Dougco Decision Brings Good News and Bad

By now, my faithful readers should be familiar with Douglas County School District’s embattled first-of-its-kind local voucher program, the Choice Scholarship Program (CSP). I was super excited about an amicus brief written by my friends at the Friedman Foundation and the Independence Institute way back in August of last year, and could barely contain myself during oral arguments before the Colorado Supreme Court last December. It’s been a very, very long wait since then. That wait is now over, though the news is both good and bad.

The bad news is that while the court did decide that the plaintiffs lacked the standing to bring a taxpayer suit under the School Finance Act, it also ruled that the CSP is unconstitutional under Article IX, Section 7 of the Colorado Constitution. That section, frequently called a Blaine Amendment, ostensibly prohibits the state from providing direct aid to religious institutions, including religious private schools.

However, other high court rulings have found that vouchers are designed to provide aid to students, not to the religious institutions themselves. I’ll spare you the legal citations (you know how I feel about legalese) and let my big policy friends do the detailed analysis. Cato’s Jason Bedrick and the Friedman Foundation’s Brittany Corona have already started down that road, and my Independence Institute friends will do the same tomorrow.

For now, the quick and dirty is this: Both U.S. and Colorado legal precedent shows that parental choice breaks the link between government and religious institutions. If a parent chooses to send his or her child to a religious school, that’s just fine. As long as parents aren’t compelled to send their kids to religious schools, any benefit to those schools is indirect and incidental.

Apparently not concerned about this issue, a plurality (notably different than a majority) of Colorado’s justices applied a very broad “plain language” interpretation of this amendment in the full Dougco decision. This argument states, in effect, that no state money can ever be used to support and sustain a religious institution, even if that support is indirect or incidental.

The implications of that broad reasoning are potentially enormous. In a dissenting opinion, Justice Allison Eid summed it up this way (Note: Justices Boatright and Coat also signed on to this 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 of the plurality, “rely on” state-paid infrastructure to operate their institutions.

Justice Eid goes to say that the broad nature of this ruling could invalidate other programs that provide incidental benefits to religious schools, including the Denver Preschool Program and a program for kids with disabilities. The piece about roads and sidewalks is probably a bit of a tongue-in-cheek overstatement, but Justice Eid’s point is well taken.  This is what happens when you swing the political hammer a little too hard instead of sticking to precedent and good reasoning. Not that courts would ever make decisions based on politics… Right?

The good news is that while this decision is hugely disappointing for Dougco kids who won’t be able to use vouchers to find a great educational experience that fits them, it is far from the end of the line. As a DCSD press release highlights, the Colorado Supreme Court plurality’s stubborn refusal to address arguments against the state’s Blaine Amendment has created an opportunity to finally go after these amendments across the country by appealing the case to the U.S. Supreme Court. For those who don’t know, Blaine Amendments have a very, very ugly anti-Catholic history behind them. It’s high time for them to go the way of the dinosaurs in the more than 35 states that have them.

A successful challenge to Blaine Amendments would effectively kick the door open for true school choice in every state in the U.S. It would be a monumental, war-ending victory in the fight for choice. For anti-choice folks, it would be like Waterloo, or Gettysburg, or that time I beat my big brother at arm wrestling.  And that, my friends, is something to be excited about.

So yeah, today’s ruling was pretty disappointing. But it ain’t over ‘til it’s over, and it definitely ain’t over yet. Not by a long shot. Stay tuned!