Colorado Court Ruling Jeopardizes Voucher Program

Catholics and other families who want to benefit from the program must now hope that the U.S. Supreme Court will review and reverse the state court’s decision.

(photo: Photo illustration by Nicola Messana/

DENVER — Olivia Navarro wants a Catholic education for her daughter, Daniela, and had hoped a scholarship program offered by the Douglas County School District would help fund it. Like other middle-class families in the increasingly expensive suburbs south of Denver, the Navarros struggle each month just to pay bills.

But because of an adverse June 29 ruling by the Colorado Supreme Court in Taxpayers for Public Education v. Douglas County School District, her best hope for relief may now rest in Washington.

The state’s Supreme Court overturned an earlier favorable ruling for the voucher program by the Colorado Court of Appeals, meaning that the Supreme Court of the United States is the only court with jurisdiction to reverse the state court’s decree.

Though it’s a long shot, defenders of the Douglas County program hope the federal court will review the case and reverse it.

“Given our finances and the [state] court’s decision, we have only the option of a secular, no-God classroom,” Olivia Navarro said. “If we had a big income, we could afford private education or home schooling. If we had a lower income, we might qualify for enough private assistance. We fall in the middle.”

At nearby Ave Maria Catholic School in Parker, annual tuition is $4,995. That’s just slightly more than the $4,575 maximum scholarship that might have been available under the Douglas County School District’s innovative Pilot Choice Scholarship Program.

“We have been hoping for it,” Navarro said. “We believe a true education involves our family’s faith in God. The court has limited our ability to educate our daughter. We pay taxes for education, but we are limited in our options for schools.”

The scholarship controversy goes back to March 2011, when the Douglas County School District Board of Education voted unanimously to create the pilot program. It was to grant scholarship vouchers to 500 of the district’s more than 66,000 students. If successful, district officials hoped to expand the program to include thousands of students.

Ave Maria was among 23 partner schools chosen for the program, and among 17 with religious affiliations. Other Catholic schools included Mullen High School in Denver, Regis Jesuit High School in Aurora and St. Peter Catholic School in Monument. Aside from Hillel Academy, a Jewish school in Denver, the 12 other religious partner schools were affiliated with non-Catholic Christian denominations.


Constitutional Precedent

The U.S. Supreme Court upheld the constitutionality of publicly funded private-school vouchers and scholarships with its landmark 2002 ruling in Zelman v. Simmons-Harris.

To help children opt away from low-performing schools in low-income neighborhoods of Cleveland, the Ohio Legislature crafted the Pilot Project Scholarship Program that provided tuition vouchers for private schools. Of the participating schools, 82% had religious affiliations.

Opponents of the Ohio program argued the First Amendment’s Establishment Clause — which prohibits government from “respecting an establishment of religion” — prevented state education money from going to religious schools. Then-Chief Justice William Rehnquist dispensed with the concern in the majority opinion, explaining the government’s claim to the money “ends with the disbursement of benefits.” In other words, vouchers relinquish control of state money much like a tax credit converts state or federal funds into private capital.

The Zelman ruling led the newly elected conservative board of Douglas County schools to craft a program in the image of Cleveland’s system.

Advocates consider the program a victory for the First Amendment’s free-exercise clause — which protects the right to worship in everyday life. Despite Zelman, opponents insist it violates the Establishment Clause.

The American Civil Liberties Union, Americans United for Separation of Church and State and Taxpayers for Public Education filed suit against the Douglas County pilot program shortly after it was established. District officials put it on hold as the case worked through the courts.


Blaine Amendment

Though plaintiffs believe the voucher program entangles church and state, the decision in Zelman left them to fight the case on only the grounds of Colorado’s Blaine Amendment — a state constitutional provision that prohibits state money from funding religious schools.

Lawyers defending the voucher program brought in Charles Glenn, a renowned education scholar with a doctorate in education from Harvard, who established the bigoted past of Blaine Amendments found in the constitutions of Colorado and 37 other states. Among the more ardent advocates of Blaine Amendments, in the late 19th and early 20th centuries, was the Ku Klux Klan.

“Our Harvard-educated historian testified under oath that Blaine was directed at Catholics, Irish immigrants and Jews,” said Craig Richardson, a lawyer and member of the Douglas County School Board.

Plaintiffs did not contest Glenn’s testimony or other evidence that established the bigoted origins of the state’s Blaine Amendment. Richardson said they merely wanted the court to recognize the letter of the law, no matter how sinister its roots.

The school board hopes to petition the U.S. Supreme Court after a thorough legal review of the state court’s decision, Richardson explained.

“This has national ramifications, as our case could strike down state discrimination laws with a history based in bigotry and hatefulness,” Richardson told the Register.

Just as Brown v. Board of Education liberated black children to attend better schools by negating state and local segregation laws, Richardson hopes the Douglas County case might become a landmark federal case that ensures the rights of middle-class and lower-income students to access religious schools and fully exercise the First Amendment’s free-exercise clause.

“If the Supreme Court were to take this case, and rid society of Blaine, it would create all sorts of opportunities for all children to access wonderful schools,” Richardson said. “Our view is really driven by the promise that more choice in education, and more competition among schools, makes all the choices better. More access to private schools even makes public schools better, because they have to compete at a higher level.”


Opponents’ Arguments

Ann Kleinkopf, a board member of Taxpayers for Public Education, doesn’t see it that way.

“It diverts public education money to private schools, and that violates the state constitution,” she told the Register.

Kleinkopf doesn’t shed tears for families such as the Navarros, who cannot afford private schools without vouchers.

“I think the way to even the playing field in that situation is to put more money into public education, so that it offers the best to all children,” Kleinkopf said.

As for access to religious education, Kleinkopf says state money cannot and should not assist with that goal.

Michael McCarthy, a Denver attorney who represented Taxpayers for Public Education, declined to discuss potential similarities between Blaine Amendments and state laws that facilitated segregation or prohibited same-sex “marriage.”

“I respect that the Douglas County School Board is trying to do what it thinks is in the best interest of the students,” McCarthy said. “However, the programs they can adopt are necessarily limited by what the Colorado Constitution says are permissible and not permissible. The court has said their program is not permissible.”

If the federal Supreme Court hears the case, however, it will do so in the context of other recent rulings that negate state constitutional amendments challenged by plaintiffs who argued they facilitated discrimination.

With its June 26 decision mandating same-sex “marriage” in all states, the court abated the Colorado Constitution’s Amendment 43. Like other similar state constitutional provisions, Amendment 43 defined marriage as a union between one man and one woman. With its 1996 ruling in Romer v. Evans, the federal court negated Colorado’s Amendment 2 — saying it discriminated by prohibiting special protection status for homosexuals.

And unlike same-sex “marriage” and homosexuality, which are not mentioned in the U.S. Constitution, Richardson noted the free exercise of religion is expressly protected by the First Amendment.

“The ACLU and others didn’t bring a federal lawsuit challenging our program,” Richardson said. “That’s because it wouldn’t work, given the ruling in Zelman, which says the benefit goes to the household, and the intervening choice avoids an establishment conflict. So all they have is the Blaine Amendment, and it’s hard to see how the federal court can go along with that, given other recent decisions.”


Daniela’s Hope

Daniela Navarro, and other Catholic students in the same situation as hers, can only hope that Richardson’s legal assessment proves accurate.

“All we can do is hope and pray for a reversal from God’s highest court in America,” Olivia Navarro said. “In the meantime, she’s in public school.”

Wayne Laugesen writes from Colorado.