It’s not if the Douglas County school board will be sued over its bold, unanimous approval last week of a program to offer tuition assistance for hundreds of students to attend private schools. It’s a matter of when, and how the challenge will be framed.
Although the Dougco vouchers are limited in number and involve a single successful district where parents are unlikely to flock to private facilities, that won’t matter to opponents. For them, the plan still represents an alarming rupture in the dike of the status quo — one that must be plugged before other districts pick up the subversive idea of expanding educational choice.
When Colorado lawmakers passed a pilot voucher program for low-income students in 2003, opponents wasted no time in suing — although their tactic was a mild surprise. The most vocal critics clearly detested the law because it allowed parents to use state money to send children to private religious schools, yet the courts were never pressed to rule on that constitutional question.
Instead, the state Supreme Court quashed the program because the Colorado Constitution vests control of education in local boards.
Now that a school board has chosen to expand choice on its own, the argument about local control presumably melts away. Opponents may have to resort to the claim that Dougco’s voucher plan violates the religious establishment clause of the First Amendment — or the Blaine Amendment of the Colorado Constitution — by providing money to private schools.
If so, they could be in for a rough ride. As Dougco’s legal counsel, Rob Ross, reminded me Tuesday, the U.S. Supreme Court authorized a voucher program in Ohio some years ago in Zelman vs. Simmons-Harris in which the money flowed to parents, not schools. When parents control the stipend, as they will under Douglas County’s plan, the funds no longer amount to direct government support. They’re equivalent to Pell grants, which students use to attend all manner of private colleges without the world coming to an end.
Ross says the district also is relying on Colorado statutes, including one that permits districts to contract out educational services, such as special education. It’s not as if taxpayers have never paid for attendance at private schools.
To be sure, the state constitution bars government funding of any “school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever.” Such language is a legacy of the anti-Catholic campaigns of the 19th century, when Catholic schools were considered a threat to red-blooded American values and a nativist movement sought to stamp out pluralism. Colorado is one of 36 states with a so-called Blaine Amendment, named for Maine Congressman James G. Blaine, who proposed a federal amendment of the same sort while speaker of the House.
Ross points out, however, that as long ago as 1982, the state high court concluded that a grant program that could be used at religious colleges did not violate the Colorado Constitution. And more recently, a federal appeals panel ruled unanimously that the state could not offer College Opportunity Fund stipends to students attending some private colleges but bar the use of stipends at others because of the institutions’ religious affiliations. Today those stipends support students at secular and religious colleges alike.
I’ve never been one to tout vouchers as a magic bullet for public education, although school choice in the form of public magnets and charters has been a healthy spur to innovation in cities like Denver. But what about the minority of parents who prefer an educational model not available in the public sector? Why shouldn’t they be able to choose what’s best for their children without having to pay twice?
Maybe opponents of the Dougco plan should wait to see how it works before drawing their legal swords and summoning the wretched ghost of James Blaine.
E-mail Vincent Carroll at vcarroll@denverpost.com.
