Sep 15, 2011

In May 2003, AU joined with other civil rights groups in representing the local teachers’ union and others in bringing a state court challenge to a Colorado voucher program. The program calls for tuition payments to be made available to parents of under-performing students in grades K-12. School districts that, at the time of the statute’s passage, had eight or more schools with low academic performance are required to participate and all other school districts are given the option of doing so. All private schools — sectarian or otherwise — in participating districts are entitled to receive payments and the vast majority of them are pervasively sectarian. Recipient schools are permitted to use the funds for any purpose, including religious training. The lawsuit raised claims under several state constitutional provisions, including one that provides that "[n]o person shall be required to . . . support any ministry or place of worship, religious sect or denomination against his consent." In June 2003, we filed a motion for judgment on the pleadings on two other state constitutional provisions at issue, one that prohibits the legislature from singling out some school districts for different treatment than others and another that requires school districts to retain substantial control over students instructed at the district’s expense, and the state filed a cross-motion for summary judgment on the same two issues. On December 3, 2003, the Court held that the program violated the latter but not the former provision. The defendants moved for expedited proceedings on appeal (which the Colorado Supreme Court granted) and for a stay of the decision pending appeal (which the trial court denied on January 6, 2004). The appeal was briefed in the spring — with our brief arguing that the program runs afoul of both state constitutional provisions in question — and oral argument was held on May 25, 2004. On June 28, 2004, the state Supreme Court ruled, 4-3, that "the Pilot Program violates the local control requirements of our state constitution because it directs the school districts to turn over a portion of their locally-raised funds to nonpublic schools over whose instruction the districts have no control."