Dougco Restarts Its Voucher Program, Minus Religious Schools

Just last week, we covered some Jeffco-tinted news about a student walkout/protest in Douglas County School District.  But those aren’t the only waves Dougco has made recently, or even the most important. No, the most exciting news to come out of the district is that the conservative board majority voted Tuesday to restart its local voucher program, the first of its kind in the nation.

This time, however, those pesky religious schools will have to sit out—along with any of the kids who wanted to attend them. The new program, now called the School Choice Grant Program, explicitly prohibits religious schools from participating. It also revisits the old program’s contentious charter school funding mechanism (and funding amounts), though that’s a conversation for another day. For now, let’s focus on the religious aspect.

Most of you already know about the original Choice Scholarship Program, so we won’t spend a lot of recounting all of the details. It’s been a while since we talked about the Dougco case’s legal slog in any detail, though, so I think it’s a good idea to pause and consider what’s going on here and what it means.

I’m sure you all remember that the CSP was struck down by the Colorado Supreme Court with a plurality decision (notably different from a majority decision in terms of precedent setting) on the basis of our state’s Blaine Amendment, which you can find in Article IX, Section 7 of the Colorado Constitution. That section goes a little something like this:

Section 7. Aid to private schools, churches, sectarian purpose, forbidden. Neither the general assembly, nor any county, city, town, township, school district or other public corporation, 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, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose.

Note that the text of this constitutional provision does not once use the word “religious.” Instead, it uses “sectarian.” That’s not just because the old guys who wrote this stuff used different words. It’s because when James G. Blaine was busy pushing this language as an amendment to the U.S. Constitution, public schools were deeply entwined with Protestant beliefs and teachings. There was a sense that Catholic teachings were finding their evil way into these schools, and that something needed to be done about. Thus, “sectarian” became a sort of code word for “Catholic.”

That’s right. Blaine Amendments were an awful lot less about making schools non-religious than they were about locking out religious beliefs that didn’t conform to the predominant teachings at the time. That, my friends, is why I’m always harping on about Blaine Amendments being patently discriminatory by nature. If you need more evidence, I invite you to ponder the fact that the amendments were openly pushed by the Know Nothing Party and the Ku Klux Klan.

The U.S. Supreme Court has ruled that school voucher programs are constitutional under the U.S. Constitution because they provide aid to students and families, not schools. Whether those students choose to spend the money at a religious school or not is a decision wholly divorced from the state. Thus, these programs are neutral with respect to religion and do not violate the Establishment Clause of the U.S. Constitution.

Other states have applied similar logic when examining school choice programs in the context of their Blaine Amendments. Most recently, Oklahoma upheld a special needs voucher program on these grounds. Before that, we had North Carolina, Indiana, and Wisconsin (and Ohio, which later became the basis of the Supreme Court ruling linked above).

Not content to follow the rather obvious lead of these other states when examining the CSP in light of these programs, the Colorado Supreme Court decided to issue a shockingly broad interpretation of the restrictions under our Blaine Amendment. Justice Allison Eid wrote a scathing dissent, in which she asserted:

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.

We’re still waiting to find out if the U.S. Supreme Court will hear the Douglas County case, which would decide whether the Blaine Amendment itself violates the U.S. Constitution’s First Amendment by unfairly discriminating against religious institutions. It’s not clear exactly how all of that will play with the drama (and another Blaine case) at SCOTUS.

For now, Dougco has been faced with a tough choice: restart the program with only a handful of secular schools, or don’t restart it at all. Obviously, they board majority chose the former path. Presumably they think that some additional choice is better than none.

I’m inclined to agree, though I struggle not to feel angry about the fact that the district has been forced to institute a program that so obviously skewers religious freedom. I’m not the only one who feels that way, either.

A Gazette editorial published yesterday argues that the new program unfairly discriminates against students who would like to attend a religious school. Because higher-income kids have the ability to choose (i.e., pay for) a religious school outside of the voucher program, the paper’s editorial board contends that the heaviest burden of the voucher restrictions will fall on lower-income kids who lack those alternate options. The piece concludes by calling on SCOTUS to strike down Blaine Amendments as it has other discriminatory state constitutional provisions.

I agree that Blaine Amendments are the real prize here, and I hope the SCOTUS mess doesn’t deter the court from hearing and ruling on the issue. But for now, Douglas County has a new, more personal war to fight on the home front. Rest assured that I’ll be watching as implementation gets rolling.