In March 2011, the Douglas County Board of Education enacted the Choice Scholarship Program—a pilot program to determine whether providing greater choice to county residents would yield benefits for students similar to those realized by school choice programs in other states. Under the program, the Douglas County 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 board, school district, Colorado Department of Education, and Colorado State Board of Education 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 school under the program 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 that 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 to such programs, 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 reverse the court of appeals decision. On June 29, 2015, it did just that, holding the program unconstitutional under Article IX, section 7 of the Colorado Constitution, which prohibits aid to schools “controlled by any church or sectarian denomination.” In so doing, the Colorado Supreme Court ignored the fact that the program aids students, not schools. It likewise ignored the decisions of other state supreme courts upholding similar school choice programs under similar state constitutional provisions.
By interpreting the Colorado Constitution as mandating the exclusion of religious options from otherwise generally-available student aid programs, the Colorado Supreme Court’s decision ran afoul of the U.S. Constitution, including, specifically, its Free Exercise Clause. Accordingly, the Institute for Justice petitioned the U.S. Supreme Court to review the Colorado Supreme Court’s decision. On June 27, 2017, the U.S. Supreme Court vacated the Colorado Supreme Court’s judgment and remanded the case back to that court to specifically consider the federal constitutionality of barring religious options from the Choice Scholarship Program.
Before the Colorado Supreme Court could consider that issue, however, political control of the Douglas County Board of Education flipped to an anti-school-choice majority. Recognizing the likelihood that the court would rule in favor of the schoolchildren and uphold the scholarship program this time around, the new Board quickly repealed the program, effectively mooting the case. The Colorado Supreme Court, in turn, vacated the decisions of the lower courts in the case, thereby leaving important constitutional questions concerning educational choice in Colorado open for resolution in a future case.
Intervenors’ Combined Response Brief Opposing Plaintiffs’ Motions For Preliminary Injunction
Opening Brief in Court of Appeals
Reply Brief in Court of Appeals
Colorado Court of Appeals Opinion
Opposition to Petition for Certiorari
Answer Brief of Intervenor Respondent
Colorado Supreme Court Opinion
Arizona et al Amicus Brief
Catholic Diocese of Pueblo et al. Amicus Brief
Foundation for Excellence in Education et al. Amicus Brief
Friedman Amicus Brief
Oklahoma Amicus Brief
Orthodox Union et al. Amicus Brief
Senator Gardner Amicus Brief
Christian Legal Society et al Amicus Brief
PLF Amicus Brief
Colorado Supreme Court Opinion
The Douglas County Program
In 2011, after an extended period of study that included several open meetings with the community, the Douglas County Board of Education voted to initiate a pilot program, called the Choice Scholarship Program, for up to 500 Douglas County public school students whose parents wish to transfer them to private schools. Under the program, students received a scholarship of either 75 percent of the state component of the cost of educating a student in Douglas County or the cost of tuition at the private school, whichever was less. When the program was adopted, the upper scholarship limit was $4,575. The average cost of educating the same student in Douglas County public schools, meanwhile, was more than $10,000.
Parents could have used the scholarships to send their child to any private school that participated in the program and that accepted the child for admission. In other words, whether to participate in the program and what school a child would attend were functions of parental—not governmental—choice.
Response to the announcement of the scholarship program was immediate and dramatic. District offices were swamped with calls from interested families. The cap of 500 students was reached, and 23 private schools were approved to participate. Of those 23, 16 were religious schools and seven were non-religious.
What was unusual about the Douglas County program was that, unlike most of the modern school choice programs, it was designed to serve a middle class school district with well-regarded public schools. Eligibility was based on residence in the district, with no income cut-off and no requirement that the public schools the students would otherwise attend be inadequate or failing. In other words, interest in the program demonstrated that even in well-run districts with effective public schools, significant numbers of parents could be dissatisfied with the public schools or simply want additional choices for their children’s education.
The Douglas County Families
The parents represented by the Institute for Justice were such parents: they simply wanted the ability to choose the school that would best meet their child’s unique educational needs.
Florence and Derrick Doyle have twins, Donovan and Alexandra, who attended Sagewood Middle School, a Douglas County public school. But Florence and Derrick wanted to send Donovan and Alexandra to a Catholic school—Regis Jesuit—for high school. Accordingly, they applied for and received scholarships under the Choice Scholarship Program, and the Douglas County School District approved Regis to participate in the program.
Florence and Derrick were attracted to Regis’s small class sizes, challenging college-prep curriculum, strict discipline and Jesuit approach to education. Importantly, Florence and Derrick wanted their children, whom they have raised Catholic, to go off to college with a strong spiritual background, which they would receive at Regis. Paying tuition for both children to attend Regis would be a substantial financial burden that the scholarships would help defray.
Diana and Mark Oakley have three children—Nathaniel (“Nate”), Amber and Joshua. Amber and Joshua attended Eagle Ridge Elementary, a Douglas County public school, and the Oakleys were happy to keep them there. But Nate, who has Asperger’s Syndrome, did not fare so well.
When Nate was in fifth grade, the administration at Eagle Ridge informed Diana and Mark that the school would not provide Nate a paraprofessional. Not surprisingly, Nate failed to make adequate progress that year, and Diana and Mark made the difficult decision to have him repeat fifth grade. Things did not improve the following year. In sixth grade, the school did provide a paraprofessional, but she was not devoted to Nate exclusively and was only in the classroom part time. Nate continued to struggle.
Toward the end of sixth grade, after enduring more than a year of relentless bullying, Nate was physically assaulted by a fellow student. After the incident, the school finally provided Nate a dedicated paraprofessional. But if Nate remained in the public school system, he would attend Crest Hill Middle School the following year, and the administration there informed the Oakleys that he would not have a paraprofessional.
Accordingly, the Oakleys applied for and received a scholarship for Nate under the Choice Scholarship Program, and Nate was accepted by Humanex Academy: a small, non-religious private school that works with children with special needs and was approved to participate in the program. Nate attended classes at Humanex as a guest for several days before the Oakleys applied and they were very impressed with everything about it, from its small size to the fact that it uses only natural lighting, as artificial light can be problematic for students with Asperger’s. Without the scholarship, sending Nate to Humanex would have been financially impossible for the Oakleys.
Jeanette Strohm-Anderson and Mark Anderson have two sons, Max and Alex, who attended Larkspur Elementary, a Douglas County public school. Jeanette and Mark were very involved with Larkspur over the years; Jeanette even served as vice president and president of its Parent-Teacher Organization. But they were unhappy with aspects of Larkspur’s curriculum, particularly its “reform” math approach. Max showed a keen interest and aptitude for math and science, and Jeanette and Mark preferred that he be educated using the “Singapore Math Method,” which places a strong emphasis on problem-solving and model drawing.
Accordingly, the Andersons applied for and received a scholarship under the Choice Scholarship Program, which they planned to use to send Max to Woodlands Academy, a small, non-religious private school with a strong math and science curriculum and that is approved to participate in the program. Jeanette and Mark were impressed not only with the school’s curriculum, but also with its small class sizes and the passion of its teachers. Max spent two days sitting in on classes at the school and described his first day there as “the best seven hours of my life” and “the best math class I ever had.”
Three families who chose three different schools for three different, but equally important, reasons: those are precisely the kinds of choices that the Choice Scholarship Program was designed to empower parents to make.
Sadly, however, some people shudder at the idea of empowering parents to make the choices affecting their children’s education. They include the ACLU, Americans United for Separation of Church and State, and several Colorado organizations and taxpayers, who filed two lawsuits challenging the Choice Scholarship Program in June 2011, aiming to prevent families like the Doyles, Oakleys and Andersons from choosing the best educational options for their children. Both lawsuits were filed in the District Court for Denver County and were quickly consolidated into a single action. Although the plaintiffs alleged a large number of supposed problems with the program, their primary argument was that it violated Article IX, section 7 of the Colorado Constitution, which prohibits appropriating public money to schools “controlled by any church or sectarian denomination.”
Significantly, this provision was the subject of an earlier Colorado case: Americans United for Separation of Church and State Fund, Inc. v. State of Colorado, 1 in which Americans United challenged a college scholarship program that allowed students to select religious schools. The Colorado Supreme Court rejected the argument that the program violated Article IX, section 7, holding that it was “designed for the benefit of the student, not the educational institution.” 2 The same was true under Douglas County’s scholarship program.
In Zelman v. Simmons-Harris, the U.S. Supreme Court upheld an Ohio scholarship program because it was neutral with respect to religion and any money that flowed to a religious school did so only as the result of the private, independent choice of parents.
In fact, since Americans United was decided, there have been numerous U.S. and state supreme court decisions upholding school choice programs under similar reasoning. In Zelman v. Simmons-Harris, 3 for example, the U.S. Supreme Court upheld an Ohio scholarship program because it was neutral with respect to religion and because any money that flowed to a religious school did so only as the result of the private and independent choice of parents. The Indiana, Wisconsin and Ohio Supreme Courts came to similar conclusions in upholding scholarship programs under their respective state constitutions. 4
Despite these authorities, the trial court in the Douglas County case held that the Choice Scholarship Program violated Article IX, section 7 of the Colorado Constitution. It accordingly blocked the program’s implementation in August 2011.
The Colorado Court of Appeals, however, reversed that decision and upheld the program in February 2013. It recognized that the program “was intended to benefit students and their parents” and that “any benefit to the participating schools is incidental.” The court also stressed the fact that the program was “neutral toward religion” and that “funds made their way to private schools with religious affiliation by means of personal choices of students’ parents.”
Nevertheless, and despite its earlier decision in Americans United, the Colorado Supreme Court disagreed. On June 9, 2015, it reversed the well-reasoned opinion of the court of appeals and struck down the Choice Scholarship Program.
The Colorado Supreme Court’s Decision Violated The Federal Constitution
The Colorado Supreme Court’s decision, however, was not the end of road. The Doyle, Oakley and Anderson families petitioned the U.S. Supreme Court to review the decision because it applied the Colorado Constitution in a way that conflicted with the U.S. Constitution—specifically, the Free Exercise and Establishment Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Those provisions demand neutrality—not hostility—toward religion.
While the Doyle, Oakley and Anderson families’ petition was pending, the U.S. Supreme Court decided Trinity Lutheran Church of Columbia, Inc. v. Comer. 5 In Trinity Lutheran, the U.S. Supreme Court held that Missouri violated the Free Exercise Clause of the U.S. Constitution when it relied on its state constitution to bar church-run schools from participating in a program that provides playground resurfacing grants to schools and other non-profits. As the U.S. Supreme Court explained, “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order.’” 6 The Court concluded that Missouri had no such interest. 7
The next day, June 27, 2017, the U.S. Supreme Court vacated the Colorado Supreme Court’s judgment in the Douglas County case and remanded the case back to the Colorado Supreme Court for further consideration in light of the Trinity Lutheran decision.
Hiding Behind the Bigotry of the Blaine Amendments
Compounding the federal constitutional problem with the Colorado Supreme Court’s now-vacated judgment was the fact that Article IX, section 7 of the Colorado Constitution is a “Blaine Amendment”: a product of nineteenth-century bigotry designed to prohibit direct public funding of Catholic schools. By extending its reach to exclude religious options from student-aid programs, the Colorado Supreme Court’s decision had extended the animus attending its enactment.
“Blaine Amendments” are named after Congressman James G. Blaine who, in the mid-1870s, led an effort to amend the U.S. Constitution to deny aid to Catholic schools. Public schools of the time were overtly religious and non-denominationally Protestant. Religious exercises—invariably from a Protestant perspective—were compulsory, and there are numerous accounts of Catholic students being beaten or expelled when they refused to participate.
After their efforts to secure better treatment in the public schools failed, Catholics began establishing their own schools and seeking a share of the public school funds. This angered the Protestant majority, and a virulent, anti-Catholic nativism erupted. Blaine’s proposed amendment attempted to capitalize on this sentiment. It would have preserved the Protestant nature of the public schools while preventing direct public funding of Catholic schools.
Thankfully, Blaine’s proposed amendment fell just shy of the congressional supermajority it needed to go to the states for ratification. Unfortunately, however, many states took up Blaine’s charge and included similar provisions in their own constitutions. Colorado was one of those states. Its constitutional convention began just six days after Blaine introduced his federal amendment in Congress. Inspired by Blaine’s federal efforts, the Colorado delegates adopted what became Article IX, section 7.
As a plurality of the U.S. Supreme Court explained in Mitchell v. Helms, the Blaine movement “arose at a time of pervasive hostility to the Catholic Church and to Catholics in general”; it has “a shameful pedigree,” “born of bigotry,” that “should be buried now.” 8
But before the Colorado Supreme Court could reconsider the federal constitutional implications of Colorado’s Blaine Amendment, political control of the Douglas County Board of Education flipped to an anti-school-choice majority. Recognizing the likelihood that the court would rule in favor of the Doyle, Anderson and Oakley families the second time around, the new Board quickly repealed the scholarship program, effectively mooting the case. The Colorado Supreme Court, in turn, vacated the decisions of the lower courts in the case, thereby leaving important constitutional questions concerning Blaine Amendments and educational choice in Colorado open for resolution in a future case.
The lead attorney in this case was Institute for Justice (IJ) Senior Attorney Michael Bindas. 9 Assisting him were Richard Komer, 10 another IJ senior attorney, and Tim Keller, 11 executive director of IJ’s Arizona office.
IJ is the nation’s leading legal advocate for school choice. Since its founding 25 years ago, IJ has successfully defended school-choice programs in numerous state supreme courts, intermediate courts of appeal, and trial courts, as well as twice in the U.S. Supreme Court 12
For more information, or to arrange an interview with the Institute for Justice and the school choice parents it represents, please contact:
Vice President for Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203
(703) 682-9320 ext. 205
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