ACLU asks court to stop scholarship program that helps at-risk children


By Jack Minor

The American Civil Liberties Union has called on supporters to pack the courtroom in a lawsuit seeking to stop Douglas County’s Choice Scholarship Program, saying it violates the Colorado Constitution.

Earlier this year, Douglas County approved a program providing 500 scholarships to parents, who could then use them to send their children to a school of their choice. The scholarship amount was capped at 75 percent of the per pupil revenue for the county, or the cost of tuition at a private school, whichever is less. The cap for the 2011-2012 school year is $4,575.

The board estimates the program could actually save the district money. The voucher scholarship cost will be $2.29 million ,but when CSAP and other expenses associated with having 500 fewer students are figured in, the district could save a net of over $400,000.

The ACLU and Americans United for Separation of Church and State filed a lawsuit in June seeking to stop the program. The groups claim the program violates the state constitution which bars the use of public funds for religious schools.

A three day hearing on the case began Aug. 2 in Denver District Court. The ACLU sent an e-mail to supporters asking them to fill the courtroom. “This week, we need your help to make history.” The e-mail goes on to say “Imagine being in the courtroom for the Scopes trial, when teaching evolution was debated, or for Tinker vs. Des Moines School District, where the judge decided that free speech does not stop at the schoolhouse door. Our voucher case, LaRue vs. Colorado Board of Education, could very well have similar impact.”

The e-mail then called for supporters to pack the courtroom. “That’s why we’re asking you to attend all or part of the three-day hearing scheduled to begin at 9 a.m. on Tuesday, August 2.”

John Carson, president of the Douglas County school board, said under the proposal any school that has been approved by the board would be eligible to receive the funds. This would include any private school provided that a school can demonstrate the ability to offer a solid educational program and it is  financially sound. Qualifying schools also have to comply with certain requirements established by the Colorado department of education.

The ACLU claims that of the 19 schools that are currenlty in the program, 14 are religious.

The county is being represented by the Institute for Justice, which successfully defended the state of Arizona in a recent Supreme Court case involving a similar program.

IJ Senior Attorney Michael Bindas, said the Douglas county program passes constitutional muster and takes issue with the plaintiff’s waiting until June to file the lawsuit. “This eleventh-hour motion to halt the program should be rejected because of the significant harm that will come to parents and children who have been relying on the scholarships for the upcoming school year,” Bindas continued, “The plaintiffs have known about this program since March.  They should have filed this case and their motion for preliminary injunction months ago. This effort to halt the program should also be rejected for a more fundamental reason:  The Choice Scholarship Program passes constitutional muster.”

Earlier this year, the Supreme Court ruled that a similar case in Arizona was constitutional. The state had passed a plan allowing residents to designate $500 of their state income tax to private or religious organizations if they chose to do so.

The court ruled that since individuals had the choice whether to redirect their own tax dollars to religious schools or not; individual taxpayers did not have standing to challenge the law.

In the ruling, the court said opponents of the law had a mistaken position “that all income is government property, even if it has not come into the tax collector’s hands.” The decision also said that all three branches of government have a duty to defend the Constitution.

The IJ says that Colorado Supreme Court rulings are on their side. “In Americans United for Separation of Church and State, Inc. v. State of Colorado, the Colorado Supreme Court rejected arguments against a similar scholarship program for higher education, holding that the ‘program is designed for the benefit of the student, not the educational institution.’  The same is true under Douglas County’s scholarship program, notwithstanding the cynical claim by school choice opponents that the program is really designed to advance religion.”

IJ provided testimony from a parent awarded one of the scholarships.

“While two of my three children thrive in a public school setting, my oldest son Nate, who has Asperger’s Syndrome, struggles every day both with academics and socially,” said Diana Oakley, a parent whose son has received one of the choice scholarships and an IJ-client who has intervened in the lawsuit to defend the program.  “The Choice Scholarship Program has given my family hope for the first time in many years — hope Nate can and will succeed in school and that he will have friends who understand him.”

The Oakleys chose to use their scholarship to send their son to Humanex Academy, a small non-religious private school that works with children with special needs. The Oakleys do not have the financial ability to send Nate to Humanex without the scholarship.

Institute for Justice President and General Counsel William Mellor said, ““We are confident that the evidence will show that Douglas County’s Choice Scholarship Program is constitutional because it is parents, not government officials, who choose which schools to enroll their children in.” Mellor went on to say, ““There is simply no reason for the court to halt this program when children like Nate Oakley are depending on the scholarships to attend schools that can meet their educational needs.”

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