Colorado school choice parents sue over religious exclusion

Plaintiff, Melissa Jankowski and daughter. Source: Institute for Justice.

The Douglas County, Colorado, School District is facing a lawsuit less than one month after launching a revamped voucher program. It’s not school choice opponents that are suing this time, but three Colorado families excluded from the program because district rules now prohibit them from using vouchers to choose religious schools.

School district officials told the Denver Post that the new program was “designed to meet the state constitutional limitations as outlined by the Colorado Supreme Court in its ruling last summer.”

But lawyers from the Institute for Justice representing the parents argue the new rules exclude and discriminate.

Last summer, a split state Supreme Court overturned the district’s original voucher program, which allowed parents to choose any eligible private school regardless of religious affiliation. Citing the state’s no-aid-to-religion provision, also known as a “Blaine amendment,” a plurality of the justices ruled the program violated the state’s constitution because parents could choose religious schools.

Appealing to the U.S. Supreme Court, lawyers for the district and parents argued that the state court’s ruling would result in a program that violated the First Amendment and Due Process rights of parents.

The U.S. Supreme Court has not yet accepted or denied that petition.

School choice supporters have long argued that states must be neutral with respect to whether a participating school is religious or not. “Singling out religious schools is not even-handedness, it’s discrimination,” says Institute for Justice lawyer Michael Bindas.

A ruling on state Blaine amendments by the U.S. Supreme Court could strike a blow against the 19th century symbol of bigotry, which is still on the books in 37 states. Choice advocates argue that scrutiny of Blaine is long overdue. To date, Blaine amendments have a mixed record in court, being used to strike down voucher programs in Arizona and Colorado, but also failing in Arizona (education savings accounts program), Oklahoma, Ohio, Indiana, and Wisconsin.

Blaine amendment cases are still active in Florida, Georgia, Montana and Nevada.

In Montana the State Department of Revenue used Blaine to issue a rule prohibiting the use of tax-credit scholarships at private religious schools. The court has since issued a preliminary injunction against the Department of Revenue‘s rule, allowing students to enroll in religious school while the court hears the case.

Nevada’s education savings accounts program is currently on hold while the court hears the case.

Programs in Florida and Georgia won in the lower courts, but are still facing appeals.

The U.S. Supreme Court did accept a petition to hear Trinity Lutheran Church Inc. v. Pauley, a case where Missouri’s “Blaine amendment” was used to deny a private preschool a state grant for non-toxic rubber playground mulch because of the school’s religious affiliation.