When the Institute for Justice pledged to defend the new school choice program Colorado Governor Bill Owens signed into law on April 16, the public interest law firm didn’t have to wait long to make good on its promise.
Just five weeks later, on May 20, a coalition of voucher foes filed suit in Denver District Court to block the Colorado Opportunity Contract Pilot Program, the nation’s latest expansion of choice-based school reform.
“Colorado Supreme Court precedent is very favorable to school choice, and we are very confident that this program will withstand any legal challenge,” said Chip Mellor, president and general counsel of the Washington, DC-based Institute, the nation’s leading legal advocate for school choice. “We will not allow teachers’ unions and their allies to thwart meaningful education reform.”
On May 29, a group of Colorado families rallied in support of the program in front of the District Court building. Inside, Institute attorneys filed a motion to intervene in the case on behalf of 12 parents and their children. The motion was granted, and the Institute joined Colorado Attorney General Ken Salazar in defense of the program.
Bipartisan Support
The Colorado program, sponsored by State Rep. Nancy Spence and passed with bipartisan support, is the first voucher program in the nation enacted since the U.S. Supreme Court upheld the Cleveland voucher program last year.
The new program is restricted to low-income public school students who are performing at an “unsatisfactory” level in 11 school districts the state has rated “low” or “unsatisfactory.” Parents who qualify may enroll their children in a private school of their choice–secular or religious–using a publicly funded voucher worth up to 85 percent of the district’s per-pupil funding. The balance of the per-pupil funding remains with the public schools.
Charlene Howard’s two sons, Charles and Carson, attend public schools in Colorado Springs, but she says their educational needs are not being met. She plans to send her children to private schools with the Opportunity Contract program.
“It’s our money as taxpayers, it should be our choice where we spend it,” she contended.
Public Aid to Religion?
The groups challenging the program don’t see it that way. They believe conventional public schools have an exclusive claim on the tax dollars raised for K-12 education. Their lawsuit asserts the voucher program could cause the state’s public schools to lose more than $90 million a year by 2007-08. With almost all eligible schools being religious schools, the Rev. Barry W. Lynn contends this would result in “public aid to religion.” Lynn is executive director of Americans United for Separation of Church and State, a sponsor of the lawsuit.
“Sectarian pressure groups and their political allies want to dismantle the public school system and force all Americans to pay for an array of religious schools,” he charged.
Lynn’s contention–that giving publicly funded school vouchers to parents is the same as giving public funds directly to religious institutions–is similar to the position taken by National Education Association general counsel Robert Chanin in attacking the Cleveland voucher case. In oral argument before the U.S. Supreme Court, Chanin refused to accept that parents played any role at all in choosing where voucher funds would be spent. (See “Cleveland Parents Don’t Choose Voucher Schools, Say Opponents,” School Reform News, May 2002.)
Americans United lost when they took a similar position two decades ago in a 1982 challenge to Colorado’s Student Incentive Grant Program, a type of state-level Pell Grant for college students. In Americans United for Separation of Church and State v. Colorado, the Colorado Supreme Court emphasized that the Student Grant Program–like the new voucher program–was designed to benefit students, not the institutions they selected. This reasoning parallels that of the U.S. Supreme Court in its July 2002 ruling in the Cleveland voucher case.
Violations Charged
The present lawsuit, Colorado PTA v. Owens, charges the voucher program violates Colorado’s Constitution by:
- removing local control from school boards;
- compelling taxpayers and parents to support religion;
- giving tax dollars to sectarian and private institutions;
- diverting money from the Public School Fund, and;
- undermining the thorough and uniform system of free public schools.
“PTA agrees with Colorado’s founding fathers that tax dollars should be used to support and improve public schools for all of the children,” said Mark Townsend, president of the Colorado PTA, the lead plaintiff.
National PTA President Shirley Igo asserted, “Vouchers do not offer parents true choice or provide equal opportunities to all students.”
Mellor disagreed. “Nothing in Colorado’s Constitution or legal history justifies denying educational opportunity to low-income children in failing schools,” he declared. “Parents deserve a voice in this lawsuit and a choice for their children’s education.”
Other plaintiffs in the lawsuit are the League of United Latin American Citizens (LULAC), the Interfaith Alliance of Colorado, and the Colorado NAACP. Although the Colorado Education Association is not listed as a plaintiff, five of the organization’s attorneys are listed as attorneys for the plaintiffs.
Other sponsors of the lawsuit include the American Civil Liberties Union, the American Federation of Teachers, the American Jewish Committee, the American Jewish Congress, Americans United for Separation of Church and State, the National Education Association, the National PTA, and People for the American Way.
Compelled Support?
Rabbi Joel Schwartzman, president of The Interfaith Alliance of Colorado, raised concerns about Coloradans being forced to support religious institutions with their tax dollars. He argued this would be a violation of the state constitution, which says no one shall be required to support any religion against his or her consent.
“In two separate places, the Colorado Constitution forbids government appropriations to sectarian institutions or entities controlled by sectarian denominations,” noted Schwartzman. “Our founding fathers were very clear. They did not intend for the state or any of its subdivisions to provide financial support to religious schools.”
These state constitutional provisions–the so-called Blaine Amendment and the “compelled support” clause–have not fared well when deployed in challenges to school choice programs other states. The state supreme courts in Wisconsin, Ohio, Arizona, and Illinois all rejected the idea that appropriating public funds for parents to choose their child’s school was equivalent to appropriating public funds to support religious institutions.
“Religious Bigotry”
The Arizona Supreme Court called the state’s Blaine Amendment “a clear manifestation of religious bigotry” against Catholics. The U.S. Supreme Court also has recognized the “shameful pedigree” of the Blaine Amendments as a legacy of long-past anti-Catholic and anti-immigrant discrimination. (See “Blaine Amendment Falls in WA,” School Reform News, September 2002.)
“It’s appalling that the unions and their allies resort to remnants of religious bigotry to deny educational freedom to Colorado parents,” said Mellor.
George A. Clowes is managing editor of School Reform News. His email address is [email protected]. Pam Benigno of the Colorado-based Independence Institute contributed to this article.
George Clowes is former Heartland senior fellow addressing education policy. He served as founding managing editor of School Reform News between November 1996 and January 2005.
