Colo. voucher ruling vindicates Constitution

(‘76 Contributor) In a huge victory for school choice, the Colorado Court of Appeals last month overturned the injunction placed on the Douglas County Choice Scholarship Program (CSP).

The CSP is Colorado’s only school–choice voucher program. Any student who lives within the Douglas County School District, and has resided there for at least one year, is eligible to apply to receive up to 75 percent of the state per–pupil funding to attend a school of choice. If there are more applicants than scholarships, a lottery is held to award the vouchers. Parents may also pay out of pocket to supplement the voucher coverage.

In 2011, the ACLU of Colorado, the National ACLU Program on Freedom of Religion and Belief, Americans United for the Separation of Church and State, and others filed suit in Colorado state court, claiming that the school choice option violated the statutory provisions of the CSP itself and seven provisions of the Colorado constitution, including, importantly, the establishment clause in the Colorado constitution. As an ACLU spokesperson said after winning an injunction to prevent the program from being implemented: “By paying for students to attend religious schools, the state was unconstitutionally promoting and subsidizing particular faiths.”

The Colorado Court of Appeals saw things differently, overturning the injunction. There is much to laud in the opinion, and the immediate beneficiaries of the ruling are the 304 students whose rights under the program are now vindicated. The Court of Appeals has given a particular victory in its analysis of how courts should analyze incidental funding of religious schools.

In rejecting the plaintiffs’ establishment clause claims, the appellate court applied the decision of the U.S. Court of Appeals for the Tenth Circuit in Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008). In this decision, penned by then–Judge Michael McConnell, the Tenth Circuit held that it violated the First Amendment to provide financial aid to students attending sectarian institutions but not to students attending “pervasively sectarian” institutions. As the Tenth Circuit noted, “inquiring into the pervasiveness or intensity of … belief” of religious institutions receiving funding is a form of anti–religious discrimination.

In the case challenging the CSP, the Colorado appeals court applied the same logic, holding that

the inquiry in which the district court engaged—into the degree to which religious tenets and beliefs are included in participating private schools’ educational programs—is no longer constitutionally permissible. In the thirty years since Americans United was decided, the United States Supreme Court has made clear that, in assessing facially neutral student aid laws, a court may not inquire into the extent to which religious teaching pervades a particular institution’s curriculum. Doing so violates the First Amendment.

This means that a First Amendment violation does not occur when a facially neutral law happens to fund religious school. Rather, the true First Amendment violation occurs when an activist court seeks to scrutinize the curriculum of schools funded by vouchers to sniff out religion it doesn’t like.

Ultimately, this decision shows once more that neutral voucher programs do not infringe upon taxpayers’ liberties. Educational choice gives parents control over their share of funding, making education dollars more mobile and allowing parents to choose the best schooling options for their children. The simple fact that some of this money goes to religious schools does not violate the First Amendment.

It is a travesty for Americans to be forced into only one option for their children’s schooling. School choice has proven, time and time again, to produce better educational outcomes than government–assigned schools. As Lindsey Burke of The Heritage Foundation writes:

School choice has led to improved academic outcomes, higher graduation rates and increased student safety. It has improved parental satisfaction with their child’s academic and social development, and satisfaction with their child’s school overall. And it allows parents to access educational options that meet their child’s unique learning needs.

Last month’s ruling affords Douglas County students that opportunity.


Brittany Corona graduated from CCU in politics and pre–law in 2012, and is currently a member of the Young Leaders Program at The Heritage Foundation.

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