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"In June 2015, the Colorado Supreme Court struck down a successful voucher program in Douglas County, invoking a provision of the state constitution that harks back to an era of widespread prejudice against Catholics," Joshua Dunn writes in the Winter 2016 issue of Education Next. It's a constitutional provision similar to the one that some Oklahomans are using in an attempt to kill the Lindsey Nicole Henry Scholarship Program for Children with Disabilities.
"But because of the court’s reliance on this discriminatory provision," Dunn continues, "its decision could well be overturned by the U.S. Supreme Court—clearing the way for voucher programs across the country."
When the Supreme Court ruled in 2002 that school vouchers did not violate the federal Constitution, Robert Chanin, the chief counsel for the National Education Association, promised to bring the battle to the state courts. School choice opponents, he said, would rely not on “lofty” First Amendment principles, but on what he termed “Mickey Mouse provisions” contained in state constitutions. Colorado’s supreme court used one such provision, the state Blaine Amendment, to kill the Colorado voucher program in Taxpayers for Public Education v. Douglas County School District this June.
Blaine Amendments, which prohibit public funding of religious schools, were added to some three dozen state constitutions beginning in the late 1800s, sparked by pervasive anti-Catholic sentiment. Colorado’s amendment forbids “any appropriation” to support “any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school…controlled by any church or sectarian denomination.”