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.