Ross Izard

Ross Izard

Last week, the Supreme Court of the United States issued a landmark ruling invalidating the use of state constitutional “Blaine Amendments” to bar faith-based schools from participating in K-12 scholarship programs. That ruling removes the largest legal impediment to private school choice in three dozen states and throws open the doors of opportunity for millions of students nationwide.

But while the historic decision in Espinoza v. Montana Department of Revenue hinged on a scholarship program in Montana, it also represented the finale of a long and bloody fight right here in Colorado.  

Three years ago, almost to the day, what would become one of the most pivotal school board races in America was taking shape in Douglas County. At the core of that election was Douglas County School District’s first-of-its-kind local K-12 private school choice program, which would have allowed up to 500 students to attend an approved private school of their choosing with a district-funded scholarship. 

The Choice Scholarship Program (CSP) came under immediate legal fire after passage by the Douglas County Board of Education in 2011. Opponents argued that by allowing families to select faith-based schools, as they can in higher education and many early-childhood programs, the program violated the Colorado Blaine Amendment’s prohibition on aid to “sectarian” institutions.

At the time of its inclusion in the Colorado constitution, the word “sectarian” was largely understood as a pejorative term for religious minorities and immigrants disliked by mainstream Protestants. Catholics were often the target of this hatred, but other unpopular groups — Mormons, Muslims, Jews and others — were not immune to its sting. 

Three dozen other states have similar language in their state constitutions — language similarly rooted in a long and ugly history of anti-immigrant sentiment and religious discrimination. 

The CSP was placed under injunction as the legal battle lines were drawn. The program never served a single student, but it did trigger a critical and nationally watched legal debate over whether the use of Blaine Amendments to forbid families from choosing faith-based schools violated the religious protections in the First Amendment to the Constitution of the United States. 

By the time the Douglas County case finally made its way to the U.S. Supreme Court, it had absorbed the better part of a decade, thousands of hours of work on both sides, and millions of dollars. Yet many saw the costs as well worth the potential reward of finally ridding American education of the opportunity-killing religious discrimination at the heart of Blaine Amendments.

Enter the 2017 Douglas County school board race, in which union-backed, anti-choice opponents mounted a campaign for total control of the board after years of bitter division. With a final ruling against Blaine Amendments seen as the imminent result of the Douglas County case, the newcomers promised that one of their first actions as board members would be to prevent the U.S. Supreme Court from issuing a ruling by repealing the program and rendering the case moot. 

With the case hanging in the balance, many outside observers took a keen interest in Douglas County. From their perch in faraway Washington, D.C., the leaders of the nation’s two largest teachers unions recognized that the outcome of this local school board race in suburban Colorado could threaten their national hegemony over education. 

Union money flooded the Douglas County elections, put to use through shadowy independent expenditure committees run by operatives and consultants in D.C. They blasted reform-minded candidates on television, social media and the internet; papered the county’s quiet communities with stacks of mailers, and spread misinformation to discourage conservative-leaning residents from voting.

The anti-choice slate cruised to victory on the back of this astroturf campaign. And, as promised, the new board immediately moved to repeal the CSP. In an embarrassingly self-congratulatory meeting, school board members from an affluent, overwhelmingly white suburban community knowingly and gleefully gutted opportunities for less privileged students nationwide. As expected, the case was invalidated and dropped without a final decision.

But the new board’s “victory,” if one can apply that word to the act of deliberately depriving the nation’s neediest students of a quality education, was hollow and short-lived. 

In the wake of the Douglas County election, a little-known case involving a tiny tax-credit scholarship program in Montana suddenly became the vehicle for one of history’s greatest legal flanking maneuvers. Attorneys at the Institute for Justice, who also worked on the Douglas County case, immediately pivoted their full attention and work to the new case, Espinoza v. Montana Department of Revenue. So did ACE Scholarships, which provides nearly 1,000 privately funded scholarships to Montana students, and numerous other advocacy and legal organizations.

Against all odds, this case in one of the nation’s least-populous states — and the three brave mothers behind it — found its way to the steps of the United States Supreme Court. And last week, the court finally put more than a century of debate to rest by recognizing Blaine Amendments as discriminatory weapons that have no place in conversations about American education. 

The political juggernauts who invested hundreds of thousands of dollars into killing the Douglas County case are not happy. As evidence, I present the near-apoplectic response of the National Education Association and the desperately hopeful statement from the American Federation of Teachers in which the union attempts to convince its supporters that “the court didn’t invalidate” Blaine Amendments in Espinoza. (Spoiler alert: It did.)

Like a modern-day Thermopylae, three moms and a small group of determined attorneys took up a strong position on an unexpected battlefield — and subsequently invalidated all the money, power, and influence their opponents have come to rely on. Their names will rightly be etched into American history.

Dr. Martin Luther King, Jr., once said that “the arc of the moral universe is long, but it bends toward justice.” This week, kids and families across America finally saw justice served. And a case from nearly 1,000 miles away finally laid the ghosts of Douglas County to rest.  

Ross Izard is a senior fellow in education policy at the Independence Institute and the national director of public policy for ACE Scholarships. ACE provides privately funded scholarships for 7,000 K-12 students attending more than 700 private schools across eight states, including Montana and Colorado. 

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