Two education groups have filed a federal lawsuit challenging a provision in Colorado’s constitution that bars public funds from going to religious schools, contending the restriction infringes on the rights of faith-based institutions and families seeking religious education.
Education ReEnvisioned BOCES, an entity that authorizes and supervises multiple schools, joined Riverstone Academy, a Christian school, in submitting the complaint last Friday to the U.S. District Court for the District of Colorado.
Named as defendants in the case are Colorado Education Commissioner Susana Cordova and members of the Colorado State Board of Education.
According to the plaintiffs, state policies prevent entities that “wish to provide tuition-free religious education” from accessing “publicly available contracts,” which they argue reflects “a clear animus toward people of faith.”
“The state constitution and statutes prohibit school districts and BOCES from contracting with religious schools to provide educational services, in violation of religious schools’ free exercise rights as well as the rights of the religious students and parents who would attend that school,” reads the complaint.
Central to the dispute is Colorado’s Blaine amendment, a constitutional provision that forbids public bodies from making "any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever.”
The lawsuit contends that the amendment amounts to unconstitutional religious discrimination. “This is direct and unconstitutional discrimination against religion in violation of the Free Exercise Clause of the First Amendment,” claimed the suit.
“Such a blanket prohibition violates the Free Exercise Clause of the United States Constitution by excluding religious schools from otherwise available benefits on the basis of their religion.”
The plaintiffs point to recent Supreme Court precedent to bolster their case. In 2022, the high court ruled 6-3 in David Carson et al. v. A. Pender Makin that Maine could not block families from using a state tuition assistance program to enroll their children in religious private schools.
In that decision, Chief Justice John Roberts emphasized that the court has "repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits," language that is cited directly in the Colorado filing.
"As noted, a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause," Roberts wrote.
