Voucher violation: Americans United, allies file lawsuit A against Colorado school voucher scheme.

The Rev. Tamara Kwanzaa is expecting a big jump in enrollment this fall at Love Christian Fellowship School in northeast Denver.

Kwanzaa, who serves as principal of the 75-student school, told National Public Radio that she expects twice as many students to show up for her classes in the basement of a converted apartment building.

"Parents tell me all the time if there was some way they could find the money, they'd send their child here," Kwanzaa said. "So, yes, we are preparing for the growth explosion. I just believe that this is going to be greater than anything that we've anticipated or thought possible."

What is the basis for Kwanzaa's optimism? This spring, Colorado became the first state to enact a voucher program since a 2002 Supreme Court decision holding that an Ohio voucher scheme did not violate the First Amendment principle of church-state separation.

The new voucher law, called the Colorado Opportunity Contract Pilot Program, is set to begin in fall 2004 and will provide certain public school students with state funds to attend private schools--most of which are religious. Initially vouchers will go to only about 3,200 students in 11 public school districts. That number could grow, according to an April 16 Boston Globe article, to nearly 20,000 in 2008, possibly becoming the nation's most expansive voucher program.

On May 20, Americans United for Separation of Church and State, along with other public interest groups, such as the ACLU of Colorado, the National Education Association, the American Jewish Committee and the American Federation of Teachers, brought suit in Denver District Court on a slew of state constitutional grounds. The groups are representing Colorado parents, taxpayers and clergy.

"Religious schools should be funded by their supporters, not taxpayers," Americans United Executive Director Barry W. Lynn said, in a press statement announcing the Colorado Congress of Parents, Teachers and Students v. Owens lawsuit. "If allowed to proceed, the Colorado voucher law will force school districts statewide to divert their limited funds into religious schools. The plain language of the Colorado Constitution prohibits this kind of public aid to religion."

Danielle Waagmeester, one of the parents who is challenging the voucher program, told Church & State that the private school subsidy is constitutionally suspect and bad education policy.

"First and foremost, the law violates the Colorado Constitution," Waagmeester said. "The law is unconstitutional--it will force people to support religious schools.

"It also sends a powerful message that our public schools are failing our children," she continued. "All children deserve a sound education system, and this voucher plan will not promote such a system. The voucher plan is essentially a way for the politicians to wash their hands of kids who are performing poorly."

Voucher proponents such as the Washington, D.C.-based Institute for Justice (IJ) declared after the Supreme Court's Zelman v. Simmons-Harris ruling that states would be free and well-disposed to pass voucher laws.

"Had the Supreme Court decision gone the other way, school choice would have been dead," Dick Comer, an IJ attorney, told the Forth Worth Star-Telegram. "But the success in the Supreme Court means that in many states it's largely a policy matter for the legislature."

Voucher proposals were put forward unsuccessfully in a number of states this year. However, the Colorado legislature, where Republicans took control in November, quickly passed the voucher plan and sent it to newly elected Republican Gev. Bill Owens. Owens, who had called for a statewide voucher program during his campaign, signed the bill into law on April 16.

The Colorado law requires 11 school districts to offer vouchers to economically disadvantaged students. These districts were singled out because they included schools that were rated low or unsatisfactory according to scores from the Colorado Student Assessment Program.

In the Supreme Court's 5-4 Zelman ruling, Chief Justice William Rehnquist, writing for the majority, declared that vouchers are legal under the U.S. Constitution as long as the program is "neutral with respect to religion" and the assistance flows to religious schools as a result of parents' private choice.

The legal challenge to the Colorado voucher program, however, does not argue that it violates the First Amendment. The lawsuit instead charges that the law runs afoul of numerous sections of the state constitution.

The Colorado Constitution provides that "no person shall be required ... to support any ministry or place of worship, religious sect or denomination against his consent." It also prohibits the government from granting funds in support "of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school ... controlled by any church or sectarian denomination."

While states are barred from violating the fundamental constitutional rights of American citizens, they are free to provide even greater protections for those rights. The Colorado Constitution, like 36 other state constitutions, includes stricter provisions ensuring church-state separation than the First Amendment.

The lawsuit, which names as defendants the governor and the state government, points out that the overwhelming majority of private schools in the state are religiously based and actual places of worship. The state's education department notes that about 70 percent of all of Colorado's private schools are religious. And the state's new voucher law does not exclude from participation schools that are "pervasively sectarian" or that require their students to participate in prayer, worship, religious training and other religious activities.

The voucher program, AU and the other public interest groups argue, clearly violates the state constitution's prohibition against using tax dollars to sustain religious institutions. Equally troubling is the law's absence of safeguards that would prevent religious schools, such as Pastor Kwanzaa's school, from expending state funds on sectarian purposes such as religious instruction, worship services, salaries or stipends of clergy or members of religious orders, purchase of Bibles and other religious literature, and construction of chapels and other facilities used for worship and prayer.

The lawsuit, which AU Legal Director Ayesha N. Khan helped prepare, also charges that most if not all of the religious schools that will be able to participate in the voucher program require students to participate in prayer, worship, religious training and other sectarian activities.

"The lawmakers who crafted and approved this voucher plan either ignored, were unaware of, or intentionally violated their own state's constitution," Khan said. "Our lawsuit representing Colorado citizens and taxpayers calls on the state's judiciary to uphold the constitution and strike down this ill-considered law."

Days after the lawsuit was announced, the Institute for Justice filed a court brief seeking to intervene to defend the voucher law. According to a lawyer for IJ, vouchers for private schools are desperately needed because public schools are no good.

"The problem is, they (public schools) are a monopoly," said IJ lawyer Richard Komer, as quoted in the Boston Globe. "What a monopoly gives you is high price and low quality."

But there is strong evidence that most people in Colorado do not share Komer's views. On two different occasions voters turned away proposals that would have provided tax dollars to religious and other private schools. In addition, recent polls have shown that citizens' interest in vouchers has not grown.

In 1998, 67 percent of voters killed a proposal that would have granted tax breaks to families who sent their children to private schools. Six years earlier, the voters rejected by nearly a two-to-one margin a plan that would have provided any student with a voucher to attend private school, regardless of income. The Colorado Education Association, also one of the groups challenging the voucher law, issued a random survey of voters earlier this year showing that 60 percent objected to the use of tax dollars to pay for tuition at religious and other private schools.

Besides Colorado, voucher advocates are seeking passage of voucher programs in other states, including Texas and Louisiana. The Institute for Justice, moreover, has launched preemptive offensives against numerous states that have strict church-state separation clauses in their constitutions by filing lawsuits arguing that those provisions run afoul of the U.S. Constitution. In February, the Pew Forum on Religion & Public Life reported that such suits have been lodged against the constitutions of Washington, Maine and Vermont.

After the filing of the lawsuit against the Colorado voucher law, AU's Lynn told the Denver Post that it represented "an important battle in a larger conflict over the proper relationship between religion and government in America."