Taxpayers for Public Education v. Douglas County School District

2015 CO 50, 351 P.3d 461, 2015 Colo. LEXIS 589, 2015 WL 3948220

• Court: Supreme Court of Colorado
• Decided: June 29, 2015
• Docket: Supreme Court Case 13SC233
• Status: Published

Opinions

CHIEF JUSTICE RICE

announced the judgment of the Court.

{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 -185, 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

12 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

T3 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.

15 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."

T 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

T7 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 98% 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

T8 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 8; article IX, section 7; and article IX, section 8.

T9 Respondents appealed, and in a split decision, the court of appeals reversed. Taxpayers for Pub. Educ., 14. The court of appeals first determined that Petitioners lacked standing to sue under the Act. Id. at 122. It then held that the CSP violated none 'of the pertinent provisions of the Colorado Constitution. Id. at 11 48, 55, 58, 76, 89, 94, 108. The court of appeals thus directed the trial court to enter judgment in favor of Respondents. Id. at % 107.

T10 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 T 110 (Bernard, J., dissenting). Judge Bernard then analogized the CSP to "a pipeline that violates this direct and clear constitutional command." Id. at 1111. Therefore, he concluded that section 7 renders the CSP unconstitutional. Id.

111 We granted certiorari review on six distinct issues. See supra T1 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) ("[The 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, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988))). Accordingly, we now consider whether Petitioners have standing under the Act.

II. Standing Under the Act

112 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

113 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, 194 Colo. 163, 570 P.2d 535, 539 (1977). Assuming, without deciding, that Petitioners here have alleged an injury in fact, we consider whether that injury implicates a legally protected interest.

115 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 (8) "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

T 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 eannot.

$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

119 Because the Act features no explicit remedies, we must turn to the three Parfrey factors. Supro 115. First, it is clear that Petitioners are "within the class of persons intended to be benefitted" by the Act. See Parfrey, 880 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.

120 But the second factor-"whether the legislature intended to create, albeit implicitly, a private right of action," Parfrey, 880 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 118, 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. CL. 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] [Clommission 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

121 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, eg., § 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.

122 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, eg., 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.

4 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.

IH. Article IX, Section 7 of the Colorado Constitution

125 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.

126 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

127 The Colorado Constitution features broad, unequivocal language forbidding the State from using public money to fund religious schools. Specifically, article IX, seetion 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 "[olf, 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 T's prohibitions are not limited to direct funding. Rather, section 7 bars school districts from "payling] 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 CSPs 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 Dis-triect'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

T 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

131 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., 1 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 T's adoption and declare that the framers created section 7 in a vulgar display of anti-Catholic animus.

132 We need not perform such an exegesis to dispose of Respondents' argument. Instead, we need merely recall that "constitutional provisions must be déclared 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

133 Accordingly, we cannot square the CSPs 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

134 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.

135 Americans United revolved 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. f

{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 erippling 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.

137 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,¹⁸ and 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

139 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. Onee 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, supro 180, 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.

141 Finally, in order to be eligible for the grant program, a university's governing board could not "reflect" a particular religion, nor could its membership be "limited to persons of any particular religion." Americans United, 648 P.2d at 1075. We noted that this restriction "militate[d] against the type of ideological control over the secular educational function" that section 7 forbids, particularly because it "require[d] a strong commitment to academic freedom by an essentially independent governing board with no sectarian bent in the curriculum tending to indoctrinate or proselytize." Id. at 1084. Because the CSP willingly partners with private schools that reflect a particular religion, this rationale from Americans United is wholly inapplicable here.

42 All told, although the grant- program and the CSP feature surface similarities, they are two highly distinct scholarship programs. Therefore, because our analysis in Americans United relied heavily on elements of the grant program that are missing from the CSP, that analysis is of minimal relevance in our quest to determine the CSP's constitutionality.

{43 Accordingly, we reject Respondents' argument that Americans United requires us to uphold the CSP. Having done so, we now turn to Respondents' assertion that invalidating the CSP in fact violates the First Amendment.

D. Invalidating the CSP Does Not Violate the First Amendment

144 The First Amendment to the United States Constitution provides in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Respondents contend that several federal cases interpreting the First Amendment constitute binding case law forbidding us from striking down the CSP. In particular, Respondents cite the U.S. Supreme Court's decision in Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), and the Tenth Circuit's opinion in Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir.2008).²⁰ We conclude that neither of these cases is availing.

T45 In Zelman, the Court held that an Ohio scholarship program ("the Ohio program") that allowed students to attend religious schools did not violate the First Amendment's Establishment Clause. 586 U.S. at 644-45, 122 S.Ct. 2460. The Court noted that the Ohio program was "entirely neutral with respect to religion" and that it was "a program of true private choice" because it allowed students and parents "to exercise genuine choice among options public and private, secular and religious." Id. at 662, 122 S.Ct. 2460. Respondents assert that the CSP bears "striking similarities" to the Ohio program, meaning that Zelman controls the outcome here.

146 Had Petitioners claimed that the CSP violated the Establishment Clause, Zelman might constitute persuasive authority. But they did not. Rather, Petitioners challenged the CSP under article IX, section 7 of the Colorado Constitution. By its terms, section 7 is far more restrictive than the Establishment Clause regarding governmental aid to religion, and the Supreme Court has recognized that state constitutions may draw a tighter net around the conferral of such aid. See Locke v. Davey, 540 U.S. 712, 721, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004) ("[The subject of religion is one in which both the United States and state constitutions embody distinct views.... That a State would deal differently with religious education for the ministry than with education for other callings is a product of these views, not evidence of hostility toward religion.").²¹ As such, Zelman's reasoning, rooted in the Establishment Clause, is irrelevant to the issue of whether the CSP violates section 7. |

1 47 Furthermore, Zelman is factually distinguishable. To begin with, unlike the CSP, the Ohio program allowed students to attend public schools as well as private schools. Zelman, 536 U.S. at 645, 122 S.Ct. 2460. More importantly, the Ohio program forbade participating private schools from discriminating on the basis of religion. Id. Not only does the CSP fail to prohibit this form of discrimination-it actively permits Private School Partners to engage in it.

148 Colorado Christian is even less germane. In that case, the Tenth Circuit considered the legality of Colorado's scholarship programs-including the very grant program at issue in Americans United-and struck them down as violative of the First Amendment for two reasons. 534 F.3d at 1250, 1263. First, the court held that the programs' exclusion of "pervasively sectarian" institutions constituted religious discrimination. Id. at 1258, 1260. This holding is simply inconsequential to the legality of the CSP, which does not distinguish among religious schools. If anything, this conclusion merely erodes the strength of Americans United, as it invalidates the same program that Americans United upheld.

149 Second, the Tenth Circuit held that the statutory inquiry into whether a university qualified as "pervasively sectarian" involved impermissibly "intrusive judgments regarding contested questions of religious belief or practice." Id. at 1261. In particular, the Tenth Circuit noted that courts may not "troll{ ] through a person's or institution's religious beliefs." Id. (quoting Mitchell v. Helms, 530 U.S. 793, 828, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000) (plurality opinion) (describing the inquiry into whether a school is "pervasively sectarian" to be "not only unnecessary but also offensive")). Respondents contend that the trial court engaged in such improper conduct when it found as a factual matter that sixteen Private School Partners are religious.

150 Had the trial court actually conducted such an invasive inquiry, Respondents' argument might carry foree. Yet the trial court did not "troll through" the beliefs of any institution. Rather, it simply took notice of the Private School Partners' basic characteristics. For example, the trial court cited various schools' ownership structures {(many are formally controlled by churches or dioceses), their' admissions policies (several only admit students of a particular faith), and their formal mission statements, all of which school officials corroborated when testifying at the injunction hearing. In conducting this cursory examination, the trial court reached the self-evident and undisputed conclusion that certain Private School Partners are in fact religious.²² We recognize that a court may not trespass into the depths an institution's religious beliefs. But there is a categorical difference between inquiring into the extent of an institution's religiosity and determining its existence.²³ To suggest that the trial court here could not even acknowledge that the CSP resulted in partnerships between the District and religious schools would require the court to be willfully blind to the plain realitiese-and the corresponding constitutional deficiencies-of the program.

T51 Accordingly, we conclude that both Zelman and Colorado Christian are inappo-site to the present case. Therefore, our decision that the CSP violates section 7 does not encroach upon the First Amendment.

IV. Conclusion

152 Article IX, section 7 of the Colorado Constitution prohibits school districts from aiding religious schools. The CSP has created financial partnerships between the District and religious schools and, in so doing, has facilitated students attending such schools. This constitutes aid to religious institutions as contemplated by section "7. Therefore, we hold that the CSP violates section 7. 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.

JUSTICE MARQUEZ 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 . Specifically, we granted certiorari on the following issues:

1. [REFRAMED] Whether the court of appeals erred by restricting Colorado's standing doctrine when it held that the Public School Finance Act of 1994's ("the Act") mere grant of authority to the State Board to issue rules and regulations necessarily deprives [Petitioners] of standing and precludes any private action to enjoin [the District] from violating the Act.

2. [REFRAMED] Whether the [CSP] violates the Act by including 500 Program students "enrolled" in an illusory Charter School who actually attend private schools in the District and elsewhere in the District's student count for funding.

3. [REFRAMED] Whether the court of appeals erred in ruling that the [CSP] is entitled to a presumption of constitutionality under article IX, section 3, that can only be rebutted by proof of unconstitutionality "beyond a reasonable doubt," and therefore concluding that fund monies were not spent on the [CSP], notwithstanding the trial court's factual finding to the contrary.

4. Whether the [CSP] violates article IX, section 7, of the Colorado Constitution by diverting state educational funds intended for Douglas County public school students to private elementary and secondary schools controlled by churches and religious organizations.

5. Whether the [CSP] violates the compelled- © support and compelled-attendance clauses of article II, section 4, of the Colorado Constitution by directing taxpayer funds to churches and religious organizations, and by compelling students enrolled in a public charter school to attend religious services.

6. Whether the [CSP] violates article IX, section 8, of the Colorado Constitution by requiring students who are enrolled in a public charter school, and counted by Douglas County as public school students, to be taught religious tenets, submit to religious admission tests, and attend religious services.

2 . Because we conclude that the CSP violates section 7, we need not consider whether it complies with the other constitutional provisions at issue.

3 . See, eg., §§ 22-54-103 to -104, C.R.S. (2014).

4 . If the Private School Partner's tuition is less than 75% of the per-pupil revenue, the District sends a check for the lesser amount.

5 . The District's Assistant Superintendent of Elementary Education testified that he was unaware of this incident. He further asserted that if a Private School Partner reduced a recipient's scholarship amount in such a manner, such an action would ""go against the intended contract" of the CSP.

6 . The trial court found that "virtually all high school students" who received scholarships could only attend religious schools, as the only two non-religious Private School Partners serving high school students were restricted to either gifted or special-needs students.

7 . Petitioners include Taxpayers for Public Education, a nonprofit organization focused on public education; several Douglas County taxpayers and their children; and various other interested parties.

8 . Petitioners did not seek review of whether the CSP violates article V, section 34.

9 . We recognize that Parfrey's three-factor test applies nominally to suits against private parties, see 830 P.2d at 911, and that we have never formally announced a test to determine whether a statute impliedly authorizes a claim for relief against a public entity. Our court of appeals, however, has repeatedly used a virtually identical test in the governmental context. See, eg., Macurdy v. Faure, 176 P.3d 880, 882 (Colo.App.2007) (examining the Parfrey factors in holding that the plaintiff could not sue a county coroner for failing to perform a statutorily required autopsy); Olson v. City of Golden, 53 P.3d 747, 752 (Colo.App.2002) (examining three criteria indistinguishable from the Parfrey factors in holding that the plaintiff could not sue the city for violating an urban renewal law). Because the Parfrey factors revolve around the touchstone of legislative intent-and because they make no qualitative distinction regarding the character of the defendant in a particular suit-they are applicable to the facts of this case.

10 . Respondents point out that, pursuant to section 22-54-120(1), the State Board enacted a number of regulations, see 1 CCR 301-39:2254-R-1.00 to -20.00, and they argue that these regulations house exclusive administrative remedies. But regulations are not statutes-they are not crafted by the General Assembly. Thus, that the State Board possessed legislative authority to enact regulations does not transform those regulations into a Rosetta stone that allows us to decipher the General Assembly's intent.

11 . Petitioners assert that the State Board in fact colluded with Douglas County in implementing the CSP. Thus, in Petitioners' view, the State Board abdicated its statutorily delegated responsibility to enforce the Act, meaning it now falls to them to force the Board to properly execute its duties. Putting aside the veracity of Petitioners' collusion claim (which Respondents naturally dispute), Petitioners cite no authority suggesting that the State Board's hypothetical failure would automatically confer standing on private parties.

12 . For this reason, Respondents do not dispute that Petitioners have standing to assert their claims that the CSP violates the Colorado Constitution.

13 . Despite Petitioners' insistence, our analysis here in no way conflicts with our opinion in Dodge v. Department of Social Services, 198 Colo. 379, 600 P.2d 70 (1979). In that case, we held that the plaintiffs had "standing to litigate the issue of whether ... [the government has] the statutory authority to use public funds for nonth-erapeutic abortions." Id. at 72 (emphasis added). But the plaintiffs in Dodge did not argue that the government had violated a particular statute; rather, they claimed that no statute authorized the government's behavior. See id. at 71. Thus, Dodge has no bearing on the issue of whether a plaintiff has a claim for relief under a particular statute.

14 . Petitioners argue that this presumption of constitutionality should not apply here because the CSP is a creation of a local school board rather than a statute passed by the General Assembly. Because we conclude that the CSP is unconstitutional even in light of the presumption, we need not consider this argument.

15 . Respondents present a parade of horribles, arguing that any decision striking down the CSP will produce ripple effects invalidating other public-private partnerships across the state where public money flows to religious schools. But the constitutionality of those programs is not at issue here, and the record contains no data regarding their operation. Therefore, we choose to focus our analysis solely on the CSP.

16 . The court of appeals dismissed this incident, highlighting the superintendent's testimony that such conduct "would be in violation of the CSP" and noting that the trial court "cited no evidence supporting a conclusion that such [a] reduction was permissible under the CSP." Taxpayers for Pub. Educ., 170. But this analysis inverts the issue. The problem is not that the CSP declares such a reduction to be permissible (it does not); it is that the program does not make such reductions impermissible.

17 . We note that Respondents' suggestion that "sectarian" literally means "Catholic" is tantamount to an attack on section 7's constitutionality, as the provision would patently violate the First Amendment if it discriminated against a particular religion. But the constitutionality of section 7 is not before us. And Respondents' attempted evasion of this procedural obstacle-they claim that they are not challenging section 7 itself but rather Petitioners' interpretation of it-is little more than a Trojan horse inviting us to rule on the actual legitimacy of section 7. We decline such an invitation.

18 . We do not suggest, of course, that grafting such limitations onto the CSP would necessarily render it compliant with section 7, or would even comport with the First Amendment. See infra 148 (discussing Colorado Christian University v. Weaver, 534 F.3d 1245, 1250, 1263 (10th Cir.2008), which held that the "pervasively sectarian" distinction in Colorado's scholarship programs violated the First Amendment). Regardless, Petitioners do not seek to rewrite the CSP so that it excludes religious schools (pervasively sectarian or otherwise); they simply desire a court order enjoining implementation of the CSP in its entirety.

19 . Again, we do not imply that the CSP would necessarily be constitutional if it pertained to college students. We simply point out that a linchpin of our analysis in Americans United is irrelevant here.

20 . Respondents also rely on Mitchell v. Helms, 530 U.S. 793, 829, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000), in which a plurality of the Court held that a law that indirectly aided religious schools did not violate the Establishment Clause because it "determine[d] eligibility for aid neutrally, allocate[d] that aid based on the private choices of the parents of schoolchildren, and [did] not provide aid that ha[d) an impermissible content." Because Mitchell was a plurality opinion, it is not binding precedent. We thus decline to ascribe to it the force of law.

21 . For their part, Petitioners contend that Locke demonstrates the patent invalidity of the CSP. But this too is incorrect. Locke held that a state scholarship program that excluded students who were pursuing a degree in devotional theology did not violate the First Amendment. 540 U.S. at 715, 124 S.Ct. 1307. It said nothing about the constitutionality of a program that allowed stu- " dents to attend religious schools. Thus, Locke's facts are inverted from those of the present case.

22 . Indeed, the very name of fifteen of the sixteen religious Private School Partners features a word-such as "Catholic," "Christian," "Hillel," "Jesuit," or "Lutheran'"-that clearly announces the school's religious affiliation.

23 . As Petitioners point out, courts are often required to conduct such basic inquiries into the existence of religion. See, eg., Maurer v. Young Life, 779 P.2d 1317, 1331 (Colo.1989) (analyzing an entity's claim that certain properties "qualified for [a tax] exemption based on use for religious worship and reflection" (emphasis added)).