In Major Win for School Choice, U.S. Supreme Court Vacates Colorado Supreme Court Decision, Sends Case Back for Further Review

John Kramer
John Kramer · June 27, 2017

Arlington, Va.—In a major and encouraging development for school choice nationwide, the U.S. Supreme Court today vacated a 2015 judgment of the Colorado Supreme Court that had struck down Douglas County, Colorado’s Choice Scholarship Program for elementary and secondary students. The nation’s highest court remanded the case back to the state court, instructing it to reconsider its earlier decision in light of the U.S. Supreme Court’s recent ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer, which held that Missouri violated the U.S. Constitution when it relied on a “Blaine Amendment” in its state constitution to exclude a religious preschool from the state’s playground resurfacing program.

“Today’s order sends a strong signal that just as the U.S. Supreme Court would not tolerate the use of a Blaine Amendment to exclude a religious preschool from a playground resurfacing program, it will not tolerate the use of Blaine Amendments to exclude religious options from school choice programs,” explained Michael Bindas, a senior attorney with the Institute for Justice (IJ). IJ is defending the Choice Scholarship Program on behalf of three families with children who received scholarships under the program, only to lose them when the state courts struck the program down.

The Choice Scholarship Program is a local school choice program adopted by the Douglas County Board of Education in March 2011 to “provide greater educational choice for students and parents to meet individualized student needs.” The program provided 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.

In June 2011, however, the American Civil Liberties Union, 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.

In August 2011, the Denver District Court held that the program violated the state constitution and enjoined its implementation. But the Colorado Court of Appeals reversed that decision and upheld the program in February 2013.

In June 2015, however, the Colorado Supreme Court reversed again and invalidated the program once more. According to a three-justice plurality of the court, the program violated Article IX, Section 7 of the Colorado Constitution—a “Blaine Amendment”—which prohibits government from making appropriations “to help support or sustain any school . . . controlled by any church or sectarian denomination.” The opinion ignored the fact that the Choice Scholarship Program was designed to aid Douglas County families, not schools, and that not a penny flowed to any school, religious or nonreligious, but for the private and independent choice of parents.

“Blaine Amendments, which are found in some 37 state constitutions, are vestiges of 19th-century, anti-Catholic bigotry,” explained IJ Senior Attorney Timothy Keller. “They were designed to preserve the generic Protestant nature of the nation’s public schools—which, at the time, were overtly religious but not ‘controlled by any church or sectarian denomination’—and to deny any aid to Catholic schools.”

In October 2015, IJ petitioned the U.S. Supreme Court to review the Colorado Supreme Court’s judgment. The U.S. Supreme Court, however, refrained from acting on the petition until it ruled in Trinity Lutheran, which it did on June 26, 2017. In Trinity Lutheran, the Court held that Missouri’s Blaine Amendment did not justify the state’s exclusion of a church-run preschool from a state playground resurfacing program. Barring the church from the program, the Court held, violated the Free Exercise Clause of the U.S. Constitution.

In light of its Trinity Lutheran decision, the U.S. Supreme Court today vacated the Colorado Supreme Court’s 2015 judgment in the Douglas County case, Doyle v. Taxpayers for Public Education, and remanded the case back to the state court with an instruction to give the case “further consideration in light of Trinity Lutheran.” Such an order—called a “grant, vacate and remand” order—is warranted when the Supreme Court believes there is “a reasonable probability” that the lower court would resolve the case differently “if given the opportunity for further consideration” in light of an intervening U.S. Supreme Court decision in another case.

“Today’s development gives hope to all Douglas County families—indeed, all American families—who simply want the right to choose the schools that are best for their kids,” said IJ President Scott Bullock. “Douglas County tried to give its families every opportunity for the best possible education for their children. While that opportunity was taken away by the Colorado Supreme Court’s earlier ruling, it appears that Douglas County families may soon get it back.”

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[NOTETo arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205.]