Colorado sued for banning public funds from school for one reason

(The Center Square) – A new lawsuit is challenging Colorado’s ban on using public funds for religious institutions, arguing it discriminates against a Christian school in Pueblo that’s seeking funding.

The plaintiffs in the lawsuit, filed Friday in a U.S. District Court against the Colorado State Board of Education, are Education ReEnvisioned BOCES (Board of Cooperative Education Services), an organization authorized by the state to establish contract schools and provide funding to schools and programs, and Riverstone Academy, a tuition-free Christian public school in Pueblo.

Education ReEnvisioned last year contracted with Riverstone Academy and submitted a state funding request to the Colorado Department of Education, which responded saying that funding to the academy would violate the state constitution because it’s a Christian school, according to the lawsuit.

The Colorado Constitution includes a Blaine Amendment, adopted in 1876, barring public funding 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.”

Many states passed Blaine amendments in the 1870s, codifying anti-Catholic sentiments during the era.

The lawsuit argues Colorado’s law violates the U.S. Constitution’s First and 14th Amendments.

“Colorado law requires the State to unconstitutionally discriminate on the basis of religion when awarding government contracts,” the lawsuit states. “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.”

Jeremy Dys, senior counsel with First Liberty Institute, which is representing the plaintiffs, told The Center Square the state cannot “deny [funding] because religion on occasion appears in curriculum.”

Dys also pointed to recent U.S. Supreme Court rulings in favor of religious schools, including Trinity Lutheran v. Comer in 2017, Espinoza v. Montana Department of Revenue in 2020 and Carson v. Makin in 2022.

In the Trinity Lutheran case, the church, which operated a preschool, was denied a state grant for purchasing recycled tire material for resurfacing its playground because of its religious background.

“[T]he exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution … and cannot stand,” the U.S. Supreme Court said in its majority opinion.

In a letter sent to Education ReEnvisioned BOCES and the school district in October, CDE said the academy “is not operating in a nonsectarian nature.”

“ERBOCES is a public entity bound by the federal and state constitutions,” the letter added. “Thus, any school that ERBOCES operates must be nonsectarian in nature.”

ERBOCES said in a Feb. 2 letter to CDE: “CDE has, within a matter of weeks, warned ERBOCES not to fund Riverstone, then given ERBOCES the money to fund Riverstone. As best we can tell, if we fail to navigate this impossible situation, CDE will claw back our state funding. Putting ERBOCES and Riverstone in this position is manifestly unfair.”

A spokesperson for CDE told The Center Square it cannot comment on pending litigation, but provided the department’s most recent letter to Education ReEnvisioned BOCES on Feb. 13 before it knew about the lawsuit.

CDE said in the letter: “It is important to clarify that CDE does not ‘grant funding’ to individual schools. CDE distributes state share of total program to school districts and to the state charter school institute. With exceptions not relevant here (like funding for district charter schools), state law does not dictate how school districts allocate total program funds to the individual schools or programs within their districts or the BOCES with which they contract.”

Riverstone Academy was recently forced by Pueblo County to close its building over alleged code compliance issues, but is operating at an alternate location.

The lawsuit was filed in the U.S. District Court for Colorado.

This story originally appeared in The Center Square.