Taxpayers for Public Education v. Douglas County School District

2013 COA 20, 356 P.3d 833, 2013 WL 791140, 2013 Colo. App. LEXIS 266

• Court: Colorado Court of Appeals
• Decided: February 28, 2013
• Docket: Nos. 11CA1856 & 11CA1857
• Status: Published

Opinions

Opinion by

JUDGE J. JONES

11 In 2011, the Douglas County Board of Education (County Board) adopted the Choice Scholarship Program (CSP). Pursuant to the CSP, parents of eligible elementary school, middle school, and high school students residing in the Douglas County School District (District) may choose to have their children attend certain private schools, including some with religions affiliation. The District would pay parents of participating students "scholarships" covering some of the cost of tuition at those schools, and the parents would then remit the scholarship money to the schools.

12 Plaintiffs are nonprofit organizations, Douglas County taxpayers, District students, and parents of District students. They filed suit to enjoin implementation of the CSP, claiming that it violates the Public School Finance Act of 1994, sections 22-54-101 to - 185, C.R.S$.2012 (the Act), and various provisions of the Colorado Constitution.¹

18 Following a hearing on plaintiffs' motion for a preliminary injunction, the district court found that the CSP violates the Act and most of the constitutional provisions at issue. The court permanently enjoined implementation of the CSP.

I 4 We conclude that plaintiffs do not have standing to seek redress for a claimed violation of the Act, and that the CSP does not violate any of the constitutional provisions on which plaintiffs rely. Therefore, we reverse the district court's judgment and remand the case for entry of judgment in defendants favor.

I,. Background

A. The CSP

15 We glean the facts largely from the district court's written order and, to the extent uncontested, testimony given and exhibits admitted during the preliminary injunetion hearing.

16 The District created a task force to study a variety of school choice strategies for District students. The task force submitted a report to the District identifying about thirty strategies for improving school choice, and submitted a plan for implementing one of those strategies, the CSP, to the County Board. In March 2011, the County Board approved the CSP on a "pilot program" basis for the 2011-2012 school year, limited to 500 students. The following aspects of the CSP bear on the issues raised by the parties.

'The purposes of the CSP 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 of investment of [District] educational spending." .

«Private schools, including private schools that are not located in Douglas County, may apply to participate in the CSP.

Private schools applying to participate in the CSP must provide information about a variety of matters, and must satisfy a variety of eligibility criteria, some of which relate to academic rigor, accreditation, student conduct, and financial stability. Participating private schools must agree to allow the District to administer assessment tests to District students participating in the CSP.

«Participating private schools are prohibited from discriminating "on any basis protected under applicable federal or state law." But, the CSP does not require as a condition of participation that any private school modify employment or enrollment standards that are based on religious beliefs.

+The CSP provides for District oversight of private schools' compliance with program requirements, and reserves to the District the ability to withhold payments or terminate participation for noncompliance.

«Thirty-four private schools applied to participate in the CSP for the 2011-2012 school year. The District contracted with twenty-three of those schools. -

+ Of the twenty-three private schools contracting with the District, fourteen are located outside Douglas County, and sixteen teach religious tenets or beliefs. Many are funded at least in part by and affiliated with particular religious organizations. '

+ Many of the participating private schools base admissions decisions at least in part on students' and parents' religious beliefs and practices. Many also require students to attend religious services. However, the CSP expressly gives students the right to "receive a waiver from any required religious services at the [participating private school.²

«Students are eligible to participate in the CSP only if they are District residents (open-enrolled students are not eligible), have resided in the District for at least one year, and were enrolled in District public schools during the 2010-2011 school year. Any such student desiring to participate in the CSP must complete an application to be submitted to the District and must agree to take state assessment tests.

© Students accepted by the District to participate in the CSP are formally enrolled in the Choice Scholarship Charter School (Charter School). The Charter School administers the CSP, contracting with the . participating private schools and monitoring students' class schedules and attendance at participating private schools. It does not have a building, teachers, or curriculum.

Each student accepted to participate in the CSP must also be accepted for enrollment in a participating private school chosen by the student's parents. The CSP encourages students and parents to investigate participating private schools' "admission criteria, dress codes and expectations of participation in school programs, be they religious or nonreligious." ©

-The sole source of funding for the CSP is the total "per pupil revenue" received by the District for the Charter School pursuant to section 22-80.5-112(2)(a.5), C.R.S. 2012. The fund of money from which "per pupil revenue" is distributed comprises District property and other ownership taxes and state revenue. §§ 22-54-108(11), - 104.1, ~106(1)(a)(I), C.R.98.2012³

«'The District counts all students enrolled in the Charter School toward its total pupil count for purposes of receiving per pupil revenue, See § 22-54-103(10) (defining "pupil enrollment" for purposes of calculating per pupil revenue).

«For each student participating in the CSP, the District (acting through the Charter School) pays scholarships of the lesser of the participating private school's charged tuition or seventy-five percent of the "per pupil revenue" received by the District. (The District retains the remaining twenty-five percent.) The participating student's parents are responsible for paying any difference. The District estimated that per pupil revenue for the 2011-2012 school year would be $6,100, meaning that up to $4,575 could be paid for student tuition at a participating private school.

'The CSP provides that scholarship payments will be made by check, in four equal installments, to parents of participating students. Parents are required to then endorse the checks to the participating private schools.

B. The District Court Proceedings

17 Plaintiffs, acting in two groups, filed complaints seeking a declaration that the CSP is unlawful and an order enjoining implementation of the CSP. Their claims are based on the Act and seven provisions of the Colorado Constitution. Plaintiffs named the Colorado Department of Education, the State Board, the County Board, and the District as defendants. The cases were consolidated.

8 Defendants moved to dismiss the complaints for failure to state a claim for relief. Plaintiffs moved for a preliminary injunction. The court held a three-day hearing on the motions for a preliminary injunction, after which the court issued a detailed written order denying defendants' motion to dismiss and finding that the CSP violates the Act and article II, section 4; article V, section 34; and article IX, sections 3, 7, and 8 of the Colorado Constitution. (The court found that the CSP does not violate two constitutional provisions on which plaintiffs rely, article IX 'sections 2 and 15.)

19 Acting sua sponte, the court permanently enjoined implementation of the CSP. The parties apparently agree that the court's order constitutes a final disposition of all claims.⁴

II. Discussion

110 For clarity of analysis, we divide plaintiffs' claims into three groups: (1) claims alleging violations of statutory and constitutional provisions which concern state schools generally—the Act and article IX, sections 2, 3, and 15; (2) claims allegmg violations of constitutional provisions which concern aid to or support of religion and religious organizations-article II, section 4, and article IX, sections 7 and 8; and (3) the claim alleging a violation of article V, section 34, which concerns appropriations generally and appropriations to religious organizations specifically.

\A. Public Funding and Control Claims

1: The Act-School Funding

[11 Plaintiffs claim that the CSP violates the Act because "[the District] will impermis-sibly use State monies distributed by the Colorado Department of Education to pay for private school tuition at private schools." See § 22-54-104(1)(a) (the amount calculated under the Act as the "financial base of support for public education in the district ... shall be available to the district to fund the costs of providing public education"). After rejecting defendants' challenge to plaintiffs' standing to seek judicial enforcement of the Act, the district court found that the CSP violates the Act because it "effectively results in an increased share of public funds to [the District] rather than to other state school districts," ⁵

112 We need not address the merits of plaintiffs' claim under the Act because we conclude that plaintiffs lack standing to bring it.

113 Whether a plaintiff has standing to bring a particular claim presents a question of law that we review de novo. Barber v. Ritter, 196 P.3d 238, 245 (Colo.2008); Ainscough v. Owens, 90 P.3d 851, 856 (Colo. 2004).

$14 To establish standing, a plaintiff suing in Colorado state court must establish that (1) it incurred an injury-in-fact; and (2) the injury was to a legally protected interest. Barber, 196 P.3d at 245; Ainscough, 90 P.3d at 855; Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 538 (1979). Our inquiry here focuses on the second requirement.⁶

115 In determining whether a statute gives a particular plaintiff a legally protected interest, we look to whether the General Assembly clearly intended to create a private right of action. Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 923 (Colo. 1997) ("[Wle will not infer a private right of action based on a statutory violation unless we discern a clear legislative intent to create such a cause of action."). The Act does not expressly authorize a private cause of action to enforce its provisions. Therefore, we look to three factors to determine whether a private cause of action is clearly implied: (1) whether the plaintiffs are within the class of persons intended to be benefitted by the Act (specifically, by section 22-54-104(1)); (2) whether the General Assembly intended to create, albeit implicitly, a private right of action; and (8) whether an implied private right of action would be consistent with the purposes of the Act. Id.; Allstate Ins. Co. v. Parfrey, 830 P.2d 905, 911 (Colo.1992).

1 16 The district court recited these factors but did not engage in any substantive analysis of them. Instead, the court conclusorily ruled that certain plaintiffs' status as District students and parents of District students "confers a legal interest in the enforcement of the statutes enumerated in their claims." In so ruling, the district court erred.

117 Assuming that the plaintiffs who are District students and parents of District students are within the class of persons intended to be benefitted by the Act, examination of the other two factors does not support the existence of a private cause of action.

{18 There is nothing in the language of the Act remotely suggesting that private citizens or groups have a right to seek judicial enforcement of its provisions. The Act expressly commits enforcement of its provisions to the State Board. § 22-54-120(1), C.R.8.2012 ("'The state board shall make reasonable rules and regulations necessary for the administration and enforcement of this article."). And the Act provides a number of mechanisms for easuring compliance with its funding scheme, none of which contemplate private enforcement. E.g., §§ 22-54-104 (providing in detail how the State Board shall determine each district's total per pupil revenue), -114 to -115 (providing in detail how money in the state public school fund is to be appropriated and distributed),-115(4) (providing means for the State Board to recover any overpayment of state moneys to a district), -129(6)(a)-(b) (providing that the State Board "shall promulgate rules ... as necessary for the administration and enforcement of this section").

119 Where, as here, a statute provides a means of enforcement, the designated remedy ordinarily excludes all others. See Gerrity Oil & Gas Corp., 946 P.2d at 924-25; cf. Bd. of Cnty. Comm'rs v. Moreland, 764 P.2d 812, 817-21 (Colo.1988) (statute which provided specific remedies for violations thereby indicated that the General Assembly had considered the issue of civil lability but had chosen not to make any provision therefor); Macurdy v. Faure, 176 P.3d 880, 883 (Colo.App.2007) (statute which entrusted decision whether to perform an autopsy to government officials did not contemplate a private right of action to compel officials to perform an autopsy); Prairie Dog Advocates v. City of Lakewood, 20 P.3d 1203, 1208 (Colo.App.2000) (statute which prohibited poisoning wildlife and subjected violators to penalties reserved enforcement to the state, and therefore did not create a private cause ° of action); Axtell v. Park Sch. Dist. R-3, 962 P.2d 319, 320-21 (Colo.App.1998) (because Evaluation Act provided a specific remedy for violations by school districts-withholding or suspension of accreditation by the State Board-it did not create an independent private right of action); Minnick v. City & Cnty. of Denver, 784 P.2d 810, 812 (Colo.App. 1989) (city ordinance which imposed a prevailing wage requirement on public works projects, and which provided a remedy for violations-withholding payments to contractors-did not create a private right of action); Silverstein v. Sisters of Charity, 38 Colo.App. 286, 288-89, 559 P.2d 716, 718 (1976) (statute which provided a criminal penalty for violations did not allow a private: civil action for damages; quoted with approval in Moreland ). i

120 Nor would recognizing a private cause of action be consistent with the Act's purposes. The Act addresses in a detailed way what is a rather vague constitutional requirement. See § 22-54-102(1), C.R.8.2012 (the Act "is enacted in furtherance of the general assembly's duty under section 2 of article IX 'of the state constitution to provide for a thorough and uniform system of public schools throughout the state"). It requires the responsible state agencies (the Colorado Department of Education and the State Board) to engage in constant evaluation and oversight of all local school districts and to manage large sums of money (in amounts which change annually, if not more frequently). As discussed, the State Board is also entrusted with enforcing the Act, and the Act provides mechanisms for the State Board to exercise that authority.

T 21 In light of the seope and complexity of the statutory scheme, the responsible state agencies require a certain degree of discretion and flexibility in carrying out their oversight and enforcement responsibilities We are persuaded that allowing private citizens to act as substitute boards of education by challenging districts' actions in court would interfere with the state agencies' efforts to meet their statutory obligations. And, it would introduce uncertainty into a process where little can be tolerated. Local school districts, for example, would not be able to rely on decisions of the state agencies if those decisions were open to court challenge by any disgruntled citizen.

122 Therefore, consideration of the relevant factors leads us to conclude that plaintiffs do not have standing to bring a private cause of action seeking enforcement of the Act.

1123 We are not persuaded to the contrary by plaintiffs' arguments.

1 24 Though plaintiffs argue that "absent a private right of action, the statute lacks any mechanism to hold an offending school district accountable," that is plainly not the case. Seq, eg., § 22-54-115(4) (providing means of recouping overpayments to local school districts), Plaintiffs' ad hominem assertion that no enforcement mechanism exists because "the State Board has essentially colluded with the offending district" is unsupported by the record. And, in any event, plaintiffs cite no authority for the proposition that a private right of action must be allowed where the agency charged with enforcing a statute declines to act in a particular instance. Any such disagreement over the necessity of enforcement must be left to the political process.

125 Nor does taxpayer status give plaintiffs standing. Taxpayer standing is recognized in the context of alleged constitutional violations. E.g., Barber, 196 P.3d at 245-47. Plaintiffs cite no authority holding that taxpayer status is sufficient to confer standing to seek judicial enforcement of a statute. Recognizing such standing would in most, if not all cases render unnecessary the standing analysis the supreme court has applied in this context for decades.

T 26 Finally, the cases on which plaintiffs rely are distinguishable. In Board of County Commissioners v. Bainbridge, Inc., 929 P.2d 691, (Colo.1996), the plaintiffs' claims alleged constitutional violations, id. at 696 n. 6, and the court did not address standing. Likewise, the plaintiffs' claims in both Lobato v. State, 216 P.3d 29 (Colo.App.2008), rev'd, 218 P.3d 358 (Colo.2009), and Boulder Valley Sch. Dist. RE-2 v. Colo. State Bd. of Educ., 217 P.3d 918 (Colo.App.2009), alleged violations of the state constitution. Lobato, 216 P.3d at 32, 35; Boulder Valley Sch. Dist., 217 P.3d at 921-22. As discussed, the standing analyses for constitutional and statutory claims are different: the standing inquiry for statutory claims is more rigorous.

T27 Because we have determined that plaintiffs do not have standing to seek judicial enforcement of the Act, we need not examine the parties' arguments on the merits.

2. Article IX, § 2-Thorough and Uniform System of Free Public Schools

128 As relevant here, article IX, section 2 of the Colorado Constitution requires the General Assembly to "provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state. . .." The district-court found against plaintiffs on their claim alleging a violation of this provision because they had not presented "sufficient evidence that [the CSP] prevents students from otherwise obtaining a free education in Douglas County." 20.

29 On appeal, plaintiffs contend that the court erred in rejecting this claim because (1) students participating in the CSP are not educated gratuitously (as the CSP may cover only part of a participating student's private school tuition); (2) educational programs at the participating private schools vary; and (3) by retaining twenty-five percent of per pupil revenue pursuant to the CSP, the District receives money that otherwise would go to other school districts.

130 Initially, we reject the state defendants' argument that because plaintiffs have not eross-appealed the district court's adverse ruling on their article IX, section 2 claim, they may not raise these contentions on appeal.

131 "The general rule is that an appellee must file a cross-appeal in order for an appellate court to consider an alleged error of the trial court which prejudiced the appellee." Blocker Exploration Co. v. Frontier Exploration, Inc., 740 P.2d 983, 989 (Colo.1987). But, "[wlithout filing a cross-appeal, ... an appellee may raise any argument in support of the trial court's judgment, so long as the appellee does not seek to increase its rights under the judgment." Leverage Leasing Co. v. Smith, 143 P.3d 1164, 1167-68 (Colo.App.2006); see Blocker, 740 P.2d at 989.

32 Plaintiffs do not seek to increase their rights under the judgment. If they are sue-cessful on these, contentions they will not be entitled to any relief in addition to or different from that already awarded by the district court. The mere fact that plaintiffs pled a stand-alone claim based on article IX, section 2 does not, contrary to the state defendants' assertion, mean that success on these contentions would increase their rights under the judgment. See Evans v. Romer, 854 P.2d 1270, 1275 & n. 7 (Colo.1998) (supreme court was not limited in assessing only the constitutional right relied on by the district court in striking down the provision at issue because the plaintiffs-appellees were not seeking to increase their rights under the judgment); cf. Blum v. Bacon, 457 U.S. 132, 187 n. 5, 102 S.Ct. 2355, 72 L.Ed.2d 728 (1982) (the appellee could raise a statutory argument on appeal that had been rejected by the lower court despite not having filed a cross-appeal because his relief under the judgment granting an injunction would not be modified); Dandridge v. Wiliams, 397 U.S. 471, 476 & n. 6, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (the appellee could argue that the regulation at issue violated a statute, even thought the appellee had lost on that claim and had not filed a cross-appeal); Castellano v. Fragozo, 352 F.3d 939, 960 (5th Cir.2003) (despite not having filed a cross-appeal, the plaintiff could defend the judgment based on a constitutional claim that had - been dismissed because he was not attempting to expand his rights under the judgment); Kennecott Copper Corp. v. Curtiss-Wright Corp., 584 F.2d 1195, 1206 (2d Cir.1978) (appellee which did not cross-appeal from dismissal of claim alleging a violation of statute could nonetheless argue such violation on appeal as . grounds for affirming injunctive relief); but see Robertson v. City & Cnty. of Denver, 874 P.2d 325, 327 nn. 2 & 5 (Colo.1994) (because the plaintiffs did not eross-appeal, they could not argue on appeal that the district court erred in rejecting certain constitutional challenges to the ordinance there at issue).

133 Therefore, we address the merits of plaintiffs' contentions, And we conclude that plaintiffs' contentions fail, -

$34 We review de novo the district court's determination whether the CSP is constitutional. Owens v. Congress of Parents, Teachers and Students, 92 P.3d 933, 942 (Colo.2004). To the extent the district court made findings of historical fact based on conflicting evidence, however, we review such findings for clear error. See People in Interest of A.J.L., 243 P.3d 244, 249-50 (Colo. 2010). A finding of fact is clearly erroneous only if it has no record support. Id. at 250; M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1383-84 (Colo.1994).⁷

135 We recognize that legislative acts are entitled to a presumption of constitutionality. See Owens, 92 P.8d at 942. Plaintiffs argue that we should not apply the presumption to the CSP because it is not a statute enacted by the General Assembly or a municipal ordinance. That view of the presumption's application is too narrow.

1386 The presumption of constitutionality stems from an appreciation of the separation of powers established by the Colorado Constitution; "thereby, the judiciary respects the . roles of the legislature and the executive in the enactment of laws." City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 440 (Colo.2000). Contrary to plaintiffs' suggestion, Colorado case law does not suggest that this respect is limited to statutory enactments of the General Assembly and analogous enactments of municipal governments. Colorado appellate courts have also applied the presumption to, for example, administrative regulations adopted by administrative agencies, e.g., Colo. Civil Rights Comm'n v. Travelers Ins. Co., 759 P.2d 1358, 1366 (Colo.1988); an internal rule adopted by the state House of Representatives, Grossman v. Dean, 80 P.3d 952, 964 (Colo.App.2008); and, as perhaps most apt here, resolutions adopted by a board of county commissioners, Asphalt Paving Co. v. Bd. of Cnty. Comm'rs, 162 Colo. 254, 264-65, 425 P.2d 289, 295 (1967).

187 We are not persuaded that legislative acts of school districts' boards of education merit different treatment; Pursuant to article IX, section 15 of the Colorado Constitution, the General Assembly created local school districts governed by boards of education. The directors of the boards are elected by qualified district electors, and "have control of instruction in the public schools of their respective districts." Colo. Const. art, IX, § 15. By statute, local boards are entrusted with extensive duties and powers (including, for example, the power of eminent domain), which they carry out and exercise through the adoption of policies, rules, and regulations. §§ 22-82-108(1), -109 to -109.7, -110, -110.6, ~110.7, C.R.8.2012. Thus, the boards are legislative bodies. And they are political subdivisions of the state. See Bagby v. Sch. Dist. No. 1, 186 Colo. 428, 434-35, 528 P.2d 1299, 1302 (1974) ("A school district is a subordinate division of the government and exercising authority to effectuate the state's education purposes.... As such, school districts and the boards which run them are considered to be political subdivisions of the state." (citations omitted)). We should respect the role of such bodies no less than we do the role of the General Assembly.

188 Accordingly, we conclude that the CSP is entitled to a presumption of constitutionality. Thus, we must uphold the CSP unless we conclude that plaintiffs proved that it is unconstitutional beyond 'a reasonable doubt. Owens, 92 P.3d at 942; People in Interest of City of Arvada v. Nissen, 650 P.2d 547, 550 (Colo.1982). "In addition, we must uphold the [enactment] unless a clear and unmistakable conflict exists between the [enactment] and a provision of the Colorado Constitution." Owens, 92 P.3d at 942 (internal quotation marks omitted; quoting in part E-470 Pub. Highway Auth. v. Revenig, 91 P.3d 1038, 1041 (Colo.2004))⁸

[39 We now turn to the merits of plaintiffs' contentions under article IX, section 2.

140 As noted, the district court rejected plaintiffs' contention that the CSP denies students a "free" public education because there was insufficient evidence that any student would be denied the opportunity to receive a free public education in Douglas County. The record supports 'this finding. Indeed, plaintiffs do not even argue to the contrary. Rather, they argue that because students participating in the CSP may not receive a free education (because parents must pay the difference remaining after remittance of the scholarships), the CSP necessarily violates article IX, section 2.

[41 Plaintiffs misapprehend the constitutional mandate. It requires that a thorough and uniform system of free elementary through high school education be made available to students between the ages of six and twenty-one. See Lujan v. Colo. State Bd. of Educ., 649 P.2d 1005, 1025 (Colo.1982) (this provision "is satisfied if thorough and uniform educational opportunities are available through state action in each school district"); cf. Simmons-Horris v. Goff, 86 Ohio St.3d 1, 711 N.E.2d 203, 212 (1999) (holding that a program similar to the CSP did not violate the Ohio Constitution's requirement of "a thorough and efficient system of common schools" because it did not undermine that state's obligation to public education at current funding levels); Davis v. Grover, 166 Wis.2d 501, 480 N.W.2d 460, 473-74 (1992) (applying a similar constitutional provision to a similar school choice program and holding that it requires only that the legislature provide the opportunity to receive a uniform basic education). It plainly is not violated where a local school district decides to provide educational opportunities in addition to the free system the constitution requires. Lujan, 649 P.2d at 1025 (article IX, section 2 "does not prevent a local school district from providing additional educational opportunities beyond this standard"); cf. In re Kindergarten Schools, 18 Colo. 234, 234-36, 82 P. 422, 422-23 (1898) (requirement of article IX, section 2 did not prohibit General Assembly from establishing a public school system for educating children less than six years old). Nor is it violated merely because some students' parents may choose to have their children forego the available opportunity to attend a school within the system the constitution requires. -

[42 It is questionable whether plaintiffs' remaining contentions are préserved for review. Their briefs do not identify where in the record these contentions were raised, as required by C.A.R. 28(k), and our review of the motions for preliminary injunction, the arguments at the hearing, and plaintiffs' proposed findings does not reveal that they asserted these precise contentions in any substantial way. In any event, they fail as well.

$48 Any lack of uniformity, either among the instructional programs provided by the participating private schools and the public schools or amongst the various private schools themselves, does not render the CSP in violation of article IX, section 2. The requirement that the General Assembly create a thorough and uniform system of free public education does not preclude a local school district from providing educational opportunities in addition to and different from the thorough and uniform system. See Lujon, 649 P.2d at 1025.

T44 Moreover, the fact the participating private schools ultimately receive funds distributed to the District as per pupil revenue does not transform the private schools into public schools subject to the uniformity requirement. See Jackson v. Benson, 218 Wis.2d 835, 578 N.W.2d 602, 627-28 (1998) (rejecting claim that a parental choice program giving public funds to parents who enroll their children in certain private schools * violated a constitutional provision requiring establishment of local schools "which shall be as nearly uniform as practicable"; funding mechanism did not transform private schools into public schools); Davis, 480 N.W.2d at 473-74 (same).

145 Plaintiffs also are incorrect that because the CSP is structured to allow the District to retain twenty-five percent of per pupil revenue allocated for participating students, it diverts funds from other districts and thereby violates article IX, section 2, for at least two reasons.

£46 First, this contention assumes that participating students would not be enrolled in District schools in the absence of the CSP. But, as plaintiffs' counsel conceded at oral argument, that assumption lacks evidentiary support in the record. Indeed, the evidence in the record bearing on this point indicates the contrary. As noted, to be eligible to participate in the CSP, students must be current District residents, must have been District residents for at least one year, and must have been enrolled in District public schools during the 2010-2011 school year (the school year immediately prior to the school year during which the CSP was to operate). And, also as noted, one purpose of the CSP is to provide greater educational choice to District students and parents-that is, choices not previously available to District students and parents because of financial limitations. Thus, if anything, the evidence in the record shows that the District's per pupil revenue would be the same in the absence of the CSP because the participating students would otherwise enroll in District public schools.⁹

T47 Second, this contention posits an unduly restrictive view of the mandate of article IX, section 2, As discussed, local school districts may provide educational options to students in addition to that required by article IX, section 2. See Lujan, 649 P.2d at 1025; Boulder Valley Sch. Dist., 217 P.3d at 927-28 (state system of charter schools does not violate article IX, section 2 because that provision does not prohibit making available additional educational opportunities); see also Jackson, 578 N.W.2d at 627-28 (rejecting argument premised on similar constitutional provision that similar school choice program diverted funds from the public school system). And they may expend public funds in doing so. See § 22-54-104(1)(a) ("the amounts and purposes for which [a district's total per pupil revenue] are budgeted and expended shall be in the discretion of the district),¹⁰

148 We therefore conclude that plaintiffs failed to prove beyond a reasonable doubt that the CSP violates article IX, section 2.

8. Article IX, § 3-Use of the Public School Fund

49 Article IX, section 8 provides in relevant part:

The public school fund of the state shall, except as provided in this article IX, forever remain inviolate and intact and the interest and other income thereon, only, shall be expended in the maintenance of the schools of the state, and shall be distributed amongst the several counties and school districts of the state, in such manner as may be prescribed by law. No part of this fund, principal, interest, or other income shall ever be transferred to any other fund, or used or appropriated, except as provided in this article IX. ...

'I 50 The public school fund consists of the proceeds of land given to the state for educational purposes by the federal government upon Colorado's admission into the union, estates which escheat to the state, and gifts to the state for educational purposes. Colo. Const. art,. IX, § 5; 'see 18 Stat. 474 § 7; People in Interest of Dunbar v. City of Littleton, 183 Colo. 195, 197, 515 P.2d 1121, 1121 (1978).

151 The district court held that the CSP violates article IX, séction 3 because some of the District's total per pupil funding comes from the public 'school fund. The court reasoned that payments to parents would therefore include money from the pub-lie school fund, which would then be received by private schools, We do not agree with that analysis.

T52 Article IX, section 3 requires only that money from the public school fund be "expended in the maintenance of the schools of the state" and "distributed amongst the several counties and school districts of the state, in such manner as may be prescribed by law." It plainly applies to distributions made by the state, not local districts. And it requires distributions to the counties and school districts. Upon distribution by the state to the counties and school districts, the money from the fund belongs to the counties and school districts. Craig v. People in Interest of Hazzard, 89 Colo. 139, 144-45, 299 P. 1064, 1066 (1931).

153 In ruling that the District directed public school fund monéy to participating private schools (through parents of participating students), the district court in effect assumed that onee a district receives public school fund money from the state, all money the district expends is subject to the restriction of article IX, section 8. But article IX, section 3 is expressly a restriction on the use of only certain money-that of the public school fund. It does not suggest that the existence of some public school fund money in a district's total per pupil revenue subjects all money comprising the total per pupil revenue to its restriction.

154 It is undisputed that less than two percent of public school funding comes from the public school fund: (The District presented unrebutted evidence of this fact.) It is also undisputed that (1) at the time of the preliminary injunction hearing, there were approximately 58,000 students in District schools, only 500 of whom (or 0.86 percent) could enroll in the Charter School; and (2) the Charter School would retain twenty-five percent of per pupil revenue attributable to students participating in the CSP. Therefore, it does not follow that money from the public school fund would be diverted to private schools. Because we must presume the CSP is constitutional, Danielson v. Dennis, 139 P.3d 688, 691 (Colo.2006), construe the CSP in a manner avoiding constitutional infirmity, if possible, Bd. of Directors v. Nat'l Union Fire Ins. Co., 105 P.3d 653, 656 (Colo.2005), and avoid, seeking reasons to find the CSP unconstitutional, Harris v. Heckers, 185 Colo. 39, 41, 521 P.2d 766, 768 (1974), we must construe the CSP as funded out of the ninety-eight percent of total per pupil revenue that does not come from the public school fund. See Danielson, 139 P.3d at 691 (party challenging the constitutionality of a legislative enactment must establish that "[the precise point of conflict between [the legislative enactment] and the constitution ... appear[s] plain, palpable, and inevitable ") (emphasis added) (quoting Union Pac. Ry. Co. v. De Busk, 12 Colo, 294, 303, 20 P. 752, 756 (1889)).¹¹

55 Perceiving no plain, palpable, and inevitable conflict between the CSP and article IX, section 8, we conclude that plaintiffs did not meet their burden of establishing the unconstitutionality of the program under that provision.

4. Article IX, § 15-Local Control

156 Plaintiffs contend that the CSP violates article IX, section 15 of the Colorado Constitution, and that the district court erred in ruling to the contrary. Because plaintiffs do not.seek to increase their rights under the judgment by asserting this claim, we have jurisdiction to consider it notwithstanding that plaintiffs did not file a cross-appeal. See Part ILA.2, swpro. Their contention fails.

157 As noted, article IX, section 15 pro-: vides that the directors of the boards of education of local school districts "shall have control of instruction in the public schools of their respective districts," The district court found that this provision is aimed at ensuring that the state does not encroach upon the prerogative of local school districts to control the instruction in the public schools within their respective districts.

T 58 We agree with the district court. See Owens, 92 P.3d at 935, 938-42 (discussing the purpose of article IX, section 15 and cases applying it). Further, the provision does not relate to instruction in private schools. As discussed above, participating private schools retain their character as private, not public, schools. It follows that article IX, section 15 does not apply to the CSP.

B. Religion Claims

59 The Colorado Constitution contains a. number of provisions addressing the relationship between state government and citizens, on the one hand, and religion generally and religious institutions, on the other hand. Some of these provisions pertain to support for religion and religious institutions. are at issue here: article II, section 4; article V, section 34;¹² and article IX, sectlons 7 and 8. Four

1 60 Defendants urge us to hold that these provisions are substantively indistinguishable from the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution. Were we to do so, they contend, we would have no choice but to reject plaintiffs' claims under the state constitution because the United States Supreme Court rejected a First Amendment challenge to a virtually identical school choice program in Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002).

T61 No Colorado appellate decision has held that the Colorado Constitution's religion provisions are merely eoextensive with the Religion Clauses of the First Amendment. We will not consider that issue because we need not do so to resolve the merits of plaintiffs' claims under existing jurisprudence. See People v. Thompson, 181 P.3d 1143, 1145 (Colo.2008) ("[We will refrain from resolving constitutional questions or from making determinations regarding the extent of constitutional rights 'unless such a determination is essential and the necessity of such a decision is clear and inescapable." ") (quoting in part Denver Publ'g Co. v. Bd. of Cnty. Comm'rs, 121 P.3d 190, 194 (Colo. 2005)); Ricci v. Davis, 627 P.2d 1111, 1121 (Colo.1981) ("[A] court will not rule on a constitutional question which is not essential to the resolution of the controversy before it. n)

162 For the same reason, we will not address defendants' contention that we should disregard some of the religion provisions at issue (article V, section 84; and article IX, sections 7 and 8) because many of those who proposed and voted for them were motivated by anti-Catholic bigotry. According to defendants (and certain amici curiae), these provisions-which they term "Blaine provisions" ¹³-are unconstitutional under the federal constitution because of their alleged discriminatory purpose. But again, we need not consider that issue because we conclude that the CSP does not Vlolate any of the subject prowswns

1, Article II, § 4-Required Attendance or Support

168 As relevant here, article II, seetion 4 provides: "No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent." The district court ruled that the CSP violates this prohibition because schools affiliated with religious institutions would receive taxpayer money, and taxpayers would thereby be compelled to support "indoctrination and religious education" at such schools. We disagree.

T 64 In Americans United for Separation of Church and State Fund, Inc. v. State, 648 P.2d 1072 (Colo.1982), the court rejected a challenge to a program similar to the CSP under the compelled support provision of article II, section 4. That program provides monetary grants of state funds to Colorado resident students attending private institutions of higher education in the state. As then devised, the program provided aid to students attending "sectarian" schools, but not to students attending "pervasively sectar-fan" schools. See Ch. 279, §§ 28-8.5-101 to - 106, 1977 Colo. Sess. Laws 1104-06.

{ 65 The court began its analysis by recognizing that article II, section 4 "echoes the principle of constitutional neutrality underscoring the First Amendment." Americans United, 648 P.2d at 1082.¹⁴ It then observed that the compelled attendance or support clause "'is aimed to prevent an established church."" Id. (quoting People in Interest of Vollmar v. Stanley, 81 Colo. 276, 285, 255 P. 610, 615 (1927)).

T 66 In upholding the grant program, the court found that it was "designed for the benefit of the student, not the educational institution," and was neutral in the sense that it was "available to students at both public and private institutions of higher learning." Id.

T67 Essentially the same can be said of the CSP. The district court found, with ree-ord support, that "the purpose of the [CSP] is to aid students and parents, not sectarian institutions." And the CSP is neutral-it is available to all District students and to any private school which meets the neutral eligibility criteria.

T68 The district court, however, determined that the program at issue in Americans United is materially distinguishable from the CSP because the CSP does not include "any express language that limits or conditions the use of state funds received by the partner schools for the strict purpose of secular student education." And after extensively scrutinizing the nature of the education provided by certain participating private schools and the degree to which those schools "infuse religious teachings into the curriculum," the court concluded that taxpayer money ultimately would be used to further sectarian institutions' "goals of indoctrination and religious education." ¹⁵

69 The district court erred in its analysis, for two reasons. First, contrary to the district court's conclusion, the program at issue in Americans United "does not expressly limit the purpose for which the institutions may spend the funds distributed under the grant program...." Id. at 1084. Rather, the supreme court observed that the program provides for a "biannual audit and review of payment procedures and other practices ... [that] are expressly designed to insure that the grant program is being properly administered," and prohibits participating institutions from "decreasfing] the amount of its own funds spent for student aid below the amount spent prior to participation in the program." Id.

T70 In these respects, the program at issue in Americans United is analogous to the CSP. As the district court found, the CSP has a "check and balance system" which allows for periodic District review of participating private schools' records to assure that the schools are complying with the educational and other requirements to which they. agreed. And the District's Assistant Superintendent testified that any school which would reduce its financial aid to a participating student because of participation in the CSP would be in violation of the CSP. Though the district court found that one such instance of aid reduction had occurred (out of hundreds of participating students), the court cited no evidence supporting a conclusion that such reduction was permissible under the CSP. Plaintiffs have not cited any such record evidence either.

T71 Second, the inquiry in which the district court engaged-into the degree to which religious tenets and beliefs are included in participating private schools' educational programs-is no longer constitutionally permissible. In the thirty years since Americans United was decided, the United States Supreme Court has made clear that, in assessing facially neutral student aid laws, a court may not inquire into the extent to which religious teaching pervades a particular institution's curriculum. Doing so violates the First Amendment. See Mitchell v. Helms, 530 U.S. 793, 828, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000) (plurality op.); id. at 837-67, 120 S.Ct. 2530 (O'Connor, J., concurring, joined by Breyer, J.) (declining to engage in pervasiveness inquiry); see also Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 867, 876-77, 115 S.Ct. 2510, 132 L Ed.2d 700 (1995) (rejecting the assertion that a public university could refuse benefits of a neutral subsidy to student publications that contained "indoctrination" and "evangel-is[m]," as opposed to "descriptive examination of religious doctrine"); Witters v. Washington Dept of Services for Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986) (provision of financial assistance under vocs-tional rehabilitation program to blind person who chose to attend a Christian college to study ministry did not violate the First Amendment; program was neutral in that it allowed students to use aid to attend public or sectarian schools of their choice).

172 In Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir.2008), the Tenth Cireuit Court of Appeals addressed the program addressed twenty-six years earlier by the supreme court in Americans United. It held that by providing financial aid to students attending sectarian institutions of higher education, but not to students attending "pervasively sectarian" institutions of higher education, the program unconstitutionally discriminated among and within religions. The court based its holding on the conclusion that Supreme Court jurisprudence now holds that inquiry into the pervasiveness of an institution's religious beliefs (including the likelihood of "indoctrination") violates the constitutional requirement of neutrality toward religion embodied in the Establishment and Free Exercise Clauses. Id. at 1257-66. Simply put, a government may not choose among eligible institutions "on the basis of intrusive judgments regarding contested questions of religious belief or practice." Id. at 1261; accord Mitchell, 530 U.S. at 828, 120 S.Ct. 2530 (plurality op.); see Univ. of Great Falls v. N.L.R.B., 278 F.3d 1335 (D.C.Cir. 2002) (in determining whether university was subject to agency's jurisdiction, ageney could not inquire into the university's "substantial religious character"); Columbia Union College v. Oliver, 254 F.3d 496, 501-06 (4th Cir,2001) (private college affiliated with a religious denomination could not be excluded from state grant program on the basis the college was pervasively sectarian; such inquiry is impermissible under the First Amendment).¹⁶

T73 Our colleague in dissent says that Colorado Christian University is not applicable here because the program at issue there distinguished between sectarian and pervasively sectarian schools. But the principle the court applied in that case, based on current Supreme Court jurisprudence, is that if the state chooses "among otherwise eligible institutions, it must employ neutral, objective criteria rather than eriteria that involve the evaluation of contested religious questions and practices." Colorado Christian Univ., 534 F.3d at 1266. Such intrusive judgments are impermissible under the First Amendment. See also id. at 1261.¹⁷ We think this principle applies with equal force where the program at issue is facially neutral toward private religious schools because it is open to all private schools. See id. at 1255 (reading Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004), as suggesting, though not holding, that "the State's latitude to discriminate against religion ... does not extend to the wholesale exclusion of religions institutions and their students from otherwise neutral and generally available government ¹⁸ Indeed, the program at issue in Mitchell (which pertained to elementary and secondary schools) was such a program.

T 74 Here, the CSP is neutral toward religion generally and toward religion-affiliated schools specifically. The district court nonetheless found the CSP unconstitutional under article II, section 4 based on an inquiry into the degree to which certain schools "infuse religious teachings into [their] curriecglum" and intend to "indoctrinat[e]" students, precisely the type of inquiry forbidden by the First Amendment. We do not interpret article II, section 4 to require, or even allow, this type of inquiry.¹⁹

T 75 Further, we reject the district court's analysis insofar as. it perceived a distinction between elementary and secondary schools and institutions of higher education. The inappropriateness of the inquiry into the extent to which a school teaches religious doe-trine is based on the First Amendment's requirement: of neutrality, : That principle does not evaporate because the school in question is an elementary: or secondary school. Indeed, the schools at issue in Mitchell were elementary and secondary schools.

T 76 In concluding that the grant program before it did not violate the compelled support prohibition of article II, section 4, the supreme court in Americans United summed up its reasoning as follows:

[The program] holds out no threat to the autonomy of free religious choice and poses no risk of governmental control of churches. Being essentially neutral in character, it advances no religious cause and exacts no form of support for religious institutions, Nor does it bestow preferential treatment to religion in general or to any denomination in particular. Finally, there is no risk of governmental entanglement to any constitutionally significant degree.

Americans United, 648 P.2d at 1082, The same can be said of the CSP. Therefore, it does not violate the compelled support prohibition of article II, section 4. Cf. Simmons-Harris, 711 N.E.2d at 211-12 (similar school choice program did not violate Ohio Constitution's compelled support prohibition).

T7i Nor are we persuaded by plaintiffs argument that the CSP violates the compelled attendance prohibition of article II, section 4 because some participating private schools require students to attend religions services."²⁰ Assuming that is the case, and assuming that the district court correctly determined that the CSP's "opt out" provision is "Musory," the fact remains that the CSP does not compel anyone to do anything, much less attend religious services. No student is compelled to participate in the CSP or, having been accepted to participate, to attend any particular participating private school. To the extent students would attend religions services, they would do so as a result of parents' voluntary choices. Article II, section 4 clearly does not proseribe such choices.²¹

2. Article IX, § 7-No Aid to Religions Organizations °

178 Article IX, section 7 provides in relevant part:

Neither the general assembly, nor any county, city, town, township, school district or' other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever....

179 The district court ruled that the CSP violates this provision essentially for the same reasons it found a violation of article II, section 4, And essentially for the same reasons we have concluded that the CSP does not violate article II, section 4, we conclude that it does not violate article IX, section 7.²²

180 In Americans United,, the supreme court also rejected a challenge to the higher education grant program under article IX, section 7. The court considered a number of things: (1) the aid is intended to assist the student and any benefit to the institution is incidental; (2) the aid is available only to students attending institutions of higher education, where "there is less risk of religion intruding into the secular educational function of the institution than there is at the level of parochial elementary and secondary education"; (8) the aid is available to students attending both public and private institutions; and (4) the criteria for institutional eligibility require a strong commitment to academic freedom. Americans United, 648 P.2d at 1083-84.

1 81 As previously discussed, the CSP, like the program at issue in Americans United, is intended to benefit students and their parents, and any benefit to the participating schools is incidental. "Such a remote and incidental benefit does not constitute ... aid to the institution itself within the meaning of Article TIX, Section 7." Id.; cf. Zelman, 536 U.S. at 652, 122 S.Ct. 2460 (holding that school choice. program substantially similar to the CSP did not violate the First Amendment because any advancement of religion was only incidental and was attributable to the individual aid recipients, not the government). And although the aid here is not available to students attending public schools (because attendance at public schools is free), it is available to students attending 'private schools without any religious affiliation. The CSP is neutral toward religion, and funds make their way to private schools with religious affiliation by means of personal choices of students' parents.

No religious test or qualification shall ever be required of any person as a condition of admission into any public educational institution of the state, either as a teacher or student; and no teacher or student of any such institution shall ever be required to attend or participate in any religious service whatsoever. No sectarian tenets or doctrines shall ever be taught in the public school ....

T82 Consideration of the other matters considered by the court in Americans United is problematic here because those matters involve an inquiry into the extent to which the participating private schools are "sectarian." Such an 1nqu1ry is, in our view, foreclosed by the First Amendment's Religion Clauses, as fully discussed above.

1 83 But, in any event, we are not persuaded by the dissent's assertion that the distinction between institutions of higher education (colleges and universities) and elementary and secondary schools was crucial to the court's holding. As noted, in Americans United the court held that because the program was intended to benefit parents and their children, any indirect benefit to the schools was not "in aid of" any religious organization. Americans United, 648 P.2d at 1088-84. This principle holds true regardless of the nature of the school-in all events the aid is incidental and therefore not in violation of article IX, section 7.

T $4 And we note that nothing in the text of article IX, section 7 even remotely hints at the distinction on which the dissent relies.

T 85 As relevant here, the provision prohibits "anything in aid of any church or sectarian society" or "anything ... to help support or sustain any school ... controlled by any church or sectarian denomination...." Logically, because the provision is not limited to support of the religious mission of any religious institution, inquiry into the extent of religious instruction at a particular school would appear to be irrelevant.

I 86 We also observe that the CSP, like the program at issue in. Americans United, includes eligibility criteria designed to assure that participating private schools' educational programs "produce[] student achievement and growth results for [participating students] at least as strong as what District neighborhood and charter schools produce." And the CSP provides for regular District oversight to assure that participating private schools are meeting the secular requirements of the program.

[87 Thus, even if we assume that consideration of all the facts discussed in Americans United remains constitutionally permissible, we conclude that our holding is consistent with Americans United.²³

~ 188 We are unpersuaded by the out-of-state cases on which the dissent relies, Cain v. Horne, 220 Ariz. 77, 202 P.3d 1178 (2009); Bush v. Holmes, 886 So.2d 340 (Fla.Dist.Ct. App.2004), aff'd on other grounds, 919 So.2d 392 (Fla.2006); and Witters v. State Commission for the Blind, 112 Wash.2d 368,771 P.2d 1119 (1989)²⁴ In Cain, for example, the court based its holding on the conclusion that the fact money was transferred to parents, who had chosen the private schools their children would attend, was irrelevant. Cain, 202 P.3d at 1184. That reasoning, which is typical of the reasoning in the cases on which the dissent relies, is flatly at odds with our supreme court's reasoning in Americans United, in which the court deemed the neutral character of the grant programs as essentially determinative.²⁵

T 89 Having considered "the entire statutory scheme measured against the constitutional proseription," 648 P.2d at 1088, we conclude that the CSP does not violate article IX, section 7.

8. Article IX, § 8-Religion in Public Schools

{90 Article IX, section 8 provides in relevant part:

191 Although this provision plainly applies to "public educational institution[(s]" and "public school[s]," the district court reasoned that it applies to the CSP because participating students would be enrolled in the Charter School. It then concluded that participating private schools' admissions criteria (which in some cases include religious qualifications) and requirements of attendance at religious services and religious instruction could be imputed to the Charter Sehool. Thus, the district court found that the CSP impermissibly imposes religious tests for admission to public institutions of the state, requires students of such institutions to attend religious services, and allows sectarian tenets or doctrines to be taught in public schools. We disagree with the district court's reasoning.

1 92 The district court failed sufficiently to account for the fact that attendance at any of the participating private schools is not required by the CSP; such attendance is by parental choice. Moreover, as discussed above, participation in the CSP does not transform private schools into public schools.

T93 Nor does the fact students would be enrolled in the Charter School for administrative purposes justify imputing requirements of the participating private schools to the Charter School. The reality is that, for educational purposes, participating students would be enrolled in the participating private schools, as to which article IX, section 8 has no application by its express terms.²⁶

'I 94 Therefore, we conclude that the CSP does not violate article IX, Section 8.

C. Article V, § 34-Prohibited Appropriations

195 Article V, section 34 provides: "No appropriation shall be made for ... educational purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association." The district court found that the CSP violates this provision in two ways. First, because "payment of state funds is made directly to the" participating private schools, appropriations are thereby made to entities not under absolute state control. And second, for the same reason, appropriations are made to religious organizations. The district court misconstrued the provision.

196 Article V, section 34 is part of article V of the Colorado Constitution, which deals with the structure and powers of the General Assembly. See, eg., art. V, § 1(1). Article V includes two provisions dealing with appropriations, sections 32 and 34. The appropriations encompassed by those sections clearly are appropriations by the General Assembly itself. Colo. Gen. Assembly v. Lamm, 700 P.2d 508, 519 (Colo.1985) ("the power of the General Assembly over appropriations is absolute"); Lyman v. Town of Bow Mar, 188 Colo. 216, 227, 533 P.2d 1129, 1136 (1975) (article V, section 84 "refers only to state funds and does not extend to municipalities"); Williamson v. Bd. of Comm'rs (In re House), 28 Colo. 87, 91, 46 P. 117, 118 (1896) (article V "had in contemplation the disbursement of state funds only, and their disposition by the state in its corporate capacity ...").

197 No such disbursement would occur under the CSP. The General Assembly appropriates state money for elementary and secondary education to the Colorado Department of Education, which in turn distributes it to local school districts in the form of total per pupil revenue. At that point, ownership of the funds passes to the local school districts. Craig, 89 Colo. at 144-45, 299 P. at 1066; see § 22-54-104(1)(a). The District's expenditure of funds under the CSP, therefore, does not constitute an appropriation by the General Assembly.

198 Further, in Americans United, the supreme court held that the grant program there at issue does not violate the prohibition of article V, section 34 barring appropriations from being made to entities not under absolute state control because (1) the aid is designed to assist the students, not the institutions, and therefore any benefit to the institutions is incidental; and (2) the aid serves a discrete and particularized public purpose, namely, to provide assistance to Colorado resident students attending institutions of higher education, which predominates over any individual interest incidentally served by the program. Americans United, 648 P.2d at 1074, 1083-86, The CSP survives scrutiny under article V, section 34 for similar rea-song. _

199 The district court found that "the purpose of the [CSP] is to aid students and parents, not sectarian institutions." Any benefit to the participating private school is incidental, occasioned by the individual choices of students' parents. Cf. Simmons, Harris, 711 N.E.2d at 212 (holding that similar school choice program did not violate constitutional prohibition on use of state school funds because schools receive money "only as the result of independent decisions of parents and students").

$100 And the CSP serves discrete and particularized public purposes. Indeed, it has three such purposes, "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 [District] educational spending." We perceive no principled distinction between these purposes and that found sufficient in Americans United.

{101 The district court sought to distinguish Americans United on the grounds that, unlike the program at issue in Americans United, the CSP does not have "any of the prophylactic measures" to assure that religion would not intrude on the secular education function. For the reasons discussed above, that purported distinction is untenable.

[102 As for the prohibition against appropriations to religious organizations, we perceive no basis for applying a different analysis to that prohibition than that applied to the prohibition against appropriations to entities not under absolute state control."²⁷

103 Therefore, we conclude that the CSP does not violate article V, section 34.

III, Briefs of Amici Curiae

T 104 We have received a number of briefs of amici curiae supporting and opposing the district court's judgment. Some amici curia raise contentions based on constitutional and statutory provisions that were not raised by plaintiffs. That is not the proper role of amici curiae. See Gorman, 961 P.2d at 1131; SZL, Inc. v. Indus, Claim Appeals Office, 254 P.3d 1180, 1189 (Colo.App.2011); DR. Horton, 217 P.3d at 1267.

105 Some amici curiae urge us to affirm or reverse the district court's judgment purely for policy reasons, without regard for the governing law. Because making decisions based on such reasons is not part of the courts' constitutional function, these arguments are improper. Such arguments should be directed to the appropriate law-making bodies. See Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30, 38 (Colo. 2000) ("[Clourts must avoid making decisions that are intrinsically legislative. It is not up to the court to make policy or to weigh policy."). '

IV. Conclusion

{ 106 Plaintiffs failed to carry their burden of proving the unconstitutionality of the CSP beyond a reasonable doubt, or by any other potentially applicable standard. None of them have standing to assert a claim under the Act. Accordingly, the district court's judgment cannot stand.

{107 The judgment is reversed, and the case is remanded to the district court for entry of judgment in defendants' favor,.

JUDGE GRAHAM concurs. JUDGE BERNARD dissents.

1 . Parents of five children who had applied for and received scholarships under the CSP intervened in the cases to defend the program. 1

2 . The district court found that this "opt out" provision is "illusory" because "scholarship students may still be required to attend religious services, so long as they are permitted to remain silent." We discuss the effect of this opt out provision briefly in Part IL.B.1 below.

3 . As of the date of the preliminary injunction hearing, the Colorado State Board of Education (State Board), which is statutorily charged with determining and distributing per pupil revenue, had not yet decided whether it would count students enrolled in the Charter School for purposes of determining the District's total per pupil revenue.

4 . In effect, the district court consolidated the preliminary injunction hearing with the trial on the merits See CRCP. 65(a)(2). A court should not consolidate the preliminary injunction hearing with the trial on the merits absent notice to and agreement of the parties. See Graham v. Hoyl, 157 Colo. 338, 340-41, 402 P.2d 604, 605-06 (1965); Leek v. City of Golden, 870 P.2d 580, 585 (Colo.App.1993); Litinsky v. Querard, 683 P.2d 816, 819 (Colo.App.1984). Following opening statements, 'the district court informed the parties that because it seemed a preliminary injunction would have the effect of granting plaintiffs all the relief they had requested, plaintiffs would have to show that their right to relief was "clear and certain." See Allen v. City & Cnty. of Denver, 142 Colo. 487, 489, 351 P.2d 390, 391 (1960). Toward the end of the last day of the heating, the district court indicated that it was considering whether a later trial would be necessary. But the court did not clearly inform the parties that it intended to consolidate the hearing with the trial on the merits. And no party stipulated to that procedure. Nonetheless, on appeal, no party challenges the court's decision to con'solidate the hearing with the trial on the merits. Nor does any party complain about a lack of opportunity to present additional evidence.

5 . As discussed below in Part ILA.2, there is no record support for this finding. Though, as the district court noted, the CSP is structured to allow participating students to be counted for purposes of determining the District's total per pupil revenue, it does not follow that this results in any increase in the District's share. This is because the record evidence indicates that participating students would otherwise be enrolled in District public schools.

6 . This is not to say that we necessarily agree with plaintiffs that they demonstrated injury-in-fact. We focus on the second prong of the standing test because plaintiffs' failure to satisfy that prong is most clear.

7 . We apply these standards of review to all of the district court's rulings on the constitutional provisions at issue.

8 . The district court does not appear to have presumed the CSP constitutional or to have held plaintiffs to the burden of proving the CSP unconstitutional beyond a reasonable doubt. Its written decision striking down the CSP contains no mention of either standard. We also note that the dissent does not mention a standard of review.

9 . The district court made a conclusory finding to the contrary. But we have found no evidence in the record supporting it, and plaintiffs point us to none. At oral argument, plaintiffs' counsel conceded that the only record evidence on this point supported the contrary conclusion.

10 . In Bush v. Holmes, 919 So.2d 392 (Fla.2006), the Florida Supreme Court held that a school choice program violated a provision of the Florida Constitution requiring a uniform system of free public schools. But the program at issue there, unlike the CSP, was funded by money that otherwise would have been distributed to local school districts. Id. at 402. And its reasoning-that the state is limited to funding one system, 1d. at 407-is inconsistent with Lyjan. The court also explicitly based its decision on unique language in its constitution that is not found in article II, section 4. Id. at 405, 407 & n. 10.

11 , Even were we to regard a small (less than two percent) percentage of funding for the CSP as coming from the public school fund, we would regard that money as within the twenty-five percent of per pupil revenue retained by the District to administer the program.

12 . We discuss this provision in Part II. C below.

13 . This term has come to be used to identify state laws and constitutional provisions which allegedly arose out of anti-Catholic school sentiment. In 1875, Congressman James G. Blaine proposed an amendment to the United States Constitution that, in part, would have prohibited disbursement of public funds to parochial schools. It was approved by the House of Representatives, but not by the Senate. Similar prohibitions were adopted in many states, however. See generally Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 Harv. J.L. & Pub. Pol'y 551, 556-76 (2003); Joseph P. Viteritti, Blaine's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 Harv, LL. & Pub, Pol'y 657, 670-75 (1998); Steven K. Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38 (1992).

14 . The court did not, however, go so far as to equate article II, section 4 with the Religion Clauses of the First Amendment. See 648 P.2d at 1078, (noting that First Amendment jurisprudence "is not necessarily determinative of state constitutional claims"); see also Conrad v. City & Cnty. of Denver, 656 P.2d 662, 667 (Colo.1982).

15 . At one point in its written order, the district court said that it would not "analyze the religiousness of a particular institution." (The court said this because of a concern that doing so would be impermissible under the First Amendment, a concern that was well-founded. See discussion below.) But the court proceeded to do precisely that, discussing at length the religious aspects of certain participating private schools' educational programs and then relying on the results of that inquiry in striking down the CSP.

16 . In response to the court's decision in Colorado Christian University, the General Assembly removed all pervasiveness provisions and references from the program. See Ch. 348, secs. 1, 2, 4, 12, 2009 Colo. Sess. Laws 1822-24, 1827. Thus, any distinction between private schools not affiliated with a religious institution and private schools that are has been eliminated.

17 . We do not hold, of course, that any of the provisions of the Colorado Constitution here at issue violate the Religion Clauses of the First Amendment. We do hold that they must be applied in a way that does not violate the Religion Clauses. See Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137, 1146 (10th Cir.2007); Alliance for Colorado's Families v. Gilbert, 172 P.3d 964, 968 (Colo.App.2007).

18 . The dissent asserts that Locke supports its position that the CSP violates article IX, section 7, a provision discussed below that is similar to article IX, section 4. Locke, however, held only that the state was not required to include the study of "devotional theology" within a program awarding college scholarships. It did not hold that the state was required to exclude that field of study from the program. (And the program at issue in Locke provided scholarships for, apparently, all other fields of study at schools affiliated with religious institutions. Locke, 540 U.S. at 724-25 & n. 9, 124 S.Ct. 1307.)

19 . We recognize that the court in Americans United may have considered the statutory provisions distinguishing between eligible sectarian schools and ineligible "pervasively sectarian" schools as relevant to the analysis under article II, section 4. But where subsequent developments in Supreme Court jurisprudence render a prior Colorado Supreme Court decision applying state law inconsistent with the federal constitution, we are not required to follow that prior decision. Cf. People v. Hopper, 284 P.3d 87, 90 & n. 3 (Colo. App.2011) (noting that subsequent Supreme Court decision had effectively overruled prior state supreme court decision). We also note that it would be paradoxical to hold that a decision (such as Colorado Christian University) striking portions of a state law as unconstitutional under the {federal constitution rendered the law unconstitutional under analogous provisions of the state constitution.

20 . The district court did not rule on this issue.

21 . Amicus Curiae Anti-Defamation League contend that the CSP violates the Colorado Constitution, including, apparently, article II, section 4, and state anti-discrimination laws because some participating private schools allegedly discriminate in admissions and hiring on the basis of religious belief, sexual orientation, and disability. Plaintiffs did not make this claim in the district court, and therefore amicus curiae cannot raise it on appeal. Gorman v. Tucker, 961 P.2d 1126, 1131 (Colo.1998); D.R. Horton, Inc.-Denver v. Bischof & Coffman Constr., LLC, 217 P.3d 1262, 1267 (Colo.App.2009). But we observe that the premise of this argument-that participating private schools are public schools-is incorrect.

22 . Contrary to the dissent's suggestion, we .do not hold that the limitations of article IX, section 7 are merely coextensive with those of the Religion Clauses of the First Amendment. Article TX, section 7 may well prohibit types of funding that the First Amendment does not. But, as noted above, we need not decide that question.

23 . Our analysis in this regard also applies to plaintiffs' claim under article IX, section 4.

24 . Univ. of Cumberlands v. Pennybacker, 308 S.W.3d 668 (Ky.2010), another case on which the dissent relies, is entirely inapposite. That case did not concern a facially neutral program like the CSP. Rather, it concerned a bill directly appropriating state money to build a pharmacy , school building on the campus of a particular college affiliated with a religious institution. Id. at 671.

25 . This leads us to observe that to accept the dissent's view that the "clear and unambiguous" language of article IX, section 7 requires invalidation of the CSP would require us also to say that Americans United was wrongly decided. According to the dissent, the plain language of the provision dictates that whenever state money makes its way to a private school affiliated with a religious institution, the provision is violated. Americans United unequivocally held to the contrary. The purpose of the aid and the identity of the person or entity choosing the school make all the difference in determining whether money is "in aid of" such an institution.

26 . Defendants argue that the first two sentences of article IX, section 8 do not apply to public elementary and secondary schools, but only to institutions of higher education. We do not need to resolve that issue, however, because even if we assume that the first two sentences apply to elementary and secondary schools, we perceive no violation.

27 . In Cain, 202 P.3d 1178, the Arizona Supreme Court held that two school choice programs violated two provisions of the Arizona Constitution prohibiting appropriations to religious establish-menis and private or sectarian schools. But those programs, unlike the CSP, were funded by direct appropriations by the state legislature. And, as discussed above, we do not see how the court's analysis in that case can be squared with Americans United.