Will discrimination stand in the way of children's education?

December 01, 2015 | By RAYMOND NHAN

PLF recently filed an amicus curiae brief in the United States Supreme Court in support of granting certiorari in Doyle v. Taxpayers for Public Education today. This is another case in which opponents of educational choice are attempting to stifle community efforts to ensure that all students can receive a quality learning experience.

Here are the basic facts of the case. The Douglas County Board of Education launched the Choice Scholarship Program to provide parents and students more flexibility to meet their individualized needs. Eligible students who receive a scholarship are able to attend qualifying religious or non-religious schools. The Board then distributes money to parents, which is used to pay tuition at these private schools.

This past June, the Colorado Supreme Court held that the Board’s Choice Scholarship Program violates Article IX, section 7 of its state’s constitution. This provision prohibits state support of religion. According to the court, the Colorado constitution is more restrictive than the Establishment Clause of the Federal Constitution regarding government aid to religion. The United States Supreme Court held in Zelman v. Simmons-Harris that school choice programs don’t violate the Establishment Clause of the Federal Constitution simply because religious schools may receive money through a parent’s voluntary decision. Zelman, however, did not answer whether school choice programs might violate a state’s constitution. In response to the Supreme Court’s ruling in Zelman, school choice opponents began challenging state and school district’ scholarship programs under state constitutions.

In its analysis the Colorado Supreme Court ignored the discriminatory history of Article IX, section 7. This provision was modeled after the failed “Blaine Amendment” to the United States Constitution. Amid a sea of anti-Catholic resentment in the 1870s, Senator James Blaine attempted to amend the Constitution to prohibit any spending on religious schools. At the time, it was understood that this constitutional amendment would have only barred states and localities from supporting Catholic institutions; Protestant institutions would be unaffected by this amendment. Though Senator Blaine’s push to amend the constitution was unsuccessful, many states picked up the anti-Catholic sentiment and incorporated Blaine Amendments into their state constitutions. Article IX, section 7 is one of these Blaine Amendments.

States may not discriminate between religion and non-religion. Though a state can put reasonable limits on how the scholarships are used, it may not discriminate against religious institutions. While many years have passed since Colorado’s Blaine Amendment was ratified, its discriminatory roots render the law unconstitutional.

School choice is not a novel idea. Famous philosophers and economists, like Adam Smith, Thomas Paine, John Stuart Mill, Milton Friedman, and Rose Friedman, all argued that school choice benefits students and society. More recently, the award-winning documentary, Waiting for Superman, highlights school choice’s benefits. Indeed, the arguments in favor of school choice have withstood the test of time. Studies show that students who use school choice programs are more likely to graduate from high school, parents are more comfortable with their children’s safety, and public schools in the area improve. Recent studies also show that school choice increases racial integration.

Right now, children in Colorado cannot receive scholarships to attend well-performing private schools because of a prior generation’s anti-Catholic bigotry. If other state supreme courts follow Colorado’s path, many more children will lose the opportunity to obtain a quality education. The Supreme Court should grant certiorari to answer the question whether it violates the Religion Clauses or the Equal Protection Clauses of the Federal Constitution to invalidate a generally available and religiously neutral school aid program simply because the program affords students the choice to attend a religious school.