The Colorado Supreme Court last week struck down a first-of-its-kind school voucher program that allowed parents to send their children to private schools. The judges ruled that the voucher program violated a state constitutional provision prohibiting public funds from going to religious schools.
What the the vouchers actually violate, however, are assumptions on the Left about what a public education is, who it should benefit and what kind of schools best provide it.
The Choice Scholarship Pilot Program, enacted unanimously by the Douglas County Board of Education in 2011, was the first district-level voucher program in the country. It gave 500 students vouchers worth up to three fourths of the district's schools' per pupil revenue, or $4,575, to spend at the private school of their choice.
Almost immediately, anti-school choice groups such as the American Civil Liberties Union — was any pressure group ever so inappropriately named? — and Americans United for Separation of Church and State filed suit and hobbled the program by claiming it was unconstitutional.
A 4-3 majority of the Colorado Supreme Court's agreed, describing the program as a "recruitment program" for "religious schools."
That is nonsense, and shamefully tendentious nonsense at that. Voucher funds could have been spent at any of the 23 district-approved private schools, seven of which have no religious affiliation.
The court ruled that the program violates a state constitutional provision, known as a Blaine amendment, forbidding public funds from going to schools "controlled by any church or sectarian denomination whatsoever."
Thirty-nine states enacted Blaine amendments in the mid-and-late 19th century. They were designed to keep Catholics from establishing parochial schools at a time when anti-Catholic and anti-immigrant sentiment reached its peak and most public schools were Protestant.
Thankfully, this remnant of sectarian bigotry and the Colorado Supreme Court may not have the final word. The Douglas County Board has signaled that it will appeal to the U.S. Supreme Court, where precedent seems to be on its side.
In 2002, the nation's highest court ruled that the Constitution did not prohibit the use of vouchers to pay for religious schools in Ohio. It found that the program was religiously neutral, and thus constitutional, since it gave funds to parents rather than to religious schools directly, and the benefit to those schools was incidental rather than central to the policy.
The implications of a U.S. Supreme Court decision in this case would ripple beyond Colorado and affect the 45 other school choice programs in 23 states and the District of Columbia. A ruling for Douglas County may expand parental choice and overturn the odious Blaine amendments that remain on the books around the country.
A decision in favor of this voucher program would be a win for competition and choice. One hopes it might shake up vested interests who forget or do not care that education is meant to benefit the children receiving it, not its tenured providers or those with an anti-religious ax to grind.
Striking down the Colorado decision would also be a blow for religious freedom and an excellent assertion than Blaine amendments don't trump the First Amendment.