School Choice & Charters

Colo. Judge Puts State’s Vouchers On Hold

By Alan Richard — December 10, 2003 5 min read
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Colorado was set to begin offering school vouchers that could be used in religious schools by next fall. Advocates for school choice were thrilled, and public and private schools had spent months readying themselves. Parents already were choosing new schools for their children.

Then came last week’s state court ruling that froze Colorado’s new voucher law like a Rocky Mountain blizzard.

Judge Joseph E. Meyer III declared the state’s voucher law unconstitutional just months after legislators approved the measure and the governor signed it. Judge Meyer cited constitutional language that gives local school boards control of schools in Colorado, not the state.

Supporters of the Colorado law—the nation’s first state-enacted school voucher program since the U.S. Supreme Court upheld vouchers in Cleveland— promised an immediate appeal.

The Colorado ruling surprised educators already implementing the voucher law, which Republican Gov. Bill Owens signed in April. Up to 20,000 students were expected to use the vouchers within four years (“Gov. Owens Pledges to Sign Colorado Voucher Bill,” April 9, 2003.)

“The program as we know it is at least postponed for one year,” said Glenn Gustafson, the chief financial officer of the 30,000-student Colorado Springs public schools. He said he was disappointed after his district had spent much time and money preparing for the vouchers.

Critics of the law filed suit in May, challenging the vouchers before the first student could use one. They celebrated the outcome, even though the most salient issue over vouchers— whether public money should be allowed to flow into religious schools—wasn’t addressed in the court’s opinion.

“We were confident that the court would see the local-control issue as being very important,” said Jeanne Beyer, a spokeswoman for the 37,000-member Colorado Education Association.

The National Education Association affiliate is not a plaintiff in the lawsuit, but its lawyers argued the case on behalf of individual plaintiffs and groups such as the state PTA, an interfaith alliance, and the National Association for the Advancement of Colored People.

Moving Into Action

Even though lawyers for the state planned a quick appeal, the ruling at least upends delays planning for the vouchers in public and private schools, as several crucial deadlines were just ahead.

“It’s a tragic result, because it brings the program to a grinding halt, and it will make it very difficult if we prevail on appeal to implement the program on the schedule the legislature intended,” said Chip Mellor, the president and chief counsel of the Institute for Justice, a Washington-based legal-advocacy group that represented families who want to use the vouchers.

Parents had until Jan. 1, 2004, to apply for transfers that would allow children from low-income families in Colorado’s 11 largest districts to use $4,500 vouchers to attend private schools. Students who scored in the two-lowest categories on any state test and satisfied income requirements also would have been eligible, regardless of where they lived.

Local school boards had begun determining which private schools met all state laws and could be included in the voucher program, called “Opportunity Contracts.”

School districts were required to alert the public about the vouchers. The Colorado Springs district ran TV and newspaper ads and mailed letters to more than 6,000 families who qualified for vouchers.

Enrollment in the program was limited in the first year to 1 percent of each district’s total number of students, and was capped at 6 percent by 2008. Colorado Springs expected more than 300 students to use vouchers starting in the fall of 2004 and up to 1,800 students within four years.

The district had approved 14 of the 28 private schools that applied for vouchers, Mr. Gustafson said. Some private schools that were rejected did not have sufficient crisis plans, or may not have proved that they had met fire and safety codes, he said.

Most schools that were approved were well- established religious schools, he said. Five schools that had been rejected were appealing the decisions to the state education board. Then came last week’s ruling.

“We’d actually done about 75 percent of the work,” said Mr. Gustafson, who wanted to see how the students might have performed academically in the private schools. “It could have answered the question once and for all: How effective are vouchers?”

The Broader Debate

While plaintiffs pressed for last week’s ruling based on local-control sections in the state constitution, their real problems with the voucher law are much simpler. “We don’t believe that taking tax dollars out of public schools and putting them in private and religious schools is the thing to do,” said Ms. Beyer of the teachers’ union.

The U.S. Supreme Court last year upheld the Cleveland voucher program that allows students in that Ohio city to attend religious or other private schools using state money. But the ruling did not directly address state constitutions, many of which prohibit the flow of public money into religious institutions (“Justices Settle Case, Nettle Policy Debate,” July 10, 2002.)

Many states haven’t sorted out whether vouchers might violate such clauses, often called Blaine amendments. In Colorado, Ms. Beyer said that her state’s constitution has stricter church-state boundaries than a Blaine amendment would.

Meanwhile, the U.S. Supreme Court is considering the reach of such amendments in the appeal of a case in Washington state, where a student was denied a state merit scholarship to pursue a Christian ministry degree at a private college (“High Court Weighs ‘Vouchers II’ Case,” this issue.)

Mr. Mellor, the lawyer who helped defend the Colorado voucher law, said Colorado’s laws resemble Blaine amendments.

“In some states, we’ll have to overcome Blaine amendment arguments, and if we get a chance to do that in Colorado, we expect to prevail,” he said. Only five other states have local-control provisions like Colorado’s, so last week’s ruling means little nationally, he added. “At the same time, the NEA has made it clear that they will use every single state constitutional provision they can find,” Mr. Mellor said, “to challenge every single school choice program that’s enacted.”

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