Colorado Strikes Down a School-Choice Program, but the Case Could Meet a Different Fate at the Supreme Court

On Monday, the Colorado supreme court struck down Douglas County’s one-of-a-kind voucher program. In Taxpayers for Public Education v. Douglas County School District, a four-to-three majority found that the program conflicts with “unequivocal language forbidding the State from using public money to fund religious schools.” While a serious short-term setback for school choice, the ruling will trigger an appeal to the U.S. Supreme Court that has dramatic First Amendment implications and has every chance of turbo-charging the growth of school-voucher programs.

In 2004, Colorado’s high court struck down a statewide voucher program that the legislature had enacted for students in low-performing districts. A narrow court majority ruled that the voucher program violated a provision of the state constitution that school boards “shall have control of instruction in the public schools of their respective districts.” So, in 2011, a conservative school board in Douglas County, the state’s third-largest district, voted unanimously to create a scholarship program. The program allowed up to 500 students a year to receive scholarships worth $6,100 (75 percent of the district’s per-pupil spending) to attend a private school of their choice. It was the nation’s first and only voucher program created, administered, and funded by a school district. All other voucher programs are approved, operated, and funded by state legislatures. Hard to get any more “local” than that, right?

Not so fast.

In the education journal Education Next, legal analysts Martha Derthick and Josh Dunn wrote in 2012:

In 2002, as the Supreme Court decided the constitutionality of publicly funded voucher programs in Zelman v. Simmons-Harris, Robert Chanin, then the general counsel for the National Education Association, said that regardless of the Court’s decision, voucher opponents would have many options under state constitutions.

Chanin had noted that state constitutions contained a slew of “Mickey Mouse provisions” that opponents could draw upon. In Douglas County, the case turned on Colorado’s “Blaine Amendment” language, which prohibits, in the court’s words, the state “from using public money to fund religious schools.” The court reached this conclusion, even though the majority also conceded: “To be sure, the [scholarship program] does not explicitly funnel money directly to religious schools.” Peculiarly, the majority described a scholarship program that allowed students to choose among public schools and a host of private options as a “recruitment program” for “religious schools.”

This conclusion was all the more striking because, back in 1982, Colorado’s high court had okayed a state-funded college-scholarship program that allowed students to use public funds to attend religious schools. That earlier decision helped pave the way for the 2002 Zelman ruling, in which the U.S. Supreme Court determined that the First Amendment’s free-exercise-of-religion clause meant it was wholly permissible for states to treat religious schools as one appropriate choice within a larger voucher program.

#related#So why did Douglas County lose this week? The case turned on Colorado’s Blaine Amendment — a bit of 19th-century anti-Catholic detritus still found in about two-thirds of state constitutions. As Catholic immigration to the U.S. skyrocketed during the 1800s, Protestant educators sought to ensure that the children of these new Catholic immigrants would be more “American” (that is, more Protestant). The Catholic church responded by sponsoring an expansive system of parochial schools, for which it sought state support. When New York committed $1.5 million to Catholic schools in 1869, the issue blew up. Iconic editorial cartoonist Thomas Nast famously depicted Catholic bishops as crocodiles attacking American schoolchildren. In the mid 1870s, after an effort to amend the federal constitution to prohibit any public support for religious schools narrowly failed, 38 states adopted their own versions.

This is why the Colorado decision could prove so significant. The U.S. Supreme Court ruled in Zelman that states could include religious schools in voucher programs without running afoul of the First Amendment’s establishment clause. However, in that case, the Court did not say anything about whether restrictions on school choice might violate the free-exercise clause. In the appeal, Douglas County and its allies will argue that Blaine Amendments — and the Colorado decision handed down this week — should be struck down in toto. They will argue that prohibiting legislators from funding religious schools as they do other schools, if a democratic majority wishes to do so, is such a broad and excessive prohibition that it constitutes an unlawful infringement on the free exercise of religion.

Douglas County might provide the test case that choice advocates have been seeking since Zelman.

School-choice advocates are cautiously optimistic about how this might come out. Indeed, Douglas County might provide the test case that choice advocates have been seeking since Zelman. Scalia, Thomas, Alito, and Roberts have given every indication that they will find such a claim compelling. And even the erratic Justice Kennedy came down on the pro-voucher side in Zelman and the free-exercise side in Hobby Lobby. The result, if the U.S. Supreme Court takes the appeal, could be the decision to strike down Blaine Amendments everywhere as unconstitutional.  

Douglas County school-board president Kevin Larsen put it well, saying:

While we are disappointed in the court’s decision today, we are not surprised. 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.

If the Douglas County setback results in a more straightforward and robust reading of the First Amendment’s free-exercise clause, the result will almost assuredly spark an explosion of new voucher programs across the land. That would amount to a whole lot more than just “delayed gratification.”

— Frederick M. Hess is director of education policy studies at the American Enterprise Institute.