Major Court Hearing Will Decide If Douglas County’s Choice Scholarship Program Continues During Lawsuit

J. Justin Wilson
J. Justin Wilson · August 2, 2011

Arlington, Va.—On the eve of the new school year, opponents of school choice are trying to halt Douglas County’s Choice Scholarship Program, even though 500 children are relying on the scholarships offered by the County to attend private schools selected by their parents. In a three-day preliminary injunction hearing that begins today at 9 a.m., a Denver District Court judge will consider whether to leave the program in place for the upcoming school year or, instead, to halt the program and rescind the children’s 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 program provides 500 scholarships that parents can use to send their child to the participating private school of their choice. The scholarship amount is capped at 75 percent of per pupil revenues for a student in Douglas County or the cost of tuition at the selected private school, whichever is less. This year, the upper amount is $4,575.

The Oakleys have chosen to use their scholarship to send Nate to Humanex Academy, a small, non-religious private school that works with children with special needs. Without the scholarship, however, sending Nate to Humanex will be financially impossible for the Oakleys.

“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,” declared IJ Senior Attorney Michael Bindas. “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,” added Bindas.

The lawsuits, Larue v. Colorado Board of Education and Taxpayers for Public Education v. Douglas County School District RE-1, were filed in late June and, on July 5, the plaintiffs filed motions asking the court to preliminarily enjoin the scholarship program for the upcoming school year. They claim that the program is unconstitutional primarily because it permits parents to select religious private schools. Their argument has no legal merit. Significantly, 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.

The hearing begins today at 9:00 a.m. in Denver District Court and is expected to last at least three days. The Honorable Michael A. Martinez, District Court Judge, will preside over the hearing, which will be held in Courtroom 259, 1437 Bannock Street, Denver, Colorado 80202. Lawyers representing the Plaintiffs, the Defendants Douglas County Board of Education, the Douglas County School District, the Colorado State Board of Education and Colorado State Department of Education will all present witnesses. IJ client Diana Oakley is also expected to testify.

“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,” said Institute for Justice President and General Counsel William H. Mellor. “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.”