Colorado Blocks Educational Choice: Will Courts Respond to Religious Discrimination?

Once again, religious observance and practice have been placed in doubt by state action. As a consequence, two plaintiffs have brought a lawsuit that could reshape American education. Led by the distinguished public interest law firm, First Liberty Institute, two plaintiffs, Riverstone Academy and Education ReEnvisioned BOCES (ERBOES), have challenged the Colorado State Board of Education and the Colorado Commissioner of Education.

The lawsuit charges the defendants with having a “clear animus toward people of faith” and unconstitutionally excluding religious schools from public funding. This case covers ground that the United States Supreme Court recently reviewed.

This case alleges that the State of Colorado requires its publicly funded school system to discriminate based on religion. The state’s alleged constitutional violation flows from a Colorado Constitutional provision which provides that no state entity “shall ever make any appropriation or pay from any public fund or moneys whatever anything in aid of any church or sectarian society... to help support or sustain any school… controlled by any church or sectarian denomination whatever.”  

Since this provision, along with another state rule enforced by Colorado officials, operates as a complete and total ban on state funding of religious schools, it means the state is trying to enforce its version of the Blaine Amendment. The Institute for Justice notes:

Blaine Amendments are controversial state constitutional provisions rooted in 19th-century anti-Catholic bigotry. Their purpose was to prevent the government from funding Catholic schools. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs.

Colorado’s decision to block Riverstone Academy from accessing a state educational funding program for religious reasons is suspect for two reasons.

First, because the Supreme Court struck a major blow against state Blaine Amendments in June 2020, when the Court ruled in Espinoza v. Montana Department of Revenue that the federal Constitution forbids states from excluding families and schools from educational choice programs based on their religious status. The Supreme Court held that the U.S. Constitution condemns discrimination against religious schools and the families whose children attend them.

After all, religious families are members of the community, and their exclusion from a state scholarship program is odious to our Constitution. “The Supreme Court’s holding applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Second, the Supreme Court struck another blow against Blaine Amendments when it ruled in Carson v. Makin. The Court held that states may not prohibit families that participate in educational choice programs from selecting schools that provide religious instruction. The Court held that such programs must be neutral regarding religion and allow parents to choose the school that best suits their children.

As a consequence of the Supreme Court’s decisions in  Espinoza and Carson, policymakers across the country are free to enact programs that empower parents to choose the educational environment that works best for their own children. Since each state has a unique history, context, and constitutional provisions, the Institute for Justice has produced a 50-state guide analyzing each state’s constitution in light of the Espinoza ruling to explain how it impacts policymakers’ ability to enact educational choice programs.

The Colorado case involves two plaintiffs. The first plaintiff is ERBOCES, a Board of Cooperative Education Services entity. ERBOES is a state-authorized entity that provides funding for brick-and-mortar schools, online schools, and homeschool enrichment programs across Colorado. Hence, it supplies educational choice to parents and children.

The second plaintiff is Riverstone Academy, which operates under a contract with ERBOCES. Riverstone  offers tuition-free education and provides an educational program grounded in Christian principles.

Contrary to the Supreme Court’s holdings in Espinoza and Carson, evidence suggests that Colorado law and policy are designed with a clear animus toward people of faith. As a result of its law and policy, the state of Colorado effectively denies parents access to innovative educational opportunities for their children solely based on religion.

Consequently, children are trapped in failing schools. And contrary to the Supreme Court’s determination, children are thus seen as creatures of the state and are forced to accept instruction from the State’s preferred teachers. Taken together, this analysis leads to the following conclusion: Colorado law authorizes the state to engage in unconstitutional religious discrimination when awarding government contracts.

State efforts, however well-defended, that have the purpose and effect of discriminating based on religion cannot withstand recent Supreme Court decisions in Espinoza and Carson. Equally apparent, it is doubtful that Colorado’s efforts can withstand the First Amendment’s Free Exercise Clause, which protects religious observers against unequal treatment based on their religious status.