Response to Motion for Preliminary Injunction

8/6/2019 Response to Motion for Preliminary Injunction

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Attorneys for Defendants: Douglas County Board of Education

and Douglas County School District:

Names: James M. Lyons, #882L. Martin Nussbaum, #15370Eric V. Hall, #32028David M. Hyams, #42648

Firm: Rothgerber Johnson & Lyons LLPAddress: One Tabor Center, Suite 3000

1200 Seventeenth StreetDenver, Colorado 80202

Tel: 303.623.9000

Fax: 303.623.9222E-Mail: [email protected] [email protected] [email protected] [email protected]

COMBINED RESPONSE TO MOTIONS FOR PRELIMINARY INJUNCTION

Defendants Douglas County Board of Education and Douglas County School District

(collectively “Defendants”), through their attorneys Rothgerber Johnson & Lyons, submit this

Combined Response to Plaintiffs’ Motions for Preliminary Injunction. Defendants address

Plaintiffs’ arguments on the religion clauses of the Colorado Constitution (Articles II § 4; IX § 7;

IX § 8; and V § 34) and local control (Article IX § 15). The State Defendants address the

arguments related to school finance (Articles IX § 2; IX § 3; and V § 34), which Defendants

incorporate herein by reference.

INTRODUCTION

Plaintiffs’ Motions should be denied for two overarching reasons: first, Plaintiffs will not

be able to demonstrate a reasonable probability of success on the merits, and second, the equities

weigh heavily in favor of permitting the Choice Scholarship Program to continue.



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As to the merits, Plaintiffs are simply wrong on their fundamental proposition that

Colorado school districts must fund and work with traditional public schools only. For years,

Colorado law has permitted school districts to enter into public-private partnerships for the

purpose of serving students’ individual needs. Parents have numerous and ever-increasing

choices as to what school will best serve their child. Plaintiffs sketch a picture of Colorado’s

education system in which school districts are hermetically sealed off from the private sector,

especially religious entities. This picture does not reflect reality. The reality is that the Colorado

Supreme Court has interpreted the constitutional provisions at issue to permit Douglas County to

implement the Choice Scholarship Program.

For instance, as to church-state separation, for almost thirty years the Supreme Court has

interpreted Colorado’s religion clauses consistent with the First Amendment, including when it

upheld a student-choice program in the higher education context, Americans United for the

Separation of Church and State v. Colorado, 648 P.2d 1072 (Colo. 1982). In addition, from In

re Kindergarten School, 32 P. 422 (Colo. 1893) to Lujan v. Colorado State Board of Education,

649 P.2d 1005 (Colo. 1982) to Boulder Valley School District v. Colorado State Board of

Education, 217 P.3d 918 (Colo. App. 2009), Colorado appellate courts have rejected arguments

(just like Plaintiffs’) that Article IX should be read narrowly to restrict additional educational

opportunities. Rather, our appellate courts again and again have recognized that the Colorado

Constitution permits innovation and expanded educational options, especially when undertaken

by local school districts. Lujan, 649 P.2d at 1021 (“The historical development of public

education in Colorado has been centered on the philosophy of local control.”).



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As to the equities, Plaintiffs ask this Court to enjoin the Program just days before school

begins. The evidence will show that Plaintiffs knew of the Program for months before it was

enacted on March 15. Yet Plaintiffs did not file in March, April, or even May; they waited more

than three months, until June 21, to initiate this lawsuit. During this entire time Plaintiffs

watched Defendants openly and publicly ready the Program for the 2011-12 school year. They

then waited an additional two weeks to move for a preliminary injunction. Plaintiffs’ delay

brings these proceedings to the very eve of school opening.

Months ago scholarship students withdrew from their prior schools; those slots have now

been filled. Students have enrolled in the partner schools, who have made staffing decisions,

scheduled classes, and bought supplies based upon their admission. Parents have paid tuition,

bought uniforms and school supplies, and generally re-arranged their lives to permit their child to

attend a partner school of their choice. Douglas County has signed contracts with families and

partner schools, and sent initial quarterly payments for 140 students, totaling over $158,000. In

short, the evidence will show massive disruption will occur to families, partner schools, and

Douglas County schools if this Court tries to unwind this Program at this late date. Because

Plaintiffs are asking for a preliminary mandatory injunction, disrupting the status quo, their

burden is much heavier. They cannot meet that burden. The balance of equities strongly favors

permitting the Program to continue.

BACKGROUND

Douglas County School District believes “we have now, and will continue to have in the

future, the very best schools in the state – if not the country and world.” Exh. 1 at 5 (Strategic

Plan). However, it recognizes that the “American education system was invented over 100 years



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ago . . . to meet the needs of the booming Industrial Revolution. . . . Today, many of these

original components remain in place, yet the outcomes we need from our American educational

system are far different . . . .” Id. at 1. To “facilitate the transition from an excellent 20th

century school district to a world-class 21st century school district . . . [the District] identified

three District-level priorities – Choice, World-Class Education and System Performance.” Id.

The “Choice” priority is detailed in the District’s Blueprint for Choice, of which the Choice

Scholarship Program is one component. Id. at 5-6. Both the Blueprint for Choice and its

subpart, the CSP, have their origins in Douglas County’s School Choice Task Force.

A. Genesis of the Program: The School Choice Task Force and Blueprint for Choice

Beginning in June 2010, the School Choice Task Force assembled for a series of regular

and public meetings to discuss a range of school choice options. Members of the Task Force

included parents, teachers, administrators, union representatives, community leaders, and

educational and legal experts. The evidence will show Plaintiff Cindra Barnard served on the

Task Force.

The Task Force divided into subcommittees to discuss seven discrete areas of school

choice: charter schools, contract schools, home education, neighborhood schools, online

education, open enrollment, and partnering with private schools. The last developed into the

Choice Scholarship Program. Combined, these seven areas became the Blueprint for Choice.

The Blueprint for Choice was subsumed into the District’s Strategic Plan, New Outcomes for a

New Day: Education in Transition, A Plan for Change. Exh. 1.

In November, local and national media began covering the Choice Scholarship Program,

and that coverage has continued through today. Opponents to the Program voiced their



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disapproval in the media, at public meetings, through email, and in formal letters. Plaintiff

Barnard and Director of Taxpayers for Public Education, Anne Kleinkopf, sent letters in

opposition dated February 9 and 10, 2011. Exh. 2, 3. See also TPE Compl. at 21 (Ms.

Kleinkopf’s verification of the Complaint). Plaintiff Kevin Leung serves on the District

Accountability Committee (“DAC”), and he expressed his opposition at a DAC meeting on

February 16. Exh. 4. On February 23, Plaintiff Barnard, on behalf of TPE, made a presentation

to District leaders at a community forum opposing the Program. Exh. 5. The Americans United

for Separation of Church and State – one of the national institutions supporting the Plaintiffs1 –

sent a letter to Board President John Carson on March 8, objecting to the Program. Exh. 6.

On March 15, the Board formally adopted the Program. Exh. 7 at 2 (resolution); Exh. 8

(Policy JCB). Thus, as of March 15, the Board directed the Superintendent to implement the

Blueprint for Choice, including the CSP. In the Policy itself (¶ C.2), the Board directs the

Superintendent to make the Program operational for the 2011-2012 school year. Pursuant to that

direction, the Superintendent and her staff began implementing the Program on Wednesday

morning, March 16.

On April 6, the American Civil Liberties Union sent a formal, voluminous Colorado

Open Records Act request to Douglas County. Exh. 9. They followed with subsequent and more

extensive requests on June 3 and July 1. Exh. 10, 11. The documents attached to the Complaints

and Motions for Preliminary Injunction came from these CORA requests.2

1 Attorneys for the Americans United for Separation of Church and State appear on the caption for Plaintiffs andformally receive service through LexisNexis on all filings in this case.2 The ACLU also filed a CORA request on the State Defendants on June 21.



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Douglas County families expressed immediate interest in the CSP after it was passed on

March 15. On March 18, the Denver Post reported that the District was “swamped” with calls

from interested families. Exh. 12. The District has received over seven hundred applications

from interested families seeking a scholarship. The Policy (¶ D.5) states that “[t]o be eligible for

a Choice Scholarship in the pilot, students shall be DCSD residents and attending a DCSD

school for no less than one year.” This prior enrollment requirement ensures the Program does

not have an adverse fiscal effect on the statewide education budget, since CSP students were

already part of the roughly 59,000 students enrolled in Douglas County. The District evaluated

the applications from families, awarding a first set of 497 scholarships in May. About a month

later, on June 21, the District held a lottery (pursuant to Policy ¶ D.3) for remaining scholarships.

Despite Plaintiffs’ active knowledge of and participation in the passage of the CSP, Plaintiffs did

not file their Complaints until this date, June 21, and they waited until July 5 to file their Motions

for Preliminary Injunction.

In addition to families, the District also worked with partner schools. Dozens of schools

expressed interest, and thirty-four submitted formal applications. As discussed below, the

District evaluated the applications to decide which ones met the conditions of eligibility. For

those eligible, the District offered a contract with terms similar to those offered to charter or

contract schools but tailored specifically to the CSP. Exh. 13. See also Exh. 8 (Policy ¶¶ E.3 &

E.7 [describing terms of partner school contract]). There are currently twenty-two partner

schools who have finished the process and signed a contract with the District.

As partner schools and families were accepted into the Program, parents began to

investigate and choose which partner school in which to enroll their child. The District plays no



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role in this, but rather leaves it entirely up to families to select partner schools. Once a CSP

student had enrolled in his or her chosen partner school, then the District was prepared to issue

the first quarterly payment. This began on July 1, with the beginning of the new fiscal year. To

date 140 checks totaling $158,519 have been sent on behalf of parents and received by partner

schools.

For some Douglas County elementary schools, the first day of school is August 1. Other

schools start August 8. By August 10, all students in traditional Douglas County schools have

started classes. The eleven Douglas County charter schools have the same August 1 (modified)

or 8 (conventional) start-schedule. The partner schools have start-dates that begin on August 15.

B. The Choice Scholarship Program

The Choice Scholarship Program adds another educational option for Douglas County

families. Any Douglas County family may continue to attend their neighborhood school. A

family may choose a different educational option, like a charter school, home education, online

education, open enrollment, or magnet school. Or they could choose to participate in the Choice

Scholarship Program. If a family is eligible and receives a scholarship, then the parents have a

further choice as to the partner school in which to enroll their child.

Private schools also have a choice as to whether to apply to become a partner or not. If

they apply, they must meet the twelve conditions of eligibility listed in Section E.3 of the Policy.

Some of these conditions include demonstrating that the school (1) offers a quality educational

program, (2) is financially stable, (3) is safe, (4) provides a school “environment where all

students can gain the benefit of the school’s educational program without harassment, disruption,

or bullying” (emphasis in original), (5) will agree to give scholarship students statewide



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assessments (e.g., CSAPs), and (6) will provide school information to the District so that it may

“readily compile the information on a website or other information clearinghouse so that parents

and the public may compare one [partner school] to another, and to other District schools and

programs.” Exh. 8 (Policy ¶ E.3; pgs. 6-8). Given that some private schools have been

accredited for years by well-respected organizations, the Policy provides that a partner school

“may demonstrate that it meets the [conditions of eligibility] through evidence of accreditation

by a recognized state or national accrediting organization that considers these standards.” Id.

¶ E.3. Further, “[t]he District retains control over ensuring that Private School Partners are

delivering quality educational instruction to Choice Scholarship students, regardless whether the

District accomplishes this directly or by working with accrediting organizations.” Id. ¶ E.3.

In addition to evaluation on the front end, the Policy also provides for ongoing evaluation

to ensure that partner schools are delivering quality educational instruction. Id. ¶¶ C.5, E.3, E.9.

If the District determines that a partner school is not offering a quality education or is violating a

material provision of the Program, then it may terminate the school’s participation. Id. at ¶ E.9.

The Policy also specifies that “at least annually, the Superintendent shall give a report to

the Board on the Choice Scholarship Program,” including student performance and financial

impact, so that the Board can evaluate the entire Program. Id. at ¶ C.11.

C. Purposes of the Program

The purposes of the Choice Scholarship Program 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 on investment of DCSD educational



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spending.” Id. at ¶ A.3. The Board has made an educational policy choice by adopting the

Program, just as it has in adopting the Blueprint for Choice and the Strategic Plan more broadly.

The Program is neutral toward religion. “The District in no way promotes one Private

School Partner over another, religious or nonreligious.” Id. at ¶ A.9. “Nonpublic schools shall

be eligible without regard to religion. The focus of the Choice Scholarship is not on the character

of the Private School Partner but on whether that school can meet its responsibilities under this

Policy and its Contract with the District.” Id. at ¶ E.2.c.

As mentioned above, one purpose of the Program is to “obtain a high return on

investment of DCSD educational spending.” Id. at ¶ A.3. Colorado’s budget crisis and

concomitant deep cuts in K-12 spending, which Plaintiffs acknowledge (TPE at 20),3 is forcing

Douglas County, like every school district, to try to make taxpayer dollars go farther. While the

Program has no effect on statewide education funding outside Douglas County,4 it has a fiscally

positive effect on the District in two ways. First, the 25% holdback is more than the likely cost

to administer the Program. Second, by partnering with private schools, Douglas County is able

to mitigate the cost of its rapid yearly growth. Currently, Douglas County adds about 1,300

students per year. By partnering with private schools to educate 500 of those students, the

District reduces the costs of having to build more schools, hire more teachers, and buy more

supplies to accommodate this rapidly growing student population. The District estimates that the

Program will save about $350,000 in 2011-2012.

3 Defendants cite to the LaRue Motion as “LaRue at ___” and to the Taxpayers Motion as “TPE at ___.”4 Plaintiffs are mistaken when they suggest that Douglas County is trying to “enrich” itself. TPE at 20. See also id. at 17. As explained above, because the Program requires students to have been enrolled in a Douglas County schoolduring the prior year (Policy at ¶ D.5), the Program is fiscally neutral as to overall statewide education funds.



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D. Choice Scholarship Charter School

For administrative convenience at the local and state level, the District created the Choice

Scholarship School, a charter school in which the District officially “counts” the scholarship

students. This facilitates reporting and tracking the students for finance, CSAP, and other

purposes. Nothing requires operating the Program from a charter school platform but this was

thought to be an effective mechanism in this initial stage. While Plaintiffs criticize this platform

as a “phantom charter school” (TPE at 4, 10, 19) with “no building, classes, teachers, or books”

(TPE at 4); accord (LaRue at 5-6), it is no different than Districts administratively locating

groups of online or contract school students for the same purpose. In their rhetoric, Plaintiffs

ignore the commonplace concept of dual enrollment, where a student is enrolled in one place for

one purpose (e.g., funding under the Public School Finance Act) and also enrolled elsewhere for

another purpose (e.g., receiving instruction, either in whole or in part, on a day-to-day basis).

E. Similar Public-Private Educational Partnerships Throughout Colorado

The Choice Scholarship Program is similar to more than a dozen other public-private

partnerships throughout the Colorado education system, from pre-Kindergarten through higher

education. These other public-private partnerships have been enacted by various legislative

bodies over many years for many of the same reasons as the CSP. All of these programs involve

taxpayer funds being spent to purchase educational services from private organizations; many of

the programs allow private entities to be either religious or non-religious. Just like the CSP,



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many of these programs are for elementary and secondary students whose funding flows through

the Public School Finance Act.5

Four other Colorado educational choice programs bear mention, given their areas of

overlap with the Choice Scholarship Program. First, Colorado permits “contract schools.” See

C.R.S. § 22-32-122 (“Any school district has the power to contract with . . . any natural person,

body corporate, or association for the performance of any service, including educational

service”). Thus, under Colorado law any school district may purchase educational services –

including operation of an entire school – from a private entity. Like the CSP, contract school

students can be seen as having dual enrollment – enrolled in the district for funding purposes but

also enrolled in the contract school itself, where they receive their day-to-day instruction. See

also Exh. 14 (Task Force Briefing Paper on Contract Schools).

A second area of overlap with the CSP is with charter schools, and specifically those

charter schools operated by educational service providers (“ESPs”).6 ESPs are private entities,

often for-profit or nonprofit corporations, that provide educational services to charter schools.

Typically, ESPs provide a complete educational and operational package to a charter school. All

the workers at an ESP school – teachers, administrators, and staff – are employees of the ESP,

not the charter school. The ESP provides its curriculum and often finances the building as well.

The only aspect not run by the ESP is the charter school board itself. None of this is illegal or

unusual. C.R.S. § 22-30.5-104(7)(a) & (b) (providing charter schools can contract with private

5 The State Defendants describe these programs in their Brief in Opposition to Motions for a Preliminary Injunctionat 3-13. The Douglas County Defendants incorporate the Brief by reference.6 Educational service providers (“ESPs”) are also known as “education management organizations” (“EMOs”) or“charter management organizations” (“CMOs”).



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entities). EdisonLearning, Imagine Schools, and KIPP are just three examples of ESPs operating

in Colorado and across the country.

Online education is a third area of overlap with the CSP. In 2007, online legislation was

passed. C.R.S. § 22-30.7-101 to -111. In this context, the Colorado Legislature declared, “Local

control of schools is a fundamental Colorado value,” id. -101(g); and “It is the role of families

and students to choose their schools and models of education,” id. -101(h). Colorado, like every

other state in the nation, is watching online education grow “at an unprecedented rate.”7 “In

Colorado, there are 22 multi-district online programs and 12 single district programs.”8 Online

students are “counted” and funded through the Public School Finance Act. C.R.S. § 22-30.7-107.

Home-schooling is a fourth type of non-traditional educational option with similarities to

the Choice Scholarship Program. For instance, the legislation addressing home-schooling states

that “it is the primary right and obligation of the parent to choose the proper education and

training for children under his care and supervision. It is recognized that home-based education

is a legitimate alternative to classroom attendance for the instruction of children . . . .” C.R.S.

§ 22-33-104.5(1). The legislation recognizes public-private/home partnerships in home-

schooling education, as it provides for “counting” children who “attend a public school for a

portion of the school day” for purposes of the Public School Finance Act. C.R.S. § 22-33-

104.5(6)(a) (cross-referencing C.R.S. § 22-54-103(10)).

Of particular importance to Colorado higher education is the College Opportunity Fund

(“COF”). C.R.S. § 23-18-101 to -208. Similar to the CSP in the higher education context, the

7 Summary Report of the Operations and Activities of Online Programs in Colorado 6/2/2011, at 4 (found athttp://www.cde.state.co.us/onlinelearning/download/1011/2011_AnnualReport_OnlinePrograms.pdf ). This reportnotes that 1.8 % of all Colorado students were enrolled in online learning in 2010-11, an increase of 14% from2009-10. Id. 8 Summary Report at 5.



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COF provides a stipend for Colorado undergraduate students to attend any state or participating

private institution, including religious ones like Colorado Christian University, Regis University,

and University of Denver. C.R.S. § 23-18-102 & -201. See also State Defendants Brief at 13.

As this summary shows, our Colorado educational system has embraced public-private

partnerships across educational lines from top to bottom. In this rapidly developing area, the

notion that public education organizations (and funding) might join with private entities of all

types is commonplace, not unconstitutional.

In their briefing, Plaintiffs reveal one tiny tip of the iceberg when they discuss how

school districts “may pay for educational services for pupils to ‘attend nonpublic schools’” using

federal funds under C.R.S. § 22-32-110(1)(cc). (TPE at 19.)9 The foregoing reveals how

dramatically mistaken Plaintiffs are when they conclude: “Colorado law limits school district

expenditures to private schools only to federal funds.”10 (TPE at 19.) This statement is simply

and fundamentally wrong, as a matter of fact and law.

ARGUMENT

For this Court to grant Plaintiffs a preliminary injunction, they need to prove all six of the

Rathke factors. Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982). Their request for a

mandatory injunction that disturbs the status quo is “specifically disfavored” by courts. Schrier

v. Univ. of Colorado, 427 F.3d 1253, 1259 (10th Cir. 2005). Accord Snyder v. Sullivan, 705 P.2d

510, 514 n.5 (Colo. 1985) (“[M]andatory injunctive relief is granted only in rare cases.”).

9 Plaintiffs omit the next subsection, C.R.S. § 22-32-110(1)(dd), discussing how districts may also use federal fundsto buy library resources for “public and nonpublic schools.”10 The foregoing discussion about the numerous places where Colorado education funds pay private organizationsdoes not even begin the long list of federal programs that do the same, like the G.I. Bill, Pell Grants, etc. Coloradolaw is consistent with federal law on this issue. Plaintiffs, however, seem to have a profound misunderstanding of the actual state of how educational services are provided.



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Furthermore, “if a preliminary mandatory injunction will have the effect of granting to the

complainant all the relief that he could obtain upon a final hearing, it should . . . be issued . . .

[o]nly in rare cases [when] the complainant’s right to the relief is clear and certain.” Allen v.

City and County of Denver , 351 P.2d 390, 391 (Colo. 1960).

As stated at the outset, Plaintiffs cannot meet their extremely heavy burden for two

fundamental reasons: (1) they cannot prove they have a reasonable probability of success on the

merits, and (2) the equities weigh heavily in favor of permitting the Program to continue. 11

I. PLAINTIFFS’ CLAIMS FAIL ON THE MERITS

A. The Choice Scholarship Program is Consistent with the Religion Clauses of the

Colorado Constitution.

Plaintiffs’ challenge to the Choice Scholarship Program goes to great lengths to avoid the

defining feature of the program: choice. Under the CSP, families are given an education

alternative, with the choice to attend a partner school, and thus parents make a voluntary

decision to participate in the scholarship Program. This Program, like others, relies on families’

independent choices. Government (here, Douglas County) does not directly fund religious

schools. Douglas County gives this option to students and parents, who then make two primary

choices: (1) Should we participate in the Program at all, or should we enroll in some other

Douglas County school? and (2) If we participate, which partner school should we choose,

including choosing among religious and non-religious schools?

Plaintiffs contend several Colorado constitutional provisions bar state funding that

ultimately flows to religious schools: Article II § 4; Article IX §§ 7 and 8; and Article V § 34.

11 Plaintiffs lack standing on the statutory claims, as well as under Article IX § 3, as described in the Motion toDismiss filed contemporaneously with this Combined Response and incorporated herein by reference.



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Colorado Constitution and the Americans United decision. See Colorado Christian Univ. v.

Weaver , 534 F.3d 1245, 1268 (10th Cir. 2008). The Colorado Supreme Court has upheld the

principle, long established by the United States Supreme Court, that “evenhanded funding of

education – religious and secular – through student scholarships” is constitutional. Id. at 1253.

See also Americans United , 648 P.2d at 1082, 1085, 1086 (upholding grants to students for

tuition assistance at private, religious colleges under Art. II § 4, Art. IX § 7, and Art. V § 34).

Americans United upheld an educational assistance program much like the CSP. Both

programs are designed to provide greater educational opportunity to Colorado students,

permitting them to make a voluntary choice about what school to attend. The Supreme Court

upheld the Americans United scholarship program because it was “designed to assist the student,

not the institution.” Id. at 1083. The court rejected claims (identical to Plaintiffs’ claims, here)

that the scholarships were unconstitutional aid to religious schools. Id. at 1083.13 Americans

United repeatedly emphasized that the independent choice of students meant the state funds were

not being used to aid religious schools. Id. at 1072 (“The design of the statute is to benefit the

student, not the institution.”); id. at 1082 (“the statutory program is designed for the benefit of

the student, not the educational institution”); id. at 1083, 1085-86 (funds flowing to religious

schools was an “incidental benefit” and “by-product” of the scholarship program).

Two decades later, the United States Supreme Court confronted a K-12 school choice

program challenged as a violation of the First Amendment. In Zelman v. Simmons-Harris, 536

U.S. 639 (2002), the Court rejected that claim and upheld a Cleveland school choice program

13 Plaintiffs misread Americans United to hold that excluding “pervasively sectarian” schools was the reason theprogram was found constitutional. LaRue at 16. That interpretation of Americans United was expressly rejected bythe Tenth Circuit. Colorado Christian Univ., 534 F.3d at 1269. Plaintiffs tacitly acknowledge this in a footnote.LaRue at 17 n.2.



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which gave parents a scholarship to use at any participating private school of their choice,

including religious schools. Like Douglas County parents, Cleveland parents were provided with

the educational choice of accepting tuition aid for use in a private school, and tuition checks

were made payable to the parents who then endorsed the checks over to their chosen school. 536

U.S. at 646. The Zelman Court relied on an unbroken line of cases where government aid

reached a religious institution as a result of independent choices.14 Applied to the CSP, Zelman

demonstrates the propriety of government programs where individuals receive and redirect that

aid from the state, even to religious schools, if the schools receive the money “wholly as a result

of their own genuine and independent private choice.” Id. at 652. Thus, the “incidental

advancement of a religious mission, or the perceived endorsement of a religious message, is

reasonably attributable to the individual recipient, not to the government, whose role ends with

the disbursement of benefits.” Id . Just as in Zelman, the CSP program allows families to choose

among nonpublic schools without any interference or endorsement from Douglas County.

Instead of addressing these directly-applicable, binding cases, Plaintiffs divert the Court

to decisions in two states, Arizona and Florida. Neither decision interpreted the Colorado

Constitution. In fact, the Colorado Court of Appeals recently found a Florida constitutional

decision in the education context “inapplicable” because the constitutional language differs

materially from Colorado. Boulder Valley Sch. Dist. RE-2 v. Colorado State Bd. of Educ., 217

P.3d 918, 931 (Colo. App. 2009). In addition, the Florida15 and Arizona16 decisions do not apply

14 Mueller v. Allen, 463 U.S. 388 (1983); Witters v. Washington Dept. of Services for the Blind , 474 U.S. 481(1986); Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993).15 The Florida decision expressly acknowledged the unique language in the Florida education clause (“paramountduty of the state to make adequate provisions for the education”) as distinguishing the Wisconsin decision, whichlacked Florida’s specific constitutional language. See Bush v. Holmes, 919 So.2d 392, 425 n.10 (Fla. 2006).Colorado, like Wisconsin, lacks the specific language relied on by the Florida majority.



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by their own terms. Both of these out-of-state cases should be ignored given the directly on-

point Colorado case law, as well as the Colorado principle of interpreting the state constitution to

be consistent with federal First Amendment law. See below. Finally, these decisions are not the

only ones in this area. Wisconsin and Ohio have decided the opposite, upholding school choice

programs in the face of state constitutional challenges. See Simmons–Harris v. Goff, 711 N.E.2d

203 (Ohio 1999) and Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998).

School choice programs which allow students to choose to attend private schools,

religious or non-religious, are constitutional under the Colorado and United States Constitutions.

2. The Colorado Constitution is interpreted consistent with U.S. Constitution.

Colorado has long interpreted its religion clauses as being consistent with the United

States Constitution. See Zavilla v. Masse, 147 P.2d 823, 824-25 (Colo. 1944). Specifically, in

case after case the Colorado Supreme Court has looked to the federal constitution in interpreting

Article II § 4, Article IX §§ 7, 8 and the religious component of Article V § 34. In Zavilla, the

court looked to the federal Constitution’s religion clauses as “parallel provisions” to Article II

§ 4 and Article IX § 8. 147 P.2d at 824, 825 (noting federal cases “while not controlling, should

receive our careful consideration in construing our state Constitution”). Americans United

looked to federal constitutional decisions to interpret Art. II § 4, finding it embodies the “same

values of free exercise and governmental non-involvement secured by the religious clauses of the

First Amendment.” 648 P.2d at 1081-82. The court also drew upon federal decisions when

16 The Arizona decision, Cain v. Horne, 202 P.3d 1178 (Ariz. 2009), was based on constitutional text dissimilarfrom any provision in Colorado, was not determined based on any religion clause, and the court’s interpretationdisallowing aid to scholarship students, if applied in Colorado, would be flatly contrary to Americans United .



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analyzing Art. IX § 7, and Art. V § 34. Id. at 1078 (“First Amendment jurisprudence cannot be

totally divorced from the resolution of these claims”).

In subsequent cases, the Colorado Supreme Court continued to use federal Establishment

Clause jurisprudence in interpreting Art. II § 4, especially when facts are similar. In Conrad v.

City and County of Denver , 656 P.2d 662 (Colo. 1982) (Conrad I ) the court looked to federal

decisions with similar facts for guidance. Id. at 672. The Supreme Court did so again when the

case returned, Conrad v. City and County of Denver , 724 P.2d 1309, 1314 (Colo. 1986) (Conrad

II ). The Court declined to find a violation of the Colorado Constitution when the same challenge

had been rejected under the federal Establishment Clause. Id. at 1316 (concluding that departing

from First Amendment jurisprudence in a case with similar facts is “a course of conduct [that]

should not be undertaken lightly”).

Significantly, in its most recent opinion addressing Art. II § 4, the Colorado Supreme

Court simply adopted Conrad II as precedent to apply federal Establishment Clause rules

without additional discussion. In State v. Freedom from Religion Foundation Inc., 898 P.2d

1013 (Colo. 1995), the Court determined that the display of the Ten Commandments in a state

park near the Capitol did not violate Art. II § 4. It held: “we see no need to depart from the path

cut by the United States Supreme Court for Establishment Clause cases.” Id . at 1019. Indeed, no

Colorado appellate court has ever interpreted Art. II § 4, Art. IX §§ 7 and 8, or Art. V § 34 as

being more restrictive than the federal Constitution with regard to church-state matters.17 This

Court must reject Plaintiffs’ invitation to do so now.

17 People ex rel. Vollmar v. Stanley, 255 P. 610 (Colo. 1927) overruled by Conrad v. City and County of Denver ,656 P.2d 662 (Colo. 1982) is not to the contrary. Since it permitted Bible reading in public schools, it arguably wasless restrictive. Moreover, in 1927 when Vollmar was decided, the United States Supreme Court had not yet ruled



20

Contrary to this well-established law, in an attempt to avoid Zelman, Plaintiffs wrongly

suggest Americans United found the Colorado Constitution to be “far more specific” than the

federal Establishment Clause. LaRue at 17-18. Their partial quote is disingenuous. In fact, the

full sentence supports reading the Colorado Constitution in harmony with the federal cases:

“Although the provisions of Article II, Section 4 are considerably more specific than the

Establishment Clause of the First Amendment, we read them to embody the same values of free

exercise and governmental non-involvement secured by the religious clauses of the First

Amendment.” Id . at 1081-82. This rule of interpretation was re-affirmed by the Colorado

Supreme Court in Young Life v. Division of Employment & Training, 650 P.2d 515 (Colo. 1982),

which drew on Americans United to find that Art. II § 4 “while more specific than the First

Amendment, embodies the same principles as those enunciated in the United States Supreme

Court cases interpreting the federal provision.” Id. at 526.

Interpreting the Colorado Constitution consistent with United States Supreme Court

decisions calls for following Zelman, where a materially identical K-12 school choice program

was upheld.

3. Religious provisions of the Colorado Constitution do not apply to the CSP.

Furthermore, Plaintiffs’ arguments that the CSP violates the religion clauses fail for

additional reasons beyond the funding-to-students feature approved in Americans United and

Zelman. With Art. IX § 7, Plaintiffs ignore that the CSP itself is a public program of Douglas

County, distinct from any religious schools. This fact insulates the state appropriation even

further from the independent choices exercised by CSP families. With Art. II § 4, Plaintiffs have

that Bible reading in the public schools was unconstitutional, which occurred in Abington School Dist. v. Schempp,374 U.S. 203 (1963).



21

no answer for the voluntary nature of student participation. Even if applicable, the plain language

of II § 4, “no person shall be required to attend … against his consent,” does not apply to CSP

students, who are not required to participate in the CSP program, nor required to select a

religious school. Under Art. IX § 8, addressing religious tests for “any public educational

institution,” Plaintiffs overlook that CSP partner schools are not “public” and no student is

“required to attend” these schools, making this provision inapplicable. Finally, the language of

Art. V § 34 restricting appropriations to “any denominational or sectarian institution or

association” is entirely redundant of the restrictions of Art. II § 4 and Art. IX § 7, and does not

apply to the education choice structure of the CSP.

4. The disturbing history of Colorado’s Blaine amendments

Plaintiffs’ invitation to ignore binding Colorado precedent to read the religion clauses as

more restrictive than the federal Constitution creates an additional constitutional problem. Such

an approach requires confronting the legislative history of the Blaine Amendment movement and

its effect on the potential unconstitutionality of Colorado’s religion clauses.

In their origin,18 Colorado’s Blaine provisions target and discriminate against Catholic

schools,19 thereby requiring strict scrutiny under the Equal Protection and Free Exercise

Clauses.20 The Blaine provisions, if interpreted as Plaintiffs suggest, also require courts to assess

which schools are “sectarian” and which are not, thereby creating other serious constitutional

18

Hunter v. Underwood , 471 U.S. 222, 233 (1985) (when the historical motive in enacting facially neutral law was“a desire to discriminate against blacks on account of race and the section continues . . to have that effect[, the stateconstitutional provision] violates equal protection . . . .”).19 See Kotterman v. Killian, 972 P.2d 606, 624 (Ariz. 1999) (“The Blaine Amendment was a clear manifestation of religious bigotry, part of a crusade manufactured by the contemporary Protestant establishment to counter what wasperceived as a growing ‘Catholic menace’ . . . . [W]e would be hard pressed to divorce the amendment’s languagefrom the insidious discriminatory intent that prompted it.”).20 United States v. Batchelder , 442 U.S. 114, 125 n.9 (1979) (religion as a suspect class under Equal ProtectionClause); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1322 n.10 (10th Cir. 2010) (same); Church of Lukumi Babalu Aye

v. City of Hialeah, 508 U.S. 520 (1993) (voiding facially neutral ordinance targeting Santerian ritual practice).



22

concerns.21 This Court should reject Plaintiffs’ proposed interpretation and follow the binding

Colorado precedent discussed above.

Increased Catholic immigration during the mid-nineteenth century threatened the

Protestant cultural hegemony and birthed an anti-Catholic movement led by President Ulysses

Grant22 and Speaker of the House of Representatives, James Blaine. The Blaine Amendment

movement sought to preserve the generic Protestant culture of public schools, including reading

of the King James Bible, while barring Catholic schools from receiving government funding.23 It

“was an anti-Catholic measure that still permitted a generalized Protestantism in public

schools.”24

This movement put “mini-Blaine” amendments in 41 state constitutions, including

Colorado’s.25 While these amendments did not mention the Catholic Church, “it was an open

secret that ‘sectarian’ was code for ‘Catholic’.” Mitchell v. Helms, 530 U.S. 793, 828 (2000)

(plurality opinion).26

21 Colorado Christian Univ., 534 F.3d at 1257, 1261-66 (describing the constitutional problems of governmentfavoring one denomination over another and evaluating how “sectarian” an organization is) (citing cases).22 President Grant’s September 30, 1875 speech spewed anti-Catholic sentiment. Grant warned of “another contest”relevant to “the near future of our national existence” between public schools teaching “patriotism and intelligence”and Catholic schools teaching “superstition, ambition and ignorance . . .” Philip Hamburger, Separation of Church

and State 322 (2002). In his annual message to Congress, two weeks before the opening of the ColoradoConstitutional Convention, Grant proposed an amendment barring public funding to any school “for the benefit of . .

. any religious sect or denomination” lest Americans become “directed by the demagogue or priestcraft.” Id . at 323.23 Hamburger, supra n. 22, at 297-99, 298 n.30, 322-26 (2002).24 Id. at 297.25 Meir Katz, The State of Blaine: A Closer Look at the Blaine Amendments and their Modern Application, 12Engage 111, 112 (June 2011). See Colo. Const. art. IX § 7 (“sectarian” used four times); IX § 8 (“no sectariantenets”); II § 4 (“religious sect or denomination”), and V § 34 (“nor to any denominational or sectarian institution”).26 See also Zelman v. Simmons-Harris, 536 U.S. 639, 721 (2002) (dissenting opinion) (“‘sectarian schools’ . . . inpractical terms meant Catholic”); see also Hamburger, supra n. 22, at 325 n. 99 (the newspaper of the Free ReligiousAssociation, the Index, explained on December 29, 1875, “[f]or ‘sectarian’ . . ., read ‘Catholic,’ and you have thefull meaning . . . .”).



23

This history is settled. Nine United States Supreme Court justices have acknowledged

that anti-Catholic nativism was the engine of the Blaine movement.27 Four opined that Blaine

amendments have “a shameful pedigree” rooted in a “doctrine, born of bigotry, [that] should be

buried now.” Id. at 828-29 (emphasis added).

The Colorado Constitutional Convention proceeded simultaneously with efforts to pass a

federal Blaine Amendment. Colorado papers reported both events. The Blaine provisions were

the most controversial issue of the Convention. Protestant and Catholic camps submitted 45

petitions “of which thirty-eight called for prohibition” of public funding for Catholic schools.28

Despite the substantial Catholic population in the state, especially in the Mexican-dominated

southern counties, only Protestant ministers served as Convention chaplains and no Catholic

delegates attended.

Blaine sentiments persisted in Colorado at least into the 1920’s. The best legal example

is People ex rel. Vollmar v. Stanley, 255 P. 610 (Colo. 1927) overruled by Conrad v. City and

County of Denver , 656 P.2d 662 (Colo. 1982), in which the Colorado Supreme Court rejected

Catholic complaints and held that reading the King James Bible in the public schools did not

violate Colorado’s religion clauses. 255 P. at 618. Fifty-five years later, the Conrad court

overruled Vollmar , 656 P.2d at 670 n.6, and went on to note that “[b]ecause federal and state

constitutional provisions embody similar values, we look to [First Amendment precedent] for

useful guidance.” Id. at 670-71.

27 See Mitchell, 530 U.S. at 828-29 (plurality opinion of Justices Thomas, Rehnquist, Scalia, and Kennedy condemnsanti-Catholicism innervating the Blaine movement); Zelman, 536 U.S. at 720-21 (dissenting opinion of JusticesBreyer, Stevens, and Souter finds that Blaine was a form of backlash against “efforts to right the wrong of discrimination against religious minorities in public education”); Locke v. Davey, 540 U.S. 712, 723 n.7 (2004) (Justices Rehnquist, Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer noting that Blaine has been “linkedwith anti-Catholicism”). 28 Donald W. Hensel, Religion and the Writing of the Colorado Constitution, Church History 349, 354 (1961).



24

In sum, this Court should reject Plaintiffs’ flawed understanding of the religion clauses29

and should follow Colorado Supreme Court precedent to interpret these clauses consistent with

the First Amendment. Independence Inst. v. Coffman, 209 P.3d 1130, 1136 (Colo. App. 2008)

(courts should construe constitutional provisions to avoid conflict with the federal Constitution).

B. The Choice Scholarship Program Fulfills the Principle of Local Control, Not

Violates It.

Plaintiffs assert that by enacting the Choice Scholarship Program Douglas County has

violated the “local control” provision, Article IX § 15. TPE at 9-14. Specifically, Plaintiffs

argue Douglas County has given up control over (1) instruction, id. at 10-12, and (2) local funds,

id. at 13-14. Both arguments lack merit. To the contrary, review of that provision and the cases

that interpret it demonstrate that Douglas County is affirmatively fulfilling its responsibility to

provide local education, not violating it.

1. Douglas County retains control over instruction.

Article IX § 15 provides, in relevant part, that the local board of education “shall have

control of instruction in the public schools of their respective districts.” First, as a textual matter,

Douglas County retains full control over the instruction in the public schools of the District. The

CSP has no effect on the instruction at other Douglas County schools. Plaintiffs do not argue

otherwise. As discussed above, if it has any material effect at all, it benefits the other District

schools because fewer students attend them and there are more funds to spend on them.

29 Plaintiffs support their flawed understanding with numerous citations to overruled or repealed laws. LaRue at 13(citing to Vollmar without noting it was overruled); 16 (citing to portion of Americans United which was overruledby Colorado Christian University); 23 (citing to Vollmar and stating it was overruled “on other grounds”); 24 (citingto 22-30.5-204, repealed in 2003); 33 (citing to 23-3.5-105, repealed in 2009). TPE does this as well (at 17-18)when it says the Adams County lower court decision was reversed “on other grounds” when in fact it was fullyreversed by the Colorado Supreme Court in 152 P. 1149 (1915).



25

Second, Plaintiffs focus their argument on not controlling the instruction of the 500

scholarship students. TPE at 10-12. However, Douglas County has just as much or more control

over the 500 scholarship students as the roughly 8,700 students in its eleven charter schools.

Compare C.R.S. § 22-30.5-105 & -106 (requirements for contracts and applications for charter

schools) with Policy ¶ E.3 (conditions of eligibility). In addition, Douglas County can change

the Program at any time by modifying the Policy, while it is the State, through the Charter

Schools Act, that establishes the framework for how much control districts have over charter

schools. Moreover, Douglas County has far more control over partner schools than districts have

over facility schools or private-placements under the numerous educational programs cited by

the State Defendants.

Further, Plaintiffs’ claim that Douglas County must have some minimum amount of

control over each and every student is contrary to case law. In Board of Education v. Booth, 984

P.2d 639 (Colo. 1999), the Colorado Supreme Court upheld the second-appeal provision of the

Charter Schools Act that requires districts to work with charter applications to permit the

opening of a charter school. Id. at 654. In Boulder Valley School District v. Colorado State

Board of Education, 217 P.3d 918 (Colo. App. 2009), the Court of Appeals held it did not violate

local control for the State to operate charter schools within the territorial area of local districts.

Id. at 927. Indeed, the Boulder Valley court found no problem with two concurrent school

systems “with different types of schools, some controlled by school districts while others are

not.” Id. at 928 (noting the Colorado School for the Deaf and the Blind as another example). If

the State can force districts to open specific charter schools and accept state-authorized charter



26

schools consistent with Article IX § 15, then a local district may, on its own initiative, create its

own program to partner with private schools to educate a portion of their students.

Plaintiffs’ argument is also unprecedented. No courts in Colorado (or elsewhere, to

Defendants’ knowledge) have ever articulated a free-standing, constitutionally-required

minimum amount of control school districts must have over each individual student or school.30

This explains why in the three pages of this subsection Plaintiffs fail to cite a single case. TPE at

10-12. Determining a minimum control amount for purposes of Article IX § 15 would require

courts to delve deeply into education policy and practice in a rapidly changing educational

world. Colorado appellate courts repeatedly warn against such “judicial intrusions” into

education policy. Lujan, 649 P.2d at 1018 (“Judcial intrusion . . . must be avoided . . . [into

questions such as] what is the best public policy which can be adopted to attain quality schooling

and equal educational opportunity for all children . . . .”); Boulder Valley School Dist., 217 P.3d

at 925 (courts should be “reluctant to intrude in considerations which properly lie within the

legislative domain”). This first argument must be rejected.

2. Douglas County retains control over locally-raised funds.

Plaintiffs’ second argument is that, by creating the Program, Douglas County has

“ced[ed] control over locally raised funds to private schools.” TPE at 13. This argument also

fails as a matter of logic and case law.

30 As discussed infra, Colorado cases that discuss “control of instruction” always do so in the context of whether theState is encroaching on local authority. Booth, 984 P.2d at 648 (discussing the State Board’s ability to direct adistrict to approve a charter school under the Charter Schools Act: “control of instruction requires substantialdiscretion regarding the character of instruction students will receive at the district’s expense”); Ridgeview

Classical Schools v. Poudre School Dist., 214 P.3d 476, 484 (Colo. App. 2008) (concluding that by enacting theCharter Schools Act the Legislature did not encroach on local authority because “the district retains significantcontrol over the educational program of the school”).



27

On its face, this argument means IX § 15 prohibits districts from purchasing services

from private schools. This is obviously wrong; state statute expressly allows this. C.R.S. § 22-

32-122 (“Any school district has the power to contract with . . . any natural person, body

corporate, or association for the performance of any service, including educational service”). See

also State Defendants Brief at 3-13 (describing numerous education programs in which districts

buy services from private schools).

Case law on Article IX § 15 is also against Plaintiffs. Three observations are in order.

First, Article IX § 15 grants affirmative authority to local districts, like Douglas County, to

“implement, guide, [and] manage” local education programs, for which they are “ultimately

responsible.” Booth, 984 P.2d at 649. See also Lujan, 649 P.2d at 1021 (“The historical

development of public education in Colorado has been centered on the philosophy of local

control.”). Education statutes reflect this inherent authority. C.R.S. § 22-32-109(1)(t) (school

boards have authority to “determine the educational programs to be carried on in the schools of

the district”); § 22-54-104(1)(a) (“the amounts and purposes for which such moneys are

budgeted and expended shall be in the discretion of the district”). Second, the tenet of local

control derived from Article IX § 15 “provides each district with the opportunity for

experimentation, innovation, and a healthy competition for educational excellence.” Owens, 92

P.3d at 941. Third, all the Article IX § 15 cases involve the proper boundaries between State and

local authority over education, i.e., whether the State, pursuant to its general supervision power

under Article IX § 1, may force local districts to do something, like pay for high school in



28

another district31 or participate in a statewide school choice program. Owens, 92 P.3d at 936

(holding the program violated IX § 15 because the State was “direct[ing] the school districts to

turn over a portion of their locally-raised funds to nonpublic schools over whose instruction the

districts have no control”).

This quote from Owens is the centerpiece for Plaintiffs’ argument in this section. TPE at

13. However, Plaintiffs omit the first few critical words of the quotation (“it directs the schools

districts to turn over . . .”), leaving the misleading impression that the unconstitutionality of the

program was due to a free-standing limitation on districts, rather than the State overreaching its

authority. The Owens court could not have been clearer, however, as a sentence just prior to this

holding confirms: “Control over locally-raised funds allows local electors to tailor educational

policy to suit the needs of the individual districts, free from state intrusion.” Owens, 92 P.3d at

935 (emphasis added). Restoring this quote to its proper context reveals that Plaintiffs, again, do

not cite to any case law that actually supports their local control arguments.

Furthermore, despite Plaintiffs’ frequent quotation of the amount of money to be paid out

under the Program, this cannot be a factor in the local control analysis. Under the Charter

Schools Act, districts are required by the State to pay no less than 95% of per pupil revenue to

the charter schools they authorize. C.R.S. § 22-30.5-112(2)(a)(III)(A). See Booth, 984 P.2d at

653 n.8 (taking judicial notice of this). Here, under the CSP, Douglas County has voluntarily

decided to pay 75% to families and keep 25% for administrative costs. Douglas County could

31 The Colorado Supreme Court’s answer to this question was: Belier v. Wilson, 147 P. 355 (Colo. 1915) (no);School Dist No. 16 in Adams v. Union High, 152 P. 1149 (Colo. 1915) (no); Hotchkiss v. Montrose Cnty High Sch.

Dist., 273 P. 652 (Colo. 1928) (no); and Craig v. People, 299 P. 1064 (Colo. 1931) (yes, because the money wasdeducted from state funds the district otherwise would have received). As the Owens court summarized, these casesdictate that local districts (not the State) must control locally-raised funds. 92 P.3d at 939.



29

change that percentage, or any other aspect of the Program, at any time. It is absurd to say

Douglas County does not “control” the Program or the funding under it; its control is absolute.

II. EQUITABLE FACTORS FAVOR CONTINUING THE PROGRAM

As discussed above, under Rathke v. MacFarlane, 648 P.2d at 653-54, Plaintiffs must

carry all six of the factors. They cannot prove that they have a reasonable probability of success

on the merits. Neither can they prove that granting the injunction will serve the public interest or

preserve the status quo, nor that the balance of equities favors granting the injunction. Id.

Moreover, Plaintiffs must demonstrate “compelling circumstances” to justify mandatory

injunctive relief, given that it is “a harsh remedial process not favored by the courts.” Citizens

Concerned v. City and County of Denver, 628 F.2d 1289, 1299 (10th Cir. 1980).

The evidence at the hearing will show that Plaintiffs, and the legal organizations

supporting Plaintiffs, knew about the Choice Scholarship Program for months before it was ever

passed. Indeed, Plaintiff Barnard was on Douglas County’s School Choice Task Force from the

beginning, and she formally objected to the Program in writing and in person in February.

Plaintiff Leung is a member of the District Accountability Committee, and he also objected to

the Program in February. The Americans United for Separation of Church and State sent a

formal letter objecting to the Program on March 8, a week before it was approved by the Board.

The ACLU sent a formal CORA request on April 6 asking for, essentially, early written

discovery in this case. Yet these cases were not filed until June 21 and a preliminary injunction

was not sought until July 5.

Meanwhile, the District was and is proceeding with implementing the Program in an open

and transparent process that was well-reported by the media and the District’s website. The



30

District accepted applications, held a lottery, and notified 500 families for their acceptance in the

Program. Likewise, it received applications from private schools, evaluated them, and has

signed contracts with twenty-two. Eligible families withdrew their children from Douglas

County schools, enrolled in partner schools, and re-arranged their lives around the Program.

Given that almost every Douglas County school, traditional or charter, has long waiting lists,

these spots were immediately filled by other students. Some scholarship students are taking

summer school at the partner schools. Others are attending sports camps for fall teams. Parents

signed contracts with partner schools and made down payments on tuition. Partner schools have

made staffing decisions and arranged classes given the CSP students. The District has made

initial payments to 140 students, with more occurring every day.

During this entire public, well-reported process, Plaintiffs sat on their hands. They did

nothing, even as families, partner schools, and Douglas County schools moved forward on the

Program.

Now, at this late date, on the eve of school starting, Plaintiffs ask this Court for a

preliminary mandatory injunction to unravel everything that has already occurred. Plaintiffs’

tardy request will result in massive disruption of lives throughout Douglas County and beyond.

The Court will need to provide ongoing supervision to ensure that payments made are refunded

and students whose spaces were filled are given a new place in school. Schrier v. Univ. of

Colorado, 427 F.3d 1253, 1261 (10th Cir. 2005) (ongoing supervision by courts is a hallmark of

a mandatory injunction and one reason they are “specifically disfavored”). The evidence will

demonstrate just how “harsh” this proposed remedy would be on families and schools. Citizens

Concerned , 628 F.2d at 1299 (mandatory injunction is a harsh remedy disfavored by courts).



31

CONCLUSION

Because Plaintiffs cannot carry their heavy burden, their Motions must be denied.

Dated this 22nd day of July, 2011.

ROTHGERBER JOHNSON & LYONS LLP

A duly signed original is on file at the offices of

Rothgerber Johnson & Lyons LLP

s/ Eric V. Hall

James M. Lyons, #882L. Martin Nussbaum, #15370Eric V. Hall, #32028David M. Hyams, #42648 Attorneys for Defendants Douglas County Board of

Education and Douglas County School District



CERTIFICATE OF SERVICE

I hereby certify that on July 22, 2011, I electronically filed the foregoing with the Clerk

of Court using Lexis/Nexis File and Serve causing an electronic copy to be served upon thefollowing:

Matthew J. Douglas, Esq.Timothy R. Macdonald, Esq.Michelle K. Albert, Esq.Arnold & Porter LLP370 17th Street, Suite 4500Denver, CO 80202

Mark Silverstein, Esq.Rebecca T. Wallace, Esq.American Civil Liberties Union

Foundation of Colorado400 Corona StreetDenver, CO 80218

Ayesha N. Khan, Esq.

Gregory M. Lipper, Esq.Americans United for Separationof Church and State

1301 K Street, NWSuite 850, East TowerWashington, D.C. 20005

Daniel Mach, Esq.

Heather L. Weaver, Esq.ACLU Foundation Program on Freedomof Religion and Belief

915 15th Street, NW, Suite 600Washington, D.C. 2005

George Langendorf, Esq.Arnold & Porter LLP22nd Floor, One Embarcadero CenterSan Francisco, CA 94111-3711

Paul Alexander, Esq.Arnold & Porter LLPSuite 110, 1801 Page Mill RoadPalo Alto, CA 94304-1216

Michael S. McCarthy, Esq.Colin C. Deihl, Esq.Madia G. Malik, Esq.Sarah A. Kellner, Esq.Gordon M. Hadfield, Esq.FAEGRE & BENSON, LLP3200 Wells Fargo Center1700 LincolnDenver, CO 80203-4532

Antony B. Dyl, Esq.Nicholas G. Stancil, Esq.Geoffrey N. Blue, Esq.Office of the Attorney General1525 Sherman Street, 7th FloorDenver, CO 80203

Alexander Halpern, Esq.

Alexander Halpern LLC1426 Pearl Street, #420Boulder, CO 80302

William H. Mellor, Esq.

Institute for Justice901 N. Glebe Road, Suite 900Arlington, VA 22203

s/ Karen Lutterschmidt

Karen Lutterschmidt

Response to Motion for Preliminary Injunction

Documents

Transcript of Response to Motion for Preliminary Injunction