School Children 1, School Choice Opponents O in Colorado Court of Appeals Decision
School children in Douglas County won Thursday when the Colorado Court of Appeals ruled that the district’s innovative Choice Scholarship Program is constitutional. Overturning an August 2011 decision by Denver District Judge Michael Martinez against the program, the majority on the Appeals Court ruled the plaintiffs “failed to carry their burden of proving the unconstitutionality of the CSP beyond a reasonable doubt.” The court also ruled that the school choice opponents lacked standing to make their case against the program. The plaintiffs indicated that they will appeal to the Colorado Supreme Court.
Once up and running, the district’s pilot program will enable up to 500 district students to receive a $4,575 tuition scholarship to attend a secular or faith-based private school of their choice. If upheld by the Colorado Supreme Court, Colorado will become the 21st state to have a voucher program. This is great news for Colorado children, regardless of where they attend school.
There are essentially three types of school choice programs—voucher programs that provide students with a scholarship to attend a school of their choice; education tax credits and deduction programs that enable families to exempt or credit school tuition costs from their taxes; and scholarship programs funded through individual and corporate donations whereby the donor receives a credit against their taxes.
All three types of scholarship programs have grown significantly in the past two decades. Maine and Vermont’s century old “tuitioning” programs, Minnesota’s tax deduction enacted in 1955, and Iowa’s tax credit which passed in 1987 aside, the number of scholarship programs began to take off in the 1990s and continues to grow to this day.
Various state courts have upheld voucher and tax credit/deduction programs against challenges. In 2002, the U.S. Supreme Court upheld the Cleveland Scholarship and Tutoring Program. The Zelman v. Simmons-Harris decision concluded that the use of public money to fund tuition at independent and religious schools does not violate the Establishment Clause of the Constitution as long as parents decide where the scholarship is used. Given the range of options and the responsibility of the parent to choose from among them, the Court concluded that the Cleveland program is neutral with regard to religion—even though most voucher recipients chose faith-based schools.
Similarly, the Colorado Court of Appeals determined the “CSP is neutral toward religion generally and religion-affiliated schools specifically” even though 16 of the 23 private schools are faith based. The Appeals Court cited numerous state and federal cases in its determination that the CSP is consistent with the Colorado constitution’s provisions regarding religion and religious institutions.
Although the case will likely go to the Colorado Supreme Court, the Appeals Court’s decision gives school children and their parents cause for hope. If Douglas County prevails, other district boards may find the courage to give families greater choice in the pursuit of their children’s education. Let’s hope so.