By Mary C. Tillotson | Watchdog.org
Attorneys who argued a pro-school-choice case in Colorado are “seriously considering” appealing to the U.S. Supreme Court. The Colorado Supreme Court struck down Monday a pilot voucher program in Douglas County.
The voucher program got tangled up in courts and never got going. It would have allowed 500 students in the district to use public scholarship money to attend private schools.
The high court ruled the program unconstitutional because the money could go to religious schools. In doing so, it relied on the state constitution’s Blaine Amendment, passed in a wave of 19th century anti-Catholicism and intended to keep taxpayers from supporting Catholic schools in addition to the public schools, which were generically Protestant.
The pro-school-choice attorneys argued the voucher program doesn’t give aid to schools but to children, as Medicaid is designed to help people.
“It’s silly to say Medicaid is designed to help doctors,” said Michael Bindas, attorney with Institute for Justice.
But relying on the Blaine Amendment could pave the way for a SCOTUS case, said Joshua Dunn, associate director of the Center for the Study of Government and the Individual at the University of Colorado at Colorado Springs.
“I’m surprised that the state Supreme Court relied on the Blaine Amendment,” Dunn said. “The reason it’s risky for the state Supreme Court to do that is you could argue that state Blaine Amendments violate the First Amendment. It’s possible that you could take this to the U.S. Supreme Court and the Supreme Court could say all state Blaine Amendments are unconstitutional, that would be a victory for the school-choice movement.”
Bindas said, “The state Supreme Court held that because the program includes religious schools, it’s unconstitutional under the state constitution, and they said our state constitution prohibits religious options alongside nonreligious options in this type of educational aid program.
“Our argument is that even if you assume that that’s the correct interpretation of the Colorado constitution, it nevertheless violates the federal constitution to single out and exclude religious options in that way.”
In Zelman v. Simmons-Harris, the U.S. Supreme Court allowed religious schools in voucher programs, as long as the program is neutral to religion.
“We know they can be included. Now, the question is whether a state can single out and exclude them without running afoul of the federal constitution,” Bindas said.