Colo. Supreme Court Denies Families’ Right to School Choice

J. Justin Wilson
J. Justin Wilson · June 29, 2015

Arlington, Va.—In an unfortunate setback for the right of parents to choose the schools that are best for their children, this morning the Colorado Supreme Court held Douglas County’s innovative Choice Scholarship Program unconstitutional under the Colorado Constitution. The program provided 500 scholarships that parents could use to send their children to the private school of their choice.

“The Colorado Supreme Court’s decision is a blow to all Douglas County families—indeed, all Colorado families—who simply want the right to choose the schools that are best for their kids,” said Michael Bindas, a senior attorney with the Institute for Justice (IJ), which represented three Douglas County families in defending the Choice Scholarship Program. “Douglas County tried to give its families every opportunity for the best possible education and the Colorado Supreme Court just took one of those opportunities away.”

The Choice Scholarship Program was a local school choice program adopted by the Douglas County Board of Education on March 15, 2011, to “provide greater educational choice for students and parents to meet individualized student needs.” The program operated in a simple and straightforward manner, providing 500 scholarships that parents could use to send their children to any private school that participated in the program and that had accepted the children.

On June 21, 2011, however, the American Civil Liberties Union (ACLU), Americans United for Separation of Church and State, and several Colorado organizations and taxpayers sued the school board, school district, Colorado Department of Education and Colorado Board of Education in Denver District Court to stop the program. Despite clear case law rejecting their claims, they alleged that because some parents would choose religious schools for their children’s education, the program violated the state constitution’s prohibition on aid to religious schools. They also alleged various violations of state constitutional and statutory provisions concerning public education.

On behalf of three Douglas County families that had received scholarships under the program—the Doyles, Andersons and Oakleys—IJ intervened in the case and defended the program alongside the county and state.

In August 2011, after a three-day hearing, the Denver District Court held that the program violated state law and enjoined its implementation. But the Colorado Court of Appeals reversed that decision and upheld the program on February 28, 2013. In a comprehensive and strongly supported opinion, it held that the scholarship program was “intended to benefit students and their parents” and that “any benefit to the participating schools [wa]s incidental.” Moreover, the court stressed that the program was “neutral toward religion,” allowing religious and nonreligious schools alike to participate, and that any funds that made their way to private schools with religious affiliation did so solely by the “personal choices of students’ parents.”

The school choice opponents, however, appealed to the Colorado Supreme Court, which this morning reversed the well-reasoned decision of the Court of Appeals and held the program illegal under Colorado law. According to a plurality of the Court, the program violates Article IX, section 7 of the Colorado Constitution, which prohibits government from making appropriations “in aid of any church or sectarian society . . . or to help support or sustain any school . . . controlled by any church or sectarian denomination.” The opinion ignores the fact that the Choice Scholarship Program is designed to aid Douglas County families, not schools, and that not a penny flows to any school, religious or nonreligious, but for the private and independent choice of parents.

Moreover, “by singling out religious educational options and denying parents the opportunity to choose them, the Colorado Supreme Court’s decision violates the federal Constitution’s prohibition on discrimination against religion,” explained Bindas, who added that IJ is considering petitioning the U.S. Supreme Court to review the Colorado Supreme Court’s judgment.

“The court’s decision treats individual children as nothing more than funding units for public schools,” added Institute for Justice Attorney Tim Keller. “Families need as many options as possible for educating their children because there is simply no one-size-fits-all approach to educating children.”

The Colorado Supreme Court’s decision is a rarity in striking down a school choice program. In fact, there are currently school choice programs on the books in more than half the states, and IJ has a long history of successfully defending such programs from legal attack. For example, IJ represented intervening parents in the successful defense of:

  • Alabama’s Accountability Act individual tax credit and tax-credit scholarship programs, Magee v. Boyd;
  • New Hampshire’s Business Tax Credit Scholarship Program, Duncan v. State of New Hampshire;
  • Indiana’s Choice Scholarship Program, Meredith v. Daniels;
  • Arizona’s Empower Scholarship Account, Niehaus v. Huppenthal;
  • Arizona’s Individual Scholarship Tax Credit and Corporate Scholarship Tax Credit Programs, Ariz. Christian Sch. Tuition Org. v. Winn, Kotterman v. Killian and Green v. Garriott;
  • Ohio’s Pilot Scholarship Program, Zelman v. Simmons-Harris and Simmons-Harris v. Goff;
  • Milwaukee’s Parental Choice Program, Jackson v. Benson; and
  • Illinois’ Educational Expenses Tax Credit Program, Toney v. Bower and Griffith v. Bower.

“From Arizona and Nevada, down to Alabama and Louisiana, up to Indiana, New Hampshire and beyond, school choice programs are providing greater and greater parental control of education, just as it should be,” said Chip Mellor, president and general counsel for the Institute for Justice. “While today’s decision is a setback, the momentum is clearly on the side of choice. No one knows better than parents which type of education will best serve their children. School choice programs give parents the means to secure a quality education for their kids.”