Archive for October, 2015

Some of the Colorado Supreme Court’s Mistakes in the Douglas County School Choice Case

Posted by on Oct 22 2015 | Constitutional Law, First Amendment, school choice

As people who follow education reform already know, the Colorado Supreme Court recently struck down the Douglas County school board’s school choice program. It did so based on Article IX, Section 7 of the state constitution. This is sometimes called Colorado’s “Blaine Amendment,” although that phrase is technically a misnomer.

Actually, the Blaine Amendment was an 1875 proposal to amend the U.S. Constitution. The amendment was promoted by James G. Blaine (1830-1893), who served as Speaker of the U.S. House of Representatives (1869-75), Senator from Maine (1876-1881), the 1884 Republican nominee for President against Democrat Grover Cleveland, and Secretary of State (1881 and again, 1889-92).

When Blaine was politically active, there was strong anti-Catholic sentiment in America, largely due to animus against mostly-Catholic immigrants from Ireland and Italy. Blaine’s mother was Catholic, which might have rendered him politically suspect to many. So to improve his political viability, he promoted his amendment to ensure that state money never flowed to Catholic schools.

Blaine’s amendment didn’t pass, but he and others who shared his bias used their political clout in Congress to require new states to place similar measures in their own state constitutions. Technically these provisions are not amendments, but parts of their original documents.

Congress passed Colorado’s enabling act (law authorizing statehood) in 1875. Colorado entered the Union the following year. The people of Colorado knew that Blaine and his allies would review their proposed state constitution, and that if Blaine & Co. didn’t like what they saw they might block Colorado’s admission as a state.

The drafters of the Colorado constitution therefore inserted Article XI, Section 7:

Neither the general assembly nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation, or pay from any public fund or monies whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever . . .

The term “sectarian” was primarily a code word for “Catholic,” although as explained below it could refer to any unpopular religious denomination. “Sectarian” did not include inter-denominational Protestantism, which then dominated American public schools.

If you read Article XI, Section 7 carefully, you realize that it cannot mean what it literally says. Literally read, it would render it unconstitutional for a city fire department to extinguish a blaze at a Catholic church. Many “anti-sectarian” provisions in other state constitutions present the same difficulty, so state courts have had to interpret them.

One way courts do so is to divide state assistance into three categories: (1) direct, (2) indirect, and (3) incidental. Direct aid is a grant program from the state to a school. An example of indirect aid is a voucher plan, such as the federal Pell Grant program for higher education. It is designed to benefit students, but the government sends money directly to the school chosen by the student or family. An illustration of incidental aid is the fire department scenario. Another example comes from a Montana case where that state’s highest court upheld a program that reimbursed expenses for a mother using a church adoption agency. The state paid the money to the mother, not to the agency.

Courts in Blaine states generally invalidate programs of direct aid to “sectarian” institutions. They sustain incidental aid. Opinions are split on indirect aid.

The Colorado decision is troubling for several reasons. Here are three that I don’t think have been sufficiently discussed:

First: The majority held that the Blaine provision did not violate the First Amendment’s Establishment Clause because the word “sectarian” was merely synonymous with “religious.” That is, the provision did not single out any particular religion or religions for discriminatory treatment. Incredibly, the majority’s sole source for treating “sectarian” as a synonym for “religious” was a law dictionary published—not in the 19th century when the Colorado constitution was adopted—but in 2014!

Nineteenth century dictionaries tell a very different story. A quick Internet search yielded three of them, and they all defined “sectarian” in a way that disparaged minority religions compared to others. Here are their definitions:

Webster (1828): “SECTARIAN, adjective. . . . Pertaining to a sect or sects; as sectarian principles or prejudices. . . . SECTARIAN, noun. One of a sect; one of a party in religion which has separated itself from the established church, or which holds tenets different from those of the prevailing denomination in a kingdom or state.”

Webster & Walker (1864) “adj: “Pertaining or peculiar to a sect. n. One of a sect, or one devoted to the interest of a sect; one of a party in religion which has separated itself from the established church. See Heretic.

Webster’s Academic Dictionary (1895): “Pertaining to a sect or to sects; bigotted attachedly to the tenets of a denomination. n. One of a sect.”

Obviously, the word “sectarian” in an 1876 document doesn’t mean merely “religious.” As the definitions suggest, it has connotations of “prejudice,” “bigot,” and “heretic.”

Under modern U.S. Supreme Court doctrine, this official disparagement of some religions as compared to others is a clear violation of the Establishment Clause.

Second: The Colorado court’s majority relied heavily on an earlier decision, Americans United for Separation of Church and State v. State. That holding was based on an inquiry into how “pervasively sectarian” funding recipients were. Yet later case authority holds that the approach in Americans United—advantaging some institutions because they are less religious than others—itself violates the Establishment Clause.

Third: The court treated the Douglas County program as a voucher plan. It had some justification for doing so, because even its friends sometimes refer to it as such. But in fact, the Douglas Count program is not a voucher plan. The school district does not write the check directly to the school of choice, but to the parent. The parent then independently endorses the check to the school. One can argue about whether this difference is sufficient to render the program one of “incidental” rather than “indirect” assistance. But the majority did not even address the issue.

There were some shortcomings in the dissent, also. It failed to reference any 19th century dictionaries, for example; and it failed to distinguish incidental from indirect aid.

Keep tuned: This case is going to the U.S. Supreme Court, so we have not yet heard the last word.

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