by Julie Pelegrin

On August 12, 2011, Denver district court judge Michael Martinez issued a 68-page order shutting down the Douglas County voucher program known as the “Choice Scholarship Pilot Program” (voucher program). The voucher program was designed to allow up to 500 Douglas County students to enroll in a private school of their choice and to receive a voucher from the school district, payable to the private school, for $4,575 or the amount of tuition, whichever is less.The voucher program was open to religious and nonsectarian private schools and to all students regardless of income. The students in the voucher program would have been enrolled in the Choice Scholarship Charter school, which the Douglas County school district created for the sole purpose of administering the program. The students would have been counted in Douglas County school district’s pupil enrollment, and the school district could have received state moneys for them. The students would also have been required to take the CSAPs and their scores would have been included in accrediting the school district.

So why did the district court shut down the voucher program, and are there any findings in the court’s order that may be instructive for the General Assembly in the future? Assuming the district court’s interpretation and application of the constitution is upheld following appeal, the General Assembly’s ability to pass a voucher program that would include religious schools may be significantly limited by several state constitutional provisions.

Generally speaking, the district court prohibited Douglas County from implementing the voucher program because the voucher program violated the sections of the state constitution that prohibit: Aid to religious schools; forced support of religious institutions; religious tests for admission to public schools; and mandatory attendance at religious services and teaching of religious doctrines in public schools.

If a religious school enrolled a Douglas County student through the voucher program, nothing in the program restricted how the school could use the voucher money, so the school could legally use public moneys for a religious purpose. In fact, the court found that, since the mission for most of the religious schools combined educating students and promoting religious doctrine, the nonreligious curriculum was intertwined with religious education, and the voucher money would, therefore, be used for religious purposes in violation of §7 of article IX of the state constitution. The court also found that, due to this intertwining of curriculum and doctrine, the voucher money, which comes from taxes, would further the school’s religious goals and taxpayers would therefore be forced to support a religion that they may not agree with, in violation of §4 of article II of the state constitution.

Section 8 of article IX of the state constitution prohibits a public school from using religion as a test for admission, requiring students to attend religious services, or teaching religious doctrines. The court found that the voucher program violated this provision as well, even though it was private schools that were imposing the admissions tests, requiring attendance at religious services, and teaching religious doctrines. The court reasoned that, since the students were being counted and funded as public schools students, they were protected by the provisions of §8 of article IX to the same extent as students attending public schools.

The court also found that paying public moneys to private schools violated §34 of article V of the state constitution, which prohibits appropriations to private entities. In many cases, the Colorado Supreme Court has applied a “public purpose” doctrine to find that the payment of public moneys to private institutions does not violate this section because the payment supports a valid public purpose. The district court found, however, that the public purpose doctrine did not apply to the voucher program because the moneys were paid to support religious purposes.

Finally, the court found that §3 of article IX of the state constitution, which creates the public schools fund, allows payments from the fund only to public schools and does not allow payment of public school fund moneys to private schools.

If the General Assembly chooses at some point to pass a statewide voucher program that is open to religious schools, this district court opinion suggests such a program may violate the constitutional limitations on public support for religious institutions. The opinion also suggests that public support for any private school might be constitutionally impossible, although careful drafting may avoid the concerns raised with §34 of article V and §3 of article IX of the state constitution.

However, it’s important to remember that this is a district court opinion. As such, it is instructive, but another district court would not be required to follow this opinion and could have a different opinion. We expect Douglas County to appeal the district court opinion, however, in which case the opinion of the court of appeals — either upholding or reversing the district court — would be considered precedent and binding on other courts.