A new school voucher program in Colorado's Douglas County – which would have been the first in the state – has been halted after a judge found a high likelihood plaintiffs would prevail in a constitutional challenge. Judge Michael Martinez ruled Friday that while the state's constitution does not allow public funding of religious institutions or religious education, "(s)ixteen of the twenty-three private partner schools approved to participate in the Scholarship Program are sectarian or religious." Moreover, "For virtually all high school students participating in the Scholarship Program, the only options are religious schools." (p.9)
Here are some other key excerpts from this opinion :
There are no restrictions on how participating Private School Partners may spend the taxpayer funds that they receive under the Scholarship Program. The participating private schools are free to use these funds for sectarian purposes, including, for example, religious instruction, worship services, clergy salaries, the purchase of Bibles and other religious literature, and construction of chapels and other facilities used for worship and prayer.
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The Scholarship Program purports to afford participating students the right to “receive a waiver from any required religious services at the [Private School Partner].” But this “opt out” right is illusory. …[S]cholarship students may still be required to attend religious services, so long as they are permitted to remain silent. Many participating private religious schools require such attendance.(p. 13)Defendants have provided no legal authority supporting a limitation on the scope of the religious provisions of the Colorado Constitution and this Court declines the invitation to craft one now.(p.33)
While there is significant language in the policy enacting the Scholarship Program intended to alleviate concerns regarding how public finances are to be used, e.g., an annual audit and the required production of financial records at the request of Douglas County School District officials, neither the Scholarship Program nor the contracts between the Choice Scholarship School and Private School Partners contain any express language that limits or conditions the use of the state funds received by the partner schools for the strict purpose of secular student education….
Additionally, the mission statements and described purposes of the participating Private School Partners are to infuse religious teachings into the curriculum. It necessarily follows that any public taxpayer funding provided to the partner schools, even for the sole purpose of education, would inherently result in compulsory financial support to a sectarian institution to further its goals of indoctrination and religious education.(p. 44-45)
[T]he undisputed evidence and testimony presented to the Court in this matter demonstrates that the Scholarship Program is indeed funded by state appropriations. During the injunction hearing, multiple witnesses testifying on behalf of Defendants admitted the Douglas County School District’s intention to direct state funds to the participating Private School Partners. That the payment of state funds is made directly to the Private School Partners on behalf of the students does not change the character or origin of the funds. In fact, the uncontroverted evidence before the Court was that the parents of the participating scholarship recipient are required to sign over the check provided to the particular school by restrictive endorsement, thereby completing the somewhat circular process of paying state funds to the participating Private School Partners. Upon receiving the tuition payments, both Messrs. Gehrke and Bignell testified that their schools would use the payments to, among other things, support the school, carry out the school’s mission, enhance chapel facilities, and pay down loans funded from other sectarian institutions.(p. 57-58)…
Moreover, and perhaps more importantly, the Scholarship Program violates the blanket prohibition enumerated in Article V, Section 34 that forbids state funds from being provided to any denominational or sectarian institution or association. This clause, which was not considered in Americans United, reflects the conviction that sectarian interests are inherently private.(p. 60)
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