For the first time in their lives Jacob Rodriguez, Charles Howard, Carson Howard and thousands of other Colorado schoolchildren have the chance to escape woefully inadequate public schools and to attend private schools of their parents’ choice.  This became possible on April 16, 2003, when Colorado enacted the first school choice program since the U.S. Supreme Court issued its historic ruling upholding vouchers in Cleveland last summer.

The Colorado Opportunity Contract program ¹ enables parents of qualified children in the worst school districts in the state to take their children out of those failing schools and place them in a private or religious school of the parents’ choice.  The Opportunity Contract program phases in over four years beginning with the 2004 school year.  When fully implemented, nearly 20,000 children will be eligible for Opportunity Contracts, making this program larger than any currently existing voucher program in the nation. ²

As they have done following the passage of every previous parental choice program, teachers’ unions and their allies promptly filed a lawsuit challenging the program.  On May 20, 2003, lawyers for the Colorado Education Association, the National Education Association, and an array of interest groups filed a lawsuit in Denver District Court attempting to block parental choice in Colorado.  The unions and their allies contend that the program violates the Colorado Constitution by using public funds to support religious institutions—even though parental choice dollars support the education of children, not institutions.

On May 29, 2003, the Institute for Justice, the Washington, D.C.-based public interest law firm that helped successfully defend choice in Cleveland, intervened in this lawsuit to represent the interests of the primary beneficiaries of parental choice: parents who intend to use Opportunity Contracts to secure for their children the chance for a safe, high-quality education.

Choice opponents have used state constitutional religion provisions—the so-called Blaine Amendment ³ and the “compelled support” clause ⁴ —in similar challenges to school choice in Wisconsin, Ohio, Arizona and Illinois.  Each state’s supreme or appellate court rejected the unions’ arguments. ⁵ The Arizona Supreme Court went further, calling that state’s Blaine Amendment “a clear manifestation of religious bigotry” against Catholics as it upheld the constitutionality of Arizona’s tax credit program. ⁶   The U.S. Supreme Court has also recognized the Blaine Amendments’ “shameful pedigree” as a legacy of long-past anti-Catholic and anti-immigrant discrimination. ⁷

Thirty-seven state constitutions have Blaine Amendments and 29 contain compelled support clauses. ⁸   Thus the outcome of this lawsuit will not only affect the lives of thousands of Colorado children, it will also impact the future of school choice nationally. Parents Seeking Educational Opportunity IJ represents 12 Colorado families seeking better educational opportunities for their children through the Opportunity Contracts program.  Six families are from Colorado Springs and six are from Denver; all hope for a better life for their children through quality education. Yvonne Trujillo, mother of six-year-old Jacob Rodriguez, is worried because her son is already falling behind in the public schools in Denver.  His classes are too large, and teachers are not giving Jacob the attention he needs to perform to his potential.  Worse still, Jacob has been harassed and assaulted by fellow students, without any teachers coming to his aid.  Trujillo attended Catholic schools as a child and was fortunate to receive private funding for Jacob to attend a Head Start program at a Catholic school, where he did well.  Trujillo hopes that through the Opportunity Contract program, she will be able to send Jacob and his four-year-old sister Kaitlyn to a Catholic school that will be safer and more productive for them. Charlene Howard faces similar problems with her children Charles, age 10, and Carson, age 9, and their public school in Colorado Springs.  There have been incidents of violence, including a stabbing and a shooting, near their elementary school, and the school’s teachers have not been attentive to Carson’s special needs.  Howard believes a private school would keep her sons from falling behind, but cannot afford private schooling without the help of outside funding, such as the Opportunity Contract program.

How Opportunity Contracts Work

To offer hope to Jacob, Charles, Carson and thousands of other students trapped in Colorado’s worst performing schools, the State enacted the Colorado Opportunity Contract program.  Opportunity Contracts provide educational opportunity to high-poverty, low-achieving children in Colorado’s highest poverty public schools, seeking to close the achievement gap between them and children in more advantaged schools and neighborhoods.

Amount of Voucher and Financial Impact on Public Schools

With Opportunity Contracts, parents who otherwise could not afford private schooling may take their children out of low-performing schools and place them in a private or parochial school of their choice.  The amount of the voucher varies according to school district, but is capped at 85 percent of a participating district’s per pupil funding, ⁹ or about $5,000 for students in Denver, the district with the highest budget per pupil. ¹⁰

The remainder of per pupil funding remains with the public schools.  According to a financial analysis prepared by Colorado Legislative Council, the nonpartisan research arm of the Colorado General Assembly, by the time the program expands to full capacity in 2008, participating districts will save on average an extra $100 per student, meaning an estimated additional $32 million will be freed up for 11 Colorado school districts. ¹¹   Contrary to the claims of teachers’ unions and other parental choice foes, the Opportunity Contract program does not take money from the public schools—it makes more funding available per student.

The Opportunity Contract program will be run by each participating school district, which will provide parents with information about the program, lists of participating nonpublic schools, and applications for the program.  The districts will issue a check in the name of the eligible child’s parent, which will be sent to the child’s choice school and endorsed by the parent.

Who is Eligible?

The program is carefully targeted to reach the neediest children in the worst schools.  Starting in the 2004-2005 school year, qualifying families in the 11 Colorado school districts rated “unsatisfactory” on the state’s annual assessment may apply for Opportunity Contracts. ¹²   (Other school districts may choose to opt in to the program, by a vote of the local school board.)  Families qualify if their children are eligible for the free or reduced cost lunch program, ¹³ are already in the public schools (except for kindergartners), and are performing at an “unsatisfactory” level in at least one academic area. ¹⁴   Homeschoolers and children already in private schools are ineligible.

Opportunity Contracts phase in over four school years, so that by 2007-2008 up to six percent of each participating district’s students may participate.  By 2008, 20,000 children could be using Opportunity Contracts, making Colorado’s the largest parental choice program in the nation.

If more children apply than places are available, students who participated previously or whose siblings are in the program will be chosen first and any remaining spaces will be allocated by lottery.

Participating Private Schools and Program Evaluation

Private and religious schools may opt in to the Opportunity Contract program.  Schools that accept Opportunity Contract children agree to a few basic requirements, such as nondiscrimination, compliance with Colorado health and safety laws that apply to public schools and background checks for staff.

On or before January 1, 2008, the school districts will evaluate the academic performance of children using Opportunity Contracts.  The school districts will also provide similar assessments on eligible children not selected in the lottery process.

Teachers’ Union Challenge

On May 20, 2003, the Colorado Education Association, the National Education Association, and an array of other special interest groups filed a legal challenge to the parental choice program.  Since the U.S. Supreme Court victory for school choice under the federal Constitution last June, ¹⁵ opponents of parental choice are left to rely on state constitutions; accordingly, the teachers’ unions and their allies have challenged the Opportunity Contracts program under a number of provisions in the Colorado Constitution.  The unions’ central claim is that the state constitution prohibits the use of public funds to support religious schools—even though Opportunity Contracts support children, not schools.  The religion argument relies on two provisions of the state constitution, the “Blaine Amendment” and the “compelled support” clause. ¹⁶

The Blaine Amendment’s Historical Context:  Religious Discrimination in Public Schools

State Blaine Amendments are far from the bulwarks of religious liberty that modern-day opponents of school choice claim them to be.  They are actually a legacy of anti-Catholic and anti-immigrant bigotry—as well as religious discrimination in public schools—that should not be allowed to block educational opportunities for children who desperately need them today.

During the 19th century, America witnessed a tremendous surge in anti-Catholic bigotry.  That bigotry reached its zenith when several states, inspired by U.S. Senator James G. Blaine’s attempt to enact a federal constitutional amendment that would have sanctioned official discrimination against Catholics, passed their own versions of the so-called “Blaine Amendment.”

That same wave of anti-Catholic sentiment pervaded the so-called “common school” movement that gave birth to America’s public schools.  The common school movement was born, in part, from a specific desire to inculcate non-denominational Protestantism in students in addition to teaching traditional subjects. ¹⁷

For common school agitators like movement leader Horace Mann, the idea of an education without the inculcation of religious values was simply unthinkable.  According to Mann, the mission of a public school was fundamentally religious: I believed then, as now, that religious instruction in our schools, to the extent which the constitution and the laws of the State allowed and prescribed, was indispensable to their highest welfare, and essential to the vitality of moral education. Then as now, also, I believed that sectarian books and sectarian instruction, if their encroachments were not resisted, would prove the overthrow of the schools. ¹⁸

The terms “religious” and “sectarian” were not interchangeable for Mann and his contemporaries, as they are today.  In the 19th century, “sectarian” essentially was code for “Catholic” (and to a lesser extent other non-Protestant religions). ¹⁹    So by definition, mainstream Protestantism was “non-sectarian.”  What Mann and others in the common school movement advocated was not a non-religious education, but one free of Catholic influence.  That meant the inclusion of readings from the King James Bible in the public school curriculum—a practice Catholics vehemently opposed.  While the leaders of the common school movement believed themselves to be religiously neutral, they actually created a double standard that favored Protestantism over Catholicism. ²⁰

The Anti-Catholic and Anti-Immigrant Reaction

The Catholic minority understandably chafed under a system whose purpose was to instill Protestant teachings.  Catholic groups therefore attempted to remove Bible-reading from public schools and to secure public funding for Catholic schools. ²¹   The Protestant backlash against this “Catholic menace” was both swift and powerful, and Protestant churches joined with anti-immigrant groups to take up the battle. ²²   Seeking to capitalize on this sentiment, President Grant called for Americans to “[e]ncourage free schools, and resolve that not one dollar, appropriated for their support, shall be appropriated to the support of any sectarian schools.” ²³   He then proposed that Congress pass a constitutional amendment that would block such appropriations. ²⁴

Recognizing a political opportunity, James G. Blaine, then a Republican Congressman, sought to use anti-Catholic support as a means to capture his party’s presidential nomination. ²⁵   Shortly after Grant’s proposal, Blaine submitted his draft amendment in the House of Representatives.  Most political observers of the time recognized Blaine’s amendment for what it was: an instrument of political opportunism directed against Catholics. ²⁶  According to The Nation, “all that Mr. Blaine means to do or can do with his amendment is, not to pass it but to use it in the campaign to catch anti-Catholic votes.” ²⁷

The original text of Blaine’s proposed amendment provided:

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of the public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations. ²⁸

During the amendment’s consideration in 1876, the Senate added the following sentence, which appeared in the final version: “This article shall not be construed to prohibit the reading of the Bible in any school or institution. . . .” ²⁹   The amendment’s primary spokesman in the Senate explained to his colleagues, “the Bible is a religious and not a sectarian book.” ³⁰   Although it received sufficient votes in the House of Representatives, the Blaine Amendment failed to achieve the necessary two-thirds majority in the Senate. ³¹ Blaine’s Legacy in Colorado Unfortunately, others did not abandon the tool of bigotry that Blaine had helped to forge.  The defeat of the amendment in Congress by no means quieted the anti-Catholic movement, and, by 1890, 29 states had passed their own versions of the Blaine Amendment. ³²   Colorado was one of those states.

In 1876 Colorado adopted a constitution upon entering the Union, including language that mirrored the federal Blaine Amendment.  During the 1876 Colorado Constitutional Convention, the Catholic bishop of Denver, Monsignor Joseph Machebeuf, requested that the Convention delegates allow the state school fund to be divided between public and private schools.  Machebeuf threatened to organize a Catholic vote against ratification of the Constitution should the school fund not be divided between both public and private schools.

Machebeuf’s threat angered Protestants and the state public school teachers.  During the Convention 38 out of 45 public petitions requested that the school fund remain undivided so that only public schools would receive state money.

Colorado teachers borrowed language from the 1870 version of the Illinois Constitution in drafting a constitutional provision, which the Colorado delegates later adopted by a vote of 24 to 3. ³³   The result was Colorado’s Blaine Amendment, Article IX, section 7:

Aid to private schools, churches, sectarian purpose, forbidden.  Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose. ³⁴

The “Compelled Support” Clause Parental choice opponents also rely on Article II, section 4 of the Colorado Constitution, known as the “compelled support” clause.  Twenty-eight other states have this sort of language in their constitutions.  The common component of a compelled support clause is language providing that no one shall be compelled to attend or support a church or religious ministry without his or her consent.  Sometimes the language will specifically include religious schools in the entities that cannot be supported.  Colorado’s compelled support clause reads: The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness or justify practices inconsistent with the good order, peace or safety of the state.  No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent.  Nor shall any preference be given by law to any religious denomination or mode of worship. ³⁵

The historical antecedents of compelled support provisions are much older than the Blaine Amendments and addressed a different concern—the Colonial era practice of requiring church attendance and support for the colony’s established church, much like the federal Establishment Clause was intended to prohibit the establishment of a national church.

Colorado is also not the only place where a school choice program has been challenged under a state constitution’s compelled support clause.  The very same Cleveland voucher program upheld by the U.S. Supreme Court was challenged in state court as a violation of Ohio’s compelled support clause; likewise, Milwaukee’s voucher program was challenged under a similar provision in Wisconsin.  But both the Ohio and Wisconsin supreme courts found that neutral school choice programs (which neither favor a religious choice nor discourage one) are permissible under their states’ constitutions’ religion clauses—just as they are permissible under the federal Establishment Clause. Colorado Supreme Court Precedent:  Opportunity Contracts are Constitutional In 1982, Colorado’s highest court decided a case that involved both of the state constitution’s religion clauses—and a program very similar to Opportunity Contracts—Americans United for Separation of Church and State v. Colorado. ³⁶   In that case, Americans United (one of the interest groups suing to block the Opportunity Contract program) challenged the constitutionality of Colorado’s Student Incentive Grant Program, a Pell Grant-style program for college students—and lost.

In its opinion, the Colorado Supreme Court foreshadowed the U.S. Supreme Court’s decision on the Cleveland voucher program 20 years later.  Having lost at the U.S. Supreme Court under the federal Establishment Clause, opponents of school choice argue that state Blaine Amendments and compelled support clauses must be seen as “more restrictive” than the federal Constitution—that a program that passes federal constitutional muster would fail under state constitutions.

Nonetheless, in Americans United, the Colorado Supreme Court emphasized that the Student Incentive Grant Program is neutral between religious and non-religious options and that it was designed to benefit students, not the institutions they chose—precisely the grounds the U.S. Supreme Court used in the Cleveland case.  In addressing the Colorado Blaine Amendment, the court noted that “[a]ny benefit to the institution appear[ed] to be the unavoidable by-product of the administrative role assigned to it by the statutory scheme.  Such a remote and incidental benefit does not constitute, in our view, aid to the institution itself within the meaning of Article IX, Section 7.” ³⁷

In Americans United, the Colorado Supreme Court went even further, again presaging a line of federal precedents to come.  The court noted that to exclude students from a generally available benefit such as scholarships simply because they select religious institutions could violate a different clause of the federal Constitution—not the Establishment Clause, but the Free Exercise Clause.  The court noted, “To withhold benefits from students otherwise satisfying the statutory criteria would be tantamount to withholding a public benefit solely on the basis of an incidental religious affiliation which poses no threat whatever to the constitutionally mandated separation of church and state.” ³⁸  Americans United makes clear that despite the differences in language between the two, the Colorado Supreme Court does not interpret its state constitution as “more restrictive” than the federal Constitution.

Neutrality Reigns:  Federal Precedent Validates the Colorado Supreme Court

Since the Colorado Supreme Court rejected the arguments of educational choice opponents in Americans United, federal precedent on Establishment Clause and Free Exercise questions has become even clearer, validating the state supreme court’s view that excluding religious options from a neutral state program would violate the federal Free Exercise Clause.  The Establishment Clause prohibits government-coerced support for religion, barring the state from favoring one religion over another.  The Free Exercise Clause, by contrast, bars the government from favoring non-religion over religion (such as by funding students who freely choose secular options, but not those who freely choose religious options).  A line of federal cases over the past 25 years has articulated a way to resolve the tension between these two clauses:  neutrality, where government may not favor religion, but it may not hinder it either.

In addition to Zelman—last year’s Supreme Court victory for vouchers in Cleveland—recent federal cases that make the argument for neutrality include: U.S. Appeals Court

Davey v. Locke (2002) ³⁹ —The 9th U.S. Circuit Court of Appeals struck down the State of Washington’s exclusion of religious options from an otherwise neutral college grant program.  The court held that once a government creates a forum—whether a physical forum such as a public square or a fiscal forum such as a college grant program—it cannot discriminate against religion.  The State of Washington defended its discriminatory policy by relying on its constitution.  The court found Washington’s defense “less than compelling.”  The U.S. Supreme Court recently accepted this case for review. ⁴⁰

U.S. Supreme Court

Good News Club v. Milford Central School (2001) ⁴¹ —The Court held that a school district that made its facilities available to any group that wished to discuss “instruction in any branch of education, learning, or the arts” could not exclude a group that wanted to sing songs and study the Bible.  The Court held that such an exclusion discriminated against a religious viewpoint.

Rosenberger v. University of Virginia (1995) ⁴² —The Court held that the First Amendment prohibited the University of Virginia from refusing to fund the publication of a religious student publication while funding non-religious publications.

Lamb’s Chapel v. Center Moriches Union Free District (1993) ⁴³ —The Court held that government action that discriminated against a religious viewpoint violated the First Amendment.  The case concerned a school district in New York that had made its rooms generally available for such things as “social, civic and recreational meetings and entertainments” or “other uses pertaining to the social welfare.” ⁴⁴   A Christian group wanted to use some of the space to show a film about family values from a religious perspective.  The Court held that the district could not deny the group access based on its religious viewpoint.

Church of Lukumi Babalu Aye v. City of Hialeah (1993) ⁴⁵ —The Court held that a law prohibiting animal sacrifice violated the First Amendment.  The Court reasoned, “At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs,” and concluded that “a law targeting religious beliefs as such is never permissible.”

Employment Division v. Smith (1990) ⁴⁶ —The Court upheld a law that criminalized the possession of peyote because it was neutral with respect to religion.  In so doing, however, the Court stated, “The government may not … impose special disabilities on the basis of religious view or religious status.”

Widmar v. Vincent (1981) ⁴⁷ —The Court held that a state university in Missouri that made its facilities open and generally available to the public could not prevent groups from using the facilities for religious worship.  The Court disallowed the university’s attempt to proscribe speech simply because the university disagreed with the speech.  As Justice Stevens wrote in his concurrence, “Quite obviously, the university could not allow a group of Republicans or Presbyterians to meet while denying Democrats or Mormons the same privilege.” ⁴⁸   The Court rejected Missouri’s claim that its state constitution’s religion clauses justified the exclusion.

McDaniel v. Paty (1978) ⁴⁹ —The Court invalidated Tennessee’s law disqualifying members of the clergy from holding public office.  The Court concluded that a government could not “condition the exercise of one [right] on the surrender of another.”

Litigation Team The lead attorney in this case for the Institute for Justice is President and General Counsel William Mellor.  He is joined by IJ Vice President Clint Bolick and Senior Attorney Richard Komer.  Assisting the Institute for Justice as able local counsel is Richard Westfall of the Denver law firm of Hale Hackstaff Tymkovich, LLP.  Serving in the of counsel capacity is Martin Nussbaum of the Colorado Springs office of Rothgerber Johnson and Lyons, LLP.

The Institute for Justice is the nation’s leading legal advocate for school choice.  The Institute helped win a tremendous victory in the U.S. Supreme Court for school choice when it represented parents participating in Cleveland’s school choice program.  IJ also successfully defended the school voucher program in Milwaukee and tax credit programs in Illinois and Arizona from legal attacks by school choice opponents, and it is currently litigating in defense of Florida’s statewide Opportunity Scholarships program.

For more information contact:
Lisa Knepper
Director of Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203
W: (703) 682-9320 , ext. 202
C: (703) 597-2523

John Kramer
Vice President for Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203

W: (703) 682-9320 , ext. 205      The Institute for Justice is a Washington, D.C.-based public interest law firm, which through strategic litigation, training and outreach, advances a rule of law under which individuals control their own destinies as free and responsible members of society.  It litigates to secure economic liberty, school choice, private property rights, freedom of speech and other vital individual liberties, and to restore constitutional limits on the power of government.  In addition, it trains law students, lawyers and policy activists in the tactics of public interest litigation to advance individual rights.  The Institute was founded in September 1991 by William Mellor and Clint Bolick.