Douglas Co., Colorado’s Scholarship Program

Larue v. Colorado Board of Education
Institute for Justice and Colorado Parents Defended School Choice in the Rocky Mountain State

	Donovan and Alexandra Doyle plan to go to a school with a college-prep program their parents feel is the best fit for them.
	IJ school choice parents Mark and Jeanette Anderson plan to send their son Max to a school with a math and science curriculum that better fits his interests and needs.

In March 2011, the Douglas County School Board enacted a pilot school choice program to determine whether providing greater choice to its residents yields benefits for its students similar to those realized by programs enacted in other states.  Under the program, the school district offers modest scholarships to 500 students. The scholarships can be used at private schools that parents believe are best for their kids.

The ACLU, Americans United for Separation of Church and State, and several Colorado organizations and taxpayers, however, sued the school board, school district, Colorado Department of Education, and state school board in order to stop the program.  Despite clear case law rejecting their claims, they alleged that because some parents will choose religious schools for their children’s education, the program violates provisions of the Colorado Constitution concerning aid to religious schools.  They also alleged various violations of Colorado’s education statutes for funding public education.

Representing families with children who received scholarships under the program, the Institute for Justice intervened in the litigation to protect the interests of Douglas County families.  These families—and not the schools their children will attend—are the real beneficiaries of the program.  In trying to mischaracterize the programs as a form of “aid” to private schools, school choice opponents ignore the role that parental choice plays under the program. It is parents—and not the government—who decide what school a child attends, and, importantly, the government neither encourages nor discourages parents from selecting a religious school.  No child attends any of the choice schools without the free and independent choice of a parent. 

Although a state trial court held the scholarship program unconstitutional and blocked its implementation in August 2011, the Colorado Court of Appeals reversed the trial court and upheld the program in February 2013. In so doing, the Court of Appeals joined the Supreme Courts of Wisconsin and Ohio in rejecting state constitutional religion clause challenges to school choice scholarship programs. The Indiana Supreme Court subsequently joined those ranks just a few weeks after the Colorado Court of Appeals issued its decision. Federal constitutional challenges, meanwhile, have essentially been foreclosed since 2002, when the U.S. Supreme Court upheld an Ohio scholarship program under the U.S. Constitution’s Establishment Clause. 

Undeterred, school choice opponents have vowed to ask the Colorado Supreme Court to review the Court of Appeals decision. If they do, the Institute for Justice will continue its fight on behalf of families and defend the scholarship program until Douglas County parents are finally free to choose the schools that are best for their kids.