Colorado sued over rule barring state funding of religious schools
Quick Summary
- Two entities sue Colorado for prohibiting state funding of religious schools.
- The lawsuit claims the Blaine amendment violates the Free Exercise Clause of the First Amendment.
- Defendants include Education Commissioner Susana Cordova and members of the Colorado State Board of Education.
Two education entities are pursuing a federal lawsuit to strike down a Colorado state constitutional amendment that prohibits public funding for religious schools, arguing it violates the rights of faith-based schools and religious families.
Education ReEnvisioned BOCES, which authorizes and oversees various schools, and the Christian school Riverstone Academy filed the lawsuit last Friday in the U.S. District Court for the District of Colorado.
The defendants named in the complaint include Education Commissioner Susana Cordova and members of the Colorado State Board of Education.
The lawsuit maintains that organizations that “wish to provide tuition-free religious education are barred from receiving publicly available contracts” under state regulations that plaintiffs allege show “a clear animus toward people of faith.”
“The state constitution and statutes prohibit school districts and BOCES from contracting with religious schools to provide educational services, in violation of religious schools’ free exercise rights as well as the rights of the religious students and parents who would attend that school,” reads the complaint.
At issue is the Colorado state constitution’s Blaine amendment, which prevents public entities from making "any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever.”
“This is direct and unconstitutional discrimination against religion in violation of the Free Exercise Clause of the First Amendment,” claimed the suit.
“Such a blanket prohibition violates the Free Exercise Clause of the United States Constitution by excluding religious schools from otherwise available benefits on the basis of their religion.”
BOCES and Riverstone are being represented by the First Liberty Institute, a Plano, Texas-based conservative legal organization, as well as the firms of Miller Farmer Carlson, First & Fourteenth PLLC, and Dechert LLP.
“Parents have the Constitutional right to seek out innovative government programs and be treated fairly when they do,” said FLI Senior Counsel Jeremy Dys in a statement released Monday.
“Education entrepreneurs like Education ReEnvisioned simply reflect the tradition of the earliest schools in our nation’s history that saw no conflict with the Constitution by integrating religious references throughout their curriculum.”
Named after 19th-century Congressman James Blaine, a former Republican House Speaker, Blaine amendments are state constitutional measures that bar public funding for religious schools.
While Blaine himself failed to get his amendment passed at the federal level when the Senate did not get the necessary two-thirds majority, several states adopted his ideas into their constitutions.
Supporters of the amendments argue that they help protect the principle of separation of church and state, while critics allege that they were originally anti-Catholic and are antireligious overall.
In 2022, the U.S. Supreme Court ruled 6-3 in David Carson et al. v. A. Pender Makin that Maine could not prohibit parents from using a state tuition program to send their children to religious private schools.
Chief Justice John Roberts wrote in the majority opinion that the high court has "repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits," a quote cited in the Colorado lawsuit.
"As noted, a neutral benefit program in which public funds flow to religious organizations
through the independent choices of private benefit recipients does not offend the Establishment Clause," Roberts wrote.
"Maine’s 'nonsectarian' requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise."
