Colorado Supreme Court settles obvious question on public fund use
Douglas County, a growing Front Range suburban community, is an established conservative enclave south of Denver with a relatively high median income. Situated as it is in a well-heeled and politically engaged conservative environment, Douglas County’s school district – the third-largest in Colorado – has enacted a number of increasingly conservative policies in recent years, culminating in a publicly funded scholarship program that could be used to pay for private religious schools. On Monday, the Colorado Supreme Court rejected this program, saying it violated the state’s Constitution. The court’s ruling is correct.
Douglas County’s Choice Scholarship Pilot Program was established and then immediately suspended in 2011 to provide students with public funds for use at any of the district’s 23 “private school partners.” Of these, 16 schools have religious affiliations. The 500 scholarships were worth about $4,750 each, according to The New York Times, totaling nearly $2.4 million. The money derives from state per-pupil operating revenue – minus 25 percent the district retains to administer the funding.
The majority in the court’s split decision based its finding on very clear language laid out in Article XI, Sec. 7 of the state’s Constitution prohibiting aid to private or religious schools. The wording leaves little room for confusion: “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.”
The Douglas County voucher program clearly failed this test, despite the fact that the money traveled through parents’ hands first – in an effort to distance the district from the program’s cross-purposes with state law. Families would endorse to their chosen private school a check written to parents from the school district. This is not sufficient to erase the line of origin – state funds – and the money’s destination: private, often religious schools.
A trial court enjoined the program in its original ruling, and an appeals court reversed it, saying that plaintiffs in the original case lacked standing. The Colorado Supreme Court agreed about the lack of standing but also found the program to fail constitutional muster and reverted the case back to trial court for its original injection to be reinstated. The rationale is clear and convincing. Nevertheless, the scholarship program’s supporters plan to push on with the challenge, perhaps to the U.S. Supreme Court, where there is precedent finding that the U.S. Constitution does not disallow public funds being used for religious education.
That is a significant public debate and one that could be re-invigorated by the Douglas County case. For now, though, the program is clearly in violation of the state’s seminal documents and, as such, is inappropriate for Colorado. Whether that section of the Constitution is enforceable, as a dissenting justice questioned, is a separate issue in this case. The language is clear, as are the mechanics of the Choice Scholarship Program. The Colorado Supreme Court was right to strike down the program.