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The Legality of the Voucher Program

on Tue, 02/28/2012 - 18:54

The DCSD voucher program is indeed illegal and unconstitutional.

There’s been some discussion lately among supporters of the DCSD voucher program as to whether it’s appropriate to call the voucher program “illegal” and “unconstitutional.” The clear answer is: yes, it is accurate to call the voucher program “illegal” and “unconstitutional” because, as the law currently stands, the voucher program is illegal and unconstitutional.

The trial court decision held that the DCSD voucher program violates six separate provisions of the Colorado Constitution and the Public School Finance Act. Specifically, the court found that the voucher program violates: (1) Article IX sec 7 of the Colorado Constitution, because the school district can't give money to aid schools controlled by churches and sectarian institutions; (2) Art. II sec 4 of the Colorado Constitution, because the program violates the " no compelled support" of religious sects clause; (3) Art. x sec 8 of the Colorado Constitution, forbidding religious tests for admission to public school, because the program allows compelled attendance at religious services and the teaching of religious tenets at schools funded by public monies; (4) the Public School Finance Act requirement of "uniform" funding, because the voucher program undermines uniform funding of education across the state; (5) Art. V sec 34 of Colorado Constitution, forbidding appropriation of educational funds for sectarian institutions, because the program appropriates educational funds for sectarian schools; and (6) Art. IX sec 3 of the Colorado Constitution prohibiting public school fund from being used for anything but public schools, because the voucher program would send part of those monies to private schools. The court also found that the evidence supporting each of these violations was “clear and certain.”

The court permanently enjoined the DCSD voucher program because the program is illegal and unconstitutional. The voucher program is not going forward today because it is illegal and unconstitutional.
The case is now on appeal. Although there is no guarantee that the trial court’s decision will be upheld, reversing it will be very difficult. If any one of the six legal bases for holding the voucher program illegal and unconstitutional are upheld, the injunction will stand. Moreover, the judge supported his decision with very extensive findings of fact, all of which are supported by direct citations to documents or testimony. The judge also very carefully analyzed the facts and law of the important legal precedents and either carefully matched them or carefully distinguished them from the DCSD program.

As it now stands, the DCSD voucher program is illegal and unconstitutional; it remains illegal and unconstitutional until some other court declares otherwise; and the likelihood that it will continue to be held illegal and unconstitutional by every court that considers it is quite strong.