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

• Decision Date: 28 February 2013
• Docket Number: Nos. 11CA1856 & 11CA1857,s. 11CA1856 & 11CA1857
• Citation: 2013 COA 20,356 P.3d 833
• Parties: TAXPAYERS FOR PUBLIC EDUCATION; Cindra S. Barnard; Marson S. Barnard; James LaRue ; Suzanne T. Larue; Interfaith Alliance of Colorado ; Rabbi Joel R. Schwartzman; Reverend Malcolm Himschoot; Kevin Leung ; Christian Moreau; Maritza Carrera; and Susan McMahon, Plaintiffs–Appellees, v. DOUGLAS COUNTY SCHOOL DISTRICT; Douglas County Board of Education; Colorado State Board of Education ; and Colorado Department of Education, Defendants–Appellants and Florence and Derrick Doyle, on Their Own Behalf and as Next Friends of Their Children, A.D. and D.D.; Diana and Mark Oakley, on Their Own Behalf and as Next Friends of Their Child, N.O.; Jeanette Strohm–Anderson and Mark Anderson, on Their Own Behalf and as Next Friends of Their Child, M.A., Intervenors–Appellants.
• Court: Colorado Court of Appeals

356 P.3d 833

2013 COA 20

TAXPAYERS FOR PUBLIC EDUCATION; Cindra S. Barnard; Marson S. Barnard; James LaRue ; Suzanne T. Larue; Interfaith Alliance of Colorado ; Rabbi Joel R. Schwartzman; Reverend Malcolm Himschoot; Kevin Leung ; Christian Moreau; Maritza Carrera; and Susan McMahon, Plaintiffs–Appellees

v. DOUGLAS COUNTY SCHOOL DISTRICT; Douglas County Board of Education; Colorado State Board of Education ; and Colorado Department of Education, Defendants–AppellantsandFlorence and Derrick Doyle, on Their Own Behalf and as Next Friends of Their Children, A.D. and D.D.; Diana and Mark Oakley, on Their Own Behalf and as Next Friends of Their Child, N.O.; Jeanette Strohm–Anderson and Mark Anderson, on Their Own Behalf and as Next Friends of Their Child, M.A., Intervenors–Appellants.

Nos. 11CA1856 & 11CA1857

Colorado Court of Appeals, Div. IV.

Announced February 28, 2013

Faegre Baker Daniels LLP, Michael S. McCarthy, Colin C. Deihl, Caroline G. Lee, Thomas A. Olsen, Denver, Colorado; Alexander Halpern LLC, Alexander Halpern, Boulder, Colorado, for Plaintiffs–Appellees Taxpayers for Public Education, Cindra S. Barnard, and Mason S. Barnard

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, D.C.; Americans United for the Separation of Church and State, Ayesha N. Khan, Alex J. Luchenitser, Washington, D.C., for Plaintiffs–Appellees James LaRue, Suzanne T. Larue, Interfaith Alliance of Colorado, Rabbi Joel R. Schwartzman, Reverend Malcolm Himschoot, Kevin Leung, Christian Moreau, Maritza Carrera, and Susan McMahon

Rothgerber Johnson & Lyons, LLP, James M. Lyons, Eric V. Hall, Denver, Colorado, Gibson, Dunn & Crutcher LLP, James C. Ho, Lawrence C. VanDyke, for Defendants–Appellants Douglas County School District and Douglas County Board of Education

John W. Suthers, Attorney General, Daniel D. Domenico, Solicitor General, Antony Dyl, Senior Assistant Attorney General, Frederick R. Yarger, Assistant Solicitor General, Denver, Colorado, for Defendants–Appellants

Colorado State Board of Education and Colorado Department of Education

Institute for Justice, William H. Mellor, Arlington, Virginia; Michael E. Bindas, Seattle, Washington; Timothy D. Keller, Tempe, Arizona; Wilkinson Barker Knauer, LLP, Raymond L. Gifford, Denver, Colorado, for Intervenors–Appellants

The Legal Center, Randy L. Parcel, Chester R. Chapman, Denver, Colorado, for Amicus Curiae The Legal Center for People with Disabilities and Older People

Burg Simpson Eldredge Hersh & Jardine, PC, Stephen Burg, Daniel McKenzie, Englewood, Colorado, for Amicus Curiae Anti–Defamation League

Husch Blackwell LLP, Jeffrey A. Chase, Elizabeth L. Harris, Denver, Colorado, for Amici Curiae American Federation of Teachers and American Association of School Administrators

Bryan Cave HRO, Stuart Lark, Colorado Springs, Colorado, for Amici Curiae Association of Christian Schools International, Catholic Diocese of Colorado Springs, Shepherd of the Hills Christian School, and Valor Christian High School

Sparks Willson Borges Brandt & Johnson, P.C., Scott W. Wilson, Colorado Springs, Colorado, for Amicus Curiae The Becket Fund for Religious Liberty

Kutz & Bethke LLC, William P. Bethke, Lakewood, Colorado, for Amicus Curiae Vision Home & Community, Inc.

Opinion

Opinion by JUDGE J. JONES

¶ 1 In 2011, the Douglas County Board of Education (County Board) adopted the Choice Scholarship Program (CSP). Pursuant to the CSP, parents of eligible elementary school, middle school, and high school students residing in the Douglas County School District (District) may choose to have their children attend certain private schools, including some with religious affiliation. The District would pay parents of participating students “scholarships” covering some of the cost of tuition at those schools, and the parents would then remit the scholarship money to the schools.

¶ 2 Plaintiffs are nonprofit organizations, Douglas County taxpayers, District students, and parents of District students. They filed suit to enjoin implementation of the CSP, claiming that it violates the Public School Finance Act of 1994, sections 22–54–101 to –135, C.R.S.2012 (the Act), and various provisions of the Colorado Constitution.¹

¶ 3 Following a hearing on plaintiffs' motion for a preliminary injunction, the district court found that the CSP violates the Act and most of the constitutional provisions at issue. The court permanently enjoined implementation of the CSP.

¶ 4 We conclude that plaintiffs do not have standing to seek redress for a claimed violation of the Act, and that the CSP does not violate any of the constitutional provisions on which plaintiffs rely. Therefore, we reverse the district court's judgment and remand the case for entry of judgment in defendants' favor.

I. Background

A. The CSP

¶ 5 We glean the facts largely from the district court's written order and, to the extent uncontested, testimony given and exhibits admitted during the preliminary injunction hearing.

¶ 6 The District created a task force to study a variety of school choice strategies for District students. The task force submitted a report to the District identifying about thirty strategies for improving school choice, and submitted a plan for implementing one of those strategies, the CSP, to the County Board. In March 2011, the County Board approved the CSP on a “pilot program” basis for the 2011–2012 school year, limited to 500 students. The following aspects of the CSP bear on the issues raised by the parties.

• The purposes of the CSP are “to provide greater educational choice for students and parents to meet individualized student needs, improve educational performance through competition, and obtain a high return of investment of [District] educational spending.”

• Private schools, including private schools that are not located in Douglas County, may apply to participate in the CSP.

• Private schools applying to participate in the CSP must provide information about a variety of matters, and must satisfy a variety of eligibility criteria, some of which relate to academic rigor, accreditation, student conduct, and financial stability. Participating private schools must agree to allow the District to administer assessment tests to District students participating in the CSP.

• Participating private schools are prohibited from discriminating “on any basis protected under applicable federal or state law.” But, the CSP does not require as a condition of participation that any private school modify employment or enrollment standards that are based on religious beliefs.

• The CSP provides for District oversight of private schools' compliance with program requirements, and reserves to the District the ability to withhold payments or terminate participation for noncompliance.

• Thirty-four private schools applied to participate in the CSP for the 2011–2012 school year. The District contracted with twenty-three of those schools.

• Of the twenty-three private schools contracting with the District, fourteen are located outside Douglas County, and sixteen teach religious tenets or beliefs. Many are funded at least in part by and affiliated with particular religious organizations.

• Many of the participating private schools base admissions decisions at least in part on students' and parents' religious beliefs and practices. Many also require students to attend religious services. However, the CSP expressly gives students the right to “receive a waiver from any required religious services at the [participating private school].”²

• Students are eligible to participate in the CSP only if they are District residents (open-enrolled students are not eligible), have resided in the District for at least one year, and were enrolled in District public schools during the 2010–2011 school year. Any such student desiring to participate in the CSP must complete an application to be submitted to the District and must agree to take state assessment tests.

• Students accepted by the District to participate in the CSP are formally enrolled in the Choice Scholarship Charter School (Charter School). The Charter School administers the CSP, contracting with the participating private schools and monitoring students' class schedules and attendance at participating private schools. It does not have a building, teachers, or curriculum.

• Each student accepted to participate in the CSP must also be accepted for enrollment in a participating private school chosen by the student's parents. The CSP encourages students and parents to investigate participating private schools' “admission criteria, dress codes and expectations of participation in school programs, be they religious or nonreligious.”

• The sole source of funding for the CSP is the total “per pupil revenue” received by the District for the Charter School pursuant to section 22–30.5–112(2)(a.5), C.R.S.2012. The fund of money from which “per pupil revenue” is distributed comprises District property and other ownership taxes and state revenue. §§ 22–54–103(11), –104.1, –106(1)(a)(I), C.R.S.2012.³

• The District counts all students enrolled in the Charter School toward its total pupil count for purposes of receiving per pupil revenue. See § 22–54–103(10) (defining “pupil enrollment” for purposes of calculating per pupil revenue).

• For each student participating in the CSP, the District (acting through the Charter School) pays scholarships of the lesser of the participating private school's charged tuition or seventy-five percent of the “per pupil revenue” received by the District. (The District retains the remaining twenty-five percent.) The participating student's parents are responsible for paying any difference. The District estimated that per pupil revenue for the 2011–2012 school year would be

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