Earlier today, the Colorado Supreme Court ruled that Douglas County's school voucher program violates the state constitution.



The Douglas County Board of Education unanimously voted to enact the Choice Scholarship Pilot (CSP) Program in 2011, making it the first district-level school voucher program in the nation. The program granted 500 school vouchers worth up to 75 percent of the district schools' per-pupil revenue, which was approximately $6,100 in the last academic year. Students could use the $4,575 vouchers at the private school of their choice and the district retained the remaining 25 percent of the funding ($1,525 per voucher student).



However, the ACLU, Americans United for Separation of Church and State, and several local organizations that wanted to protect district schools from competition filed a legal challenge almost immediately. Although they won an injunction from a trial court, it was later overturned on appeal in 2013. Plaintiffs then appealed to the state supreme court.



In a narrow 4-3 decision*, the Colorado Supreme Court held that the voucher law ran afoul of the state constitution's historically anti-Catholic Blaine Amendment, which says:



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...

The court held that "aiding religious schools is exactly what the CSP does." Even though "CSP does not explicitly funnel money directly religious schools, instead providing financial aid to student," the court ruled that the Blaine Amendment's prohibitions "are not limited to direct funding."



The dissenting justices argued that the majority's "interpretation barring indirect funding is so broad that it would invalidate the use of public funds to build roads, bridges, and sidewalks adjacent to such schools." Rather, the dissent favored following state precedent that tracked with the U.S. Supreme Court's decision in Zelman v. Simmons-Harris (2002), which held that a voucher program that was neutral with respect to religion and funded students directly was constitutional regardless of whether "the funds indirectly or incidentally benefit church or sectarian schools."



The Douglas County Board of Education has vowed to appeal the decision to the U.S. Supreme Court:



While we are disappointed in the court's decision today, we are not surprised," said Douglas County Board of Education president Kevin Larsen. " We have always believed that the ultimate legality of our Choice Scholarship Program would be decided by the federal courts under the United States Constitution. This could very well be simply a case of delayed gratification."

Although a state supreme court has the final word on how to interpret its state constitution, the U.S. Supreme Court could rule that a provision of a state constitution (or a state court's interpretation of that provision) is itself unconstitutional under the U.S. Constitution. In this case, defenders of the program believe the Blaine Amendment entails unconstitutional discrimination against religious schools. Though the Colorado Supreme Court held that "pervasively sectarian" schools must be excluded from public funding, the Institute for Justice points out that the U.S. Supreme Court has not only ruled that "pervasively sectarian" options may be included in an otherwise neutral student aid program, but it also "strongly suggest[ed] that excluding such options would itself be unconstitutional" in Mitchell v. Helms (1999):



[A] focus on whether a school is pervasively sectarian is not only unnecessary but also offensive. . . . [T]he application of the ‘pervasively sectarian’ factor collides with our decisions that have prohibited governments from discriminating in the distribution of public benefits based upon religious status or sincerity.

In addition, the dissenting justices in Colorado argued that the majority made "a more serious error" in refusing to consider whether the Blaine Amendment "is unenforceable due to possible anti-Catholic bias." While the majority held that it was sufficient that the "plain language" of the provision is not biased, the dissenters note that they "the U.S. Supreme Court has made it clear that allegations of such animus must be considered, even where the 'plain language' does not invoke religion."



It is likely that litigation over the DougCo voucher law will continue for quite some time. For now, the Douglas County Board of Education should consider an alternative means to expand educational choice that rests on much firmer constitutional ground: a scholarship tax credit law.



To learn more about why scholarship tax credit laws withstand constitutional scrutiny, watch this short film by the Cato Institute:



* Technically, the decision was a 3-1-3 split, with six justices holding that the plaintiffs lacked standing to challenge the law on statutory grounds, and three justices holding that the voucher law was unconstitutional on the merits, and one justice holding that the plaintiffs had standing to challenge the law on statutory grounds and that the voucher law violated the statute in question. Throughout this post I've referred to "the majority" with regard to the merits, though only a plurality actually held that the law was unconstitutional.