Douglas Co., Colorado’s Scholarship Program

Larue v. Colorado Board of Education
Institute for Justice and Colorado Parents Defend School Choice in the Rocky Mountain State

Donovan and Alexandra Doyle plan to go to a school with a college-prep program their parents feel is the best fit for them.

IJ school choice parents Mark and Jeanette Anderson plan to send their son Max to a school with a math and science curriculum that better fits his interests and needs.

In March 2011, the Douglas County School Board enacted a pilot school choice program to determine whether providing greater choice to its residents yields benefits for its students similar to those realized by programs enacted in other states. Under the program, the school district offers modest scholarships to 500 students. The scholarships can be used at private schools that parents believe are best for their kids.

The ACLU, Americans United for Separation of Church and State, and several Colorado organizations and taxpayers, however, sued the school board, school district, Colorado Department of Education, and state school board in order to stop the program. Despite clear case law rejecting their claims, they alleged that because some parents will choose religious schools for their children’s education, the program violates provisions of the Colorado Constitution concerning aid to religious schools.

Representing families with children who received scholarships under the program, the Institute for Justice intervened in the litigation to protect the interests of Douglas County families. These families—and not the schools their children will attend—are the real beneficiaries of the program. In trying to mischaracterize the program as a form of “aid” to private schools, school choice opponents ignore the role that parental choice plays under the program. It is parents—and not the government—who decide what school a child attends, and, importantly, the government neither encourages nor discourages parents from selecting a religious school. No child attends any of the choice schools without the free and independent choice of a parent.

Although a state trial court held the scholarship program unconstitutional and blocked its implementation in August 2011, the Colorado Court of Appeals reversed the trial court’ s decision and upheld the program in February 2013. In so doing, the Court of Appeals joined the Supreme Courts of Wisconsin and Ohio in rejecting state constitutional religion clause challenges to school choice scholarship programs. The Indiana Supreme Court subsequently joined those ranks just a few weeks after the Colorado Court of Appeals issued its decision. Federal constitutional challenges, meanwhile, have essentially been foreclosed since 2002, when the U.S. Supreme Court upheld an Ohio scholarship program under the U.S. Constitution’s Establishment Clause.

Undeterred, school choice opponents asked the Colorado Supreme Court to review the Court of Appeals decision. On June 29, 2015, that court reversed the Court of Appeals and held the program unconstitutional. Ignoring the fact that the program aids students, not schools, and ignoring decisions from other state supreme courts upholding similar school choice programs, the Colorado Supreme Court held that the program impermissibly provides aid to religious schools in violation of the Colorado Constitution.

By interpreting the Colorado Constitution as mandating the exclusion of religious options from otherwise neutral educational aid programs, the Colorado Supreme Court’s decision runs afoul of the U.S. Constitution—specifically, the Free Exercise and Establishment Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Accordingly, IJ is currently considering petitioning the U.S Supreme Court to review the Colorado Supreme Court’s decision.


Essential Background


Backgrounder: Defending Parents’ Right to Choose Their Children’s Schools; Douglas County, Colorado’s Innovative Scholarship Program Is Constitutional

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Latest Release: Colo. Supreme Court Denies Families’ Right to School Choice (June 29, 2015)

Legal Briefs and Decisions

Opposition to Petition to Certiorari (PDF)

Launch Release: IJ Will File To Intervene In New Colorado School Choice Case (June 21, 2011) Colorado Court of Appeals Opinion February 28, 2013 (PDF)
Reply Brief in Court of Appeals (PDF)
Opening Brief in Court of Appeals (PDF)
Intervenors’ Combined Response Brief Opposing Plaintiffs’ Motions For Preliminary Injunction (PDF)
Answer Brief of Intervenor Respondent (PDF)
Colorado Supreme Court Opinion (PDF)

Case Timeline

School Choice Opponents Filed Lawsuit:


June 21, 2011

IJ Intervention Filed:


June 28, 2011

Court Filed:


Denver District Court

Trial Court Decision:


Trial court holds program unconstitutional and enjoins it, Aug. 12, 2011

Appeal Filed:

Colorado Court of Appeals

Court of Appeals Decision:

Colorado Court of Appeals reverses trial court and upholds program, Feb. 28, 2013

Appeal Filed:

Colorado Supreme Court

Colorado Supreme Court Decision:

Colorado Supreme Court reverses Court of Appeals and holds program unconstitutional

Current Status:


Preparing to file petition for certiorari in the Supreme Court of the United States

Additional Releases

Maps, Charts and Facts

Release: Colorado Supreme Court to Hear School Choice Case On Wednesday (December 9, 2014)


Release: Colo. Supreme Court Agrees to Hear School Choice Case (March 17, 2014)


Release: Colorado’s Douglas County Choice Scholarship Program Is Constitutional (February 28, 2013)

Release: Major Court Hearing Will Decide If Douglas County’s Choice Scholarship Program Continues During Lawsuit (August 2, 2011)


Op-eds, News Articles and Links

Op-ed: Guest Commentary: It's time for the Blaine Amendment to go The Denver Post (July 1, 2015)

Editorial: Reversal of voucher ruling likely The Gazette (July 1, 2015)

Article: Colorado Court Rules Use of Public Funds for Private Schools Is Unconstitutional The New York Times (June 30, 2015)

Article: Colorado Supreme Court rejects Douglas County voucher program The Denver Post (June 29, 2015)
Editorial: A regrettable ruling on Dougco school voucher program The Denver Post (June 29, 2015)

Article: Colorado Supreme Court rejects Douglas County voucher program The Denver Post (June 29, 2015)

Article: Colorado Supreme Court strikes down school voucher program The Washington Post (June 29, 2015)

Article: Supreme Court ruling could make Colorado a school choice destination Watchdog News Networks (January 28, 2015)

Article: Colorado's high court hears school voucher case Associated Press (December 12, 2014)

Article: Voucher case goes before Colorado Supreme Court KUSA-TV (December 11, 2014)

Article: Douglas County voucher case heads for Colroado Supreme Court The Denver Post (December 8, 2014)

Article: The hope for school choice in Douglas County Denver Post (April 3, 2013)

Release:Judge Blocks Douglas County Choice Scholarship Program (August 12, 2011)

Article: Voucher Fight Moving Forward (March 21, 2013)
Release: Institute for Justice Files to Intervene To Defend New Colorado School Choice Program (June 28, 2011)  Article: Colorado appeals court: Douglas County school voucher system legal Denver Post (February 28, 2013)
Article: School choice in Colorado Washington Post (August 26, 2011)
Article: Be honest about Blaine Amendment Denver Post (August 20, 2011)

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