Court Provides New Guidance on Colorado’s Constitutional Church and State Provisions

by Julie Pelegrin

appleUsing public moneys to pay the tuition at a religious school does not violate Colorado’s constitutional requirements for separation of church and state. At least that’s what the Colorado Court of Appeals has ruled. The Court recently reversed a district court opinion and held that the Douglas County School District’s choice scholarship program is constitutional. In addition to providing guidance for interpreting several sections of the constitution, the opinion also provides interesting rulings concerning the ability of a taxpayer to enforce state law and the standard for interpreting school district policies.

Douglas County first introduced its voucher program in 2011. Under this program, up to 500 Douglas County students could receive vouchers, each worth up to $4,575, to attend private schools that families would select from a list provided by the district. The list included both religious and nonsectarian schools. But before the district could implement the program, a group of parents and taxpayers filed suit to stop it. In August 2011, the trial court issued a permanent injunction to prohibit Douglas County from implementing the program, finding that the program violates the state constitutional provisions that prohibit governmental support for religious institutions. In February 2013, the Colorado Court of Appeals reversed the trial court, finding that the program does not violate the Colorado constitution.

As explained in a previous LegiSource article, there are several provisions in the state constitution that regulate the relationship between government and religion. Generally speaking, these provisions prohibit aid to religious schools; forced support of religious institutions; and religious tests for admission to public schools, mandatory attendance at religious services, and teaching of religious doctrines in public schools. The trial court found that Douglas County’s program violated all of these provisions.

But the Court of Appeals disagreed for one basic reason: parental choice. So long as a parent chooses to send his or her child to a religious school, the school district is not coercing attendance at a religious service. Also, since the program is intended to benefit parents by providing them greater educational choice, and the program is neutral because a parent may choose a religious or nonreligious school, there is no direct aid from the school district to the religious school. Any aid or support that a religious school receives is merely incidental to the parent’s choice. Finally, the Court also concluded that participating in the program and receiving public moneys does not transform any of the private schools into public schools or subject them to the constitutional restrictions on public schools.

The parents and taxpayers who challenged the law also claimed that the choice scholarship program violated article V, section 34 of the state constitution, which prohibits the appropriation of public moneys to private institutions that the state does not control. To analyze this claim, the Court of Appeals applied the “public purpose doctrine” under which the state may appropriate public moneys to a non-state-controlled institution if the appropriation is made to accomplish a public purpose. In this case, the Court identified three purposes: providing greater choice for families; improving the quality of public education through competition with private schools; and improving the rate of return on educational spending.

The Courts opinion includes two other interesting holdings. The parents and taxpayers claimed that the choice scholarship program violated the Public School Finance Act of 1994. The Court ruled that they do not have standing to bring this claim. While private citizens can file a suit to enforce a provision of the constitution, a private citizen may enforce a statute only if the statute itself creates a private right of action – that is, the statute specifically authorizes citizens to file an enforcement suit – or if the statute does not include any provisions for enforcement. The Public School Finance Act does not authorize a private right of action, and it does contain provisions for enforcement, directing the department of education and the state board of education to enforce the Act. This means private citizens do not have standing to enforce this law.

Also, the Court specifically held that a policy of a school district, similar to a law passed by the General Assembly, is a result of legislative action. As such, it is presumed to be constitutional. To prevail, the parents and taxpayers were required to prove beyond a reasonable doubt that the district’s choice scholarship program was unconstitutional, which they were unable to do.

The Court of Appeals decision may not be the final word on these issues. Several of the plaintiffs have filed a petition asking the Colorado Supreme Court to review the Court of Appeal’s holdings concerning the constitutional provisions that regulate the relationship between government and religion. Whether the Court of Appeals decision stands or the Supreme Court issues an opinion reversing or upholding the Court of Appeals, these rulings on the choice scholarship program will provide valuable guidance on the meaning of the church-and-state provisions of the Colorado constitution and how they may apply to future legislation.