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Excerpts from the Colorado Supreme Court’s 4-3 decision that found the Douglas County School District’s Choice Scholarship Program unconstitutional:
From the majority decision
“The CSP essentially functions as a recruitment program, teaming with various religious schools and encouraging students to attend those schools via the inducement of scholarships.
“Given that private religious schools rely on students’ attendance (and their corresponding tuition payments) for their ongoing survival, the CSP’s facilitation of such attendance necessarily constitutes aid “to support or sustain” those schools. (The Colorado Constitution) precludes school districts from providing such aid.”
Dissenting Judge Allison H. Eid
“In the end, the CSP passes muster … because it is not expenditure to help support or sustain certain schools. Instead, it is expenditure to support students, who may then choose to use the funds to attend those schools.
“The plurality’s interpretation broad barring indirect funding is so broad that it would invalidate the use of public funds to build roads, bridges and sidewalks adjacent to such schools, as the schools, in the words of the plurality ‘rely on’ state-paid infrastructure to operate their institutions.”
The Colorado Supreme Court ruled against the Douglas County School District's Choice Scholarship Program, agreeing with a lower court that it violates the state constitution.
"The Colorado Constitution features broad, unequivocal language forbidding the state from using public money to fund religious schools," the decision read. "Yet aiding religious schools is exactly what the CSP does."
But district leaders said it's not the end of the road. They intend to take the matter to the U.S. Supreme Court.
"While we were disappointed, we are not surprised," school board President Kevin Larsen said during a June 29 press conference at the district's Castle Rock administration building. "This may very well be simply a case of delayed gratification. Douglas County kids may have to wait just a little bit longer to get full access to choice."
Larsen said he believes a positive ruling at the federal level could pave the way for students nationwide to use public funds to attend private or public schools.
"We have reason to believe the United States Supreme Court justices have an interest in this question," board member Craig Richardson said. "We believe competition makes all schools better. We believe the truth remains to be seen."
The district points to the Blaine Amendments included in the constitutions of 37 states - including Colorado - as a federal-level issue. The amendments prohibit public funding of religious schools and organizations. Richardson said they reflect, "a very ugly period of American history" and are based in bigotry.
But courts so far have struck down previous efforts to show the Blaine Amendments' historical and arguably prejudicial origins render them unconstitutional.
The state's highest court was not unanimous, making a 4-3 decision in favor of the plaintiffs, Taxpayers for Public Education.
The plaintiffs are delighted by the court's long-awaited ruling, pending since oral arguments were made before the panel in December.
"Looking at the Colorado Supreme Court decision, this journey should be over," said Anne Kleinkopf, director of Taxpayers for Public Education. "The court has stated as clearly as it possibly can that this program violates the state constitution. There should not be any further argument."
Kleinkopf said attorney Michael McCarthy, who has represented the plaintiffs pro bono, is "imminently qualified" to argue the case before the U.S. Supreme Court, but she believes the likelihood it will be heard there "is very, very slim."
"This is a tremendous victory for the public school kids of Colorado," said Cindy Barnard, president of Taxpayers for Public Education. "I have been confident in what was right in our work for four years now. This truly means that money that was set aside for public education can only be used for the intent that it was meant to be, and that's the public education of our kids."
District leaders said during the press conference they will try to find a way to implement the program within the legal restrictions.
DCSD so far has spent $1.2 million on the case, all of it from private donations, Richardson said.
The ruling reversed a February 2013 decision by a state appeals court, but reinforced a 2011 ruling by a Denver judge.
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. The program was halted by a Denver judge in 2011.
To read the opinion, click here
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