Colorado
Voucher, tax credit, and education savings account programs are all options in Colorado. The state has not had an educational choice program since the Colorado Supreme Court invalidated Douglas County’s voucher program in Taxpayers for Public Education v. Douglas County because it permitted families to choose religious schools. That decision was vacated by the U.S. Supreme Court in the wake of Trinity Lutheran Church of Columbia, Inc. v. Comer, but the constitutionality of that program was never re-litigated because the Douglas County Board of Education repealed the program. However, under Espinoza, the reasoning in Taxpayers for Public Education was clearly erroneous and it is now clear that Colorado’s Blaine Amendments are not a legal barrier to educational choice programs. Finally, any publicly funded educational choice program adopted at the state level should be financed exclusively through state—not local—revenues in order to comply with the Colorado Supreme Court’s decision in Owens v. Colorado Congress of Parents.
Constitutional Provisions
Compelled Support Clause
“No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship.” Colorado Const. Art. II, § 4.
Blaine Amendments
“No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association.” Colorado Const. Art. V, § 34.
“Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose.” Colorado Const. Art. IX, § 7.
Education Articles
“The general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state ….” Colorado Const. Art. IX, § 2.
“The public school fund of the state shall, except as provided in this article IX, forever remain inviolate and intact and the interest and other income thereon, only, shall be expended in the maintenance of the schools of the state, and shall be distributed amongst the several counties and school districts of the state, in such manner as may be prescribed by law.” Colorado Const. Art. IX, § 3.
“The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respective districts.” Colorado Const. Art. IX, § 15.
Relevant Case Law
Taxpayers for Public Education v. Douglas County School District, 351 P.3d 461, cert. granted, judgment vacated sub nom. Doyle v. Taxpayers for Pub. Educ., 137 S. Ct. 2324 (2017), and cert. granted, judgment vacated sub nom. Colorado State Bd. of Educ. v. Taxpayers for Pub. Educ., 137 S. Ct. 2325 (2017), and cert. granted, judgment vacated, 137 S. Ct. 2327 (2017)
In a challenge to a scholarship program created by the Douglas County School District, the Colorado Supreme Court invalidated the program. Three justices held that the Choice Scholarship program violated the Colorado Constitution because the program helped some students attend religious schools, a fourth justice held that the program violated the state’s public school funding act, and three judges voted to uphold the program. The decision was vacated by the United States Supreme Court and remanded for reconsideration in light of Trinity Lutheran Church of Columbia v. Comer, 137 S. Ct. 2012 (2017), but the school district repealed the program before the Colorado Supreme Court could reconsider its prior decision and the case was dismissed as moot.
Thomas v. Douglas County School Board, No. 1:16-cv-00876 (D. Colo. filed Apr. 19, 2016) Following its loss at the Colorado Supreme Court in Taxpayers for Public Education v. Douglas County School District, the Douglas County School Board enacted a new voucher program that denied parents the opportunity to select religious schools for their children. Parents desiring to use scholarships at religious schools sued the school board in federal court in litigation that is ongoing. However, the Board of Education repealed the program in its entirety soon after its passage and the case was dismissed.
Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008)
The 10th U.S. Circuit Court of Appeals held that a post-secondary scholarship program violated the Free Exercise and Establishment Clauses of the First Amendment because the government had to intrusively scrutinize the workings of private colleges to determine if they were too sectarian to participate in the program. The court allowed all religious colleges’ students to receive the scholarships.
Owens v. Colorado Congress of Parents, 92 P.3d 933 (Colo. 2004)
The Colorado Supreme Court held that a pilot voucher program violated the Colorado Constitution’s “local control” provision (Article IX, Section 15) because it required school districts to pass a portion of their locally raised funds to non-public schools over whose instruction the districts had no control.
Americans United for Separation of Church & State Fund, Inc. v. State, 648 P.2d 1072 (Colo. 1982)
The Colorado Supreme Court upheld the Colorado higher education grant program against a challenge brought under one of its Blaine Amendments (Article IX, Section 7) because the program benefits students, not their schools, because it is available to private as well as public school students, and because it eliminates any danger of indirectly supporting religious missions by attaching statutory conditions to the use of the money.
Existing Private School Choice Programs
None.
What You've Heard About Blaine Amendments
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
What You Need to Know After Espinoza
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
