08/05/2011 05:04 pm ET | Updated Oct 05, 2011

Douglas County Vouchers Await District Court Ruling, Unchartered Territory

Next week a judge is expected to deliver his decision on whether to intervene in Douglas County School District's "Choice Scholarship" pilot voucher, or let it go into effect until a ruling can be issued on the program's legality.

Moving forward though, tenured Professor of Education at the University of Colorado at Boulder Kevin Welner, J.D. says the court has never really had another case like this one.

"In truth, this will be a case of first impression for the Colorado Supreme Court. It will be writing on an almost clean slate in terms of useful precedent," Professor Welner told The Huffington Post.

The American Civil Liberties Union, Taxpayers for Public Education and others filed a lawsuit on behalf of concerned Douglas County parents declaring its scholarship plan, and Colorado's first voucher, "unlawful" for diverting tax dollars to 19 private schools, of which 14 are religious.

Supporters of the plan, many of which include parents whose children have received a voucher to attend one of the district's pre-approved private schools, made the argument in court that public education just wasn't good enough.

“Nathaniel doesn’t learn the way other children learn,” Diana Oakley, who is a mother of a 13-year-old with Asperger’s Syndrome, testified in court on Thursday. "He doesn’t fit inside of a public school box. He just doesn’t learn that way.”

Oakley wants to send her son to Humanex Academy, a small private school that works specifically with students who have learning disabilities like ADD, bipolar disorder, anxiety, Asperger's and others. Yet the tuition is still high enough that Oakley, an oncology nurse according to Education News Colorado, cannot afford without Douglas County's voucher program.

Besides, the defendants' lawyers argued, the vouchers are "neutral toward religion" because the parents get to decide which schools to send their children to and because students may be able to opt out of religious classes.

The ACLU though cited several letters and emails from religious schools to school district officials that could suggest otherwise. In one of the emails, a Douglas County approved partner school, Trinity Lutheran School, wrote the following on April 7:

All students are required to attend chapel services which are held once a week...If a child or the parents request that the child not actively participate in chapel services in the singing of songs and hymns and pray out loud, that request will be granted so long as the child or parents do not call attention to the child's non-participation. Scholarship students will not be exempt from religious instruction or any other religious activity during the school day.

"The provisions of the Colorado state constitution that the plaintiffs are primarily relying on are the religion clauses," Professor Welner said. "The strongest argument against applying such a provision to strike down the new voucher policy is the 1982 "Americans United" case, which upheld a statute providing public funds for higher education, at either public or private institutions. The challenge focused on Regis, a religious college approved for the program. But the case is clearly distinguishable."

That case applied specifically to higher education, so long as an independent governing board exists to preserve academic freedom.

"Clearly, the new DougCo voucher policy makes no such attempt," Professor Welner said. "That is, while the 'Americans United' court was willing to uphold a higher education policy that had protections against a 'curriculum tending to indoctrinate or proselytize,' it would not likely have upheld a k-12 policy without such protections."