Taxpayers for Pub. Educ. v. Douglas Cnty. Sch. Dist.

• Citation: 2015 CO 50,351 P.3d 461
• Decision Date: 29 June 2015
• Docket Number: Supreme Court Case No. 13SC233
• Parties: TAXPAYERS FOR PUBLIC EDUCATION; Cindra S. Barnard; Mason S. Barnard; James LaRue ; Suzanne T. LaRue; Interfaith Alliance of Colorado ; Rabbi Joel R. Schwartzman; Rev. Malcolm Himschoot; Kevin Leung ; Christian Moreau; Maritza Carrera; and Susan McMahon, Petitioners, v. DOUGLAS COUNTY SCHOOL DISTRICT, Douglas County Board of Education, Colorado State Board of Education, and Colorado Department of Education, Respondents, and Florence and Derrick Doyle, on their own behalf and as next friends of their children, A.D. and D.D.; Diana Oakley and Mark Oakley, on their own behalf and as next friends of their child, N.O.; and Jeanette Strohm–Anderson and Mark Anderson, on their own behalf and as next friends of their child, M.A., Intervenors–Respondents.
• Court: Colorado Supreme Court

351 P.3d 461

2015 CO 50

TAXPAYERS FOR PUBLIC EDUCATION; Cindra S. Barnard; Mason S. Barnard; James LaRue ; Suzanne T. LaRue; Interfaith Alliance of Colorado ; Rabbi Joel R. Schwartzman; Rev. Malcolm Himschoot; Kevin Leung ; Christian Moreau; Maritza Carrera; and Susan McMahon, Petitioners

v.DOUGLAS COUNTY SCHOOL DISTRICT, Douglas County Board of Education, Colorado State Board of Education, and Colorado Department of Education, RespondentsandFlorence and Derrick Doyle, on their own behalf and as next friends of their children, A.D. and D.D.; Diana Oakley and Mark Oakley, on their own behalf and as next friends of their child, N.O.; and Jeanette Strohm–Anderson and Mark Anderson, on their own behalf and as next friends of their child, M.A., Intervenors–Respondents.

Supreme Court Case No. 13SC233

Supreme Court of Colorado.

June 29, 2015

Attorneys for Petitioners Taxpayers for Public Education, Cindra S. Barnard, and Mason S. Barnard: Faegre Baker Daniels LLP, Michael S. McCarthy, Bruce Jones, Colin C. Deihl, Caroline G. Lee, Denver, Colorado.

Attorneys for Petitioners James LaRue, Suzanne T. LaRue, Interfaith Alliance of Colorado, Rabbi Joel R. Schwartzman, Rev. Malcolm Himschoot, Kevin Leung, Christian Moreau, Maritza Carrera, and Susan McMahon: Arnold & Porter LLP, Matthew J. Douglas, Timothy R. MacDonald, Michelle K. Albert, Denver, Colorado, American Civil Liberties Union Foundation of Colorado, Mark Silverstein, Sara Rich, Denver, Colorado, ACLU Foundation Program on Freedom of Religion and Belief, Daniel Mach, Heather L. Weaver, Washington, DC, Americans United for Separation of Church and State, Ayesha N. Khan, Alex J. Luchenitser, Washington, DC.

Attorneys for Respondents Douglas County School District and Douglas County Board of Education: Lewis Roca Rothgerber LLP, James M. Lyons, Eric V. Hall, Denver, Colorado.

Attorneys for Respondents Colorado State Board of Education and Colorado Department of Education: Cynthia H. Coffman, Attorney General, Michael Francisco, Assistant Solicitor General, Antony B. Dyl, Senior Assistant Attorney General, Denver, Colorado.

Attorneys for Intervenors–Respondents: Wilkinson Barker Knauer, LLP, Raymond L. Gifford, Denver, Colorado, Institute for Justice, Michael E. Bindas, Bellevue, Washington, Institute for Justice, William H. Mellor, Richard D. Komer, Arlington, Virginia, Institute for Justice, Timothy D. Keller, Tempe, Arizona.

Attorneys for Amici Curiae American Federation of Teachers and The Education Law Center: Law Office of Elizabeth L. Harris, LLC, Elizabeth L. Harris, Denver, Colorado, Kathleen J. Gebhardt, LLC, Kathleen J. Gebhardt, Boulder, Colorado.

Attorneys for Amici Curiae Anti–Defamation League; Baptist Joint Committee for Religious Liberty; Central Conference of American Rabbis; Disciples Justice Action Network; Equal Partners in Faith; Hadassah, The Women's Zionist Organization of America, Inc.; Hindu American Foundation; Jewish Social Policy Action Network; Union for Reform Judaism; and Women of Reform Judaism: Wheeler Trigg O'Donnell LLP, Craig R. May, Allison McLaughlin, Denver, Colorado, Mayer Brown LLP, Andrew L. Frey, Richard B. Katskee, Matthew A. Waring, Washington, DC.

Attorneys for Amici Curiae Association of Christian Schools International, Catholic Diocese of Colorado Springs, Colorado Christian University, and Council for Christian Colleges & Universities: Bryan Cave LLP, Stuart J. Lark, Colorado Springs, Colorado, Alliance Defending Freedom, Gregory S. Baylor, Washington, DC.

Attorneys for Amicus Curiae Colorado Education Association: Colorado Education Association, Bradley Bartels, Denver, Colorado.

Attorneys for Amicus Curiae The Becket Fund for Religious Liberty: Sparks Willson Borges Brandt & Johnson P.C., Scott W. Johnson, Colorado Springs, Colorado, The Becket Fund for Religious Liberty, Diana M. Verm, Luke W. Goodrich, Washington, DC.

Attorneys for Amicus Curiae Colorado Association of School Boards: Colorado Association of School Boards, Kathleen A. Sullivan, Elizabeth Friel, Denver, Colorado.

Attorneys for Amici Curiae The Independence Institute and The Friedman Foundation for Educational Choice: Independence Institute, David B. Kopel, Denver, Colorado.

Attorneys for Amicus Curiae National Education Association: Recht Kornfeld PC, Mark Grueskin, Denver, Colorado, National Education Association, Alice O'Brien, Philip A. Hostak, Kristen Hollar, Washington, D.C.

Attorneys for Amicus Curiae Pacific Legal Foundation: Sherman & Howard, LLC, Ryan J. Klein, Colorado Springs, Colorado, Pacific Legal Foundation, Joshua P. Thompson, Sacramento, California.

En Banc

Opinion

CHIEF JUSTICE RICE announced the judgment of the Court.

¶ 1 Four years ago, the Douglas County School District (“the District”) implemented its Choice Scholarship Pilot Program (“the CSP”), a grant mechanism that awarded taxpayer-funded scholarships to qualifying elementary, middle, and high school students. Those students could use their scholarships to help pay their tuition at partnering private schools, including religious schools. Following a lawsuit from Douglas County taxpayers, the trial court found that the CSP violated the Public School Finance Act of 1994, §§ 22–54–101 to –135, C.R.S. (2014) (“the Act”), as well as various provisions of the Colorado Constitution. The trial court thus permanently enjoined implementation of the CSP. The court of appeals reversed, holding that (1) Petitioners lacked standing to sue under the Act, and (2) the CSP did not violate the Colorado Constitution. Taxpayers for Pub. Educ. v. Douglas Cnty. Sch. Dist., 2013 COA 20, ¶ 4, ––– P.3d ––––. We granted certiorari to determine whether the CSP comports with both the Act and the Colorado Constitution.¹

We first hold that Petitioners lack standing to challenge the CSP under the Act. We further hold, however, that the CSP violates article IX, section 7 of the Colorado Constitution.² Accordingly, we reverse the judgment of the court of appeals and remand the case to that court with instructions to return the case to the trial court so that the trial court may reinstate its order permanently enjoining the CSP.

I. Facts and Procedural History

A. Background and Logistics of the CSP

¶ 3 The facts of this case, as found by the trial court following a three-day injunction hearing, are largely undisputed. In March of 2011, the Douglas County School Board approved the CSP for the 2011–12 school year. The CSP operates on parallel tracks: In order to receive scholarship funds, students must not only apply for a scholarship through the District, but they must also gain admittance to a participating private school, labeled a “Private School Partner.” In order to qualify as a Private School Partner, the private school must satisfy certain requirements and must allow Douglas County to administer various assessment tests. The private school need not, however, modify its admission criteria, and the CSP explicitly authorizes Private School Partners to make “enrollment decisions based upon religious beliefs.”

¶ 4 The CSP funds itself through education revenue that it receives from the State. To accomplish this, the CSP requires scholarship recipients to enroll in the District's Choice Scholarship Charter School (“the Charter School”), even though they in fact attend private schools. The Charter School is not actually a school in any meaningful sense; the trial court found that it “has no buildings, employs no teachers, requires no supplies or books, and has no curriculum.” But because the Charter School is nominally a public school, the District includes all students “enrolled” at the school as pupils in its report to the State, which then provides education funding to the District on a per-pupil basis.³ For the 2011–12 school year (the year at issue when the trial court conducted the injunction hearing), this per-pupil revenue was estimated at $6,100.

¶ 5 For each scholarship recipient enrolled at the Charter School, the District retains 25% of the per-pupil revenue to cover the CSP's administrative costs. The District then sends the remaining 75% of the per-pupil revenue ($4,575 for the 2011–12 school year) to the student's chosen Private School Partner in the form of a restrictively endorsed check made out to the student's parent.⁴ The parent must then endorse the check “for the sole purpose of paying for tuition at the Private School Partner.”

¶ 6 In theory, then, the CSP operates as a simple tuition offset. The District awards money to the parent of a qualifying student, and the parent then uses this money to pay a portion of the student's tuition. The trial court found, however, that the CSP “does not prohibit participating private schools from raising tuition after being approved to participate in the [CSP], or from reducing financial aid for students who participate in the [CSP].” And in fact, the trial court cited one instance where a Private School Partner slashed a recipient's financial aid in the amount of the scholarship.⁵

¶ 7 In the CSP's pilot phase, up to 500 Douglas County students were eligible to receive scholarships. At the time of the injunction hearing, 271 scholarship recipients had been accepted to one of twenty-three different Private School Partners. The trial court found sixteen of those twenty-three schools to be religious in character. At the time of the hearing, roughly 93% of scholarship recipients had enrolled in religious schools; of the 120 high school students, all but one chose to attend a religious school.⁶

B. The Litigation

¶ 8 In June of 2011, three months after the Douglas County School Board approved the CSP, Petitioners⁷ filed suit against the Colorado Board of Education (“the State Board”), the Colorado Department of Education, the Douglas County Board of Education, and the District (collectively, “Respondents”). Petitioners sought a declaratory judgment that the CSP violated both the Act and the Colorado Constitution, as well as a permanent injunction prohibiting Respondents from ...