DENVER - Federal District Court Judge Marcia Krieger today denied plaintiffs’ request to issue an unprecedented emergency order requiring the Douglas County School District school voucher program to divert taxpayer funds to private religious schools.   

The ACLU of Colorado, Americans United for Separation of Church and State, the ACLU Program on Freedom of Religion and Belief, and the law firm Arnold & Porter - who successfully challenged the program before the Colorado Supreme Court last year - intervened last month in the case to challenge the plaintiffs’ collateral attack on that decision. 

ACLU cooperating attorney Matt Douglas of Arnold & Porter issued the following statement, on behalf of the ACLU of Colorado, Americans United for Separation of Church and State, and the ACLU Program on Freedom of Religion.

“We commend the District Court’s ruling today in which the court agreed that this case is a clear attempt to circumvent the Colorado State Supreme Court decision of last year striking down the original Douglas County school voucher program as a violation of the Colorado Constitution.

“The Court also expressed serious doubts as to whether the case should go forward, given that the plaintiffs and the defendants clearly want the same result – to direct taxpayer funds to private, religious schools.  While denying the plaintiffs’ motion for preliminary injunction, the Court invited motions to dismiss the case outright, which we intend to file.

“As we’ve argued throughout this case, and as the Colorado Supreme Court affirmed, parents are free to send their children to private, religious schools if they wish, but taxpayers should not be forced to pay for it.”
 

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DENVER – The ACLU of Colorado, Americans United for Separation of Church and State, the ACLU Program on Freedom of Religion and Belief, and the law firm Arnold & Porter — who successfully challenged a Douglas County school voucher program before the Colorado Supreme Court last year — filed motions yesterday challenging the validity of a new lawsuit that asks a federal district court to issue an unprecedented order that would require the Douglas County School District to divert taxpayer funds to religious schools.

Last June, the Colorado Supreme Court ruled that the Douglas County School District’s so-called “Choice Scholarship Pilot Program” violated the Colorado Constitution because it improperly diverted public funds to private, religious schools.  Following the decision, the district and the Institute for Justice, representing parents who want to use taxpayer funds to send their children to religious schools, both petitioned the U.S. Supreme Court to issue a ruling, based on arguments that the Colorado Supreme Court rejected, that the state constitution’s ban on public funding of religious schools somehow violates the First Amendment right to religious freedom.

Early in 2016, it became clear that the Supreme Court would not act on the petitions before late 2016. The district then concocted and rushed through a nearly-identical modified version of the program that simply excluded religious schools, which appeared to be an invitation for the Institute of Justice to file its new lawsuit seeking the ruling that both parties had hoped to obtain from the U.S. Supreme Court.

“The jurisdiction of federal courts is limited to actual disputes between opposing parties, which are called ‘cases or controversies,’” said Mark Silverstein, ACLU of Colorado Legal Director.  “Here, the plaintiffs, represented by the Institute for Justice, and the nominal defendant, the school district, want the same result.  They both want an order compelling taxpayers to fund religious schools, a result the Colorado Supreme Court rejected.”

“Rather than accept that decision or wait to see if the U.S. Supreme Court will hear the arguments the Colorado Supreme Court rejected, the school district and the Institute for Justice are staging a fictitious dispute in the hope of obtaining an order that would, in essence, overrule the Colorado Supreme Court. This is what the courts call a collusive lawsuit, and it should be dismissed,” added Silverstein.

The ACLU of Colorado, Americans United, the ACLU, and Arnold & Porter, representing a group of Douglas County taxpayers, yesterday filed a request to intervene in the suit and a motion to dismiss the case.  Additionally, they filed a motion in a Colorado trial court asking the court to enforce an injunction affirmed by the Colorado Supreme Court prohibiting the voucher program from going forward.

“In addition to being collusive, the voucher advocates’ new lawsuit has no legal foundation,” said Alex J. Luchenitser, associate legal director for Americans United.  “The federal courts have uniformly rejected arguments that religious schools have a right to public funding.”

The district’s original “Choice Scholarship Pilot Program” provided 500 students with vouchers worth about $4,600, which could be spent at district-approved “Private School Partners,” a collection of private schools. According to the Colorado Supreme Court, 16 of the 23 approved “Private School Partners” were religious. In striking down the program, the court held that it violated the state constitution’s “unequivocal language forbidding the State from using public money to fund religious schools.”

“This attempt to end-run the Colorado Supreme Court's decision is legal gamesmanship of the worst kind and should be rejected by the federal courts,” said Heather L. Weaver, Senior Staff Attorney for the ACLU’s Program on Freedom of Religion and Belief.

“The district and the Institute for Justice have been working together, unsuccessfully, for years to try to achieve their mutual goal — a voucher program that includes religious schools,” said Matthew Douglas of Arnold & Porter, lead counsel for the taxpayers.  “This case is nothing more than an attempt to shop for a new forum in which to try to achieve that same goal, but this time there is one significant difference: the district and the Institute for Justice are pretending to be adverse to each other in this new case.”

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The 120-day Colorado legislative session ended last Wednesday night, May 11. Much has been made about the failure of bipartisanship and many have referred to this year’s session as “anti-climatic” and a “house divided.” For the issues that received much media attention, I suppose these references ring true. The legislature failed to re-classify Colorado’s hospital provider fee as an enterprise fund, failed to pass a Presidential primary bill even though there were two bills, each with bipartisan sponsors, and did not secure sufficient funding for all of Colorado’s road infrastructure needs.
At the beginning of session, I expected similar gridlock on civil liberties issues. I was wrong. Indeed, the final two bills to pass both chambers allow more leniency for juveniles serving life sentences and permit a select group of inmates to participate in a program that will allow them to make a case to the Governor for clemency. The bills invited an emotional debate among legislators about redemption and honoring victim’s rights. These issues are not easy, but ultimately because the bills honored both victims and redemption, our lawmakers passed them with significant bipartisan support.
The ACLU was also able to work with Republicans and Democrats to pass new protections for children against the use of solitary confinement at facilities operated by the Department of Youth Corrections. The Department strongly opposed the bill, but with the leadership of House Democrat Representative Pete Lee and Senate Republicans Kevin Lundberg and Kent Lambert, it received overwhelming bipartisan support, passing both chambers on a vote of 70-30. It passed the Senate unanimously.
In attempting to reign in the harsh and unconstitutional practices of municipal courts, the ACLU found many friends in Republican ranks. Years of investigation by the ACLU of Colorado has revealed without question that justice is hard to come by in Colorado municipal courts if you’re poor. Many individuals plead guilty without the benefit of counsel, something that is afforded to incarcerated defendants in State and County courts. We also found indigent defendants going to jail for minor infractions simply because they were too poor to pay court fines and fees. To remedy these issues, House Democrat Representative Susan Lontine sponsored a bill requiring public defenders in municipal courts and House Democrat Joe Salazar sponsored a bill to close the loophole in the 2014 debtors’ prison law. Both bills found Republican support in the Senate. Republican Senator Vicki Marble sponsored both bills in the Senate and was joined by Senator Morgan Carroll on the debtors’ prison bill. The bills received broad Senate support, and we were particularly thankful and impressed by both Republican Senators Chris Holbert and Tim Neville who vocally supported the municipal public defender bill from the well. The bills received a nearly three-fourths majority of the vote from both chambers and await the Governor’s signature.
We also saw smooth sailing for a bill to protect student data privacy, which passed unanimously through both chambers. I must also mention that with the help of Senate Republicans, we were able to defeat the seemingly annual bill calling for the collection of DNA from those convicted of certain misdemeanor offenses.
If there was one area in particular that I would not have expected any bipartisan work this year, it was in the area of immigration. Yet, two bills passed with bipartisan support and one even had bipartisan sponsorship. House Democrat Representative Dan Pabon sponsored a bill to regulate “notarios”, individuals who present themselves to the immigrant community as attorneys qualified to advise on complex immigration matters, when in fact, they are not so qualified. Many immigrants fall prey to these individuals, lose a lot of money and get no benefit from the services provided. Republican Senator Kevin Lundberg sponsored this legislation in the Senate. It awaits the Governor’s signature. Rep. Pabon also sponsored a bill making it illegal for anyone to secure a government service, like an appointment to get a driver’s license, and sell it to a third party. This practice has been pervasive of late simply because there is a high demand for drivers’ licenses in the immigrant community, but few appointments are available. This, too, received bipartisan support.
It wasn’t complete harmony on civil liberties’ issues, however. Republicans introduced many bills attempting to limit a woman’s access to reproductive health options. There were several attempts to limit access to voting through photo ID bills and the like. All were defeated. Also defeated, but by Senate Republicans, unfortunately, was a bill that would have made it easier for transgender individuals to change the gender on a birth certificate. And Republicans in both chambers continued to use the tag line “religious freedom” as a license to discriminate against the LGBTQ community.
All in all, however, it was a good year and far better than expected.
Sine die.
RESOURCES:
Fact Sheet on HB 1328 – A Bill to Protect Colorado’s Children from Solitary Confinement

Fact Sheet on HB 1309 – A Bill to Safeguard the Right to Counsel in Municipal Court

Fact Sheet on HB 1311 – A Bill to End Debtors’ Prisons in Colorado