June 30, 2015

Colorado Supreme Court finds Scholarship Program unconstitutional

By Meriem L. Hubbard Senior Attorney

In March 2011, the Douglas County School Board became the first school board in the nation to adopt a private school choice program.  The Douglas County Choice Scholarship Program (CSP) was intended to provide scholarships for up to 500 children in the County, allowing them to attend the private or public school of their choice.  They could even use the scholarships at private schools run by religious organizations.  But three months after the CSP was adopted, it was challenged as violating a state constitutional prohibition against government appropriations that support schools controlled by a church or sectarian denomination.

PLF filed an amicus brief arguing that the element of parental choice is critical to the CSP’s constitutionality.  Because the CSP provides scholarships only by way of voluntary, independent choice, any befefit to religious institutions is purely incidental to the fundamental purpose providing children with a quality education.  This is not a novel argument.  Several U.S. Supreme Court cases have found the existence of independent choice conclusive when determining whether programs violate the First Amendment to the U.S. Constitution.  And other states, with compelled support clauses nearly identical to that of Colorado, have upheld voucher programs like the CSP against charges that they violated state constitutions.

The Colorado Supreme Court was not persuaded by the “private choice” argument, and explained that, by awarding public money to students who may use that money to pay for a religious education, the CSP aids religious institutions.  The Court interpreted the state constitution, pronouncing its language to be clear and unequivocal in forbidding the State from using public money to fund religious schools.  Thus, the Court found that scholarships facilitate the attendance of religious schools and necessarily constitute aid to support or sustain those schools.

The School District may ask the U.S. Supreme Court to review the decision.  According to this article from the Friedman Foundation, the school choice community has long awaited an opportunity for the high court to review what are known as “Blaine Amendments” — state constitutional provisions which forbid direct government aid to educational institutions with any religious affiliation.

What to read next