Littwin: Voucher plan boosts religious recruitment

Mike Littwin
Fair and Unbalanced

The Douglas County School Board might be unhappy with the Colorado Supreme Court ruling knocking down its dodgy voucher plan.

Religious schools throughout Douglas County might be unhappy with the Colorado Supreme Court ruling knocking down the dodgy Douglas County voucher plan.

But the national voucher-movement people who are pushing the lawsuit must be thrilled with the ruling against them. The way for them to win is by losing, at least in this round. Winning in Colorado would be small stakes. Winning at the U.S. Supreme Court level, which is where this case may be headed, could be transformational.

Yes, the Colorado Constitution seems to plainly say that this voucher plan would be, well, un-state-constitutional. But the language, plainly cited — prohibiting public funding for “any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school … controlled by any church or sectarian denomination” — derives from a so-called Blaine Amendment, a piece of 19th-century anti-Catholic bigotry by which states found a way not to fund Catholic schools.

And yet the court decided, with a notable dissent from Justice Allison Eid, that the origin of the amendment meant little in this case, that the separation of church and state, as reconfirmed in this amendment, was what mattered. And so the court found: “This stark constitutional provision makes one thing clear: A school district may not aid religious schools. Yet aiding religious schools is exactly what the (Choice Scholarship Program) does.”

The 19th-century bigotry is both despicable and disturbing, but, in a 21st-century reading, the language in the amendment seems entirely neutral. What to do? Should one base an important ruling on a poisoned amendment? Or is it fair to say that if the amendment were being read today as anti-Catholic, it would have been easily, and long ago, overturned?

We know how the state Supreme Court read it, if in a split decision. But that doesn’t mean the U.S. Supreme Court would see it that way if, in fact, the school board appeals and the court agrees to hear the case. The Supreme Court has already ruled that some vouchers that are neutral on religion and not paid directly to religious schools can be used in any way that parents see fit. The question, then, would be whether the dodgy Douglas County-style vouchers qualify.

Let’s be honest. If the Blaine Amendment was born of anti-Catholic bigotry, the Douglas County vouchers were based, in large part, on finding a way to allow public funds to be used for religious school tuition.

Does anyone really think that this voucher plan is meant to improve public schools? Does anyone really think that, as public policy, this plan is meant to provide “choice” so that children can attend “better” schools?

Or is it all just a dodge?

In Douglas County, the choice for students seems to be basically a choice among religious schools. When the vouchers were put in place in 2011, 93 percent of eligible students chose religious schools. According to the numbers from the District Court trial, which found that the vouchers were unconstitutional (an appeals court ruled otherwise), 119 of 120 high school students chose a religious school.

And to be clear on what we’re talking about, the state Supreme Court opinion noted that the voucher program plainly states that it permits eligible schools to make their admissions based on — religious beliefs.

Can we get any clearer?

Well, yes. Here’s how the system was to have worked, and see if my use of “dodgy” is unfair. To be eligible to receive the voucher, the student must enroll in the Choice Scholarship Charter School, which, it turns out, is not a school at all. It has no teachers. It has no building. It has no books. It has no readin’ or writin’ or ’rithmetic. It has — let’s say it together — no students.

It has nothing but a name and a claim that the student is enrolled in the district so that the state will have to fork over money for the student. The state’s money goes to the parents, who get to choose which school to send their kids to attend. If the student were to enroll directly in a religious school, Douglas County couldn’t pay for it. But because the student enrolls in a phony-baloney not-really-charter charter school, the plan would mean for your tax dollars to be used to pay for someone to go to a religious school that wouldn’t have to admit your children if they were of a different religion.

In its editorial lamenting the state Supreme Court decision, the Denver Post wrote that the Douglas County vouchers were “a modest, limited effort that expanded choice without undermining public schools.”

But Chief Justice Nancy Rice, in her opinion, didn’t agree. She said the Choice Scholarship Program was basically a “recruitment program” in which Douglas County teamed with mostly religious partner schools to offer students and their parents “inducements” in the form of scholarships — which, it seems, are not necessarily limited to scholarly endeavors.

If the Colorado Supreme Court is right, the program doesn’t seem modest or limited. But the question now isn’t only whether the state court is right — it seems to me it must be — but whether it will get the last word.

Mike Littwin runs Sundays in The Aspen Times. A former columnist for the Rocky Mountain News and Denver Post, he currently writes for


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