ACLU, Americans United Challenge Lawsuit Attempting to Circumvent Colorado Supreme Court School Voucher Ruling

DENVER – The ACLU of Colorado, Americans United for Separation of Church and State, the ACLU Program on Freedom of Religion and Belief, and the law firm Arnold & Porter — who successfully challenged a Douglas County school voucher program before the Colorado Supreme Court last year — filed motions yesterday challenging the validity of a new lawsuit that asks a federal district court to issue an unprecedented order that would require the Douglas County School District to divert taxpayer funds to religious schools.

Last June, the Colorado Supreme Court ruled that the Douglas County School District’s so-called “Choice Scholarship Pilot Program” violated the Colorado Constitution because it improperly diverted public funds to private, religious schools. Following the decision, the district and the Institute for Justice, representing parents who want to use taxpayer funds to send their children to religious schools, both petitioned the U.S. Supreme Court to issue a ruling, based on arguments that the Colorado Supreme Court rejected, that the state constitution’s ban on public funding of religious schools somehow violates the First Amendment right to religious freedom.

Early in 2016, it became clear that the Supreme Court would not act on the petitions before late 2016. The district then concocted and rushed through a nearly-identical modified version of the program that simply excluded religious schools, which appeared to be an invitation for the Institute of Justice to file its new lawsuit seeking the ruling that both parties had hoped to obtain from the U.S. Supreme Court.

“The jurisdiction of federal courts is limited to actual disputes between opposing parties, which are called ‘cases or controversies,’” said Mark Silverstein, ACLU of Colorado Legal Director. “Here, the plaintiffs, represented by the Institute for Justice, and the nominal defendant, the school district, want the same result. They both want an order compelling taxpayers to fund religious schools, a result the Colorado Supreme Court rejected.”

“Rather than accept that decision or wait to see if the U.S. Supreme Court will hear the arguments the Colorado Supreme Court rejected, the school district and the Institute for Justice are staging a fictitious dispute in the hope of obtaining an order that would, in essence, overrule the Colorado Supreme Court. This is what the courts call a collusive lawsuit, and it should be dismissed,” added Silverstein.

The ACLU of Colorado, Americans United, the ACLU, and Arnold & Porter, representing a group of Douglas County taxpayers, yesterday filed a request to intervene in the suit and a motion to dismiss the case. Additionally, they filed a motion in a Colorado trial court asking the court to enforce an injunction affirmed by the Colorado Supreme Court prohibiting the voucher program from going forward.

“In addition to being collusive, the voucher advocates’ new lawsuit has no legal foundation,” said Alex J. Luchenitser, associate legal director for Americans United. “The federal courts have uniformly rejected arguments that religious schools have a right to public funding.”

The district’s original “Choice Scholarship Pilot Program” provided 500 students with vouchers worth about $4,600, which could be spent at district-approved “Private School Partners,” a collection of private schools. According to the Colorado Supreme Court, 16 of the 23 approved “Private School Partners” were religious. In striking down the program, the court held that it violated the state constitution’s “unequivocal language forbidding the State from using public money to fund religious schools.”

“This attempt to end-run the Colorado Supreme Court's decision is legal gamesmanship of the worst kind and should be rejected by the federal courts,” said Heather L. Weaver, Senior Staff Attorney for the ACLU’s Program on Freedom of Religion and Belief.

“The district and the Institute for Justice have been working together, unsuccessfully, for years to try to achieve their mutual goal — a voucher program that includes religious schools,” said Matthew Douglas of Arnold & Porter, lead counsel for the taxpayers. “This case is nothing more than an attempt to shop for a new forum in which to try to achieve that same goal, but this time there is one significant difference: the district and the Institute for Justice are pretending to be adverse to each other in this new case.”

The attorneys representing Douglas County taxpayers in opposition to the voucher program include Douglas, Timothy Macdonald and Michelle Albert of Arnold & Porter; Silverstein and Sara Neel of the ACLU of Colorado; Richard Katskee and Luchenitser of Americans United; and Daniel Mach and Weaver of the ACLU.