Douglas County voucher supporters encouraged by Supreme Court decision in similar case
A significant U.S. Supreme Court ruling Monday on a church-state issue opens a new chapter in a court fight over a Douglas County private school voucher program, with both supporters and opponents finding encouragement in the high court’s decision.
The court ruled that the state of Missouri violated the U.S. Constitution when it barred a church-run preschool from participating in a state program that repaved playgrounds.
While the court’s narrow 7-2 decision fell far short of legalizing private school voucher programs, it still has implications for the Douglas County program, which the Colorado Supreme Court rejected in 2015.
Most likely, observers said, the Douglas County case will be kicked back to the Colorado Supreme Court for examination under the precedent the U.S. Supreme Court set with its new ruling. Or the U.S. Supreme Court could hear the case, the preferred outcome of voucher backers who would like to set a more sweeping precedent for their cause.
“This is a huge victory for folks who are believers in religious liberty,” said Ross Izard, a senior education policy analyst at the Independence Institute, a Denver-based free-market think tank. “Unfortunately for those of us who are invested in the school choice movement, it doesn’t accomplish everything we hoped it would.”
The legal fight over vouchers has engulfed the suburban school district south of Denver since 2011. That’s when a new conservative school board established the Choice Scholarship Program.
Unlike other voucher programs, which are designed to provide low-income families with educational alternatives, the Douglas County program was opened to all students in the district with a median household income of $107,650.
Lawyers representing the Douglas County School District and families who participated in the voucher program before it was halted by a lower court said they expect the Supreme Court to decide this week whether it will take up the years long debate over the voucher program.
“We’re certainly encouraged,” said William Trachman, general counsel for the Douglas County School District. “The policy reasons that underlie the program are to give students educational choice. That’s what Douglas County cares about.”
The Colorado Supreme Court ruled in 2015 that the Douglas County School District’s voucher program, which would have allowed parents to use taxpayer dollars to send their students to private religious schools, was unconstitutional.
The state’s constitution includes a provision that forbids tax dollars to be used by religious institutions. Colorado is one 38 states that have these so-called Blaine Amendments.
The district, along with three Douglas County families and Colorado’s attorney general, later appealed to the U.S. Supreme Court. The U.S. Supreme Court has held the case for nearly two years as it considered the Missouri case, Trinity Lutheran Church of Columbia, Inc. v. Comer.
In that case, Trinity Lutheran sued the state of Missouri after it prohibited the church from participating in a state program that used recycled tires to resurface playgrounds.
The U.S. Supreme Court said the state could not prohibit the church from participating in the program since the benefit of the program — new asphalt for the playground — was secular and did not further the church’s religious mission.
That’s an important distinction opponents of the Douglas County voucher program highlighted in reacting to the decision.
“The majority opinion in Trinity Lutheran explicitly distinguished the facts in that case from cases like ours where government funds run afoul of state anti-establishment clauses because the funds are being used to pay for religious education,” Cindy Barnard, president of Taxpayers for Public Education, a nonprofit that supports traditional public schools, said in a statement. Barnard was the original plaintiff in the Douglas County voucher case.
Mark Silverstein, legal director of the Colorado ACLU, one of the organizations that argued against the voucher program, echoed Barnard.
“The Douglas County school district’s voucher program violated the state’s constitution as of yesterday. It violates the state constitution even today,” he said. “This case today is not about using public money for religious indication. And that’s a distinction I believe most of the justices see as important.”
Chalkbeat is a nonprofit news site covering educational change in public schools.
Photo credit:Tomash Devenishek via Flickr: Creative Commons
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