Colo. Supreme Court Strikes Down Voucher Law

By Marianne D. Hurst — June 29, 2004 3 min read
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The Colorado Supreme Court has upheld a lower-court ruling that concluded a voucher law passed by the state legislature in April 2003 was unconstitutional because it interfered with local-control provisions.

The June 28 decision by the high court effectively puts the voucher effort—which would have been paid for entirely with local taxpayer dollars—back on the legislative drawing board because there are no further avenues of appeal.

“We’re obviously disappointed,” said Chip Mellor, the president and general counsel for the Washington-based Institute for Justice, which represented voucher proponents in the case.

Still, he argued, the 4-3 ruling—because it hinged on state constitutional grounds—will have no negative impact outside Colorado, and will serve as a guide to craft better voucher laws in the future.

Deborah Fallin, a spokeswoman for the 37,000-member Colorado Education Association, which filed the suit challenging the law, said that the outcome 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.

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

The Ruling

Writing for the majority, Colorado Supreme Court 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, which would have allowed 20,000 low-income, at-risk students attending low-performing schools to receive $4,500 each in tuition aid to attend participating private schools, was the first state voucher plan to be passed after the U.S Supreme Court ruled in favor of the state-enacted Cleveland voucher program in June 2002. (“Justices Settle Case, Nettle Policy Debate,” July 10, 2002.)

The vouchers would have been paid for with local taxpayer dollars, which would have been given to parents to pay for private school tuition. The pilot program, which would have involved 11 school districts, never got off the ground.

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

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

Voucher advocates, however, argue that such provisions are antiquated because education has become more of a state priority. Colorado voucher advocates plan to go to the legislature next year to lobby for a voucher bill that would be funded directly by the state, bypassing local control.

“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. He acknowledged that funding the law with state dollars would not have been possible in 2003 because of budget constraints.

Voucher Battles Ahead

But now, with Colorado experiencing some fiscal recovery, Mr. Bolick is more confident. “The odds are very good that we will see a similar program back next year,” he predicted.

Ms. Fallin of the Colorado Education Association, however, said that the CEA 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. “Our constitution is very specific. It does not permit this type of program.”

Proponents say they are optimistic about the future of vouchers in Colorado.

“The bottom line in Colorado is that this is a delay, not a denial,” said Mr. Bolick. “The downside for the unions is that this is correctable.”


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