Did the Colorado Supreme Court violate the Constitution?

July 14, 2015 | By WENCONG FA

In Taxpayers for Public Education v. Douglas County School District, the Colorado Supreme Court invalidated Douglas County’s school voucher program, holding that the program violated the state’s Blaine Amendment by giving financial aid to students attending religious schools. The court’s decision not only deprived hundreds of students of the opportunity to choose a better education; it also may have been unconstitutional.

Courts interpreting state constitutional provisions must still make sure that such provisions comply with the United States Constitution. For example, a court could not hold that a state constitutional amendment prohibits certain types of corporate speech if the United States Supreme Court has already held that such speech is protected by the First Amendment of the United States Constitution. Similarly, the Colorado Supreme Court should not have used the state’s Blaine Amendment to invalidate an innovative school choice program if the Blaine Amendment itself violates the United States Constitution.

Colorado’s Blaine Amendment expressly singles out religious institutions for exclusion in public funding. It prohibits the legislature from supporting “any school . . . controlled by any church or sectarian denomination.” The First Amendment guarantee to free exercise of religion, however, has long been used to strike down laws—like Colorado’s Blaine Amendment—that expressly classifies on the basis of religion. Nearly forty years ago, the Supreme Court invalidated a provision in the Tennessee Constitution disqualifying “ministers of the Gospel or priests of any denomination” from serving as delegates to the state’s constitutional convention.

By openly discriminating against religious institutions, Colorado’s Blaine Amendment may raise significant constitutional problems. An analogy to race—another area in which the Supreme Court heavily disfavors express classifications—provides more to the point. One would have a hard time imagining that a state constitutional provision prohibiting the legislature from supporting a school controlled by whites, blacks, or any race would survive a challenge under the Equal Protection Clause. Is Colorado’s Blaine Amendment any different?

Fortunately, the school district may ask the Supreme Court of the United States to review the constitutionality of Colorado’s Blaine Amendment. Many other states have similar constitutional provisions, so this case provides a great opportunity for the Court to address the constitutionality of the Blaine Amendment and increase educational opportunities for students across the United States.