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.

Vouchers: Yes

Tax Credits: Yes

Existing Private School Choice Programs


Relevant Case Law

Taxpayers for Public Education v. Douglas County School District, 351 P.3d 461 (Colo. 2015), petitions for cert. filed, (U.S. Oct. 27, 2015 ) (No. 15-556), 84 U.S.L.W. 3261 (U.S. Oct. 28,2015) (No. 15-557), 84 U.S.L.W. 3261 (U.S. Oct. 28, 2015) (No. 15-558)
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 school district, the state and intervening parents have filed petitions for certiorari with the U.S. Supreme Court, which has not ruled yet on whether to accept review.

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.

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.

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

Analysis and Recommendations

Currently, tax credit programs are the safest school choice option for Colorado, given the recent Colorado Supreme Court decision in Taxpayers for Public Education v. Douglas County School District. Any future voucher legislation should fund the program exclusively through state rather than local revenues in order to comply with the Colorado Supreme Court’s decision in Owens v. Colorado Congress of Parents.

Model Legislation: Education Savings Account, Parental Choice Scholarship Program (Universal Eligibility), Parental Choice Scholarship Program (MeansTested Eligibility), Special Needs Scholarship Program, Foster Child Scholarship Program, Autism Scholarship, Great Schools Tax Credit Program, Family Education Tax Credit Program

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