percent of the funding could be used toward private tuition, with the remainder staying with the virtual charter school established by the district to administer the program.
(Parents) "are simply being given the choice here to take state money, public money that is available to them, and use it as they see fit," he said.
Chief Justice Nancy Rice said Lyons' argument suggests a paradigm shift has occurred in the view of public education.
"Now what you're saying is public education is almost a funding mechanism," she said.
Lyons said that shift follows changes in education and its delivery.
"It was little red schoolhouses located right down the street in the same township," he said. "That's been gone for a long time. The founders never could have considered things like charter schools, online school, home school, the whole digital revolution."
A parent's decision to use public funds toward private school tuition doesn't affect the district's responsibility "to provide a full and free public education for those who choose not to be in the program," Lyons said. "And it doesn't diminish by a nickel the school's ability to do that."
The Court of Appeals ruled Taxpayers for Public Education lacked standing to bring the suit, noting it is the responsibility of the Colorado Department of Education, but Taxpayers' attorney Matthew Douglas said the state department was "a compromised enforcer."
"The administrative agency who's supposed to stand at arm's length and be the enforcer of the school finance act had already expressed an inclination to approve the program," he said. "If the department of education is going to abdicate its responsibility, those regulations cannot be a basis on which to deny standing."
Lyons said the CDE wasn't given time to raise any concerns about the program.
"This program was enjoined in August," he said, which also prevented the department from using any enforcement mechanisms.
"Yes, they were consulting as this was being developed; that doesn't make them complicit."
Attorney Michael Bindas, who represents the families of students who participated in the program, said public funding can't be limited based on religion.
"The equal protection clause prohibits government from making it more difficult for one class of citizens to seek aid from the government," he said. "Government may not draw distinctions between religious and non-religious. When government chooses to provide this type of public benefit, it has to do so evenhandedly."
Douglas said the state's guiding document is clear.
"Parents are free to choose religious education for their children," he said. "But under the plain language of the Colorado Constitution, public taxpayer money cannot fund that choice."
Because tuition was passed to private schools not by the district, but by parents who chose from among the qualifying schools, Lyons said the program is legal.
"Parental choice breaks the link," he said.
Taxpayers for Public Education director Anne Kleinkopf declined to comment on the hearing and Larsen did not immediately return calls requesting comment.