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Order Granting Preliminary Injunction

Order Granting Preliminary Injunction

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Published by Andrea Rael
Denver Dist. Judge Michael Martinez grants preliminary and permanent injunctive relief, stopping the Douglas County Voucher Program
Denver Dist. Judge Michael Martinez grants preliminary and permanent injunctive relief, stopping the Douglas County Voucher Program

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Published by: Andrea Rael on Aug 16, 2011
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11/17/2011

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DISTRICT COURT, DENVER COUNTY, STATE OFCOLORADOCity and County Building1437 Bannock, Denver, CO 80202
 
COURT USE ONLY
 
Plaintiffs:
JAMES LARUE, et al.,
 
v.
Defendants:
COLORADO BOARD OF EDUCATION,et al.,
Intervenors:
FLORENCE DOYLE, et al.,
ANDPlaintiffs
: TAXPAYERS FOR PUBLIC EDUCATION,et al.,v.
Defendants
: DOUGLAS COUNTY SCHOOLDISTRICT RE-1, et al.Case No.: 11cv4424Combined with:Case No.: 11CV4427Courtroom: 259
ORDERTHIS MATTER
is before the Court on Motions for Preliminary Injunction filedseparately by Plaintiffs James Larue,
et al.
and Taxpayers for Public Education,
et al
.(collectively, “Plaintiffs”).
1
Defendants Douglas County Board of Education and DouglasCounty School District, Colorado Board of Education and Colorado Department of Education(collectively, “Defendants”), and Intervenors Florence and Derrick Doyle,
et al.
(collectively,“Intervenors”) filed their respective Responses on July 22, 2011. Plaintiffs filed their respectiveReplies on July 25, 2011. A three day hearing was held beginning on August 2, 2011.Testimony was taken and exhibits were received. Also ripe for the Court’s consideration isDefendants’ Motion to Dismiss filed on July 22, 2011 and joined by Intervenors on July 26,
1
 
On July 11, 2011, Case No. 11cv4427 was consolidated into Case No. 11cv4424.
 
 
22011. Having reviewed the briefs, the exhibits, the relevant authorities, and considered thecredibility of the witnesses, the Court now makes the following findings of fact and conclusionsof law:
I.
 
FINDINGS OF FACTA.
 
THE CREATION OF THE CHOICE SCHOLARSHIP PROGRAM
1.
 
Beginning in June 2010, the Douglas County School District assembled a School ChoiceTask Force (“Task Force”) consisting of seven subcommittees and approximately 80members, including members of Plaintiffs in this case. The Task Force held a series of  public meetings to discuss a range of school choice options for the Douglas CountySchool District.2.
 
In approximately November 2010, the Task Force produced the
 Blueprint for Choice
 which was subsumed into the Douglas County School District’s Strategic Plan.3.
 
In December 2010, the Task Force presented plans for the Choice Scholarship PilotProgram (“Scholarship Program”) to the Douglas County Board of Education.
See
 Oversight Comm. Mtg., Feb. 10, 2011 (Ex. 76). Dr. Elizabeth Celania-Fagen (“Dr.Fagen”), the Superintendent of Douglas County School District, testified during theinjunction hearing that the Scholarship Program is one of approximately 30 strategiessubsumed into the
 Blueprint for Choice
to ultimately improve choice for parents andstudents in the district.4.
 
On March 15, 2011, the Douglas County School Board approved the ScholarshipProgram for the 2011-2012 school year as part of the larger 
 Blueprint for Choice
andStrategic Plan.
See
Choice Scholarship Program (“Policy”) (Ex. 1).5.
 
Prior to approval of the Scholarship Program on March 15, 2011, the staff of theColorado Department of Education met on multiple occasions with Douglas CountySchool District staff regarding the structure of the Scholarship Program.
See
,
e.g.
, Jan. 5,2011 mtg. notes (Ex. 69); February 10, 2011 mtg. minutes (Ex. 76); March 7, 2011 mtg.notes (Ex. 90).6.
 
At these meetings, the Colorado Department of Education advised the Douglas CountySchool District on the legality of the Scholarship Program and how to structure theScholarship Program so as to receive “per pupil” funding under the Public SchoolFinance Act.
See
,
e.g.
, Jan. 5, 2011 notes (Ex. 69) (discussing funding and other issuesincluding “church/state” problems, “excessive entanglement,” and legal challengesassociated with forming a charter school to administer the Program); March 7, 2011 notes(Ex. 90) (discussing use of charter school structure, special education, geographic
 
3limitations, and other issues). At the injunction hearing, Robert Hammond (“Mr.Hammond”), the Colorado Commissioner of Education, confirmed that, at the January 5,2011 meeting, the Colorado Department of Education did not intend to block theimplementation of the Scholarship Program. He additionally acknowledged that at thetime he made this statement, he had no documents outlining the Scholarship Program.7.
 
Dr. Fagen and her administration began implementing the Scholarship Program onWednesday, March 16, as directed by the Douglas County School Board for the 2011-2012 school year.
B.
 
THE CHOICE SCHOLARSHIP PROGRAM
8.
 
The purposes of the 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 [DouglasCounty School District] educational spending.”
See
Policy § A ¶ 3 (Ex. 1). TheScholarship Program allows qualified scholarship students to attend the private school(also referred to as “Private School Partner”) of his or her choice, with scholarship funds provided to reduce the overall cost of tuition.9.
 
If a student is selected to participate in the Scholarship Program and is accepted at a participating Private School Partner, the Douglas County School District pays the privateschool, via a restrictively-endorsed check to the recipient’s parents, 75% of the “per pupilrevenue” that it receives from the state of Colorado, currently estimated at $4,575 for 2011-2012, or the private school’s actual tuition fee, whichever is less.
See
ExecutiveSummary to the Choice Scholarship Program (“Exec. Summary”), at 2 (Ex. 1). Dr.Fagen, Dr. Christian Cutter (“Dr. Cutter”), the Assistant Superintendent of ElementaryEducation of the Douglas County School District, and John Carson (“Mr. Carson”), thePresident of the Douglas County School District Board of Education, corroborated theamount of the tuition payments at the hearing and testified that the Douglas CountySchool District will retain the other 25% as “administrative costs.”10.
 
Under the Scholarship Program, Douglas County School District pays participatingPrivate School Partners by check in four equal installments throughout the school year.For each payment, Douglas County School District issues a check payable to the order of the parent or guardian of each scholarship student and sends that check directly to thePrivate School Partner at which the student is enrolled. The parent or guardian of thestudent is required to endorse the check for the sole use of paying tuition at the PrivateSchool Partner.
See
Policy §§ B ¶ 8, C ¶ 4, D ¶ 7.c (Ex. 1).11.
 
The parent or guardian of a student participating in the Scholarship Program isresponsible for all tuition, costs and fees in excess of the amount provided by the ChoiceScholarship that may be assessed by the Private School Partner.
See
Policy § D ¶ 7.h(Ex.1).

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