CASTLE ROCK — Douglas County School District officials said Monday they may seek a U.S. Supreme Court ruling on the constitutionality of their voucher program.
That announcement came just hours after the Colorado Supreme Court struck down the program, which was developed in 2011 but never went into effect, in a 4-3 ruling.
Douglas County school board members at a press conference said they believe today’s decision could pave the way for a U.S. Supreme Court challenge over the part of the state constitution that prohibits aid to religious organizations.
“This is a disappointing ruling for the students of Douglas County and all students in Colorado,” said Douglas County Board of Education President Kevin Larsen. “But today’s ruling paves the way for the U.S. Supreme Court to evaluate the constitutionality of Colorado’s Blaine Amendment, which is an ugly part of no fewer than 37 state constitutions.”
The so-called Blaine Amendment is a provision in Colorado’s state constitution that forbids direct government aid to educational institutions that have religious affiliation.
The Colorado Supreme Court in its opinion said because the Douglas County voucher program gave money to religious schools, it violated that constitutional provision and was illegal.
About 30 other state constitutions also have such clauses.
The clauses are named after the Republican U.S. Congressman James G. Blaine, who in 1875 unsuccessfully attempted to pass a federal Constitutional amendment that would prohibit state tax dollars or land to support religious schools. Blaine’s aim for the failed amendment, which spurred dozens of copy-cat initiatives in state legislatures, was to prohibit tax dollars to fund Catholic parochial schools.
Mark Silverstein, legal director of the Colorado ACLU, one of the organizations that argued against the voucher program, said he believes a U.S. Supreme Court hearing is a long shot.
“I’ll be interested to see their brief,” Silverstein said. “I think that the so-called Blaine Amendment argument is a red herring. In the 1870s, it’s true, there was an amount of anti-Catholic basis. But the school board’s argument is that [anti-Catholic bias] explains the presence of Section 7 in the Constitution. And I think that is too much of a stretch.”
Silverstein said the Blaine Amendment argument is nothing new when it comes to vouchers for private or religious schools.
“This argument has been bubbling up over school voucher programs for years,” Silverstein said. “But I don’t know if the U.S. Supreme Court has ever invalidated a state constitutional provision because the drafters were anti-Catholic bigots.”
Silverstein said he believes even if the Section 7 has anti-Catholic roots, it doesn’t detract from the validity of a neutral application to all religious schools today.
“A system of free secular public schools — that’s the principle Article 9 Section 7 embodies,” he said.
But Douglas County Superintendent Liz Fagen, and others, said the Choice Scholarship Program, as it is known, is about providing students with the best education to fit their needs.
“We don’t fear the idea that a student could benefit at another school,” she said Monday when asked why the district, which has the state’s highest accreditation rating from the state, needed to offer an alternative to its schools.
Although he declined to discuss specifics, board member Craig Richardson said the district will also work to modify the voucher program to be in compliance with the state’s Supreme Court ruling as early as this fall.
“We will adopt modifications to our Choice Scholarship Program expeditiously and in compliance with today’s Supreme Court decision,” he said. “We will not wait. We are undaunted.”