Colorado Supreme Court to hear school voucher case

Part 73 of 73 in the series Educating America

By Mary C. Tillotson |

The Colorado Supreme Court has agreed to review a lower court’s decision upholding a local voucher program in Douglas County.

“It’s not surprising that the court accepted the case, but it’s unfortunate because the scholarship program’s implementation is going to be delayed,” said Michael Bindas, senior attorney for the Institute for Justice, which is intervening in the case on behalf of Douglas County families. “We’re confident that the Supreme Court is going to affirm the Court of Appeals’ decision, which was a very thorough, well-reasoned decision.”

IN THE COURTS: Colorado’s Supreme Court will decide whether a local school voucher program passes constitutional muster.

The program is on hold while students wait for the Supreme Court to decide. Students in the school district who have attended their local public school for at least a year would be eligible for a voucher worth no more than 75 percent of the per-pupil funding, according to the Friedman Foundation for Educational Choice.

In 2011, the American Civil Liberties Union and Americans United for Separation of Church and State sued the district, alleging the program violated the state’s laws regarding funding public schools, and that the program provided public money to religious schools.

“The Colorado Constitution clearly prohibits the use of public funds to subsidize religious institutions, but that is exactly what the Douglas County School District’s so-called ‘Choice Scholarship Program’ attempts to do. Parents are free to send their children to religious schools, but Colorado taxpayers should not be forced to pay for it,” the ACLU said in a statement.

It’s incorrect to say taxpayers are funding religion or religious schools through the voucher program, Bindas said.

“The program is passed for children, not for schools. It’s for the benefit of children, not for schools,” he said. “The touchstone of a constitutional scholarship program is that it be neutral (to religion) and that it operate on private choice, and this program satisfies both of those requirements. A child can select any participating school and no money goes to a school, but for the private choice of the student’s parents.”

“That private choice breaks any link between the government and the religious school,” he said.

Several state Supreme Courts, including Ohio, Wisconsin, and Indiana, have used this reasoning to uphold school choice programs, as has the U.S. Supreme Court.

Colorado case law looks to be in favor of vouchers, Bindas said. A case in the 1980s upheld a similar voucher program, allowing students to choose private and even religious colleges with a public scholarship. The same concept should apply to the K-12 level, he said.

Oral arguments are expected to begin in the fall.

The ACLU of Colorado and the Douglas County school board were not immediately available for comment.

Contact Mary C. Tillotson at

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