Institute for Justice Files to Intervene To Defend New Colorado School Choice Program

John Kramer
John Kramer · June 21, 2011

Arlington, Va.—Parents who live in Douglas County, Colo., and want to participate in the county’s new school choice program will join with their attorneys from the Institute for Justice—the nation’s leading legal advocates for school choice—at a press conference on Tuesday, June 28, 2011, at 10:30 a.m. to announce their intentions to intervene to defend the school choice program that was challenged last week. The Institute for Justice has litigated every major school choice case in the nation, including the 2004 Colorado Opportunity Contract Pilot Program.

“The Institute for Justice will move to intervene on Tuesday, June 28, 2011, on behalf of Douglas County parents and children to defend this choice program from legal attack,” said IJ Senior Attorney Michael Bindas. “IJ has defended school choice programs from legal attack every single day from the time we opened our doors 20 years ago. We know what it takes to make a school choice program constitutional, and there is no question the program passed in Douglas County will pass constitutional muster.”

Bindas said, “The Douglas County school choice program is about education, and giving parents and kids the widest educational options possible to meet their educational needs; those with a political ax to grind have tried to make this about religion, but this is a well-crafted program that will withstand any close scrutiny in that regard. Through this program, it is parents—and not government officials—who are deciding what school a child attends. No educational money will be spent at any school through this program—be it secular or religious—without a parent making that free and independent choice. That is what makes this program constitutional.”

The parents of the four families on whose behalf IJ is moving to intervene in the two lawsuits are Florence and Derrick Doyle, Diana and Mark Oakley, Jeanette Strohm-Anderson and Mark Anderson, and Geraldine and Timothy Lynott. They seek intervention as defendants in the lawsuits to protect their interests in receiving the offered scholarships. Each family resides in Douglas County and has one or more children who have received scholarships and been accepted by a private school participating in the program. Each couple has their own unique reasons for wanting to transfer their children out of the public schools and into the private schools to which they have applied.

The Douglas County Choice Scholarship Program is a local school choice program adopted by the Douglas County Board of Education on March 15, 2011, to “provide greater educational choice for students and parents to meet individualized student needs.” The scholarship program operates in a simple and straightforward manner by providing private school tuition scholarships for up to 500 eligible students at a fraction of the cost of educating them in the Douglas County public schools. A student may use the scholarship to attend any private school that participates in the program and by which he or she is accepted.

The ACLU, Americans United for Separation of Church and State, and several Colorado organizations and taxpayers sued the school board, school district, Colorado Department of Education, and the state school board in two separate lawsuits to stop the program. Despite clear case law rejecting their claims, they allege that because some parents will choose religious schools for their children’s education, the program violates the state constitution’s prohibition on aid to religious schools. They also allege various violations of state constitutional and statutory provisions concerning public education.

Those who have filed suit to block this program’s implementation filed their lawsuits in state court in Denver and allege no federal constitutional violations. When it upheld a similar scholarship program that Ohio enacted for children in the Cleveland public schools in a case litigated by the Institute for Justice, the U.S. Supreme Court essentially foreclosed any such claim, making it clear that a program such as Douglas County’s is constitutional under the federal Constitution’s Establishment of Religion Clause. The Institute for Justice believes that the Colorado courts will follow the lead of the Supreme Courts of Ohio and Wisconsin, which have interpreted their state constitutional religion clauses in a manner similar to the U.S. Supreme Court’s reading of the Establishment of Religion Clause. Indeed, many years ago, the Colorado Supreme Court rejected an effort by Americans United for Separation of Church and State to invalidate a Colorado higher education scholarship program that permitted students to use their benefits at religious colleges they selected.

IJ Senior Attorney Dick Komer said, “This challenge to Douglas County’s innovative program will fail for one principal reason: It is parents—and not government officials—who are deciding what school a child attends. No educational money will be spent at any school through this program—be it secular or religious—without a parent making that free and independent choice. The provision of the Colorado Constitution on which the opponents of school choice rely has already been interpreted by the Colorado Supreme Court and the 10th U.S. Circuit Court of Appeals to permit Colorado students to use state-provided financial assistance at religious schools, so long as the program is religiously neutral (meaning it doesn’t favor or disfavor religion) and the choice is made by the students and their families. Those who challenge school choice always disparage the key role played by the parents in selecting the schools their children will attend, but the Institute for Justice will defend the parents’ rights to choose the best available education for their children.”

Not only is the Douglas County school choice program constitutional, it also makes fiscal sense, saving taxpayers money they would otherwise have to spend to educate each child in the program. Under the program, parents are eligible to receive a scholarship of up to either 75 percent of the state component of the cost of educating a student in Douglas County or the cost of tuition at the private school, whichever is lower. This year, the upper amount is expected to be $4,575. The average cost of educating the same student in the Douglas County public schools is more than $10,000. The scholarship families can apply to private schools participating in the program just as if they were using their own money, except they will receive a scholarship to help them defray the cost of attendance. The scholarship students will take the same state tests they would have taken had they remained enrolled in the Douglas County public schools.

Response to the announcement of the scholarship program was immediate and dramatic. District offices were swamped with calls from interested families. The cap of 500 students has been reached, and at least 27 private schools have asked to participate, with 19 having been approved as of June 2011. Of those 19, 14 are religious schools and five are non-religious.

What is unusual about the Douglas County program is that, unlike most of the modern school choice programs, it serves a middle class school district with well-regarded public schools. Eligibility is based on residence in the district, with no income cut-off and no requirement that the public schools the students would otherwise attend be inadequate or failing schools. In other words, interest in the program demonstrates that even in well-run districts with effective public schools, significant numbers of parents can be dissatisfied with the public schools or simply want additional choices for their children’s educations. The families represented by the Institute for Justice (IJ) are typical of these families who want the ability to choose another school for their children.

The Institute for Justice has a long history of successfully defending school choice from legal attacks. IJ represented intervening parents in the successful defense of:

  • Arizona’s Individual Scholarship Tax Credit Program, Ariz. Christian Sch. Tuition Org. v. Winn and Kotterman v. Killian;
  • Ohio’s Pilot Scholarship Program, Zelman v. Simmons-Harris and Simmons-Harris v. Goff
  • Milwaukee’s Parental Choice Program, Jackson v. Benson;
  • Arizona’s Corporate Scholarship Tax Credit Program, Green v. Garriott; and
  • Illinois’ Educational Expenses Tax Credit Program, Toney v. Bower.

The Institute for Justice also represented intervening parents to defend the Colorado Opportunity Contract Pilot Program.