The Colorado Supreme Court on Monday ruled that a Douglas Public School voucher program violates the Colorado Constitution.

In a 4-3 decision, the court ruled that the program, the Choice Scholarship Program, violates Article IX Section 7 of the state Constitution, which prohibits the use of taxpayer funds to support any “sectarian” or religious school.

“This stark constitutional provision makes one thing clear: A school district may not aid religious schools,” Chief Justice Nancy Rice wrote in the majority opinion.

The lawsuit was brought by Taxpayers for Public Education along with a group of Douglas County parents and students, with the backing of the American Civil Liberties Union of Colorado.

At a press conference on Monday after the ruling, ACLU attorney Mark Silverstein paraphrased the section of the Constitution at issue.

“Public money will not go to funding religious schools – no how, no way, we really mean it,” he said. “State constitutions can protect civil liberties and religious freedom more strongly and more thoroughly than the federal constitution, and that’s what we have here.”

“While we are disappointed in the court’s decision today, we are not surprised,” said Kevin Larson, president of the Douglas County Board of Education, at a press conference. “We have always believed the ultimate legality of [the program] would be decided by federal courts.”

School officials said the district will consider taking the case to the U.S. Supreme Court to challenge the state constitutional provision, known as the Blaine Amendment.

“An amendment that reflects a very ugly period of American history, in which Catholics and Jews and immigrants were targeted by a nationalist culture, a culture of hate that precluded many people from access to public education benefits,” said Craig Richardson, a director of the Douglas County school board.

The district officials argue the word “sectarian,” as used in the passage, meant “Catholic” when it was approved in 1876. Blaine amendments, which can be found in 37 state constitutions, were also written to exclude Jews and immigrants, a school district press release said.

Silverstein said he does not believe the U.S. Supreme Court is interested in hearing Douglas County’s arguments about the state constitutional language.

“Probably some people who voted for the Colorado Constitution did so because of their anti-Catholic bias,” he said. “There were also a lot of people who believed in free, independent, secular schools who voted for the Colorado Constitution.”

“We have said all along that parents are free to choose religious education for their children,” said Mark Douglas, an attorney for the petitioners in the case. “But, as the court found today, state taxpayer dollars can not be used to fund that choice. It’s important to remember that the Colorado Constitution is stronger and more specific than the federal constitution in the area of separation of church and state.”

School district officials say the funding for the program only goes to any institution – secular or religious – through the independent choice of students and parents.

“While the students of Douglas County School District and Colorado may have to wait a little longer to get their full access to choice, we believe this will ultimately pave the way for all United States students to be free of the yoke of the Blaine Amendment and to exercise their free choice in educational opportunities,” Larsen said.

The ruling drew praise and criticism from throughout the state on Monday.

“We are disappointed in the Court’s ruling because it means that school districts now have one fewer tool to support parents in choosing the education that best fits their children’s needs,” said Colorado Attorney General Cynthia H. Coffman. “This ruling harms Colorado’s children, who deserve every opportunity to reach their full potential regardless of school setting or family income.”

The Rev. Barry W. Lynn, executive director of Americans United, disagreed.

“It is unconstitutional to bankroll religious schools with public funds,” he said. “But that is precisely what would have happened in Douglas County had the Colorado Supreme Court ruled otherwise.”

“We are certainly disappointed in today’s decision,” said Americans for Prosperity state director Michael Fields. “Unfortunately, the courts have decided to put special interests above the needs of our students. Their decision today means that families will no longer have the freedom to choose the best education for their needs. The Douglas County School Board’s reforms were working – one-size-fits-all education does not. We’ll be engaging with our communities and activists to continue pushing for reforms that create choice and opportunity for all Colorado students.”

A senior attorney with the ACLU’s Program on Freedom of Religion and Belief said that critics of the ruling are missing the point.

“The Colorado Constitution provides very strong safeguards for the separation of church and state, and today’s decision preserves and honors those protections,” said Heather L. Weaver.

– rachel@coloradostatesman.com