Category Archives: Constitution

Advisory Committee to the U.S. Commission on Civil Rights Releases Report on Colorado’s Blaine Clauses

A newly released report entitled “The Colorado Constitution’s No Aid To Sectarian Institutions Clause and its Impact on Civil Rights,” examines the origins of the Colorado Constitution’s No Aid Clause (known as Blaine Amendments), and the historical and modern applications.

The report was authored by members of the Colorado Advisory Committee to the U.S. Civil Rights Commission. Independence Institute’s Research Director, David Kopel, serves on the committee as the Vice-Chair.

Nineteenth century Blaine clauses banned public dollars from supporting sectarian-religious organizations which society viewed unfavorably, including Catholicism, Judaism, Mormonism, and Islam. Mainstream Protestant denominations were not considered to be sectarian.

The report details how the clause impacts civil rights in education, students with disabilities, higher education scholarships, and lists eight state-funded voucher-like programs that provide funding for programs at religious institutions.

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New Evidence Reveals Why 19th Century Bans on Sectarian Aid are Unconstitutional

I misinterpret things my mom tells me to do all the time. Somehow “pick up your toys” sounds a lot like “go watch T.V.” when my favorite show is on. Those phrases are interchangeable to me. But, treating words that aren’t synonyms as interchangeable can have consequences–as I find out when my mom catches me watching Nickelodeon instead of doing my chores. In recent years, the meaning of sectarian has been conflated with the meaning of religious–especially in the debate surrounding Blaine Amendments. In his article in the Federalist Society Review, “Why Nineteenth Century Bans on ‘Sectarian’ Aid Are Facially Unconstitutional: New Evidence on Plain Meaning,” the Independence Institute’s constitutional jurisprudence expert Rob Natelson defines the critical difference between “sectarian” and “religious,” and the consequences this misinterpretation has led to in private school choice. Mr. Natelson’s article is comprised of three primary sections that support his claim: 1. Nineteenth Century Constitutional Provisions Show that “Sectarian” Had a Meaning Separate from “Religious” or “Denominational” This section focuses on the drafting of state constitutions and how the terms religious, denominational, and sectarian are used separately. Each has a distinguished meaning and are not used interchangeably in their respective clauses. 2. The Nineteenth […]

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Summer break was exciting for school choice!

It has been a long summer break, but I’m back watching over education in Colorado!  And, oh my, what a summer it has been for school choice! On June 26, the Supreme Court of the United States ruled 7-2 in favor of tire scraps. Huh?  Tire scraps? That’s right, tire scraps. A private, church-affiliated preschool in Missouri applied for the provisioning of tire scraps for playground resurfacing under a state grant program, but was turned down because of their church affiliation under the Missouri State Constitution’s Blaine clauses.  The school challenged the decision in court.  The case, Trinity Lutheran v. Comer, made it all the way to our country’s high court, which decided that First Amendment freedom of religion rights supersede the discriminatory Blaine clauses of Missouri’s State Constitution.  The U.S. Supreme Court’s decision means that just because the preschool was affiliated with a church, that should not prevent them from being eligible for the State’s tire scrap grant program. Okay, why should Colorado care about tire scraps in Missouri? In light of this ruling, the U.S. Supreme Court decided not to rule on another Blaine-related case—the case regarding Douglas County School District’s Choice Scholarship Program (CSP). Let’s back up […]

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History! Blaine's Shadow Tells an Important Story

James G. Blaine. You’ve heard that name before, right? Of course you have. I’ve written about Congressman Blaine a number of times, usually in the context of Douglas County’s ongoing legal battle against so-called “Blaine Amendments” through its first-of-its-kind local voucher program. Or maybe I should say programs (plural), as the district’s other voucher program made things pretty complicated for a while before a debatable court decision and a new decision by the board put an end to most of the legal craziness. But while we’ve talked a fair amount about Blaine and the state constitutional clauses named after him, I’m not sure we’ve ever really known the full story. There’s a lot of important history and drama and politics buried behind the simple narrative that most folks just don’t know.  Ross Izard, my favorite policy nerd, set out to tell that story—and to explain why it matters from a constitutional perspective—in his most recent issue paper, Blaine’s Shadow: Politics, Discrimination, and School Choice. 

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Dougco's Voucher Lawsuit Muddle Explained

I got a lot of questions yesterday about yet another ruling on the Douglas County voucher program. Was this good news? Was it bad news? Which lawsuit was this anyway? What the heck is going on in Douglas County? It occurred to me after about the 50th question that stuff has gotten pretty complicated when it comes to vouchers in Dougco. We’re going to dedicate today’s post to clearing up the confusion. After all, there’s nothing worse than being perplexed over the weekend. Let’s start from the beginning. Most everyone probably remembers that the original Dougco voucher program was shot down by the Colorado Supreme Court almost a year ago thanks to our state’s icky Blaine Amendment. That decision was appealed to the U.S. Supreme Court, but the whole process was complicated by the tragic (in so, so many ways) death of Justice Antonin Scalia and the fact that SCOTUS had already taken a Blaine-related case out of Missouri. The case remains in limbo somewhere in the echoing hallways of the U.S. Supreme Court, which has yet to decide whether it will hear the case at all. It will likely remain undecided for some time. But Douglas County didn’t want […]

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The Washington Charter Phoenix Rises

I have a love-hate relationship with the courts—a fact well known to my readers. From Douglas County vouchers to tire scraps in Missouri to Thompson union battles (even though logic eventually prevailed in that case) to decisions on teacher tenure and forced tribute payment by non-union members, I often find myself befuddled by the apparent lack of ability (desire?) on the part of some courts to do stuff that makes sense. But even among all that silliness, one decision really stands out as the most surprising in the last couple of years: a decision by the Washington Supreme Court to declare the state’s charter school law unconstitutional. Huh? I wrote last September about the unpleasant surprise that was the Washington Supreme Court’s charter school ruling. I simply couldn’t wrap my head around the idea of a court striking down something as firmly rooted as charter schools. According to the National Alliance for Public Charter Schools, there are more than 6,700 public charter schools in America. Those schools serve 2.9 million kids across more than 40 states.  In Colorado alone, charters serve 108,000 kids—about 12 percent of all public school kids in the state—in 226 schools. Charter laws have been around […]

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Colorado Supreme Court Takes on Huge Tenure-Related Case

We just can’t stop talking about court cases, can we? First, we covered an interesting Blaine Amendment case out of Missouri. Then things took a turn for the sad (and scary) with Justice Antonin Scalia’s untimely death, and we looked at what that loss might mean for important education cases before the U.S. Supreme Court. Then Douglas County up and restarted its voucher program, this time without religious schools—a decision that has since caused no small amount of edu-drama. Today, we’re going to look at another exciting development: The Colorado Supreme Court’s decision to grant certiorari to the very important tenure-related Masters case. That’s a really big deal. I’ve been talking about the Masters case ever since the Denver Classroom Teachers Association and a group of non-probationary teachers started down that lonely road back in 2014. We celebrated when a Denver District Court judge shot down the union’s arguments. We covered the union’s opening arguments in the subsequent appeal. Then I neglected to post on the disappointing appeal outcome as I wallowed in grief and frustration about the ruling. Why is Masters so important? Let me explain.

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Justice Scalia's Passing Leaves Me Sad and Worried

I would normally start a Monday morning post with a cheerful message. Nobody wants doom and gloom on the first day of the week. Unfortunately, today’s post will have to tackle a decidedly sadder and more concerning event: the surprising death over the weekend of U.S. Supreme Court Justice Antonin Scalia. For those who don’t follow the proceedings or makeup of the U.S. Supreme Court closely, Justice Scalia was an intellectual and legal titan. Appointed to SCOTUS by Ronald Reagan in 1986, he almost single-handedly led a “conservative revolution” on SCOTUS that has left an indelible imprint on the high court’s thinking and reasoning. A staunch believer in constitutional originalism, he supported the idea that the U.S. Constitution ought to be read in light of what it actually says, not interpreted through the warped lens of the political fads of any given administration or era (imagine that). In many ways, one could argue that it was Scalia who brought the intellectual firepower needed to push constitutional originalism into the mainstream. His ideas, critiques, and arguments will echo for decades to come, and have forever changed the conversation surrounding constitutional law in America. One day 100 years from now, long after […]

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Begging for Tire Scraps: SCOTUS Takes MO Blaine Case

Yesterday, we talked Dougco. Because I’m a fan of loosely connected thematic writing, we’re going to do the same today in a more peripheral sense. Don’t worry, today’s post will include markedly less discussion about the nether regions of the male body. Some of you may remember that there was a pretty important—and pretty disappointing—Colorado Supreme Court decision about Dougco’s local voucher program last June. The program was struck down under an incredibly broad interpretation of our state’s Blaine Amendment. The decision was so sweeping, in fact, that Justice Allison Eid had this to say about it in a dissenting opinion: Today, the plurality interprets Article IX, Section 7 as prohibiting the expenditure of any state funds that might incidentally or indirectly benefit a religious school. This breathtakingly broad interpretation would invalidate not only the Choice Scholarship Program (“CSP”), but numerous other state programs that provide funds to students and their parents who in turn decide to use the funds to attend religious schools in Colorado. The plurality’s interpretation barring indirect funding is so broad that it would invalidate the use of public funds to build roads, bridges, and sidewalks adjacent to such schools, as the schools, in the words […]

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