Celebrants of Monday's Colorado Supreme Court ruling against the Douglas County School District may find themselves on shaky ground when the case enters the federal courts. Their hope rests on the Colorado Constitution's old Blaine amendment - the type advocated in the 19th and early 20th centuries by the Ku Klux Klan - that sanctions discrimination.
Whether defenders of the court's decision know it, the law used in Monday's ruling codifies bigotry that mostly burdens the poor. It upholds unequal protection under the law at a time the Supreme Court of the United States busily decimates other state laws that condone discrimination that falls under widely protected categories of race, religion, creed, gender, sexual orientation, nationality and disability.
In a mixed ruling Monday, in Taxpayers for Public Education v. Douglas County School District, the state's highest court reversed a decision by the Colorado Court of Appeals. It found the school district's unique voucher program in violation of the Blaine amendment, officially known as Article 5, section 34 of the Colorado Constitution. Indeed, the state constitution forbids allocation of public funds for any denominational or sectarian institution.
Douglas County's voucher program was designed to end discrimination against families that want to send kids to private schools established by organizations that may be associated with Catholic, Jewish, Islamic or other religious philosophies. Because of discrimination against religious individuals in voucher programs, only wealthy parents can afford schools associated with religion. That's unfortunate, given the First Amendment's expressed protection of religion and its prohibition of state interference in the free exercise thereof. Given that religious institutions establish and run some of the finest educational institutions in the country, Blaine amendments deprive poor students of religious instruction and academic excellence.
Federal law is clearly on the side of the Douglas County School District. The Supreme Court of the United States, in its 2002 decision in Zelman v. Simmons-Harris, ruled that school vouchers are constitutional if state funds follow a child to a private school. Though a voucher program cannot discriminate among religions, the court determined, vouchers can pay for tuition at religious schools.
In Colorado, advocates of the nondiscriminatory voucher system have two major arguments: 1. A voucher is not state funding of a school, because the funds have been explicitly relinquished (like a tax return) to control of parents and guardians to spend on tuition at accredited schools as they see fit; and 2. Federal law allows parents and guardians to spend state-funded vouchers or scholarships at religious schools.
Opponents have only Colorado's Blaine amendment to stand on. That could be a problem. Same-sex marriage opponents had only the Colorado Constitution's Amendment 43 to stand on - a modern law approved by 56 percent of voters in 2006. Right or wrong, the Supreme Court obliterated Amendment 43, and others like it throughout the country, with its June 26 ruling in Obergefell v. Hodges. The court similarly struck down Colorado's discriminatory Amendment 2 with its 1996 decision in Rover v. Evans. Colorado voters had enacted a constitutional amendment that prohibited extending protected status based on homosexuality or bisexuality. Brown v. Board of Education ended state laws that allowed "separate but equal" treatment of students based on race.
Throughout this country's history, the Supreme Court of the United States has expanded equal protection by negating state laws that mandate or allow discrimination for reasons including religion.
Colorado discriminates in education on a basis of religion, with a law rooted in a well-documented history of ugliness. Advocates of Douglas County's religion-neutral voucher program plan to fight this all the way to the Supreme Court of the United States at just the right time history. In doing so, they may finally exterminate all 37 of this country's superannuated Blaine amendments.