DISTRICT COURT, DENVER COUNTY, COLORADO Court Address: 1437 Bannock St., Room 256 Denver, CO 80202 ▲ COURT USE ONLY ▲Plaintiffs: JAMES LARUE; SUZANNE T. LARUE; INTERFAITH ALLIANCE OF COLORADO; RABBI JOEL R. SCHWARTZMAN; REV. MALCOLM HIMSCHOOT; KEVIN LEUNG; CHRISTIAN MOREAU; MARITZA CARRERA; SUSAN MCMAHON vs. Defendants: COLORADO BOARD OF EDUCATION; COLORADO DEPARTMENT OF EDUCATION; DOUGLAS COUNTY BOARD OF EDUCATION; DOUGLAS COUNTY SCHOOL DISTRICT Intervenors: FLORENCE DOYLE; DERRICK DOYLE; ALEXANDRA DOYLE; DONOVAN DOYLE; DIANA OAKLEY; et al. AND Plaintiffs: TAXPAYERS FOR PUBLIC EDUCATIO N; CINDRA S. BARNARD; MASON S. BARNARD vs. Defendants: DOUGLAS COUNTY SCHOOL DISTRICT RE-1; DOUGLAS COUNTY SCHOOL DISTRICT RE-1 BOARD OF EDUCATION; COLORADO DEPARTMENT OF EDUCATION; COLORADO STATE BOARD OF EDUCATION Case Number: 2011CV4424 Courtroom: 259 CONSOLIDATED __________________________ Case Number: 2011CV4427 Courtroom: 259
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8/6/2019 Response to Motion for Preliminary Injunction
disapproval in the media, at public meetings, through email, and in formal letters. Plaintiff
Barnard and Director of Taxpayers for Public Education, Anne Kleinkopf, sent letters in
opposition dated February 9 and 10, 2011. Exh. 2, 3. See also TPE Compl. at 21 (Ms.
Kleinkopf’s verification of the Complaint). Plaintiff Kevin Leung serves on the District
Accountability Committee (“DAC”), and he expressed his opposition at a DAC meeting on
February 16. Exh. 4. On February 23, Plaintiff Barnard, on behalf of TPE, made a presentation
to District leaders at a community forum opposing the Program. Exh. 5. The Americans United
for Separation of Church and State – one of the national institutions supporting the Plaintiffs1 –
sent a letter to Board President John Carson on March 8, objecting to the Program. Exh. 6.
On March 15, the Board formally adopted the Program. Exh. 7 at 2 (resolution); Exh. 8
(Policy JCB). Thus, as of March 15, the Board directed the Superintendent to implement the
Blueprint for Choice, including the CSP. In the Policy itself (¶ C.2), the Board directs the
Superintendent to make the Program operational for the 2011-2012 school year. Pursuant to that
direction, the Superintendent and her staff began implementing the Program on Wednesday
morning, March 16.
On April 6, the American Civil Liberties Union sent a formal, voluminous Colorado
Open Records Act request to Douglas County. Exh. 9. They followed with subsequent and more
extensive requests on June 3 and July 1. Exh. 10, 11. The documents attached to the Complaints
and Motions for Preliminary Injunction came from these CORA requests.2
1 Attorneys for the Americans United for Separation of Church and State appear on the caption for Plaintiffs andformally receive service through LexisNexis on all filings in this case.2 The ACLU also filed a CORA request on the State Defendants on June 21.
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spending.” Id. at ¶ A.3. The Board has made an educational policy choice by adopting the
Program, just as it has in adopting the Blueprint for Choice and the Strategic Plan more broadly.
The Program is neutral toward religion. “The District in no way promotes one Private
School Partner over another, religious or nonreligious.” Id. at ¶ A.9. “Nonpublic schools shall
be eligible without regard to religion. The focus of the Choice Scholarship is not on the character
of the Private School Partner but on whether that school can meet its responsibilities under this
Policy and its Contract with the District.” Id. at ¶ E.2.c.
As mentioned above, one purpose of the Program is to “obtain a high return on
investment of DCSD educational spending.” Id. at ¶ A.3. Colorado’s budget crisis and
concomitant deep cuts in K-12 spending, which Plaintiffs acknowledge (TPE at 20),3 is forcing
Douglas County, like every school district, to try to make taxpayer dollars go farther. While the
Program has no effect on statewide education funding outside Douglas County,4 it has a fiscally
positive effect on the District in two ways. First, the 25% holdback is more than the likely cost
to administer the Program. Second, by partnering with private schools, Douglas County is able
to mitigate the cost of its rapid yearly growth. Currently, Douglas County adds about 1,300
students per year. By partnering with private schools to educate 500 of those students, the
District reduces the costs of having to build more schools, hire more teachers, and buy more
supplies to accommodate this rapidly growing student population. The District estimates that the
Program will save about $350,000 in 2011-2012.
3 Defendants cite to the LaRue Motion as “LaRue at ___” and to the Taxpayers Motion as “TPE at ___.”4 Plaintiffs are mistaken when they suggest that Douglas County is trying to “enrich” itself. TPE at 20. See also id. at 17. As explained above, because the Program requires students to have been enrolled in a Douglas County schoolduring the prior year (Policy at ¶ D.5), the Program is fiscally neutral as to overall statewide education funds.
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many of these programs are for elementary and secondary students whose funding flows through
the Public School Finance Act.5
Four other Colorado educational choice programs bear mention, given their areas of
overlap with the Choice Scholarship Program. First, Colorado permits “contract schools.” See
C.R.S. § 22-32-122 (“Any school district has the power to contract with . . . any natural person,
body corporate, or association for the performance of any service, including educational
service”). Thus, under Colorado law any school district may purchase educational services –
including operation of an entire school – from a private entity. Like the CSP, contract school
students can be seen as having dual enrollment – enrolled in the district for funding purposes but
also enrolled in the contract school itself, where they receive their day-to-day instruction. See
also Exh. 14 (Task Force Briefing Paper on Contract Schools).
A second area of overlap with the CSP is with charter schools, and specifically those
charter schools operated by educational service providers (“ESPs”).6 ESPs are private entities,
often for-profit or nonprofit corporations, that provide educational services to charter schools.
Typically, ESPs provide a complete educational and operational package to a charter school. All
the workers at an ESP school – teachers, administrators, and staff – are employees of the ESP,
not the charter school. The ESP provides its curriculum and often finances the building as well.
The only aspect not run by the ESP is the charter school board itself. None of this is illegal or
unusual. C.R.S. § 22-30.5-104(7)(a) & (b) (providing charter schools can contract with private
5 The State Defendants describe these programs in their Brief in Opposition to Motions for a Preliminary Injunctionat 3-13. The Douglas County Defendants incorporate the Brief by reference.6 Educational service providers (“ESPs”) are also known as “education management organizations” (“EMOs”) or“charter management organizations” (“CMOs”).
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Of particular importance to Colorado higher education is the College Opportunity Fund
(“COF”). C.R.S. § 23-18-101 to -208. Similar to the CSP in the higher education context, the
7 Summary Report of the Operations and Activities of Online Programs in Colorado 6/2/2011, at 4 (found athttp://www.cde.state.co.us/onlinelearning/download/1011/2011_AnnualReport_OnlinePrograms.pdf ). This reportnotes that 1.8 % of all Colorado students were enrolled in online learning in 2010-11, an increase of 14% from2009-10. Id. 8 Summary Report at 5.
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COF provides a stipend for Colorado undergraduate students to attend any state or participating
private institution, including religious ones like Colorado Christian University, Regis University,
and University of Denver. C.R.S. § 23-18-102 & -201. See also State Defendants Brief at 13.
As this summary shows, our Colorado educational system has embraced public-private
partnerships across educational lines from top to bottom. In this rapidly developing area, the
notion that public education organizations (and funding) might join with private entities of all
types is commonplace, not unconstitutional.
In their briefing, Plaintiffs reveal one tiny tip of the iceberg when they discuss how
school districts “may pay for educational services for pupils to ‘attend nonpublic schools’” using
federal funds under C.R.S. § 22-32-110(1)(cc). (TPE at 19.)9 The foregoing reveals how
dramatically mistaken Plaintiffs are when they conclude: “Colorado law limits school district
expenditures to private schools only to federal funds.”10 (TPE at 19.) This statement is simply
and fundamentally wrong, as a matter of fact and law.
ARGUMENT
For this Court to grant Plaintiffs a preliminary injunction, they need to prove all six of the
Rathke factors. Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982). Their request for a
mandatory injunction that disturbs the status quo is “specifically disfavored” by courts. Schrier
v. Univ. of Colorado, 427 F.3d 1253, 1259 (10th Cir. 2005). Accord Snyder v. Sullivan, 705 P.2d
510, 514 n.5 (Colo. 1985) (“[M]andatory injunctive relief is granted only in rare cases.”).
9 Plaintiffs omit the next subsection, C.R.S. § 22-32-110(1)(dd), discussing how districts may also use federal fundsto buy library resources for “public and nonpublic schools.”10 The foregoing discussion about the numerous places where Colorado education funds pay private organizationsdoes not even begin the long list of federal programs that do the same, like the G.I. Bill, Pell Grants, etc. Coloradolaw is consistent with federal law on this issue. Plaintiffs, however, seem to have a profound misunderstanding of the actual state of how educational services are provided.
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Furthermore, “if a preliminary mandatory injunction will have the effect of granting to the
complainant all the relief that he could obtain upon a final hearing, it should . . . be issued . . .
[o]nly in rare cases [when] the complainant’s right to the relief is clear and certain.” Allen v.
City and County of Denver , 351 P.2d 390, 391 (Colo. 1960).
As stated at the outset, Plaintiffs cannot meet their extremely heavy burden for two
fundamental reasons: (1) they cannot prove they have a reasonable probability of success on the
merits, and (2) the equities weigh heavily in favor of permitting the Program to continue. 11
I. PLAINTIFFS’ CLAIMS FAIL ON THE MERITS
A. The Choice Scholarship Program is Consistent with the Religion Clauses of the
Colorado Constitution.
Plaintiffs’ challenge to the Choice Scholarship Program goes to great lengths to avoid the
defining feature of the program: choice. Under the CSP, families are given an education
alternative, with the choice to attend a partner school, and thus parents make a voluntary
decision to participate in the scholarship Program. This Program, like others, relies on families’
independent choices. Government (here, Douglas County) does not directly fund religious
schools. Douglas County gives this option to students and parents, who then make two primary
choices: (1) Should we participate in the Program at all, or should we enroll in some other
Douglas County school? and (2) If we participate, which partner school should we choose,
including choosing among religious and non-religious schools?
Plaintiffs contend several Colorado constitutional provisions bar state funding that
ultimately flows to religious schools: Article II § 4; Article IX §§ 7 and 8; and Article V § 34.
11 Plaintiffs lack standing on the statutory claims, as well as under Article IX § 3, as described in the Motion toDismiss filed contemporaneously with this Combined Response and incorporated herein by reference.
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Colorado Constitution and the Americans United decision. See Colorado Christian Univ. v.
Weaver , 534 F.3d 1245, 1268 (10th Cir. 2008). The Colorado Supreme Court has upheld the
principle, long established by the United States Supreme Court, that “evenhanded funding of
education – religious and secular – through student scholarships” is constitutional. Id. at 1253.
See also Americans United , 648 P.2d at 1082, 1085, 1086 (upholding grants to students for
tuition assistance at private, religious colleges under Art. II § 4, Art. IX § 7, and Art. V § 34).
Americans United upheld an educational assistance program much like the CSP. Both
programs are designed to provide greater educational opportunity to Colorado students,
permitting them to make a voluntary choice about what school to attend. The Supreme Court
upheld the Americans United scholarship program because it was “designed to assist the student,
not the institution.” Id. at 1083. The court rejected claims (identical to Plaintiffs’ claims, here)
that the scholarships were unconstitutional aid to religious schools. Id. at 1083.13 Americans
United repeatedly emphasized that the independent choice of students meant the state funds were
not being used to aid religious schools. Id. at 1072 (“The design of the statute is to benefit the
student, not the institution.”); id. at 1082 (“the statutory program is designed for the benefit of
the student, not the educational institution”); id. at 1083, 1085-86 (funds flowing to religious
schools was an “incidental benefit” and “by-product” of the scholarship program).
Two decades later, the United States Supreme Court confronted a K-12 school choice
program challenged as a violation of the First Amendment. In Zelman v. Simmons-Harris, 536
U.S. 639 (2002), the Court rejected that claim and upheld a Cleveland school choice program
13 Plaintiffs misread Americans United to hold that excluding “pervasively sectarian” schools was the reason theprogram was found constitutional. LaRue at 16. That interpretation of Americans United was expressly rejected bythe Tenth Circuit. Colorado Christian Univ., 534 F.3d at 1269. Plaintiffs tacitly acknowledge this in a footnote.LaRue at 17 n.2.
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which gave parents a scholarship to use at any participating private school of their choice,
including religious schools. Like Douglas County parents, Cleveland parents were provided with
the educational choice of accepting tuition aid for use in a private school, and tuition checks
were made payable to the parents who then endorsed the checks over to their chosen school. 536
U.S. at 646. The Zelman Court relied on an unbroken line of cases where government aid
reached a religious institution as a result of independent choices.14 Applied to the CSP, Zelman
demonstrates the propriety of government programs where individuals receive and redirect that
aid from the state, even to religious schools, if the schools receive the money “wholly as a result
of their own genuine and independent private choice.” Id. at 652. Thus, the “incidental
advancement of a religious mission, or the perceived endorsement of a religious message, is
reasonably attributable to the individual recipient, not to the government, whose role ends with
the disbursement of benefits.” Id . Just as in Zelman, the CSP program allows families to choose
among nonpublic schools without any interference or endorsement from Douglas County.
Instead of addressing these directly-applicable, binding cases, Plaintiffs divert the Court
to decisions in two states, Arizona and Florida. Neither decision interpreted the Colorado
Constitution. In fact, the Colorado Court of Appeals recently found a Florida constitutional
decision in the education context “inapplicable” because the constitutional language differs
materially from Colorado. Boulder Valley Sch. Dist. RE-2 v. Colorado State Bd. of Educ., 217
P.3d 918, 931 (Colo. App. 2009). In addition, the Florida15 and Arizona16 decisions do not apply
14 Mueller v. Allen, 463 U.S. 388 (1983); Witters v. Washington Dept. of Services for the Blind , 474 U.S. 481(1986); Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993).15 The Florida decision expressly acknowledged the unique language in the Florida education clause (“paramountduty of the state to make adequate provisions for the education”) as distinguishing the Wisconsin decision, whichlacked Florida’s specific constitutional language. See Bush v. Holmes, 919 So.2d 392, 425 n.10 (Fla. 2006).Colorado, like Wisconsin, lacks the specific language relied on by the Florida majority.
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by their own terms. Both of these out-of-state cases should be ignored given the directly on-
point Colorado case law, as well as the Colorado principle of interpreting the state constitution to
be consistent with federal First Amendment law. See below. Finally, these decisions are not the
only ones in this area. Wisconsin and Ohio have decided the opposite, upholding school choice
programs in the face of state constitutional challenges. See Simmons–Harris v. Goff, 711 N.E.2d
203 (Ohio 1999) and Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998).
School choice programs which allow students to choose to attend private schools,
religious or non-religious, are constitutional under the Colorado and United States Constitutions.
2. The Colorado Constitution is interpreted consistent with U.S. Constitution.
Colorado has long interpreted its religion clauses as being consistent with the United
States Constitution. See Zavilla v. Masse, 147 P.2d 823, 824-25 (Colo. 1944). Specifically, in
case after case the Colorado Supreme Court has looked to the federal constitution in interpreting
Article II § 4, Article IX §§ 7, 8 and the religious component of Article V § 34. In Zavilla, the
court looked to the federal Constitution’s religion clauses as “parallel provisions” to Article II
§ 4 and Article IX § 8. 147 P.2d at 824, 825 (noting federal cases “while not controlling, should
receive our careful consideration in construing our state Constitution”). Americans United
looked to federal constitutional decisions to interpret Art. II § 4, finding it embodies the “same
values of free exercise and governmental non-involvement secured by the religious clauses of the
First Amendment.” 648 P.2d at 1081-82. The court also drew upon federal decisions when
16 The Arizona decision, Cain v. Horne, 202 P.3d 1178 (Ariz. 2009), was based on constitutional text dissimilarfrom any provision in Colorado, was not determined based on any religion clause, and the court’s interpretationdisallowing aid to scholarship students, if applied in Colorado, would be flatly contrary to Americans United .
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analyzing Art. IX § 7, and Art. V § 34. Id. at 1078 (“First Amendment jurisprudence cannot be
totally divorced from the resolution of these claims”).
In subsequent cases, the Colorado Supreme Court continued to use federal Establishment
Clause jurisprudence in interpreting Art. II § 4, especially when facts are similar. In Conrad v.
City and County of Denver , 656 P.2d 662 (Colo. 1982) (Conrad I ) the court looked to federal
decisions with similar facts for guidance. Id. at 672. The Supreme Court did so again when the
case returned, Conrad v. City and County of Denver , 724 P.2d 1309, 1314 (Colo. 1986) (Conrad
II ). The Court declined to find a violation of the Colorado Constitution when the same challenge
had been rejected under the federal Establishment Clause. Id. at 1316 (concluding that departing
from First Amendment jurisprudence in a case with similar facts is “a course of conduct [that]
should not be undertaken lightly”).
Significantly, in its most recent opinion addressing Art. II § 4, the Colorado Supreme
Court simply adopted Conrad II as precedent to apply federal Establishment Clause rules
without additional discussion. In State v. Freedom from Religion Foundation Inc., 898 P.2d
1013 (Colo. 1995), the Court determined that the display of the Ten Commandments in a state
park near the Capitol did not violate Art. II § 4. It held: “we see no need to depart from the path
cut by the United States Supreme Court for Establishment Clause cases.” Id . at 1019. Indeed, no
Colorado appellate court has ever interpreted Art. II § 4, Art. IX §§ 7 and 8, or Art. V § 34 as
being more restrictive than the federal Constitution with regard to church-state matters.17 This
Court must reject Plaintiffs’ invitation to do so now.
17 People ex rel. Vollmar v. Stanley, 255 P. 610 (Colo. 1927) overruled by Conrad v. City and County of Denver ,656 P.2d 662 (Colo. 1982) is not to the contrary. Since it permitted Bible reading in public schools, it arguably wasless restrictive. Moreover, in 1927 when Vollmar was decided, the United States Supreme Court had not yet ruled
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no answer for the voluntary nature of student participation. Even if applicable, the plain language
of II § 4, “no person shall be required to attend … against his consent,” does not apply to CSP
students, who are not required to participate in the CSP program, nor required to select a
religious school. Under Art. IX § 8, addressing religious tests for “any public educational
institution,” Plaintiffs overlook that CSP partner schools are not “public” and no student is
“required to attend” these schools, making this provision inapplicable. Finally, the language of
Art. V § 34 restricting appropriations to “any denominational or sectarian institution or
association” is entirely redundant of the restrictions of Art. II § 4 and Art. IX § 7, and does not
apply to the education choice structure of the CSP.
4. The disturbing history of Colorado’s Blaine amendments
Plaintiffs’ invitation to ignore binding Colorado precedent to read the religion clauses as
more restrictive than the federal Constitution creates an additional constitutional problem. Such
an approach requires confronting the legislative history of the Blaine Amendment movement and
its effect on the potential unconstitutionality of Colorado’s religion clauses.
In their origin,18 Colorado’s Blaine provisions target and discriminate against Catholic
schools,19 thereby requiring strict scrutiny under the Equal Protection and Free Exercise
Clauses.20 The Blaine provisions, if interpreted as Plaintiffs suggest, also require courts to assess
which schools are “sectarian” and which are not, thereby creating other serious constitutional
18
Hunter v. Underwood , 471 U.S. 222, 233 (1985) (when the historical motive in enacting facially neutral law was“a desire to discriminate against blacks on account of race and the section continues . . to have that effect[, the stateconstitutional provision] violates equal protection . . . .”).19 See Kotterman v. Killian, 972 P.2d 606, 624 (Ariz. 1999) (“The Blaine Amendment was a clear manifestation of religious bigotry, part of a crusade manufactured by the contemporary Protestant establishment to counter what wasperceived as a growing ‘Catholic menace’ . . . . [W]e would be hard pressed to divorce the amendment’s languagefrom the insidious discriminatory intent that prompted it.”).20 United States v. Batchelder , 442 U.S. 114, 125 n.9 (1979) (religion as a suspect class under Equal ProtectionClause); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1322 n.10 (10th Cir. 2010) (same); Church of Lukumi Babalu Aye
v. City of Hialeah, 508 U.S. 520 (1993) (voiding facially neutral ordinance targeting Santerian ritual practice).
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concerns.21 This Court should reject Plaintiffs’ proposed interpretation and follow the binding
Colorado precedent discussed above.
Increased Catholic immigration during the mid-nineteenth century threatened the
Protestant cultural hegemony and birthed an anti-Catholic movement led by President Ulysses
Grant22 and Speaker of the House of Representatives, James Blaine. The Blaine Amendment
movement sought to preserve the generic Protestant culture of public schools, including reading
of the King James Bible, while barring Catholic schools from receiving government funding.23 It
“was an anti-Catholic measure that still permitted a generalized Protestantism in public
schools.”24
This movement put “mini-Blaine” amendments in 41 state constitutions, including
Colorado’s.25 While these amendments did not mention the Catholic Church, “it was an open
secret that ‘sectarian’ was code for ‘Catholic’.” Mitchell v. Helms, 530 U.S. 793, 828 (2000)
(plurality opinion).26
21 Colorado Christian Univ., 534 F.3d at 1257, 1261-66 (describing the constitutional problems of governmentfavoring one denomination over another and evaluating how “sectarian” an organization is) (citing cases).22 President Grant’s September 30, 1875 speech spewed anti-Catholic sentiment. Grant warned of “another contest”relevant to “the near future of our national existence” between public schools teaching “patriotism and intelligence”and Catholic schools teaching “superstition, ambition and ignorance . . .” Philip Hamburger, Separation of Church
and State 322 (2002). In his annual message to Congress, two weeks before the opening of the ColoradoConstitutional Convention, Grant proposed an amendment barring public funding to any school “for the benefit of . .
. any religious sect or denomination” lest Americans become “directed by the demagogue or priestcraft.” Id . at 323.23 Hamburger, supra n. 22, at 297-99, 298 n.30, 322-26 (2002).24 Id. at 297.25 Meir Katz, The State of Blaine: A Closer Look at the Blaine Amendments and their Modern Application, 12Engage 111, 112 (June 2011). See Colo. Const. art. IX § 7 (“sectarian” used four times); IX § 8 (“no sectariantenets”); II § 4 (“religious sect or denomination”), and V § 34 (“nor to any denominational or sectarian institution”).26 See also Zelman v. Simmons-Harris, 536 U.S. 639, 721 (2002) (dissenting opinion) (“‘sectarian schools’ . . . inpractical terms meant Catholic”); see also Hamburger, supra n. 22, at 325 n. 99 (the newspaper of the Free ReligiousAssociation, the Index, explained on December 29, 1875, “[f]or ‘sectarian’ . . ., read ‘Catholic,’ and you have thefull meaning . . . .”).
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This history is settled. Nine United States Supreme Court justices have acknowledged
that anti-Catholic nativism was the engine of the Blaine movement.27 Four opined that Blaine
amendments have “a shameful pedigree” rooted in a “doctrine, born of bigotry, [that] should be
buried now.” Id. at 828-29 (emphasis added).
The Colorado Constitutional Convention proceeded simultaneously with efforts to pass a
federal Blaine Amendment. Colorado papers reported both events. The Blaine provisions were
the most controversial issue of the Convention. Protestant and Catholic camps submitted 45
petitions “of which thirty-eight called for prohibition” of public funding for Catholic schools.28
Despite the substantial Catholic population in the state, especially in the Mexican-dominated
southern counties, only Protestant ministers served as Convention chaplains and no Catholic
delegates attended.
Blaine sentiments persisted in Colorado at least into the 1920’s. The best legal example
is People ex rel. Vollmar v. Stanley, 255 P. 610 (Colo. 1927) overruled by Conrad v. City and
County of Denver , 656 P.2d 662 (Colo. 1982), in which the Colorado Supreme Court rejected
Catholic complaints and held that reading the King James Bible in the public schools did not
violate Colorado’s religion clauses. 255 P. at 618. Fifty-five years later, the Conrad court
overruled Vollmar , 656 P.2d at 670 n.6, and went on to note that “[b]ecause federal and state
constitutional provisions embody similar values, we look to [First Amendment precedent] for
useful guidance.” Id. at 670-71.
27 See Mitchell, 530 U.S. at 828-29 (plurality opinion of Justices Thomas, Rehnquist, Scalia, and Kennedy condemnsanti-Catholicism innervating the Blaine movement); Zelman, 536 U.S. at 720-21 (dissenting opinion of JusticesBreyer, Stevens, and Souter finds that Blaine was a form of backlash against “efforts to right the wrong of discrimination against religious minorities in public education”); Locke v. Davey, 540 U.S. 712, 723 n.7 (2004) (Justices Rehnquist, Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer noting that Blaine has been “linkedwith anti-Catholicism”). 28 Donald W. Hensel, Religion and the Writing of the Colorado Constitution, Church History 349, 354 (1961).
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In sum, this Court should reject Plaintiffs’ flawed understanding of the religion clauses29
and should follow Colorado Supreme Court precedent to interpret these clauses consistent with
the First Amendment. Independence Inst. v. Coffman, 209 P.3d 1130, 1136 (Colo. App. 2008)
(courts should construe constitutional provisions to avoid conflict with the federal Constitution).
B. The Choice Scholarship Program Fulfills the Principle of Local Control, Not
Violates It.
Plaintiffs assert that by enacting the Choice Scholarship Program Douglas County has
violated the “local control” provision, Article IX § 15. TPE at 9-14. Specifically, Plaintiffs
argue Douglas County has given up control over (1) instruction, id. at 10-12, and (2) local funds,
id. at 13-14. Both arguments lack merit. To the contrary, review of that provision and the cases
that interpret it demonstrate that Douglas County is affirmatively fulfilling its responsibility to
provide local education, not violating it.
1. Douglas County retains control over instruction.
Article IX § 15 provides, in relevant part, that the local board of education “shall have
control of instruction in the public schools of their respective districts.” First, as a textual matter,
Douglas County retains full control over the instruction in the public schools of the District. The
CSP has no effect on the instruction at other Douglas County schools. Plaintiffs do not argue
otherwise. As discussed above, if it has any material effect at all, it benefits the other District
schools because fewer students attend them and there are more funds to spend on them.
29 Plaintiffs support their flawed understanding with numerous citations to overruled or repealed laws. LaRue at 13(citing to Vollmar without noting it was overruled); 16 (citing to portion of Americans United which was overruledby Colorado Christian University); 23 (citing to Vollmar and stating it was overruled “on other grounds”); 24 (citingto 22-30.5-204, repealed in 2003); 33 (citing to 23-3.5-105, repealed in 2009). TPE does this as well (at 17-18)when it says the Adams County lower court decision was reversed “on other grounds” when in fact it was fullyreversed by the Colorado Supreme Court in 152 P. 1149 (1915).
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schools consistent with Article IX § 15, then a local district may, on its own initiative, create its
own program to partner with private schools to educate a portion of their students.
Plaintiffs’ argument is also unprecedented. No courts in Colorado (or elsewhere, to
Defendants’ knowledge) have ever articulated a free-standing, constitutionally-required
minimum amount of control school districts must have over each individual student or school.30
This explains why in the three pages of this subsection Plaintiffs fail to cite a single case. TPE at
10-12. Determining a minimum control amount for purposes of Article IX § 15 would require
courts to delve deeply into education policy and practice in a rapidly changing educational
world. Colorado appellate courts repeatedly warn against such “judicial intrusions” into
education policy. Lujan, 649 P.2d at 1018 (“Judcial intrusion . . . must be avoided . . . [into
questions such as] what is the best public policy which can be adopted to attain quality schooling
and equal educational opportunity for all children . . . .”); Boulder Valley School Dist., 217 P.3d
at 925 (courts should be “reluctant to intrude in considerations which properly lie within the
legislative domain”). This first argument must be rejected.
2. Douglas County retains control over locally-raised funds.
Plaintiffs’ second argument is that, by creating the Program, Douglas County has
“ced[ed] control over locally raised funds to private schools.” TPE at 13. This argument also
fails as a matter of logic and case law.
30 As discussed infra, Colorado cases that discuss “control of instruction” always do so in the context of whether theState is encroaching on local authority. Booth, 984 P.2d at 648 (discussing the State Board’s ability to direct adistrict to approve a charter school under the Charter Schools Act: “control of instruction requires substantialdiscretion regarding the character of instruction students will receive at the district’s expense”); Ridgeview
Classical Schools v. Poudre School Dist., 214 P.3d 476, 484 (Colo. App. 2008) (concluding that by enacting theCharter Schools Act the Legislature did not encroach on local authority because “the district retains significantcontrol over the educational program of the school”).
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another district31 or participate in a statewide school choice program. Owens, 92 P.3d at 936
(holding the program violated IX § 15 because the State was “direct[ing] the school districts to
turn over a portion of their locally-raised funds to nonpublic schools over whose instruction the
districts have no control”).
This quote from Owens is the centerpiece for Plaintiffs’ argument in this section. TPE at
13. However, Plaintiffs omit the first few critical words of the quotation (“it directs the schools
districts to turn over . . .”), leaving the misleading impression that the unconstitutionality of the
program was due to a free-standing limitation on districts, rather than the State overreaching its
authority. The Owens court could not have been clearer, however, as a sentence just prior to this
holding confirms: “Control over locally-raised funds allows local electors to tailor educational
policy to suit the needs of the individual districts, free from state intrusion.” Owens, 92 P.3d at
935 (emphasis added). Restoring this quote to its proper context reveals that Plaintiffs, again, do
not cite to any case law that actually supports their local control arguments.
Furthermore, despite Plaintiffs’ frequent quotation of the amount of money to be paid out
under the Program, this cannot be a factor in the local control analysis. Under the Charter
Schools Act, districts are required by the State to pay no less than 95% of per pupil revenue to
the charter schools they authorize. C.R.S. § 22-30.5-112(2)(a)(III)(A). See Booth, 984 P.2d at
653 n.8 (taking judicial notice of this). Here, under the CSP, Douglas County has voluntarily
decided to pay 75% to families and keep 25% for administrative costs. Douglas County could
31 The Colorado Supreme Court’s answer to this question was: Belier v. Wilson, 147 P. 355 (Colo. 1915) (no);School Dist No. 16 in Adams v. Union High, 152 P. 1149 (Colo. 1915) (no); Hotchkiss v. Montrose Cnty High Sch.
Dist., 273 P. 652 (Colo. 1928) (no); and Craig v. People, 299 P. 1064 (Colo. 1931) (yes, because the money wasdeducted from state funds the district otherwise would have received). As the Owens court summarized, these casesdictate that local districts (not the State) must control locally-raised funds. 92 P.3d at 939.
8/6/2019 Response to Motion for Preliminary Injunction
I hereby certify that on July 22, 2011, I electronically filed the foregoing with the Clerk
of Court using Lexis/Nexis File and Serve causing an electronic copy to be served upon thefollowing:
Matthew J. Douglas, Esq.Timothy R. Macdonald, Esq.Michelle K. Albert, Esq.Arnold & Porter LLP370 17th Street, Suite 4500Denver, CO 80202
Mark Silverstein, Esq.Rebecca T. Wallace, Esq.American Civil Liberties Union
Foundation of Colorado400 Corona StreetDenver, CO 80218
Ayesha N. Khan, Esq.
Gregory M. Lipper, Esq.Americans United for Separationof Church and State
1301 K Street, NWSuite 850, East TowerWashington, D.C. 20005
Daniel Mach, Esq.
Heather L. Weaver, Esq.ACLU Foundation Program on Freedomof Religion and Belief
915 15th Street, NW, Suite 600Washington, D.C. 2005
George Langendorf, Esq.Arnold & Porter LLP22nd Floor, One Embarcadero CenterSan Francisco, CA 94111-3711
Paul Alexander, Esq.Arnold & Porter LLPSuite 110, 1801 Page Mill RoadPalo Alto, CA 94304-1216
Michael S. McCarthy, Esq.Colin C. Deihl, Esq.Madia G. Malik, Esq.Sarah A. Kellner, Esq.Gordon M. Hadfield, Esq.FAEGRE & BENSON, LLP3200 Wells Fargo Center1700 LincolnDenver, CO 80203-4532
Antony B. Dyl, Esq.Nicholas G. Stancil, Esq.Geoffrey N. Blue, Esq.Office of the Attorney General1525 Sherman Street, 7th FloorDenver, CO 80203
Alexander Halpern, Esq.
Alexander Halpern LLC1426 Pearl Street, #420Boulder, CO 80302
William H. Mellor, Esq.
Institute for Justice901 N. Glebe Road, Suite 900Arlington, VA 22203