CASTLE ROCK, Colo. – The nation’s first school-district-run voucher program, in Douglas County, Colorado, has been struck down by the state supreme court because it sends some money to religious schools.

Colorado, like 36 other states, includes in its constitution a century-and-a-half-old anti-Catholic provision that forbids tax dollars from going to “sectarian” institutions “to keep taxpayers from supporting Catholic schools in addition to the public schools, which were generically Protestant.”

Brittany Corona explains further:

Blaine Amendments, still found in about two-thirds of the states’ constitutions, came about in the 1800s during a time when America’s public schools were distinctly Protestant in orientation. The growing Catholic immigrant population found the Protestant public schools were inhospitable to their families because of their religious differences, so Catholics sought public funding to start their own schools. To maintain Protestant control of public education, Blaine Amendments were created. Blaine Amendments prohibited the public funding of any “sectarian” schools or institutions. It’s important to note that the term “sectarian,” during that period in time, was synonymous with “Catholic.” In fact, after the passage of Blaine Amendments, the teaching of the Protestant religion remained in public schools for many years.

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The Douglas County school district may appeal to the U.S. Supreme Court, and a ruling there would have national school choice implications:

Although a state supreme court has the final word on how to interpret its state constitution, the U.S. Supreme Court could rule that a provision of a state constitution (or a state court’s interpretation of that provision) is itself unconstitutional under the U.S. Constitution. In this case, defenders of the program believe the Blaine Amendment entails unconstitutional discrimination against religious schools.

U.S. Supreme Court precedent does tilt towards vouchers. In 2002, the Court ruled in favor of Ohio’s vouchers because the program, like Medicaid and food stamps, does not directly support religious institutions. The individual who receives the money may choose to use it at a religiously affiliated institution, or he may not. Given that, the Supreme Court ruled, vouchers are religiously neutral and therefore constitutional.

The great danger in moving vouchers towards the U.S. Supreme Court is its tilt since 2002 against First Amendment freedoms of conscience and faith. If the Court accepts the case at all, there’s no telling whether this is an opportunity to overturn 37 discriminatory provisions in state constitutions and therefore expand school choice, or whether this may lead to further limits on public expressions of faith and therefore fewer opportunities to expand school choice.

As Jason Bedrick notes for the Cato Institute, tax credit scholarships are a legally safer school choice alternative. But they do not reach as many children as voucher programs. So we have here a series of cascading judgments about the prudence of various school choice strategies, which different choice supporters will answer differently. While we ponder, millions of children continue to go without access to the high-quality private schools a plurality of Americans recently told pollsters (see below) they wish their children could attend.

SOURCE: Cato at Liberty, Friedman Foundation, Watchdog.org

Authored by Joy Pullmann

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