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Published in Print: July 14, 2004, as Colo. Vouchers Now Back In Political Arena

Colo. Vouchers Now Back In Political Arena

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A recent ruling by the Colorado Supreme Court to uphold a lower-court decision finding the state’s 2003 voucher law unconstitutional could make vouchers a campaign issue in state elections this fall and has stirred fresh speculation about the prospects for such laws nationwide.

A recent ruling by the Colorado Supreme Court to uphold a lower-court decision finding the state’s 2003 voucher law unconstitutional could make vouchers a campaign issue in state elections this fall and has stirred fresh speculation about the prospects for such laws nationwide.

"Colorado has been out in front on this issue, and other states are watching," said Julie Bell, an education program director for the Colorado office of the National Conference of State Legislatures. "[The ruling] is a big blow to other states, who will say: ‘Why go down that road? It’s not worth it politically,’" she said.

The June 28 decision by the high court effectively put the Colorado tuition-voucher effort—which would have been paid for entirely with local tax money—back on the legislative drawing board because there are no further avenues of appeal.

Chip Mellor, the president and general counsel of the Washington-based Institute for Justice, which represented voucher proponents in the case, voiced his disappointment, but argued that the 4-3 ruling—because it hinged on state constitutional grounds—would have no negative impact outside Colorado. He also predicted it would serve as a guide to craft better voucher laws in the future.

But Deborah Fallin, a spokeswoman for the 37,000-member Colorado Education Association, which filed the suit challenging the law, said the court’s decision reaffirmed that local schools should maintain control over public instruction. The voucher program would have stripped Colorado school boards of control over some of their funding, she said.

"The court got it right; the legislature got it wrong," Ms. Fallin said.

Colorado’s law was the only state voucher plan to have been passed since the U.S. Supreme Court upheld the state-enacted Cleveland voucher program in June 2002, according to Ms. Bell. Milwaukee also has a state-adopted program, while Florida provides vouchers for qualifying students around the state. A federally financed voucher plan for the District of Columbia is gearing up for this fall. ("D.C. Voucher Program Signs Up Families," June 23, 2004.)

Campaign Issue?

In Colorado, with the entire House of Representatives and half the Senate up for election in November, legislators are already speculating about how the voucher issue could alter the political landscape there.

Rep. Nancy Spence, the Republican who drafted and sponsored the voucher measure, called the possibility of future voucher laws a "no-brainer." She said she was considering a number of options that would resurrect vouchers in the next legislative session.

"One thing I am is persistent," she said in a recent interview. "I come from upper-west Arapahoe [County], which has some of the best school districts. It’s frustrating that I have to lead the charge for low-income Denver students. The Democrats are supposed to be the advocates of those poor children. What’s wrong with this picture?"

Ms. Spence, who is running for a new seat in the state Senate, said she was undaunted by the possible political ramifications of her advocacy. "It’s unlikely that I’ll be targeted, even though I’m perceived as the ‘voucher lady,’" she said.

Ms. Fallin of the Colorado Education Association said that the CEA, meanwhile, would continue to fight against voucher plans.

"There’s a huge sentiment [toward] dealing with our schools in our communities and not letting those people in Denver tell us what to do," she said, referring to the state capital. "Our constitution is very specific. It does not permit this type of program."

In addition, a recent study by the Education and the Public Interest Center at the University of Colorado at Boulder suggests that a voucher program in the state would be too expensive. The study, "Colorado’s Voucher Law: Examining the Claim of Fiscal Neutrality," concludes that any revised law with eligibility requirements similar to those in the previous law would cost Colorado taxpayers $10 million more than the cost estimates for the pilot program that was just ruled unconstitutional. That program was estimated to cost $4,500 per student for a maximum of 3,200 students.

The Ruling

Writing for the majority in the Colorado Supreme Court’s ruling late last month, Justice Michael E. Bender held that local control was established by the framers of the state constitution to " ‘protect citizens from legislative misbehavior.’ Irrespective of the fact that the goals of the program and the policy considerations underlying it are laudable, we see no way to reconcile the structure of the program with the requirements of the Colorado Constitution."

The law would have eventually allowed up to 20,000 low-income, academically at-risk students attending low-performing schools to receive tuition aid to attend participating private schools, including religious schools. The vouchers would have been paid for with local tax money. The pilot program, which would have involved 11 school districts, was to have taken effect for the 2003-04 school year.

The Colorado Education Association, the state’s largest teachers’ union, challenged the law in court immediately after it was signed into law in April of last year. In December of last year, Denver District Court Judge Joseph Meyer ruled that the law violated local-control provisions and halted implementation of the program.

Five other states—Florida, Georgia, Kansas, Montana, and Virginia—have local-control constitutional provisions similar to the one in Colorado, according to voucher experts. Such provisions ensure that local revenue for education is funneled into programs that are directly overseen by district school boards.

Voucher advocates argue that such provisions are antiquated because education has become more of a state priority. Colorado voucher proponents say they plan to go to the legislature next year to lobby for a voucher program that would be financed directly by the state.

"It’s a simple fix, but not an easy fix," said Clint Bolick, the president and general counsel of the Phoenix, Ariz.-based Alliance for School Choice.

Vol. 23, Issue 42, Pages 25,27

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