A school voucher program in Douglas County, Col., that allows students to use public money to pay for private religious school tuition does not violate the state’s constitution, an appeals court ruled last week.
The program, created in March 2011, would give up to $4,575 each to 500 students to spend on one of 23 private schools, 16 of them with religious affiliations.
However, no one has seen the money yet. A district court issued an injunction in August 2011, finding the vouchers in violation of the state’s constitutional ban on using public money to support religion, among other laws. Last week’s Court of Appeals ruling overturns the lower court’s action, but the program is still on hold pending an appeal to the Colorado Supreme Court.
In a lengthy written opinion, two of the three judges on the appeals court dismissed each of the arguments against the vouchers, finding them “neutral toward religion generally and religion-affiliated schools specifically,” and that “any benefit to the participating private school is incidental, occasioned by the individual choices of students’ parents.”
Pro-voucher forces applauded the decision. “Neutrality and private choice are the hallmarks of a constitutional school choice program,” Michael Bindas, senior attorney with the Institute for Justice, which defended the program in court, said in a press release. “The Court of Appeals recognized that the Choice Scholarship Program satisfies both of those requirements.”
Critics of the decision say that the court misconstrued the constitution and have vowed to appeal.
School vouchers are an increasingly controversial topic around the country. Twelve states plus Washington, D.C., have public voucher programs for students, according to the National Conference of State Legislatures, offered to low-income students, special needs students or certain rural students, depending on the state.
Proponents of vouchers portray them as an opportunity for students to escape troubled schools and failing districts. Opponents cast them as a means of putting public dollars into the hands of private institutions or individuals, therefore defunding already struggling districts and crippling any chance of providing true equitable public education.
There are also concerns that private schools can discriminate against which students are admitted, based on factors like religion, sexual orientation and disability.
Some states, like Pennsylvania, have failed to implement voucher programs but instead give businesses tax credits if they provide scholarships to private schools, effectively accomplishing the same transfer of public-to-private dollars. Ten other states have similar programs, with more pending.
When the private schools in question are affiliated with religion, it throws another wrinkle into the debate over the wall between church and state.
SCOTUS Gives Green Light
In 2002, the U.S. Supreme Court in a 5-4 decision gave a green light for voucher programs in the case of Zelman v. Simmons-Harris, which posed the question of whether Ohio could give money to students to spend on tuition for religious schools. In the divided ruling, the court said that programs were okay if they met five conditions:
the program must have a valid secular purpose
aid must go to parents and not to the schools
a broad class of beneficiaries must be covered
the program must be neutral with respect to religion
there must be adequate nonreligious options
In the Douglas County case, state judges leaned on the Zelman decision, calling the local school choice program “virtually identical.”
However, opponents dispute the characterization. “From our perspective it is a totally different situation,” says Scott Levin, an attorney and Mountain States regional director of the Anti-Defamation League.
For one thing, he points out, the program in Ohio is geared toward allowing students to escape poorly performing schools, while Douglas County is a wealthy district with successful educational outcomes.
Furthermore, the Ohio voucher money is less restrictive about how recipients use it. “It could be used by the family to hire tutors or after-school activities, or also provided for private schools,” Levin says. “In Douglas County, money could only be used for one of the approved private schools.”
Levin also notes that the Zelman case interprets federal law, whereas the Douglas County litigation is based on Colorado state law. “Our state law is arguably more expansive, for protections of church and state, than is federal law,” he says.
In an extensive dissent to the Douglas County ruling, Judge Steve Bernard cites the extra language in the state constitution and calls the program “a pipeline that violates this direct and clear constitutional command.”
The state Supreme Court gets the next crack at deciding whose interpretation is the correct one.
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