CO Supreme Court to Reconsider Douglas County Case in Light of Trinity Lutheran Ruling

This morning, the United States Supreme Court issued a grant, vacate, and remand (GVR) order in the Douglas County Choice Scholarship Program case. In essence, this order sends the case back to the Colorado Supreme Court for reconsideration in light of yesterday’s Trinity Lutheran v. Comer decision. It is not immediately clear how the new decision will alter the calculus used in the Colorado Supreme Court’s 2015 ruling against the Choice Scholarship Program. But it is clear that Colorado has a second chance to consider this important issue.

The United States Supreme Court issued a major ruling in favor of religious liberty in Trinity Lutheran. Though that ruling did not explicitly address discriminatory state constitutional Blaine clauses as they relate to private school choice programs, it did send a strong signal that the high court is not inclined to tolerate religious discrimination in the realm of public benefit programs. It was a decidedly positive step in the march to open the doors of opportunity to all American students.

School choice supporters have waited anxiously for nearly two years to find out whether the United States Supreme Court would take up the Douglas County Choice Scholarship Program case, which specifically sought to answer longstanding questions about the constitutionality of Colorado’s Blaine clause as it was applied to Douglas County's unique, locally crafted private school choice program. This small-scale pilot program would have provided publicly funded scholarships to 500 students interested in accessing private education options, including those offered by faith-based schools.

“Like many educational choice supporters, I was hopeful that the U.S. Supreme Court would use the Douglas County case to explicitly and clearly answer remaining questions about Blaine clauses and private school choice programs,” said Independence Institute Senior Education Policy Analyst Ross Izard.

“But this is still a positive development. We now have a chance to revisit the flawed 2015 ruling by the Colorado Supreme Court and arrive at a conclusion that would allow Colorado students to access the educational options they need in the absence of religious discrimination. We must make full use of that opportunity.”