Taxpayers for Public Education v. Douglas County School District

The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

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2015 CO 50

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Supreme Court Case No. 13SC233
Certiorari to the Colorado Court of Appeals
Court of Appeals Case Nos. 11CA1856 & 11CA1857

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Petitioners:

Taxpayers for Public Education; Cindra S. Barnard; Mason S. Barnard; James LaRue; Suzanne T. LaRue; Interfaith Alliance of Colorado; Rabbi Joel R. Schwartzman; Rev. Malcolm Himschoot; Kevin Leung; Christian Moreau; Maritza Carrera; and Susan McMahon,

v.

Respondents:

Douglas County School District, Douglas County Board of Education, Colorado State Board of Education, and Colorado Department of Education,

and

Intervenors-Respondents:

Florence and Derrick Doyle, on their own behalf and as next friends of their children, A.D. and D.D.; Diana Oakley and Mark Oakley, on their own behalf and as next friends of their child, N.O.; and Jeanette Strohm-Anderson and Mark Anderson, on their own behalf and as next friends of their child, M.A.

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Judgment Reversed

en banc
June 29, 2015

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Attorneys for Petitioners Taxpayers for Public Education, Cindra S. Barnard, and Mason S. Barnard:
Faegre Baker Daniels LLP
Michael S. McCarthy
Bruce Jones
Colin C. Deihl
Caroline G. Lee

Denver, Colorado

Denver, Colorado

American Civil Liberties Union Foundation of Colorado
Mark Silverstein
Sara Rich

Denver, Colorado

ACLU Foundation Program on Freedom of Religion and Belief Daniel Mach
Heather L. Weaver

Washington, DC

Americans United for Separation of Church and State
Ayesha N. Khan
Alex J. Luchenitser

Washington, DC

Attorneys for Respondents Douglas County School District and Douglas County Board of Education:
Lewis Roca Rothgerber LLP
James M. Lyons
Eric V. Hall

Denver, Colorado

Attorneys for Respondents Colorado State Board of Education and Colorado Department of Education:
Cynthia H. Coffman, Attorney General
Michael Francisco, Assistant Solicitor General
Antony B. Dyl, Senior Assistant Attorney General

Denver, Colorado

Attorneys for Intervenors-Respondents:
Wilkinson Barker Knauer, LLP
Raymond L. Gifford

Denver, Colorado

Institute for Justice
William H. Mellor
Richard D. Komer

Arlington, Virginia

Institute for Justice
Timothy D. Keller

Tempe, Arizona

Attorneys for Amici Curiae American Federation of Teachers and The Education Law Center:
Law Office of Elizabeth L. Harris, LLC
Elizabeth L. Harris

Denver, Colorado

Kathleen J. Gebhardt, LLC
Kathleen J. Gebhardt

Boulder, Colorado

Attorneys for Amici Curiae Anti-Defamation League; Baptist Joint Committee for Religious Liberty; Central Conference of American Rabbis; Disciples Justice Action Network; Equal Partners in Faith; Hadassah, The Women’s Zionist Organization of America, Inc.; Hindu American Foundation; Jewish Social Policy Action Network; Union for Reform Judaism; and Women of Reform Judaism:
Wheeler Trigg O’Donnell LLP
Craig R. May
Allison McLaughlin

Denver, Colorado

Mayer Brown LLP
Andrew L. Frey
Richard B. Katskee
Matthew A. Waring

Washington, DC

Colorado Springs, Colorado

Alliance Defending Freedom
Gregory S. Baylor
Washington, DC

Attorneys for Amicus Curiae Colorado Education Association:
Colorado Education Association
Bradley Bartels

Denver, Colorado

Attorneys for Amicus Curiae The Becket Fund for Religious Liberty:
Sparks Willson Borges Brandt & Johnson P.C.
Scott W. Johnson

Colorado Springs, Colorado

The Becket Fund for Religious Liberty
Diana M. Verm
Luke W. Goodrich

Washington, DC

Attorneys for Amicus Curiae Colorado Association of School Boards:
Colorado Association of School Boards
Kathleen A. Sullivan
Elizabeth Friel

Denver, Colorado

Attorneys for Amici Curiae The Independence Institute and The Friedman Foundation for Educational Choice:
Independence Institute
David B. Kopel

Denver, Colorado

Attorneys for Amicus Curiae National Education Association:
Recht Kornfeld PC
Mark Grueskin

Denver, Colorado

National Education Association
Alice O’Brien
Philip A. Hostak
Kristen Hollar

Washington, D.C.

Attorneys for Amicus Curiae Pacific Legal Foundation:
Sherman & Howard, LLC
Ryan J. Klein

Colorado Springs, Colorado

Pacific Legal Foundation
Joshua P. Thompson

Sacramento, California

CHIEF JUSTICE RICE announced the judgment of the Court.
JUSTICE MÁRQUEZ concurs in the judgment.

JUSTICE EID concurs in part and dissents in part, and JUSTICE COATS and JUSTICE BOATRIGHT join in the concurrence in part and dissent in part.

¶1       Four years ago, the Douglas County School District (“the District”) implemented its Choice Scholarship Pilot Program (“the CSP”), a grant mechanism that awarded taxpayer-funded scholarships to qualifying elementary, middle, and high school students. Those students could use their scholarships to help pay their tuition at partnering private schools, including religious schools. Following a lawsuit from Douglas County taxpayers, the trial court found that the CSP violated the Public School Finance Act of 1994, §§ 22-54-101 to -135, C.R.S. (2014) (“the Act”), as well as various provisions of the Colorado Constitution. The trial court thus permanently enjoined implementation of the CSP. The court of appeals reversed, holding that (1) Petitioners lacked standing to sue under the Act, and (2) the CSP did not violate the Colorado Constitution. Taxpayers for Pub. Educ. v. Douglas Cnty. Sch. Dist., 2013 COA 20, ¶ 4, __ P.3d __. We granted certiorari to determine whether the CSP comports with both the Act and the Colorado Constitution.¹

¶2       We first hold that Petitioners lack standing to challenge the CSP under the Act. We further hold, however, that the CSP violates article IX, section 7 of the Colorado Constitution.² Accordingly, we reverse the judgment of the court of appeals and remand the case to that court with instructions to return the case to the trial court so that the trial court may reinstate its order permanently enjoining the CSP.

I. Facts and Procedural History

A. Background and Logistics of the CSP

¶3       The facts of this case, as found by the trial court following a three-day injunction hearing, are largely undisputed. In March of 2011, the Douglas County School Board approved the CSP for the 2011–12 school year. The CSP operates on parallel tracks: In order to receive scholarship funds, students must not only apply for a scholarship through the District, but they must also gain admittance to a participating private school, labeled a “Private School Partner.” In order to qualify as a Private School Partner, the private school must satisfy certain requirements and must allow Douglas County to administer various assessment tests. The private school need not, however, modify its admission criteria, and the CSP explicitly authorizes Private School Partners to make “enrollment decisions based upon religious beliefs.”

¶4       The CSP funds itself through education revenue that it receives from the State. To accomplish this, the CSP requires scholarship recipients to enroll in the District’s Choice Scholarship Charter School (“the Charter School”), even though they in fact attend private schools. The Charter School is not actually a school in any meaningful sense; the trial court found that it “has no buildings, employs no teachers, requires no supplies or books, and has no curriculum.” But because the Charter School is nominally a public school, the District includes all students “enrolled” at the school as pupils in its report to the State, which then provides education funding to the District on a per-pupil basis.³ For the 2011–12 school year (the year at issue when the trial court conducted the injunction hearing), this per-pupil revenue was estimated at $6,100.

¶5       For each scholarship recipient enrolled at the Charter School, the District retains 25% of the per-pupil revenue to cover the CSP’s administrative costs. The District then sends the remaining 75% of the per-pupil revenue ($4,575 for the 2011–12 school year) to the student’s chosen Private School Partner in the form of a restrictively endorsed check made out to the student’s parent.⁴ The parent must then endorse the check “for the sole purpose of paying for tuition at the Private School Partner.”

¶6       In theory, then, the CSP operates as a simple tuition offset. The District awards money to the parent of a qualifying student, and the parent then uses this money to pay a portion of the student’s tuition. The trial court found, however, that the CSP “does not prohibit participating private schools from raising tuition after being approved to participate in the [CSP], or from reducing financial aid for students who participate in the [CSP].” And in fact, the trial court cited one instance where a Private School Partner slashed a recipient’s financial aid in the amount of the scholarship.⁵

¶7       In the CSP’s pilot phase, up to 500 Douglas County students were eligible to receive scholarships. At the time of the injunction hearing, 271 scholarship recipients had been accepted to one of twenty-three different Private School Partners. The trial court found sixteen of those twenty-three schools to be religious in character. At the time of the hearing, roughly 93% of scholarship recipients had enrolled in religious schools; of the 120 high school students, all but one chose to attend a religious school.⁶

B. The Litigation

¶8         In June of 2011, three months after the Douglas County School Board approved the CSP, Petitioners⁷ filed suit against the Colorado Board of Education (“the State Board”), the Colorado Department of Education, the Douglas County Board of Education, and the District (collectively, “Respondents”). Petitioners sought a declaratory judgment that the CSP violated both the Act and the Colorado Constitution, as well as a permanent injunction prohibiting Respondents from “taking any actions to fund, implement or enforce” the CSP. Following a three-day hearing, the trial court issued a sixty-eight-page order granting Petitioners’ desired relief. The trial court first found that Petitioners had standing to sue under the Act and that the CSP violated the Act. It further found that the CSP violated the following provisions of the Colorado Constitution: article II, section 4; article V, section 34;⁸ article IX, section 3; article IX, section 7; and article IX, section 8.

¶9       Respondents appealed, and in a split decision, the court of appeals reversed. Taxpayers for Pub. Educ., ¶ 4. The court of appeals first determined that Petitioners lacked standing to sue under the Act. Id. at ¶ 22. It then held that the CSP violated none of the pertinent provisions of the Colorado Constitution. Id. at ¶¶ 48, 55, 58, 76, 89, 94, 103. The court of appeals thus directed the trial court to enter judgment in favor of Respondents. Id. at ¶ 107.

¶10       Judge Bernard dissented. In a lengthy opinion, he asserted that article IX, section 7 of the Colorado Constitution “prohibits public school districts from channeling public money to private religious schools.” Id. at ¶ 110 (Bernard, J., dissenting). Judge Bernard then analogized the CSP to “a pipeline that violates this direct and clear constitutional command.” Id. at ¶ 111. Therefore, he concluded that section 7 renders the CSP unconstitutional. Id.

¶11       We granted certiorari review on six distinct issues. See supra ¶ 1 n.1. In essence, however, this dispute revolves around two central questions. First, do Petitioners have standing under the Act to challenge the validity of the CSP (and, if so, does the CSP in fact violate the Act)? Second, does the CSP violate the Colorado Constitution? As a matter of jurisprudential policy, we first address the statutory issue rather than the constitutional issue. See Developmental Pathways v. Ritter, 178 P.3d 524, 535 (Colo. 2008) (“[T]he principle of judicial restraint requires us to ‘avoid reaching constitutional questions in advance of the necessity of deciding them.’” (quoting Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988))). Accordingly, we now consider whether Petitioners have standing under the Act.

II. Standing Under the Act

¶12       Petitioners argue that the CSP fails to comport with the Act because it uses public funds to finance private education. See § 22-54-104(1)(a), C.R.S. (2014) (devising a formula to calculate the amount of money awarded to a school district “to fund the costs of providing public education” (emphasis added)). In order to mount this challenge, Petitioners must first establish that they have standing to sue under the Act. See Ainscough v. Owens,90 P.3d 851, 855 (Colo. 2004) (“Standing is a threshold issue that must be satisfied in order to decide a case on the merits.”). After scrutinizing the Act and reviewing our case law, we conclude that Petitioners lack such standing.

A. Standard of Review

¶13       Standing is a question of law that we review de novo. Id. at 856.

B. The Test for Standing

¶14       In order to establish standing to sue, a plaintiff must satisfy two elements. First, he must show that he suffered an injury in fact; second, he must demonstrate that his injury pertains to a legally protected interest. Wimberly v. Ettenberg, 570 P.2d 535, 539 (Colo. 1977). Assuming, without deciding, that Petitioners here have alleged an injury in fact, we consider whether that injury implicates a legally protected interest.

¶15       In the statutory context, whether the plaintiff’s alleged injury involves a legally protected interest turns on “whether the plaintiff has a claim for relief under” the statute at issue. Ainscough, 90 P.3d at 856. Generally, if the legislature “enact[s] a particular administrative remedy to redress a statutory violation,” that decision “is consistent with a legislative intent to preclude a private civil remedy for breach of the statutory duty.” Allstate Ins. Co. v. Parfrey, 830 P.2d 905, 910 (Colo. 1992). But if the statute “is totally silent on the matter of remedy,” then the court “must determine whether a private civil remedy reasonably may be implied.” Id. To answer this question, the court must examine three factors: (1) “whether the plaintiff is within the class of persons intended to be benefitted by the legislative enactment”; (2) “whether the legislature intended to create, albeit implicitly, a private right of action”; and (3) “whether an implied civil remedy would be consistent with the purposes of the legislative scheme.” Id. at 911.⁹

¶16       With these principles in mind, we now address whether the Act confers a legally protected interest upon Petitioners.

C. The Act Does Not Confer a Legally Protected Interest upon Petitioners

¶17       In order for the Act to confer a legally protected interest, it must authorize a claim for relief, either expressly or impliedly. Petitioners concede that the Act does not explicitly permit a private right of action. The question, then, is whether we can infer such a right from the legislature’s intent. We conclude that we cannot.

¶18       At the outset, we reject Respondents’ contention that the Act houses an “extensive remedial system” that automatically forecloses a private right of action. It is true that, where a statute features particular remedies, we will not imply additional remedies. See, e.g., Capital Sec. of Am., Inc. v. Griffin, 2012 CO 39, ¶¶ 2–3, 278 P.3d 342, 343 (holding that the legislature did not intend to imply a disgorgement remedy for violation of a securities statute because the “statutory scheme adopted by the General Assembly expressly sets forth a number of [other] remedies”); Gerrity Oil & Gas Corp.  v. Magness, 946 P.2d 913, 925 (Colo. 1997) (holding that, because an oil and gas statute only authorized suits for injunctive relief, the legislature affirmatively “chose not to include a private remedy in damages” and that “we will not infer such a remedy”); Bd.  of Cnty. Comm’rs v. Moreland, 764 P.2d 812, 818 (Colo. 1988) (holding that the plaintiff could not sue for violation of a building code in part because different remedies were “specifically provided by the statute authorizing enactment of” the code). But here, the Act features no such explicit remedies. The only language in the Act tangentially relating to the subject of remedy appears in section 22-54-120(1), C.R.S. (2014), which provides that the State Board “shall make reasonable rules and regulations necessary for the administration and enforcement” of the Act. This is generalized language that in no way articulates a particularized enforcement scheme. As such, the Act is materially different from, for example, a statute that authorizes a public entity that purchased unlawful securities to “force the seller to repurchase the securities,” Griffin, ¶ 22, 278 P.3d at 346, or a statute that “clearly permits a private party to seek injunctive relief” for violation of an oil and gas statute, Gerrity Oil, 946 P.2d at 925.¹⁰

¶19       Because the Act features no explicit remedies, we must turn to the three Parfrey factors. Supra ¶ 15. First, it is clear that Petitioners are “within the class of persons intended to be benefitted” by the Act. See Parfrey, 830 P.2d at 911. The Act formally declares that it is designed “to provide for a thorough and uniform system of public schools throughout the state” in accordance with article IX, section 2 of the Colorado Constitution. § 22-54-102(1), C.R.S. (2014). That constitutional provision guarantees that “all [school-age] residents of the state . . . may be educated gratuitously.” Colo. Const. art. IX, § 2. Petitioners are school-age Douglas County children (and their parents), and the Act operates to ensure that they may receive a free public education. Thus, they are the Act’s intended beneficiaries.

¶20       But the second factor—“whether the legislature intended to create, albeit implicitly, a private right of action,” Parfrey, 830 P.2d at 911—is where Petitioners’ claim falters. As we have made clear, “we will not infer a private right of action based on a statutory violation unless we discern a clear legislative intent to create such a cause of action.” Gerrity Oil, 946 P.2d at 923 (emphasis added). Here, nothing in the Act suggests that the General Assembly intended to allow private parties to redress violations of the statute in court. To the contrary, the Act instructs the State Board to “make reasonable rules and regulations” to enforce its provisions. § 22-54-120(1). Although this language does not affirmatively create an administrative remedy, see supra ¶ 18, it nevertheless indicates that the General Assembly contemplated providing a private remedy but ultimately refused to do so, choosing instead to entrust enforcement to the State Board. Cf. Gerrity Oil, 946 P.2d at 925 n.6 (“Inferring a private cause of action . . . every time a person violates the [Oil and Gas Conservation] Act or rules issued thereunder would also be inconsistent with the clear legislative intent that the [Oil and Gas Conservation] [C]ommission have primary responsibility for enforcing the Act’s provisions.” (emphasis added)). Therefore, the Act manifests the General Assembly’s intent that the State Board—not private citizens—be responsible for ensuring its lawful implementation.¹¹

¶21       Similarly, the third factor—“whether an implied civil remedy would be consistent with the purposes of the legislative scheme,” Parfrey, 830 P.2d at 911—also militates against inferring a private right of action. Again, the overarching purpose of the Act is to fulfill Colorado’s constitutional mandate to provide free public education to school-age children. See Colo. Const. art. IX, § 2; § 22-54-102(1). This is a duty of obvious importance, and its execution necessarily requires both the State Board and the Colorado Department of Education (“the Department”) to craft complicated procedures and devise detailed funding formulae. See, e.g., § 22-54-106.5(2), C.R.S. (2014) (directing the Department to calculate an amount to be kept in “fiscal emergency restricted reserve”); § 22-54-114(2), C.R.S. (2014) (requiring the Department to determine funding requirements for each school district); § 22-54-117(1)(a), C.R.S. (2014) (authorizing the State Board to approve payments from the “contingency reserve”); § 22-54-129(6)(a), C.R.S. (2014) (instructing the State Board to “promulgate rules” to effectuate the funding of facility schools). Because both agencies must engage in myriad tasks, they require a degree of flexibility for the Act to function properly. Allowing citizen suits would severely impede this complex process, thereby thwarting the purpose of the legislative scheme. It is inevitable that some members of the public will disapprove of any given government action. But that disapproval does not justify allowing private parties to sue the State Board and the Department for every perceived violation of the Act. Were that the case, these agencies would be paralyzed with litigation from dissatisfied constituents, crippling their effectiveness.

¶22       Finally, we reject Petitioners’ argument that they have taxpayer standing. Generally speaking, taxpayer standing “flows from an ‘economic interest in having [the taxpayer’s] tax dollars spent in a constitutional manner.’” Hickenlooper v. Freedom from Religion Found., Inc., 2014 CO 77, ¶ 11 n.10, 338 P.3d 1002, 1007 n.10 (alteration in original) (quoting Conrad v. City & Cnty. of Denver, 656 P.2d 662, 668 (Colo. 1982)). Thus, although we have recognized that Colorado permits “broad taxpayer standing,” Ainscough, 90 P.3d at 856, the doctrine typically applies when plaintiffs allege constitutional violations. See, e.g., Barber v. Ritter, 196 P.3d 238, 247 (Colo. 2008) (holding that the plaintiffs had “taxpayer standing to challenge the constitutionality of [governmental] transfers of money” (emphasis added)); Conrad, 656 P.2d at 668 (recognizing taxpayer standing because “the plaintiffs [have] alleged injury flowing from governmental violations of constitutional provisions that specifically protect the legal interests involved” (emphasis added)).¹² Expanding taxpayer standing to cases where a plaintiff alleges that the government violated a statute—as Petitioners seek to do here—would effectively nullify the enduring requirement that the statute actually authorizes a claim for relief. See Ainscough, 90 P.3d at 856. This in turn would render superfluous Parfrey’s well-settled three-factor test for divining whether the General Assembly intended to imply a private right of action into a statute. We thus decline to endorse Petitioners’ broad and novel conception of taxpayer standing.¹³

¶23       In sum, we conclude that the General Assembly did not intend to imply a private right of action into the Act and that such a remedy would be inconsistent with the Act’s legislative scheme. Therefore, Petitioners cannot state a claim for relief under the Act, meaning it does not furnish them with a legally protected interest, one of the two prerequisites for standing. See Wimberly, 570 P.2d at 539. Accordingly, we hold that Petitioners lack standing to challenge the CSP under the Act.

¶24       Because Petitioners lack standing, we need not consider whether the CSP in fact fails to comply with the Act. Instead, we now turn to whether the CSP violates article IX, section 7 of the Colorado Constitution.

III. Article IX, Section 7 of the Colorado Constitution

¶25       To resolve whether or not the CSP violates the Colorado Constitution, we first consider the CSP as a whole and conclude that it conflicts with the plain language of article IX, section 7. We then examine our prior decision in Americans United for  Separation of Church & State Fund, Inc. v. State, 648 P.2d 1072, 1074–75 (Colo. 1982)—in which we held that a grant program that awarded money to students attending religious universities did not run afoul of section 7—and we determine that the CSP is distinguishable from the grant program at issue in that case. Finally, we reject Respondents’ argument that striking down the CSP under the Colorado Constitution in fact violates the First Amendment to the United States Constitution. Accordingly, we hold that the CSP violates section 7 and is thus unconstitutional.

A. Standard of Review

¶26       We review the trial court’s determination of the CSP’s constitutionality de novo. See Justus v. State,2014 CO 75, ¶ 17, 336 P.3d 202, 208. When reviewing a statute, we presume that the statute is constitutional, and we will only void it if we deem it to be unconstitutional beyond a reasonable doubt. Id.¹⁴

B. The CSP Conflicts with the Plain Language of Section 7

¶27       The Colorado Constitution features broad, unequivocal language forbidding the State from using public money to fund religious schools. Specifically, article IX, section 7—entitled “Aid to private schools, churches, sectarian purpose, forbidden”— includes the following proscriptive language:

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 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 . . . .

(Emphasis added.) Although this provision uses the term “sectarian” rather than “religious,” the two words are synonymous. See Black’s Law Dictionary 1557 (10th ed. 2014) (defining “sectarian” as “[o]f, relating to, or involving a particular religious sect; esp., supporting a particular religious group and its beliefs”). That section 7 twice equates the term “sectarian” with the word “church” only reinforces this point. Therefore, this stark constitutional provision makes one thing clear: A school district may not aid religious schools.

¶28       Yet aiding religious schools is exactly what the CSP does. The CSP essentially functions as a recruitment program, teaming with various religious schools (i.e., the Private School Partners) and encouraging students to attend those schools via the inducement of scholarships. To be sure, the CSP does not explicitly funnel money directly to religious schools, instead providing financial aid to students. But section 7’s prohibitions are not limited to direct funding. Rather, section 7 bars school districts from “pay[ing] from any public fund or moneys whatever, anything in aid of any” religious institution, and from “help[ing] support or sustain any school . . . controlled by any church or sectarian denomination whatsoever” (emphasis added). Given that private religious schools rely on students’ attendance (and their corresponding tuition payments) for their ongoing survival, the CSP’s facilitation of such attendance necessarily constitutes aid to “support or sustain” those schools. Section 7 precludes school districts from providing such aid.

¶29       Respondents point out that the CSP does not require scholarship recipients to enroll in a religious school, nor does it force participating Private School Partners to be religious. Respondents thus suggest that the CSP features an element of private choice that severs the link between the District’s aid to the student and the student’s ultimate attendance at a (potentially) religious school. It is true that the CSP does not only partner with religious schools; several Private School Partners are non-religious. The fact remains, however, that the CSP awards public money to students who may then use that money to pay for a religious education. In so doing, the CSP aids religious institutions. Thus, even ignoring the pragmatic realities that scholarship recipients face—such as the trial court’s finding that “virtually all high school students” can only use their scholarships to attend religious schools—the CSP violates the clear constitutional command of section 7.¹⁵

¶30       The program’s lack of vital safeguards only bolsters our conclusion that it is constitutionally infirm. Most troubling is that the CSP does not forbid a Private School Partner from raising a scholarship recipient’s tuition (or reducing his financial aid) in the amount of the scholarship awarded. Such conduct would pervert the program’s “offset” approach and would instead result in the District channeling taxpayer money directly to a religious school. As the trial court found, one religious Private School Partner has already engaged in this very behavior.¹⁶

¶31       Respondents nevertheless contend that the plain language of section 7 is not plain at all, but that the term “sectarian” is actually code for “Catholic.” In so doing, Respondents charge that section 7 is a so-called “Blaine Amendment” that is bigoted in origin. See Taxpayers for Pub. Educ., ¶ 62 n.13 (describing Blaine Amendments as “state laws and constitutional provisions which allegedly arose out of anti-Catholic school sentiment”). They thus encourage us to wade into the history of section 7’s adoption and declare that the framers created section 7 in a vulgar display of anti-Catholic animus.

¶32       We need not perform such an exegesis to dispose of Respondents’ argument. Instead, we need merely recall that “constitutional provisions must be declared and enforced as written” whenever their language is “plain” and their meaning is “clear.” People v. Rodriguez, 112 P.3d 693, 696 (Colo. 2005). As discussed, the term “sectarian” plainly means “religious.” Therefore, we will enforce section 7 as it is written.¹⁷

¶33       Accordingly, we cannot square the CSP’s resultant aid of religious schools with the plain language of section 7. Respondents insist, however, that both state and federal case law compel the conclusion that the CSP in fact comports with section 7. We now review this case law, beginning with our decision in Americans United.

C. Americans United Is Distinguishable

¶34       In Americans United, we upheld a grant program that awarded public money to college students who attended religious universities, provided those universities were not “pervasively sectarian.” 648 P.2d at 1074–75. Respondents assert that the present case is “no different” from Americans United, meaning that we must uphold the CSP. Our analysis reveals, however, that the grant program in Americans United diverges from the CSP in numerous critical ways. As such, the outcome of that case is not dispositive of—and indeed has minimal bearing on—the present dispute.

¶35       Americans Unitedrevolved around the Colorado Student Incentive Grant Program (“the grant program”), a scholarship for in-state college students. Id. at 1074. The grant program allowed eligible universities to recommend particular students deserving of scholarships to the Colorado Commission of Higher Education, which in turn administered the grants. Id. at 1075. The Commission awarded the grant money to the university, which then reduced the student’s tuition by the amount of the grant. See id. at 1081 (“The educational institution serves essentially as a conduit for crediting the funds to the student’s account.”). Although the grant program embraced most colleges and universities, it excluded institutions that were “pervasively sectarian,” and it defined six eligibility criteria that schools needed to meet in order not to be branded pervasively sectarian. Id. at 1075. We deemed the grant program to be constitutional, id. at 1074, and Respondents thus contend that we must now reach the same result with the CSP.

¶36       Respondents’ reasoning is flawed. Admittedly, the grant program and the CSP share certain core features; both award public money to students attending religious schools, and both are primarily designed to aid students rather than institutions. But closer scrutiny reveals a crippling defect in Respondents’ argument: The rationales animating our holding in Americans United are inapplicable to this case. That is, in determining that the grant program complied with section 7, we cited several crucial factors. Id. at 1083–84. Those factors are absent here.

¶37       First, we noted in Americans United that the grant program was “designed to assist the student, not the institution.” Id. at 1083. Facially, that is true of the CSP as well. Yet in Americans United, we tethered this observation to the fact that grant recipients could not attend “pervasively sectarian” institutions, noting that this exclusion “obviates any real possibility that the aid itself might somehow flow indirectly to an institution whose educational function is not clearly separable from its religious mission.” Id. at 1081 (emphasis added). Here, that possibility is very real. The CSP places no limitations on the extent to which religion infuses a Private School Partner,¹⁸and it in fact affirmatively authorizes partnering schools to make “enrollment decisions based upon religious beliefs.” Therefore, it is entirely plausible that the CSP gives aid to schools “whose educational function is not clearly separable from [their] religious mission.” See Americans United, 648 P.2d at 1081.

¶38       Second, the grant program only awarded scholarships to students of higher education. Id. at 1084. Recognizing that “as a general rule religious indoctrination is not a substantial purpose of sectarian colleges and universities,” we concluded that “there is less risk of religion intruding into the secular educational function of the institution than there is at the level of parochial elementary and secondary education.” Id. Obviously, this rationale of diminished risk cannot apply to the CSP, which covers not collegiate pupils but elementary and secondary school students.¹⁹

¶39       Third, the grant program aided students who attended both public and private universities. We deemed this to be of critical importance, noting that students’ opportunity to attend public schools “dispell[ed] any notion that the aid is calculated to enhance the ideological ends of the sectarian institution.” Id. Once again, this is not true of the CSP, which only bestows scholarships to students attending private schools.

¶40       Fourth, the grant program explicitly provided that “no institution shall decrease the amount of its own funds spent for student aid below the amount spent prior to participation in the program.” Id. We recognized that this formal prohibition “create[d] a disincentive for an institution to use grant funds other than for the purpose intended—the secular educational needs of the student.” Id. As discussed, supra ¶ 30, the CSP lacks this significant safeguard, and in fact one religious Private School Partner did reduce a student’s financial aid in the amount of the student’s scholarship.

¶41       Finally, in order to be eligible for the grant