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Response to Motion for Preliminary Injunction

Response to Motion for Preliminary Injunction

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Published by Andrea Rael

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Published by: Andrea Rael on Jul 25, 2011
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DISTRICT COURT, DENVER COUNTY, COLORADO
Court Address: 1437 Bannock St., Room 256Denver, CO 80202
COURT USE ONLY
 Plaintiffs: JAMES LARUE; SUZANNE T. LARUE;INTERFAITH ALLIANCE OF COLORADO; RABBI JOELR. SCHWARTZMAN; REV. MALCOLM HIMSCHOOT;KEVIN LEUNG; CHRISTIAN MOREAU; MARITZACARRERA; SUSAN MCMAHONvs.Defendants: COLORADO BOARD OF EDUCATION;COLORADO DEPARTMENT OF EDUCATION;DOUGLAS COUNTY BOARD OF EDUCATION;DOUGLAS COUNTY SCHOOL DISTRICTIntervenors: FLORENCE DOYLE; DERRICK DOYLE;ALEXANDRA DOYLE; DONOVAN DOYLE; DIANAOAKLEY; et al.
AND
Plaintiffs: TAXPAYERS FOR PUBLIC EDUCATION;CINDRA S. BARNARD; MASON S. BARNARDvs.Defendants: DOUGLAS COUNTY SCHOOL DISTRICTRE-1; DOUGLAS COUNTY SCHOOL DISTRICT RE-1BOARD OF EDUCATION; COLORADO DEPARTMENTOF EDUCATION; COLORADO STATE BOARD OFEDUCATIONCase Number: 2011CV4424Courtroom: 259
CONSOLIDATED
__________________________Case Number: 2011CV4427Courtroom: 259
 
1
 Attorneys for Defendants: Douglas County Board of Educationand Douglas County School District:
Names: James M. Lyons, #882L. Martin Nussbaum, #15370Eric V. Hall, #32028David M. Hyams, #42648Firm: Rothgerber Johnson & Lyons LLPAddress: One Tabor Center, Suite 30001200 Seventeenth StreetDenver, Colorado 80202Tel: 303.623.9000Fax: 303.623.9222E-Mail: jlyons@rothgerber.com mnussbaum@rothgerber.com ehall@rothgerber.com dhyams@rothgerber.com 
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 thisCombined Response to Plaintiffs’ Motions for Preliminary Injunction. Defendants addressPlaintiffs’ 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 thearguments related to school finance (Articles IX § 2; IX § 3; and V § 34), which Defendantsincorporate herein by reference.
INTRODUCTION
 Plaintiffs’ Motions should be denied for two overarching reasons: first, Plaintiffs will notbe able to demonstrate a reasonable probability of success on the merits, and second, the equitiesweigh heavily in favor of permitting the Choice Scholarship Program to continue.
 
2As to the merits, Plaintiffs are simply wrong on their fundamental proposition thatColorado 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 thepurpose of serving students’ individual needs. Parents have numerous and ever-increasingchoices as to what school will best serve their child. Plaintiffs sketch a picture of Colorado’seducation 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 ColoradoSupreme Court has interpreted the constitutional provisions at issue to permit Douglas County toimplement the Choice Scholarship Program.For instance, as to church-state separation, for almost thirty years the Supreme Court hasinterpreted Colorado’s religion clauses consistent with the First Amendment, including when itupheld a student-choice program in the higher education context,
 Americans United for theSeparation of Church and State v. Colorado
, 648 P.2d 1072 (Colo. 1982). In addition, from
 Inre 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 educationalopportunities. Rather, our appellate courts again and again have recognized that the ColoradoConstitution permits innovation and expanded educational options, especially when undertakenby local school districts.
 Lujan
, 649 P.2d at 1021 (“The historical development of publiceducation in Colorado has been centered on the philosophy of local control.”).

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