The Douglas County Board of Education has created a “Pilot Choice Scholarship Plan,” through which the Douglas County School District has 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” are religious, and these participating schools may discriminate on the basis of religion in both hiring and admissions.
In June 2011, Americans United (joined by the national ACLU and the ACLU of Colorado) filed a lawsuit in Colorado state court challenging the voucher plan. Our lawsuit argues that the County, along with state agencies that helped to develop and fund the voucher program, violated both the Colorado Constitution’s religious liberty provisions, which bar the appropriation of public funds to religious schools, and a variety of other constitutional and statutory requirements.
In August 2011, following a three-day trial, the court stopped implementation of the voucher program, concluding that it violated five separate provisions of the Colorado Constitution as well as a Colorado statute. Among other things, the court held that the program unconstitutionally provides taxpayer money to religious institutions.
On appeal, the Court of Appeals reversed the trial court's decision and upheld the voucher program. In March 2014, the Colorado Supreme Court agreed to hear the case. (Read our opening brief, reply to the government's brief, and reply to the intervenors' brief.)
In June 2015, the Colorado Supreme Court reversed the appeals court and ruled that the voucher program violates the Colorado Constitution by providing state money to religious schools.
In October 2015, the defendant county and state agencies petitioned the U.S. Supreme Court to review the Colorado Supreme Court's decision. The Supreme Court has apparently decided to hold the petition until it issues a ruling in Trinity Lutheran Church v. Pauley.
Douglas County Board of Education attempted to resurrect the voucher program, despite the Colorado Supreme Court's ruling, in March 2016. Under this modified voucher program secular private schools may receive voucher funding but religious schools may not.
In an apparent attempt to circumvent the Colorado Supreme Court's decision, parents who want to use voucher money to send their children to religious schools filed suit in federal court against the Douglas County Board of Education, arguing that the Board has violated the Free Exercise, Establishment, and Equal Protection Clauses of the federal Constitution because secular--but not religious--schools may receive voucher funding under the current program. In May 2016, Americans United moved to intervene in this case on behalf of the taxpayers we represent in the Colorado court case. The court granted our motion to intervene, and in July 2016 we moved to dismiss the case; we argue that the federal litigation is an improper attempt to bypass the decision of the Colorado Supreme Court.