Voucher Victory Appealed

In February, a Colorado State Appeals court upheld a voucher plan adopted by the Douglas County school district.

The Colorado Constitution has strict and specific language forbidding state funds for sectarian schools, but two of the three appeals judges rationalized it away.

Judge Steve Bernard dissented strongly and would have struck down the voucher scheme.

He wrote “In my view, [the Colorado Constitution] prohibits public school districts from channeling public money to private religious schools. I think that the Choice Scholarship Program is a pipeline that violates this direct and clear constitutional command.”

In April, the plaintiffs appealed to the Colorado Supreme Court.

To distribute its vouchers, Douglas County created a bogus charter school: a single district employee in an office.

The fake charter school enrolled children already accepted at private schools and then delegated their education to the private schools. Practically all the private schools advanced religion throughout their programs.

The charter school then sent tuition checks to the private schools. The district employee made the checks out to the parents, but nobody could cash them until the parents endorsed them to the private schools.

Each check paid 75% of the state funds allotted to the district for the child’s education. The district kept the other 25%.

County Resident James La Rue sued, backed by the American Civil Liberties Union (ACLU), the ACLU of Colorado, and Americans United for Separation of Church and state (AU).

Article IX, Section 7 of the Colorado Constitution says,

“Neither the general assembly, nor any…school district…shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school…controlled by any church or sectarian denomination whatsoever…”

The Appeals Court majority relied on two cases in which judges upheld state aid to sectarian Colorado colleges.

In one, the Colorado Supreme Court declared colleges less sectarian in effect than elementary and secondary schools.

In the other, a federal appeals court said the U.S. Constitution forbade Colorado to distinguish among sectarian colleges, so as to deny aid to the pervasively sectarian ones.

The plaintiffs have urged the Colorado Supreme Court to take the case, because the Appeals Court ruling renders meaningless the specific restrictions in the Colorado Constitution.

They point out that,

1. The Colorado Supreme Court decision specifically excluded elementary and secondary schools,

2. Article IX, Section 7 bars aid to all sectarian schools, without distinguishing among them, and
3. The U.S. Supreme Court allows states to enforce stricter separation of church and state than the U.S. Constitution's First Amendment.

The case is LaRue v. Colorado.