Larue v. Colorado Bd. of Educ., Nos. 11-4424/11-4427 (Dist. Ct. Colo. Aug. 12, 2011)
Abstract: A Denver County District Court has issued a permanent injunction prohibiting Douglas County School District (DCSD) from implementing Colorado’s Choice Scholarship Program, which provides state-funded tuition vouchers for private schools, including sectarian schools. The court concluded that the program violates a number of provisions in the state constitution that guarantee separation of church and state and free exercise of religious beliefs.
With the exception of the plaintiffs’ constitutional claim that the Choice Scholarship Program fails to provide a “thorough and uniform system of free public schools,” the court agreed with the plaintiffs that the program violates a number of the constitution’s religious provisions by: requiring students to “attend or support [a] ministry or place of worship, religious sect or denomination against [their] consent;” providing aid to churches and religious institutions; utilizing religious tests or qualifications for admission into public educational institutions; failing to maintain school board and school board director control of instruction in local schools; and providing appropriations to a “denominational or sectarian institution or association.”
Facts/Issues: The plaintiffs in the two cases consolidated by the district court included students, parents and taxpayers. They alleged that DCSD’s program, which is a private school voucher program that includes religious or sectarian schools, utilized public funds in violation of numerous prohibitions in the Colorado’s Constitution, i.e., Article II, Section 4, Article V, Section 34, and Article IX, Sections 2, 3, 4, 7, 8, and 15.
The court’s finding of fact noted that the program is premised on the assumption that the Colorado Department of Education (CDE) will pay Douglas County School District the “per pupil revenue” for students who attend participating private schools under the Scholarship Program. It pointed out that if CDE decides not to count those students as part of DCSD’s pupil count, the state could seek reimbursement from DCSD of state aid used to support the program.
Ruling/Rationale: After concluding that all plaintiffs had standing to bring the suit, the court granted their motion for a preliminary injunction, converting it into a permanent injunction. While it found that the plaintiffs had satisfied the six criteria for injunctive relief, the court focused primarily on the requirement of showing a reasonable likelihood of success on the merits.
Before reaching the merits, however, the court first considered DCSD’s argument “[t]hat while the religious provisions of the Colorado Constitution are ‘considerably more specific’ than the federal Establishment Clause, Americans United for Separation of Church and State Fund, Inc. v. State of Colo., 648 p.2d 1072 (Colo. 1982), the Colorado Constitution’s different religious provisions are no different nor impose no greater restriction than the federal Establishment Clause.”
It found the argument unpersuasive ”because it is premised on the idea that the framers of the Colorado Constitution must have debated, drafted, and ratified these provisions without purpose.” The court pointed out that ”ignoring the detailed language of Colorado’s religious constitutional provisions and labeling them ‘no broader than the federal Establishment Clause’ would render them of no value.”
The court rejected DCSD’s argument that the U.S. Constitution’s Free Exercise Clause requires states to aid religious schools, finding no legal authority to support this contention, and contrary authority in Locke v. Davey, 540 U.S. 712 (2004). There, the U.S. Supreme Court rejected a Free Exercise challenge to a scholarship program enacted in Washington State that forbade students from using state scholarship funds to pay for a degree in theology. In Locke, the Supreme Court ”held that the Free Exercise clause does not require a state to fund theology students.” Accordingly, the court stated that it was not prepared to mandate that Colorado taxpayers fund private religious education.
Lastly, the district court found DCSD’s “Blaine Amendment” argument, i.e., “that the Court should ignore the language of the Colorado Constitution because the provisions were written and ratified under the guise of ‘Catholic bigotry,’” unpersuasive. It concluded that because DCSD failed to provide any “legal authority to suggest that the Court may disregard certain constitutional provisions because they may have been tainted by ‘questionable motives,’ the historical nature of the Blaine Amendments does not factor into the Court’s decision in this Order.”
Turning to the merits of the plaintiffs’ claim, the court began with the “claim that the Scholarship Program violates Article IX, Section 7 of the Colorado Constitution because the Scholarship Program takes public funds intended to support public schools and uses them instead to help support or sustain the Private School Partners controlled by churches or religious denominations.” It concluded: “Because the scholarship aid is available to students attending elementary and secondary institutions, and because the religious Private School Partners infuse religious tenets into their educational curriculum, any funds provided to the schools, even if strictly limited to the cost of education, will result in the impermissible aid to Private School Partners to further their missions of religious indoctrination to purportedly ‘public’ school students.”
The court next considered the plaintiffs’ claim the program “violates Article II, Section 4 of the Colorado Constitution because it compels taxpayers, through the use of funds provided by the Public School Finance Act, to support the churches and religious organizations that own, operate, and control many of the private religious schools that are participating in the Scholarship Program.” It concluded, “under the Scholarship Program any ‘compelled support’ by way of taxpayer funding to a Private School Partner whose mission is to provide an education based on theological and religious principles is a violation of Article II, Section 4 of the Colorado Constitution.”
The court then addressed the plaintiffs’ allegation that the program “violates Article IX, Section 8 because the Scholarship Program: (1) subjects scholarship recipients to religious admission criteria; (2) requires scholarship recipients to attend religious services if the Private School Partner directs its own students to attend; and (3) subjects scholarship recipients to the teachings of religious tenets and doctrines.” It concluded, “because students participating in the Scholarship Program are still counted for purposes of receiving their per pupil revenue, the treatment of scholarship recipients must comport with Article IX of the Colorado Constitution requiring the Douglas County School District to protect the religious liberty of the scholarship recipients that are enrolled in the Choice Scholarship School.”
The court found: “Specifically, public school students participating in the Scholarship Program should not be subject to: (1) religious qualifications for admission; or (2) compelled attendance at religious services and mandatory religious instruction.”
The court also addressed the plaintiffs’ contention that DCSD “intends to use funds distributed by the Colorado Department of Education under the Public School Finance Act to pay tuition at private schools, in direct contravention of both Article IX, Section 2 of the Colorado Constitution and the Public School Finance Act.” It found the argument regarding Article IX, Section 2 unconvincing, as “Plaintiffs have not provided sufficient evidence that the Scholarship Program prevents students from otherwise obtaining a free public education in Douglas County.”
The court found, however, that the plaintiffs had demonstrated that the Scholarship Program violates the Public School Finance Act, thereby entitling them to mandatory or permanent injunctive relief. ”The Scholarship Program, as presently constituted,” it explained, “effectively results in an increased share of public funds to the Douglas County School District rather than to other state school districts.”
The court next turned to the plaintiffs’ argument that the program violates “Article V, Section 34 of the Colorado Constitution because the Scholarship Program provides taxpayer funds to sectarian institutions and to institutions not under absolute control of the state for nonpublic purposes.” It concluded that ”the totality of the evidence in the record dictates the Court’s determination that the core principles implanted in the Scholarship Program are fundamentally at odds with the college tuition-assistance program and the Colorado Supreme Court’s holding in Americans United.” As a result, it found that the program violates Article V, Section 34 of the Colorado Constitution. The court also stated: “Moreover, and perhaps more importantly, the Scholarship Program violates the blanket prohibition enumerated in Article V, Section 34 that forbids state funds from being provided to any denominational or sectarian institution or association.”
The court also found that the plaintiffs had “demonstrated that that funds from the ‘public school fund’ will be used, in part, to pay tuition to private schools, in violation of Article IX, Section 3 of the Colorado Constitution.” It gave “no weight to Plaintiffs’ argument that the Scholarship Program violates Article IX, Section 15 of the Colorado Constitution.” Lastly, the court rejected DCSD’s argument that the program was authorized under C.R.S. § 22-32-122 (the “Contracting Statute”) which allows school districts to contract for “educational services.” It concluded that “the legislative history confirms that the General Assembly intended that the Contracting Statute implemented into law would merely allow school districts to contract for particular educational services not offered by the public schools, such as foreign-language instruction.”
Larue v. Colorado Bd. of Educ., Nos. 11-4424/11-4427 (Dist. Ct. Colo. Aug. 12, 2011)
[Editor's Note: In June 2011, Legal Clips summarized a Denver Post article that provides background on the suit challenging DCSD's voucher plan.
In July 2011, Legal Clips summarized a news story in the Miami Herald reporting that the Florida Education Association had filed suit in state court challenging a proposed constitutional amendment to lift the ban on public funding of religious groups. The FEA argues that the proposal should be stripped from the 2012 general election ballot because it is “misleading and insufficiently specific.” According to FEA president Andy Ford, “This [amendment] is designed to open the state treasury to voucher schools, but this is not what the ballot summary says.” Advocates for private-school vouchers, however, say the constitutional amendment would simply let the state deliver education, health care and social services irrespective of a provider’s religious affiliation.
Shortly after the Douglas County District Court struck down DCSD’s voucher program, a Marion County Superior Court, in Meredith v. Daniels, denied a motion to preliminarily enjoin implementation of Indiana’s recently enacted school voucher plan on state constitutional grounds. The Indiana court, noting that the plaintiffs had cited the Douglas County District Court’s decision in support of their position, said, “There are significant differences between Indiana’s Constitution and the ‘no aid’ clause of the Colorado Constitution which explicitly prohibits public funds to help sustain any school controlled by any church or sectarian denomination.”]