Institute for Justice · April 19, 2016

Arlington, Va.—Today, on behalf of three families the Institute for Justice (IJ) sued the Douglas Co. School District and Board of Education challenging their decision to exclude families who wish to enroll their children in religious schools from the county’s recently passed School Choice Grant Program. The lawsuit seeks clarity on an issue of national importance:  whether the federal Constitution allows the government to exclude families desiring a religious school for their child from participating in school choice and similar student aid programs. IJ represents three families who are otherwise eligible to participate in Douglas County’s new program, but cannot because the school they believe best fits the needs of their children is not a permitted option.


On March 15, 2016, the Douglas County Board of Education adopted the School Choice Grant Program, allowing families who live in the Douglas County School District, and whose children currently attend a Douglas County public school, to receive a grant to attend a private school of their choice. However, families may not choose religious schools under the program, meaning a host of options for families are off limits.. This type of discrimination violates parents’ fundamental liberty to direct the education and upbringing of their children—a right protected by the Fourteenth Amendment to the U.S. Constitution. It also violates the governmental neutrality toward religion demanded by the Free Exercise and Establishment Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

“With this lawsuit, we hope to ensure that Douglas County’s School Choice Grant Program is open to all students, regardless of whether they wish to attend a religious or nonreligious school,” announced IJ Senior Attorney Michael Bindas. “Parents know better than anyone which school will work best for their child, and they should not be denied the choice of that school simply because it is religious.”

Presumably, the Douglas County Board of Education adopted the new program because an earlier school choice program, adopted in 2011, has been held up in litigation ever since its adoption. After a state trial court invalidated the original scholarship program, the Colorado Court of Appeals reversed the trial court’s decision and upheld it. But the tables turned again in 2015, when the Colorado Supreme Court reversed that decision and invalidated the program once more.

The Colorado Supreme Court’s judgment was highly divided. A three-justice plurality reasoned that because the original program included religious options, it violated a provision of the Colorado Constitution that bars public funding of religious schools. Three other justices, however, rejected that argument and would have upheld the program, which, they correctly noted, did not provide funds to religious schools:  it provided scholarships to children, whose parents, in turn, decided what schools, religious or not, their children would attend. A seventh justice, meanwhile, did not even reach the state constitutional question because she believed the program violated a state statute.

The Douglas County Board of Education has appealed that ruling to the U.S. Supreme Court, arguing that by interpreting the Colorado Constitution to bar religious options from student aid programs, the three-justice plurality decision violates the federal Constitution, which requires neutrality—not hostility—toward religion.

“Although the U.S. Supreme Court is still deciding whether it will hear Douglas County’s appeal, the Douglas County Board of Education is now doing the very thing that it told the U.S. Supreme Court is unconstitutional to do:  excluding religious options from an otherwise generally available school choice program,” explained Bindas.

The plaintiffs in the case filed today are three families who all wish to participate in the new School Choice Grant Program. Parents Steve and Tina Thomas, Dawn Atchison and Todd Reynolds, and single mom Melissa Jankowski all hope to participate in the program and send their children to Valor Christian High School. The U.S. Department of Education awarded Valor Christian its National Blue Ribbon Schools award for 2015.

This lawsuit is important not only for families in Douglas County, but also for families throughout the country who simply wish to have educational choice for their children. Opponents of school choice programs often challenge the programs in court, arguing that state constitutional provisions prohibit families from choosing religious schools and that religious options must therefore be excluded from the programs. This lawsuit aims to make clear that such exclusions violate the federal Constitution.