Colorado Appeals Panel Upholds Voucher Program, Reversing Lower Court

Written by Don Byrd

By a 2-1 vote, a panel of the Colorado Appeals Court has upheld the state’s school voucher program (pdf), reversing the trial court’s determination that it violates provisions of the state’s Constitution. The court relied heavily on the reasoning of Colorado Supreme Court’s 1982 decision in Americans United, which rejected a challenge to a similar program to the Choice Scholarship Program (CSP) currently being considered.

In upholding the grant program, the court [in Americans United] found that it was “designed for the benefit of the student, not the educational institution,” and was neutral in the sense that it was “available to students at both public and private institutions of higher learning.”

Essentially the same can be said of the CSP.

The program in Americans United was different in one key respect: it did not allow state funds to go to “pervasively sectarian” institutions. This threshold kept public funds from being used for religious indoctrination. Here, the Appeals Court says determining the “pervasively sectarian” nature of a religious institution is no longer allowed.

In the thirty years since Americans United was decided, the United States Supreme Court has made clear that, in assessing facially neutral student aid laws, a court may not inquire into the extent to which religious teaching pervades a particular institution’s curriculum. Doing so violates the First Amendment.
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Simply put, a government may not choose among eligible institutions “on the basis of intrusive judgments regarding contested questions of religious belief or practice.”

In the face of that rule disallowing investigating a school’s religious teaching, the court could have interpreted the ban on funding to extend to all sectarian schools regardless of religious teaching, as the trial court did. Instead, it determined that the ban on state funding did not apply to any sectarian schools, because the program itself is neutral.

We think this principle applies with equal force where the program at issue is facially neutral toward private religious schools because it is open to all private schools…

Here, the CSP is neutral toward religion generally and toward religion-affiliated schools specifically.

The dissenting judge found the program to be a “pipeline that violates (the) direct and clear constitutional command” prohibiting “public school districts from channeling public money to private religious schools.”