DENVER — In tears, Dianna Oaklie pleaded with Denver district Judge Michael Martinez in August 2011. She asked him to allow a voucher program, slated to begin that fall, because it would help pay for a private school she believed was the best hope for her autistic son.

Martinez, apparently unmoved by Oaklie’s plea and others like it, ruled the program was in violation of the state Constitution’s Blaine Amendment — an old law that critics claim was motivated by anti-Catholicism. The judge imposed a moratorium that continues to stall the Douglas County School District’s program while the case works through the courts.

Good news for supporters came early this year, when the Colorado Court of Appeals overturned the district court’s decision.

But opponents of the voucher program, including the American Civil Liberties Union and Americans United for Separation of Church and State, appealed it to the Colorado Supreme Court April 11.

So the innovative program remains on hold until the state Supreme Court either rejects the appeal, giving the appellate judges final say, or hears it and potentially prevents the program’s implementation.

The state Supreme Court should decide later this month or in May whether it will hear the case.


Both sides agree the final outcome may have ramifications for school districts and religious schools throughout the country. Failure by voucher proponents may stifle attempts at similar programs throughout the country. Success could embolden school boards to follow Douglas County’s lead — an outcome the local Catholic diocese wants to see.

“We are very excited about it, and the bishop [Michael Sheridan] is very supportive of the voucher program,” said Holly Goodwin, superintendent of schools for the Diocese of Colorado Springs, Colo.

Before the district court put a halt to the program, parents throughout Douglas County — a wealthy suburban area between Denver and Colorado Springs — had enrolled more than 300 children in 23 private schools, both secular and religious, under a pilot version of the program that was the first of its kind in the United States.

“We had about 30 families enroll because of the voucher program,” Goodwin said. The diocese has only one school within the jurisdiction of the school district but tentatively plans to add two more, regardless of the voucher system’s future.


“We did everything we could to work with these families, so that most of them could keep their children enrolled while this gets worked out in the courts,” Goodwin said.


Families who took advantage of the program ran into opponents, who are trying to maintain the state’s controversial Blaine Amendment, which forbids use of state funds at Catholic and other sectarian schools.


‘Anti-Catholic Bigotry’

The Douglas County School Board chairman, John Carson, a Catholic and a lawyer, shares a view common among a growing movement of Americans who are fighting to bring down Blaine Amendments embedded in 38 state constitutions. The laws were enacted in the late 19th century after a failed effort to make them part of the U.S. Constitution.

“My view of Blaine Amendments — and the history seems quite clear — is they were put into state constitutions as a result of anti-Catholic bigotry,” Carson said. “I don’t know there is much dispute about that. They were enacted when political forces that controlled the country were Protestant, and they didn’t want Catholic schools getting a foothold.”


Carson and others claim the Ku Klux Klan was among the supporters of Blaine Amendments. A 2010 headline on Breitbart.com called Blaine Amendments “The Last of the Jim Crow Laws.”


“People have largely forgotten that the Klan was motivated as much by hatred of Catholics as by hatred of ethnic minorities,” Carson said.

Even some who want to end the voucher program don’t dispute that Blaine Amendments had support among anti-Catholic bigots, including the Klan.

“While there was a strain of anti-Catholic bias, there was also a strain of pure support for public schools,” said Mark Silverstein, legal director for the ACLU of Colorado, which filed an appeal against the voucher.

Attorney Alex Luchenitser, associate legal director for the Washington-based Americans United for Separation of Church and State, said Colorado’s Blaine Amendment was not motivated by anti-Catholicism.

“In Colorado, it was only to keep money from being diverted from public schools,” Luchenitser said, explaining that his organization’s opposition is based only in a desire to protect a concept known as “separation of church and state.”


The U.S. Constitution’s First Amendment prevents governments from interfering with the free exercise of religion and also precludes them from making laws “respecting an establishment of religion.”

But the Constitution does not mention “separation of church and state,” although, occasionally, courts have interpreted the First Amendment to say as much.

 

Supreme Court Precedent


The U.S. Supreme Court, in its 2002 decision Zelman v. Simmons-Harris, ruled that school vouchers are constitutional if state funds follow a child who attends a privately chosen school, even if it is affiliated with religion.

But defenders of Blaine laws believe the federal ruling prevents only federal prohibition, not state prohibition, of government funds going to religious schools.


“There’s a line of thinking that state constitutions are more restrictive, in terms of expenditure of public funds on religious institutions,” Carson said. “Our argument is that Zelman should control (it) in the states.”


Among about 30 school-voucher programs in the country, Douglas County’s is the first government-funded program enacted by a school district rather than a state legislature. It is also the first to facilitate any residents of the district, regardless of income, and it would allow students to attend secular or religious private schools.

If it stands, it will represent the least-restrictive and most-inclusive voucher program in the United States. Proponents hope it will embolden school boards to enact local voucher programs in states with legislatures that oppose them.


It also stands out because Douglas County is home to some of Colorado’s highest-performing schools, meaning the voucher program — unlike most others — is not presented as an effort to rescue poor children from underperforming schools.

 

Funding Follows Children


Ben DeGrow, senior education policy analyst for the Independence Institute, a Denver-based think tank, said about $7,000 in state funding follows each child in Colorado. By state law, parents are free to enroll children at any traditional public or public charter school in the state.

Because funds attach to each child, Colorado schools compete for enrollment by promising results and unique curriculums.


“You can shop for a school with a focus on art, music or science, and the state will pay for it,” DeGrow said. “But if you want a school with a religious curriculum, you’re on your own.”

DeGrow said a majority of Douglas County School Board members were elected on promises of starting the voucher program in order to create even more choices for families.

To counter arguments the vouchers would drain money from public schools, only 75% of the money would follow each child to a private school. The remaining 25% would remain with the school district.


“They get 25% of the money, but they don’t have the expense of educating the child,” DeGrow explained. “That’s how they were able to sell this program to the public.”


Though it helped elect pro-voucher candidates, the 75-25 arrangement wasn’t enough to satisfy the local teachers’ union, which filed an amicus brief opposing the program.

Carson said he and others on the board support vouchers to improve all schools, public and private.

“It’s to foster competition and innovation in education,” Carson argued. “We have an overriding secular purpose for doing this and absolutely no religious agenda. The biggest element missing in education today is competition and choice, because we have created these government-run monopoly schools that don’t serve the best interests of all students.”

Participating schools are affiliated with Catholicism, Judaism, evangelical communities and major Protestant denominations. Carson said any school affiliated with any religion may partner with the district so long as it meets established accreditation standards.

 

Strings Attached?


The ACLU’s Silverstein said advocates of religious education should consider possible downsides of using any mechanism to channel public funds into their schools. History, he said, reveals that public funding of religious institutions generally comes with government strings.

A few years ago, for example, state legislators tried to regulate hiring practices of Catholic Charities organizations in Colorado because the state was administering federal funds that leased social services from the agency.

But the diocese's schools' superintendent, Holly Goodwin, said the Diocese of Colorado Springs entered a contract with the Douglas County School District that would protect the religious nature of its curriculum. The contract allows parents to opt kids out of a course that teaches theology of the body, timeless Church teaching on human sexuality developed by Blessed Pope John Paul II that is included in several of his encyclicals and letters.

The same contract requires all students to attend the school’s religious services — including Mass — whether or not the students are Catholic. It does not require participation in Communion.

Mandatory attendance at religious services, required by several other participating schools, is a major point of contention raised by attorneys who want to stop the voucher program. In a strongly worded rebuke of the Martinez ruling, however, a majority of appellate judges said the ability to opt out of religious services has no bearing because “no one has to participate” in the voucher program.

“The agreement says you can’t take our faith out of our school culture, which is built on the Ten Commandments and the beatitudes,” Goodwin said. “Our curriculum is not just about passing tests. It’s about teaching children that God is counting on them to use the gifts he gave them to serve God and others.”

Register correspondent Wayne Laugesen writes from Colorado.