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Bryce Carlson

Abstract

For nearly a decade, the school choice movement in Colorado has hung in the balance as the fate of the Douglas County School District Choice Scholarship Program worked its way through the courts, even reaching the United States Supreme Court in the process. The main issue at stake was whether Article IX, § 7 of the Colorado Constitution, which prevents public institutions from making any appropriation to a "church or sectarian society," barred students from using a school district scholarship to attend a private religiously affiliated school.

The Colorado Supreme Court in 2015 ruled that the Choice Scholarship Program indeed violated Article IX, § 7. In 2017, the United States Supreme Court granted certiorari, vacated the Colorado Supreme Court's decision, and remanded the case for reconsideration in light of its recent opinion in Trinity Lutheran Church of Columbia, Inc. v. Comer. But prior to the rehearing, the Douglas County School District Board of Education rescinded the Choice Scholarship Program, and the case was dismissed as moot. In an instant, the effect of years of litigation completely vanished.

Though the issue was never settled, it will not be long before a similar private school grant program appears somewhere else in Colorado or another state. And because thirty-six other state constitutions include similar provisions to Colorado's Article IX, § 7, otherwise known as a Blaine Amendment, it is nonetheless worth analyzing why the Colorado Supreme Court wrongly decided the case. This Note further advocates that the time has come for the United States Supreme Court to squarely address the constitutionality of Blaine Amendments.

Despite the unfortunate end to the Douglas County School District Choice Scholarship Program, the future remains bright, and the school choice movement will no doubt soldier on.

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