In Colorado, the Douglas County Board of Education created a “Pilot Choice Scholarship Plan,” through which the Douglas County School District authorized 500 students to use state, per-pupil educational funds that are earmarked for the public-school system as vouchers to attend private schools. Most of the participating “Private School Partners” were religious, and the voucher program permitted these participating schools to discriminate on the basis of religion in both hiring and admissions.
In June 2011, joined by the national ACLU and the ACLU of Colorado, we filed a lawsuit in Colorado state court challenging the voucher plan. Our lawsuit argued that the School District, along with state agencies that helped to develop and fund the voucher program, violated the Colorado Constitution’s religious-liberty provisions—which bar the appropriation of public funds to religious schools—as well as a variety of other constitutional and statutory requirements.
Following a three-day trial, the court stopped implementation of the voucher program, concluding that it violated five separate provisions of the Colorado Constitution and a Colorado statute.
On appeal, the Colorado Court of Appeals reversed the trial court’s decision and upheld the voucher program. But then, in June 2015, the Colorado Supreme Court ruled in our favor. Three of the seven justices concluded that the voucher program violated a provision of the Colorado Constitution that forbids using taxpayer funds to finance religious schools, and that this limitation on taxpayer funding of religious schools is consistent with the First Amendment of the U.S. Constitution. A fourth justice concluded that the program violated a Colorado statute that restricts how public-school funds can be used. The other three justices voted to uphold the program.
In March 2016, the Douglas County School District attempted to resurrect the voucher program by modifying it so that secular private schools could receive voucher funding but religious schools could not. Parents whose children attended religious schools challenged the new voucher program in federal court. In May 2016, we successfully moved to intervene in that new challenge on behalf of the taxpayers whom we represented in the state-court case. Relying significantly on the briefing we presented, the district court denied a motion filed by the religious-school parents for a preliminary injunction that would have required voucher funding of religious schools.
Meanwhile, in state court, we sought and were granted a permanent injunction that halted the new iteration of the voucher program. This state-court injunction triggered dismissal of an appeal that the parents in the federal litigation had made to the U.S. Court of Appeals for the Tenth Circuit to challenge the denial of their request for a preliminary injunction.
Subsequently, the School District repealed the modified version of its voucher program and reinstated the old version, which included religious schools. That program remained enjoined so that it could not go into effect. And so, in February 2017, the parties agreed to dismiss the federal litigation.
In November 2017, the old, pro-voucher Board of Education was voted out of office. The new Board terminated the voucher program altogether in December, so the Colorado Supreme Court dismissed the pending state case as moot and vacated all lower-court rulings in January 2018.