by Jery Payne

Some folks in Gilbert, Arizona, wanted to use signs to advertise upcoming events and posted these signs on private property. The town had rules limiting the size of event signs and the times they could be posted. These signs were up too long, so the town’s sign police busted the sign folks. The citizens became indignant and took the town to court. The case was appealed all the way to the United States Supreme Court, who held that the town’s rules violated the First Amendment to the United States Constitution because the town had stricter rules for event signs than for other signs.

The court reasoned that the sign police had to read the sign to know it was an event sign, so the rules were “content” based — that is, the rules were based on what the signs said. Although the town never intended to discriminate against a viewpoint and merely regulated the signs, these rules were unconstitutional.

Some other folks in Texas wanted to use license plates to advertise their group and put these plates on their private vehicles. The state had rules requiring special license plates to be approved by a state board. The license plate police decided it didn’t like the message portrayed on the plates, so it did not approve them. The citizens became indignant and took the state to court. The case was appealed all the way to the United States Supreme Court, who held that these rules didn’t violate the First Amendment.

The Court reasoned that it was okay for the license plate police to discriminate based on a viewpoint because they intended to control the content — that is, the license plate police made decisions based on what the plates said.

How do we harmonize these two decisions? They were handed down by the same court in the same session. In the Gilbert case, the Court explained that a government “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” In the Texas case, the court explained that Texas may discriminate based on viewpoint because “Texas maintains direct control over the messages conveyed on its specialty plates.” Isn’t this a contradiction?

In a part of the opinion that consoles Gilbert for losing the case, the Court explains that “on public property, the Town may go a long way towards entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner.” But if Gilbert can’t even control content on public property, why can Texas control content on license plates affixed to private vehicles?

The difference between these polar-opposite decisions is the notion that license plates are government speech and that the government may enter the public forum and advocate for its ideals. In which case, the Court held it shouldn’t be hampered by not being able to take sides.

Some of you may be wondering how a private group trying to get a license plate results in government speech. Who is really advocating under these circumstances—the private group or the government? Among the special license plates are these slogans:

• Get it Sold with RE/MAX
• I’d Rather Be Golfing
• University of Oklahoma

The dissent pointed out it seemed a little strange to argue that the State of Texas had decided that RE/MAX was their realtor of choice or that it’s better to be golfing than working or even playing football. Speaking of football, it may be well-nigh treason in the Lone Star State to endorse the University of Oklahoma given its deep rivalry with the University of Texas. To the dissent, special license plates display the speech of the car owners who choose them, not of Texas.

The majority, however, believed that the messages on license plates are different than other speech, because putting a message on a license plate implies that the state endorses it: “[A] person who displays a message on a Texas license plate likely intends to convey to the public that the state endorsed the message. If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate.” Although the speech itself originates from citizens, putting it on a license plate implies that the government endorses it.

It’s not often that the Supreme Court decides cases based on factual distinctions. And given that they don’t find facts, it’s even rarer that the Court would overturn two lower decisions based on the facts. But I don’t see how else you can understand this decision. The facts of this case are in a grey area; special license plates may be reasonably seen both as private speech and government speech. So a line had to be drawn, and the Court drew it just this side of license plates because license plates are issued by the government. And people may think the government is endorsing the message on the plate.

by Brita Darling

The Colorado Supreme Court added another case to the growing body of school choice law across the nation with its recent decision in Taxpayers for Public Education v. Douglas County School District. In a divided decision, the Court reinstated a permanent injunction against the Douglas County School District’s Choice Scholarship Pilot Program (the CSP), reversing a big win for the CSP in the Colorado Court of Appeals.

As explained in a previous Legisource post, the CSP was designed to distribute tuition scholarships, using state per pupil funding, to students in elementary, middle, and high school who attend qualifying private schools. The majority of the schools are religious, and in the 2011-12 school year, 93% of scholarship recipients were enrolled in religious schools.

On appeal to the Colorado Supreme Court, the Petitioners (Taxpayers) alleged the CSP violated both the “Public School Finance Act of 1994” (the Act) and the Colorado Constitution.

With respect to the constitutional claims, the case ultimately turned on the interpretation of article IX, section 7 of the Colorado Constitution (section 7) and the definition of some key terms in that section. Section 7 states, in part:

Neither the general assembly, nor any . . . school district. . . 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 . . . controlled by any church or sectarian denominations whatsoever . . . .

What does “sectarian” mean in section 7? Chief Justice Rice’s opinion leaves no doubt that the term “sectarian” is synonymous with “religious”–a conclusion, the Chief Justice wrote, that is reinforced by its pairing with the word “church” in two places in the text of the constitutional provision. “Therefore,” she wrote, “this stark constitutional provision makes one thing clear: A school district may not aid religious schools.”

According to Chief Justice Rice’s opinion, the CSP provides aid to religious schools by essentially functioning as a “recruitment program, teaming with various religious schools . . . and encouraging students to attend those schools via the inducement of scholarships.” While the aid checks go to parents who then endorse them to the religious schools, “section 7’s prohibitions are not limited to direct funding.” Given that private schools rely on students’ attendance and corresponding tuition to support and sustain the school, “the CSP’s facilitation of such attendance necessarily constitutes aid ‘to support and sustain’ those schools.”

In her dissenting opinion, Justice Eid, joined by Justices Coats and Boatright, argues that federal First Amendment Establishment Clause cases, including Zelman v. Simmons-Harris and the Court’s own decision in Americans United for Separation of Church & State Fund, Inc., v. State dictate a different result in this case.

In Zelman, the U.S. Supreme Court recognized that, for purposes of the federal Establishment Clause, the “circuit between government and religion has been broken” when the aid reaches religious schools “only as a result of the genuine and independent choices of private individuals.” Moreover, the dissent argues, in Americans United, the Colorado Supreme Court upheld a program under section 7 that awards grants to college students who attend private sectarian higher education institutions. And, the dissent cautions, a ruling that the CSP violates section 7 calls into question the legality of numerous other public-private partnerships in the state that indirectly or incidentally benefit sectarian societies or churches.

However, of greater concern to the dissent is the Court’s refusal to consider the constitutionality of section 7 as a so-called “Blaine amendment.” Named after James Blaine, a 19th century Speaker of the U.S. House of Representatives from Maine, “Blaine amendments” prohibit aid to sectarian schools. Although Congress defeated the actual Blaine amendment, which he proposed to the federal constitution, similar language made its way into approximately three dozen state constitutions in the latter part of the 19th century.

Critics argue that these amendments were motivated by anti-Catholic bigotry in an effort to prohibit tax fund assistance to Catholic schools. Against the backdrop of federal constitutional law generally, the dissent argues that there are circumstances that require a court to “go behind the words” of the constitutional provision, and the religious animus behind section 7 is one of those circumstances.

Whether these state constitutional provisions are in fact borne solely from anti-Catholic sentiment is a question of significant study and disagreement among public school historians. Many of the state provisions predate Blaine’s amendment and are seen as strengthening the separation of church and state, thereby ameliorating volatile religious issues of the day. Chief Justice Rice, however, declined to “wade into the history of section 7’s adoption and declare that the framers created section 7 in a vulgar display of anti-Catholic animus.” Instead, Rice opted to declare and enforce section 7 as written, finding its language “plain” and its meaning “clear.”

With respect to the statutory claims made by the Taxpayers, a majority of the Court held that there was no private right of action to sue under the Act and that the doctrine of “taxpayer standing” could not be employed to create such a right.

Justice Marquez, the lone dissenter, could perceive “no principled basis in our case law to limit taxpayer standing” and would have reinstated the injunction on statutory grounds. For this reason, she did not reach a decision on the Taxpayers’ constitutional claims, thereby setting the stage for the constitutional issues to play out in the future.

If you’re keeping score, Chief Justice Rice’s en banc opinion has a vote from Justice Marquez as to the judgment only—reinstating the permanent injunction against the CSP. Along with Justice Hobbs—who has since retired and been replaced by Justice Gabriel—and Justice Hood, that’s only three votes in favor of the Court’s holding that the CSP violates article IX, section 7 of the Colorado Constitution. Lined up on the other side are also three votes: Justice Eid, with Justices Coats and Boatright joining in the dissent.

This means the Court’s interpretation of the constitutional prohibition on aid to sectarian schools is persuasive but not binding authority. The constitutionality of the CSP is resolved, but there is clearly a deep divide in the Colorado Supreme Court with respect to the interpretation of section 7, and it is difficult to predict how the Court may rule on any future program that allows public money to be paid to a sectarian school.

In response to the decision, the Douglas County School District is planning to rework and reinstate the CSP in conformance with the decision. But it will also file a petition for certiorari asking the U.S. Supreme Court to review the Colorado Supreme Court’s decision. The District will likely ask the highest court in the land to strike down section 7 because it is a “Blaine amendment” and, the District argues, repugnant to the First Amendment of the U.S. Constitution.