May 27, 2016

In our five-year-old battle to secure educational choice in Douglas County, Colorado, we have faced a lot of strange twists and turns. Events recently took an even stranger turn, but we are as confident as ever that victory is near.

In 2011, the Douglas County Board of Education adopted the Choice Scholarship Program, a school choice program that provided scholarships to children to attend private schools, religious or non-religious alike. But the program was immediately challenged by the ACLU and Americans United for Separation of Church and State, which filed a lawsuit arguing that by including religious options alongside non-religious ones, the program violated the “Blaine Amendment” in Colorado’s state Constitution.

Regular readers will no doubt be familiar with the state Blaine Amendments, which are relics of 19th-century anti-Catholic bigotry. They were adopted with two objectives: preserving the overtly religious, non-denominationally Protestant character of 19th-century public schools and denying public funding for Catholic schools. In 2000, four U.S. Supreme Court Justices called for these provisions to be “buried now.”

Using these vestiges of bigotry in state constitutions as a weapon to deny educational opportunity to children is not only abhorrent—it violates the federal Constitution. That is precisely what IJ argued when we stepped in to defend the program in 2011.

Initially, a state trial court agreed with the school choice opponents and struck down the program. The Colorado Court of Appeals reversed that decision and upheld the program. But then the Colorado Supreme Court reversed that decision and once again struck the program down.

In the fall of 2015, IJ asked the U.S. Supreme Court to review the Colorado Supreme Court’s judgment. We do not expect to hear from the Court until the fall of 2016, at the earliest.

Apparently, the Douglas County Board of Education got tired of waiting around and, in March of this year, passed a new school choice program—the School Choice Grant Program—which, in an attempt to comply with the Colorado Supreme Court’s judgment, excludes religious options. Presumably, the Board took this action to provide families as much choice as it could, even if it means denying them the choice of a religious school.

IJ, however, refuses to sit by while parents are denied the opportunity to choose any school if it is the best option for their child. In April, we filed a constitutional lawsuit in federal court in Denver, challenging the exclusion of religious schools from the new program. We filed the case on behalf of three Douglas County families who are eligible to participate in the new program but for the fact that they wish to send their children to a religious school.

By bringing this new case, we hope to obtain a final answer to the question that looms large over the notorious Blaine Amendments: Can they be used as a weapon to deny a child the option of attending the school their parents believe is best for them, simply because that school happens to be religious? We are confident that the U.S. District Court or the Supreme Court will answer that question with a resounding “No!”

Michael Bindas is an IJ senior attorney.

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