The Colorado Supreme Court struck down a voucher program in the state’s third-largest school district Monday, finding the program unconstitutional because it channels public funds to religious schools.
The divided ruling reversed a decision by a state appeals court and means that the Douglas County School District will not be able to administer its Choice Scholarship Pilot Program, which allowed families to use taxpayer dollars to pay for private school.
The decision is a blow to school-choice advocates. But district officials said they believe the case raises questions about the constitutionality of dozens of states’ bans on government aid to religious schools — questions that are ripe for a ruling by the U.S. Supreme Court. They said they are likely to petition the high court for a hearing and believe they can prevail in a federal case that would have much broader implications than Monday’s state ruling.
“This could very simply be a case of delayed gratification,” said Kevin Larsen, the school board president, at a morning news conference.
In the meantime, school officials said, they plan to implement the voucher program in a way that complies with the state court’s ruling. “We are undaunted,” said Craig Richardson, a member of the school board. “We will proceed in ways that create more choices for Douglas County families.”
The decision comes on the heels of several recent victories for school-choice advocates in courthouses and statehouses around the country.
In March, the Alabama Supreme Court upheld that state’s tax credit scholarship program as constitutional. And this month Nevada became the first state in the nation to pass a law allowing any parent — regardless of income — to pull a child from public school and take tax dollars with them to pay for private or parochial school.
But opponents of the Nevada law say it is likely to face a legal challenge because it violates the state’s constitutional ban on spending public funds for sectarian purposes. North Carolina’s supreme court is currently mulling whether that state’s voucher program is unconstitutional for similar reasons
Though the Colorado vouchers quashed on Monday were a program in Douglas County, a suburban district of 67,000 students south of Denver, the decision has implications across Colorado. Any districts considering creating a voucher program now face a tough legal precedent.
“The Colorado Constitution provides very strong safeguards for the separation of church and state, and today’s decision preserves and honors those protections,” said Heather L. Weaver, an attorney for the American Civil Liberties Union, which represented the plaintiffs in the case.
Under the Douglas County program, voucher recipients attend a private school but officially enroll in the Choice Scholarship Charter School. The charter school has no buildings and no teachers but is a vehicle to receive per-pupil funding for each child enrolled. That money could then be used to cut scholarship checks to families for $4,575.
The program, designed to offer vouchers to up to 500 students, began in 2011 and immediately sparked a lawsuit from an organization called Taxpayers for Public Education and other plaintiffs.
The trial court sided with the plaintiffs, finding the vouchers unconstitutional and issuing an injunction to enjoin the program. At the time of the injunction, 271 voucher recipients had been accepted to private schools, 93 percent of them to religious schools.
An appeals court reversed the trial court’s decision. But according to the state supreme court, the trial court had been correct on the constitutional question. (The supreme court disagreed with the trial court on another question, ruling that the plaintiffs did not have standing to sue.)
The Colorado high court’s decision rested on a passage in the constitution that prohibits government aid to “any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school ... controlled by any church or sectarian denomination.”
“This stark constitutional provision makes one thing clear: A school district may not aid religious schools. Yet aiding religious schools is exactly what the CSP does,” reads the court’s opinion, announced by Chief Justice Nancy E. Rice.
At least 37 states have such provisions in their constitutions; they are known as “Blaine amendments,” after a 19th century speaker of the U.S. House of Representatives who proposed a constitutional amendment that would have prohibited states from funding religious educational institutions.
Douglas County and state officials argued that the Blaine amendments grew out of bigotry toward Catholics and Catholic schools and should be interpreted with that in mind. But the justices said they did not need to “wade into the history” of the state constitution in order to understand the plain meaning of its words.
Douglas County officials indicated Monday that they will ask the U.S. Supreme Court to determine whether the Blaine amendments — which have played a key role in many fights over school voucher programs — are constitutional. They also hinted at other federal claims they may seek to make.
The U.S. Supreme Court ruled that vouchers could be used for religious schools in a landmark 2002 case involving Cleveland’s voucher program. The Colorado court said that it was not bound by that decision because Douglas County’s program differed from Cleveland’s in important ways. In addition, the Colorado court wrote, the U.S. Supreme Court left room for state constitutions to “draw a tighter net” around the use of taxpayer dollars.