This commentary from ACLU of Colorado speaker and volunteer Darren O'Connor first appeared in the Boulder Weekly on June 9, 2016.

The beauty of Boulder, nestled in the Foothills and dominated by the Flatirons, is a metro area gem that attracts a great number of visitors and would be residents wishing to enjoy its charms. Its reputation as an idyllic, liberal city, however, was recently tainted by University of Denver Law School’s report, Too High A Price: What Criminalizing Homelessness Costs Colorado.
Boulder was found to issue citations for camping at more than twice the rate of Fort Collins, and 19 times that of Colorado Springs — the cities that issue the greatest number of camping citations after Boulder. Eighty-seven percent of those receiving such citations in Boulder identified as homeless, and 84 percent of the citations were only for camping.
While City Councilmembers would be at legal risk if they admitted camping and other laws primarily target unhoused people, one is reminded of Anatole France’s quote, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”
Ironically, Boulder laws require pet owners provide, “enclosed structure sufficient to protect the animal from wind, rain, snow, or sun,” yet camping is against the law and prohibits in part using shelter. In the ordinance, shelter is defined such that it “includes, without limitation, any cover or protection from the elements other than clothing.” Thus, a homeless person with a pet must both provide it shelter against the elements and avoid use for themselves of any such protection, lest they be ticketed.
In contrast to the camping ordinance language, City Attorney Tom Carr recently stated, “Our camping ordinance doesn’t ban shelter, it doesn’t ban blankets. It is a reasonable and moderate response to prohibit camping on public property.” As a member of the homeless advocacy group Boulder Rights Watch, I requested a clarification from Carr on the disparity between his statement and the ordinance, but my request went unanswered.
Boulder officials and members of the community recently traveled to Portland, Oregon, where Mayor Hales spoke to them decrying as inhumane having the police tell people, “You can’t pitch a tent here.” Returning from the trip, where they visited Eugene Oregon’s Opportunity Village, Council Member Aaron Brockett stated, “I saw new ways to work on problems that we haven’t been pursuing so far.”
Others on the trip, notably Councilmembers Shoemaker and Appelbaum (who did not visit Opportunity Village), referred to Boulder’s response to homelessness (shelters and overflow shelters that address a fraction of the unhoused that executive director of the Boulder Shelter for the Homeless estimated at 1,500 people), as “a much better product.” Those on Council who appear supportive of not criminalizing homelessness through its camping law have received recent support for such a move, with ACLU of Colorado’s Denise Maes and Mark Silverstein speaking at city council meetings.
I have also challenged the City with videos showing Officer Lord, questioning a man near the library where unhoused people congregate, for holding an unlit cigarette, stating on camera that, “It’s not us that just comes down here willy-nilly, we come down here because the City Manager has asked us,” going on to say, “They can leave the city of Boulder, they can leave the state of Colorado, they can leave the country if they want to.”
Boulder must work on both their laws and how police enforce them; otherwise they must admit that its beauty, its open space, and even its streets are only open to the wealthy.
Darren O’Connor has lived in Boulder since 1994, where he received his masters degree in electrical engineering and is a social justice advocate with groups including Boulder Rights Watch, Denver Homeless Out Loud and Boulder Coalition and Alliance on Race.

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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