Colorado high court strikes down school choice program

Scholarship students in a large, suburban Colorado school district are in limbo after the state’s Supreme Court ruled their program unconstitutional.

The late June verdict included two separate decisions: a 4-3 split declaring the scholarship program violated the state constitution and a 6-1 ruling stating the petitioners lacked standing to challenge the program in the first place. The question of standing left many perplexed as to how the court saw fit to rule on the constitutionality of the scholarship program itself when it simultaneously judged the plaintiffs lacked legal standing.

“This is a disappointing ruling for the students of Douglas County and all students in Colorado,” said Douglas County School District (DCSD) Board of Education President Kevin Larsen.

The Choice Scholarship Program, started in 2011, created 500 annual scholarships worth about $4,750 each that district students can use to attend any of 23 district-approved “private school partners,” including 16 religious schools.

The nonprofit organization Taxpayers for Public Education (TFPE), one of the plaintiffs in the suit, argued that because the program includes religious schools, it violates the Colorado constitution.

“This is a great victory for public school children in Colorado,” said TFPE president Cindy Barnard on the organization’s website. “The DCSD voucher program took taxpayer funds, intended for public education, and used that money to pay for private school education for a few select students. The decision means that money set aside for public education in Colorado can only be used the way it was intended to be used—for the betterment of education in Colorado public schools.”

Colorado’s state Court of Appeals upheld the program, but opponents appealed to the state Supreme Court.

“This stark constitutional provision makes one thing clear,” Colorado Chief justice Nancy E. Rice wrote in the court’s opinion. “A school district may not aid religious schools.”

But proponents of the scholarship program, including the DCSD Board of Education, argue the tax dollars directly benefit individual students, not the schools—religious or otherwise.

Public schools routinely aid religious schools in many less obvious ways, such as providing bus service and sharing teachers with specialized skills in art, music, or certain Advanced Placement courses. The agreements often include some cost-sharing and are designed not to generate profit for anyone but to encourage good neighbor relationships between the schools.

The Choice Scholarship Program, like many others across the country, is modeled after a similar program in Cleveland, Ohio, that the U.S. Supreme Court ruled constitutional in 2002. Two other models—one based on tax credits and one that uses education savings accounts—show promise for school-choice advocates. In June, Nevada passed landmark legislation releasing state funding directly to families in the form of an Education Savings Account.

Following the Colorado court’s decision, the DCSD Board of Education announced it would ask the U.S. Supreme Court to review the case. It also committed to reassess and possibly revise the program, temporarily excluding religious schools in an effort to allow the students enrolled at non-religious schools to continue their education without interruption.

“We will proceed deliberately, thoughtfully, and lawfully in ways that make sense for Douglas County families,” said Board of Education Director Craig Richardson.

The Associated Press contributed to this report.