DISTRICT COURT, DENVER COUNTY, COLORADO Court Address: 1437 Bannock St.

, Room 256 Denver, CO 80202 COURT USE ONLY

Plaintiffs: JAMES LARUE; SUZANNE T. LARUE; INTERFAITH ALLIANCE OF COLORADO; RABBI JOEL R. SCHWARTZMAN; REV. MALCOLM HIMSCHOOT; KEVIN LEUNG; CHRISTIAN MOREAU; MARITZA CARRERA; SUSAN MCMAHON vs. Defendants: COLORADO BOARD OF EDUCATION; COLORADO DEPARTMENT OF EDUCATION; DOUGLAS COUNTY BOARD OF EDUCATION; DOUGLAS COUNTY SCHOOL DISTRICT Intervenors: FLORENCE DOYLE; DERRICK DOYLE; ALEXANDRA DOYLE; DONOVAN DOYLE; DIANA OAKLEY; et al. AND

Case Number: 2011CV4424

Courtroom: 259

CONSOLIDATED

__________________________

Case Number: 2011CV4427 Plaintiffs: TAXPAYERS FOR PUBLIC EDUCATION; CINDRA S. BARNARD; MASON S. BARNARD vs. Defendants: DOUGLAS COUNTY SCHOOL DISTRICT RE-1; DOUGLAS COUNTY SCHOOL DISTRICT RE-1 BOARD OF EDUCATION; COLORADO DEPARTMENT OF EDUCATION; COLORADO STATE BOARD OF EDUCATION Courtroom: 259

Attorneys for Defendants: Douglas County Board of Education and Douglas County School District: Names: James M. Lyons, #882 L. Martin Nussbaum, #15370 Eric V. Hall, #32028 David M. Hyams, #42648 Rothgerber Johnson & Lyons LLP One Tabor Center, Suite 3000 1200 Seventeenth Street Denver, Colorado 80202 303.623.9000 303.623.9222 jlyons@rothgerber.com mnussbaum@rothgerber.com ehall@rothgerber.com dhyams@rothgerber.com

Firm: Address:

Tel: Fax: E-Mail:

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.

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 Colorados 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 Colorados 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.).

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

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 Districts 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 Countys 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 Districts 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

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. Kleinkopfs 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

Attorneys for the Americans United for Separation of Church and State appear on the caption for Plaintiffs and formally 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.

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

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 schools educational program without harassment, disruption, or bullying (emphasis in original), (5) will agree to give scholarship students statewide

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 schools 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

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. Colorados 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.

Defendants cite to the LaRue Motion as LaRue at ___ and to the Taxpayers Motion as TPE at ___. 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 school during the prior year (Policy at D.5), the Program is fiscally neutral as to overall statewide education funds.
4

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

The State Defendants describe these programs in their Brief in Opposition to Motions for a Preliminary Injunction at 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 homeschooling 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. 22-33104.5(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
Summary Report of the Operations and Activities of Online Programs in Colorado 6/2/2011, at 4 (found at http://www.cde.state.co.us/onlinelearning/download/1011/2011_AnnualReport_OnlinePrograms.pdf ). This report notes that 1.8 % of all Colorado students were enrolled in online learning in 2010-11, an increase of 14% from 2009-10. 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.).

Plaintiffs omit the next subsection, C.R.S. 22-32-110(1)(dd), discussing how districts may also use federal funds to buy library resources for public and nonpublic schools. 10 The foregoing discussion about the numerous places where Colorado education funds pay private organizations does not even begin the long list of federal programs that do the same, like the G.I. Bill, Pell Grants, etc. Colorado law 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 complainants 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. A. PLAINTIFFS CLAIMS FAIL ON THE MERITS 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.

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

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LaRue at 12-25. Plaintiffs are mistaken. These claims lack merit under binding Colorado case law regarding voluntary student scholarships. In the school choice context, when the state creates a program neutral to religion and where religious schools are not funded directly, but students are funded, the program is constitutional. Exactly how religious schools are is not only constitutionally irrelevant, it is constitutionally problematic for the state to try to measure a schools religiosity.12 The Program complies with each of the religion clauses of the Colorado Constitution. Finally, Plaintiffs unprecedented interpretation, if followed, would seriously conflict with the federal Constitution. 1. Scholarships that fund students and only indirectly benefit religious schools are constitutionally permitted.

Government funding of a students choice to attend a religious school is constitutional. Plaintiffs religious-funding claims must be rejected under the binding Colorado Supreme Court decision Americans United for Separation of Church and State v. Colorado, 648 P.2d 1072 (Colo. 1982), which upheld state scholarship funds being used by students who chose to attend a religious school (Regis College). Likewise, the United States Supreme Court upheld a K-12 school choice program in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), dictating the result in this litigation. The student scholarship funding in Americans United has recently been applied to permit Colorado funding of a highly religious school, Colorado Christian University, consistent with the
12

Plaintiffs invite the Court down this problematic path with page upon page of material designed to show how pervasively sectarian some of the partner schools are. The Court should reject this constitutionally irrelevant and entangling material. The First Amendment does not permit government officials to sit as judges of the indoctrination quotient of theology classes. Colorado Christian Univ. v. Weaver, 534 F.3d 1245, 1263 (10th Cir. 2008). See also Mitchell v. Helms, 530 U.S. 793, 828 (2000)([T]he inquiry into the recipient's religious views required by a focus on whether a school is pervasively sectarian is not only unnecessary but also offensive. It is well established, in numerous other contexts, that courts should refrain from trolling through a person's or institution's religious beliefs.).

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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 the program was found constitutional. LaRue at 16. That interpretation of Americans United was expressly rejected by the 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

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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 (paramount duty of the state to make adequate provisions for the education) as distinguishing the Wisconsin decision, which lacked Floridas 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 onpoint 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 SimmonsHarris 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 Constitutions 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

The Arizona decision, Cain v. Horne, 202 P.3d 1178 (Ariz. 2009), was based on constitutional text dissimilar from any provision in Colorado, was not determined based on any religion clause, and the courts interpretation disallowing 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 was less restrictive. Moreover, in 1927 when Vollmar was decided, the United States Supreme Court had not yet ruled

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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).

20

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 Colorados 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 Colorados religion clauses. In their origin,18 Colorados 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 state constitutional 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 was perceived as a growing Catholic menace . . . . [W]e would be hard pressed to divorce the amendments language from 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 Protection Clause); 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).

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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 Colorados.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

Colorado Christian Univ., 534 F.3d at 1257, 1261-66 (describing the constitutional problems of government favoring one denomination over another and evaluating how sectarian an organization is) (citing cases). 22 President Grants 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 Colorado Constitutional 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, 12 Engage 111, 112 (June 2011). See Colo. Const. art. IX 7 (sectarian used four times); IX 8 (no sectarian tenets); 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 . . . in practical terms meant Catholic); see also Hamburger, supra n. 22, at 325 n. 99 (the newspaper of the Free Religious Association, the Index, explained on December 29, 1875, [f]or sectarian . . ., read Catholic, and you have the full meaning . . . .).

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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 1920s. 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 Colorados 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 condemns anti-Catholicism innervating the Blaine movement); Zelman, 536 U.S. at 720-21 (dissenting opinion of Justices Breyer, 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, OConnor, Kennedy, Souter, Ginsburg, and Breyer noting that Blaine has been linked with anti-Catholicism). 28 Donald W. Hensel, Religion and the Writing of the Colorado Constitution, Church History 349, 354 (1961).

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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 overruled by Colorado Christian University); 23 (citing to Vollmar and stating it was overruled on other grounds); 24 (citing to 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 fully reversed by the Colorado Supreme Court in 152 P. 1149 (1915).

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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

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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.

As discussed infra, Colorado cases that discuss control of instruction always do so in the context of whether the State is encroaching on local authority. Booth, 984 P.2d at 648 (discussing the State Boards ability to direct a district to approve a charter school under the Charter Schools Act: control of instruction requires substantial discretion regarding the character of instruction students will receive at the districts expense); Ridgeview Classical Schools v. Poudre School Dist., 214 P.3d 476, 484 (Colo. App. 2008) (concluding that by enacting the Charter Schools Act the Legislature did not encroach on local authority because the district retains significant control over the educational program of the school).

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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. 2232-122 (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

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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 Courts 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 was deducted from state funds the district otherwise would have received). As the Owens court summarized, these cases dictate that local districts (not the State) must control locally-raised funds. 92 P.3d at 939.

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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 Countys 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 Districts website. The

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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).

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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, #882 L. Martin Nussbaum, #15370 Eric V. Hall, #32028 David M. Hyams, #42648 Attorneys for Defendants Douglas County Board of Education and Douglas County School District

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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 the following: Matthew J. Douglas, Esq. Timothy R. Macdonald, Esq. Michelle K. Albert, Esq. Arnold & Porter LLP 370 17th Street, Suite 4500 Denver, CO 80202 Ayesha N. Khan, Esq. Gregory M. Lipper, Esq. Americans United for Separation of Church and State 1301 K Street, NW Suite 850, East Tower Washington, D.C. 20005 George Langendorf, Esq. Arnold & Porter LLP 22nd Floor, One Embarcadero Center San Francisco, CA 94111-3711 Michael S. McCarthy, Esq. Colin C. Deihl, Esq. Madia G. Malik, Esq. Sarah A. Kellner, Esq. Gordon M. Hadfield, Esq. FAEGRE & BENSON, LLP 3200 Wells Fargo Center 1700 Lincoln Denver, CO 80203-4532 Alexander Halpern, Esq. Alexander Halpern LLC 1426 Pearl Street, #420 Boulder, CO 80302 Mark Silverstein, Esq. Rebecca T. Wallace, Esq. American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, CO 80218 Daniel Mach, Esq. Heather L. Weaver, Esq. ACLU Foundation Program on Freedom of Religion and Belief 915 15th Street, NW, Suite 600 Washington, D.C. 2005 Paul Alexander, Esq. Arnold & Porter LLP Suite 110, 1801 Page Mill Road Palo Alto, CA 94304-1216 Antony B. Dyl, Esq. Nicholas G. Stancil, Esq. Geoffrey N. Blue, Esq. Office of the Attorney General 1525 Sherman Street, 7th Floor Denver, CO 80203

William H. Mellor, Esq. Institute for Justice 901 N. Glebe Road, Suite 900 Arlington, VA 22203

s/ Karen Lutterschmidt Karen Lutterschmidt

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