Taxpayers for Public Education v. Douglas County School District
2013 COA 20
Colo. Ct. App.2013Background
- In 2011, Douglas County Board of Education approved a pilot Choice Scholarship Program (CSP) allowing District residents to attend private schools (including some faith-based) with tuition scholarships funded from the District’s per-pupil revenue.
- Plaintiffs—nonprofits, taxpayers, and District students/parents—sued to enjoin CSP, alleging violations of the Public School Finance Act and Colorado constitutional provisions.
- The district court found CSP violated the Act and several constitutional provisions and permanently enjoined CSP.
- The Colorado Supreme Court reversed, holding plaintiffs lacked standing to enforce the Act and CSP did not violate the cited constitutional provisions; the case was remanded for judgment in defendants’ favor.
- CSP mechanics: private schools (many outside the County and some sectarian) participate if they meet eligibility criteria; the Charter School administers CSP; per-pupil revenue funds scholarships (up to 75% of revenue) with 25% retained by the District; parents must enroll participating students and endorse tuition payments to private schools.
- Eligibility requires District residency and prior public-school enrollment; participation is voluntary for students and schools; the CSP does not convert private schools into public schools and includes district oversight to ensure compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to enforce the Act | Plaintiffs seek enforcement of the Act | State entities enforce the Act; no private right implied | Plaintiffs lack standing; district court judgment reversed |
| Article IX, §2 Thorough and Uniform System | CSP disrupts uniform public education and diverts funds | Local districts may offer additional educational opportunities; CSP constitutes valid funding | CSP does not violate article IX, §2 |
| Article IX, §3 Public School Fund | Public school fund money is diverted to private schools | Fund money is distributed to districts and then used via CSP as appropriated; not diverted improperly | CSP does not violate article IX, §3 |
| Article V, §34 Prohibited Appropriations | CSP appropriates funds to entities not under state control and to sectarian institutions | Aid is incidental to students and serves a discrete public purpose; not an improper appropriation | CSP does not violate article V, §34 |
Key Cases Cited
- Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913 (Colo. 1997) (private right of action implied only with clear legislative intent; enforcement schemes matter)
- Owens v. Congress of Parents, Teachers and Students, 92 P.3d 933 (Colo. 2004) (presumption of constitutionality; standard of review for constitutional challenges)
- Americans United for Separation of Church & State Fund v. State, 648 P.2d 1072 (Colo. 1982) (neutrality of government aid despite religious affiliation; strict First Amendment alignment not required)
- Zelman v. Simmons-Harris, 536 U.S. 639 (U.S. 2002) (establishment clause neutrality in voucher programs; private choice governs funding flow)
- Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008) (distinction between sectarian and pervasively sectarian schools; constitutional neutrality in funding)
- Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998) (funding program neutrality; not converting private schools to public)
- Americans United (higher education funding), 648 P.2d 1072 (Colo. 1982) (context for analysis of funding to sectarian institutions)