Voucher program quashed
In 4-3 ruling, high court says plan diverts control from local school boards

By Nancy Mitchell And John Sanko, Rocky Mountain News
June 29, 2004

Colorado's highest court on Monday effectively killed a K-12 school voucher program projected to become the largest in the nation.

In a 4-3 ruling, the Colorado Supreme Court ruled the state's first voucher program is unconstitutional because it diverts control over classroom instruction - along with local tax dollars - from local school boards.

The decision upholds a similar finding from a Denver district judge in December, when hurried efforts to implement the program by fall 2004 slowed to a halt.

State lawmakers are planning to try again next year to pass a voucher bill.

Gov. Bill Owens, who pushed the issue to the state Supreme Court, also vowed Monday to continue fighting for vouchers.

"It's unfortunate that low-income families whose children have to attend poor-performing schools have to wait to participate in the school choice program," said his spokesman, Dan Hopkins.

The voucher plan, known officially as the Opportunity Contract Pilot Program, would eventually have allowed up to 20,000 poor children with low state test scores in 11 Front Range school districts to use tax dollars to attend private schools.

More than 1,000 children in the Denver and Jefferson County school districts alone had applied to participate before the program went into legal limbo.

Tina Martinez, who has three children in Denver Public Schools, said she is among the parents who were counting on vouchers to improve her kids' education.

"What is going on with these people?" she asked Monday. "Why don't they want the poor kids to get a break in life?"

A coalition of parents, teachers and organizations such as the League of United Latin American Citizens first filed suit against the program in May 2003, less than a month after Owens signed the voucher bill approved by state legislators into law.

The lawsuit, led by legal counsel from the Colorado Education Association, the statewide teachers' union, alleged the program violated eight provisions of the state Constitution, including its prohibition against using public money for religious purposes - such as paying tuition at private religious schools.

But Denver District Judge Joseph Meyer didn't address the religious issue in his December ruling. Instead, he found the program violated the state Constitution by "depriving local school boards of control over instruction in the public schools of their respective districts."

On Monday, four Supreme Court justices agreed. The ruling relies on previous court decisions, dating back to 1915, in which the high court has repeatedly interpreted the state Constitution "to mean that local school districts must retain control over any instruction paid for with locally raised funds," it states.

"Because the Pilot Program was an effort by the state to direct how those locally raised funds would be used, it violated the clear language of the constitution," said CEA attorney Marti Houser.

But Justice Rebecca Love Kourlis, who wrote the dissenting opinion, argued that districts retained control over instruction in their own schools - they simply lost some money because of vouchers. She refused to equate control over funding with control over instruction.

"Legislatures must be innovative and creative in their policy decisions," she wrote. "I see no conflict between the constitution and the Pilot Program."

State Rep. Nancy Spence, R-Centennial, who authored the voucher program, said she will rewrite a voucher proposal to address the court's legal concerns and introduce it during the 2005 General Assembly. On average, 61 percent of a school district's funding in Colorado comes from the state while local taxes pick up the rest.

Spence planned to use Monday's court ruling as a guide in drafting a new plan.

"I can't give up on those kids," she said. "I've been trying to get this passed for three years and the battle is not over by any means."

Houser, the CEA attorney, said it's possible for Spence to create a voucher plan that uses only state, versus local, tax dollars. But she said the CEA would simply challenge the plan on another legal ground, such as the religion issue.

Neither side expects a quick end to Colorado's voucher debate.

"I'm not disheartened by this at all," said Jorge Amaya, director of the pro-voucher Colorado Alliance for Reform in Education. "All this does is give us a clear idea of what we need to do. With every effort, we learn more."

Private and public school officials, though, seem a bit weary of the uncertainty over vouchers.

DPS officials initially relaxed their efforts to implement vouchers after Meyer's ruling - but geared back up with the appeal to the high court and the possibility vouchers could go into effect in August.

"I think it would have been very difficult to implement this for next fall for sure," said DPS Superintendent Jerry Wartgow.

And private school officials, some hoping to reap the financial benefits of vouchers, also have been waiting for the court's ruling.

"We know it's going to affect our enrollment," said Vivian Wilson, administrator of the private Union Baptist Excel Institute in Park Hill. "It could affect us adversely because we did run at a deficit last year."

What the court said

Here are highlights of the Colorado Supreme Court's 33-page ruling and the 23-page dissenting opinion:

• ". . . We hold that the Pilot Program violates the local control requirements of our state Constitution because it directs the school districts to turn over a portion of their locally raised funds to nonpublic schools over whose instruction the districts have no control."

• ". . . If we were now to hold that the constitutional local control requirement does not require control over locally raised funds, we would undermine the rationale of our statewide system of school finance."

Colorado Supreme Court majority opinion

• "Because the school district loses no control whatsoever over the education provided in its public schools, but merely loses some revenue that it would otherwise have, I do not view the program as unconstitutional."

Dissent written by Justice Rebecca Love Kourlis

What's next

• Colorado lawmakers say they'll propose another program, one that addresses the legal concerns, when the General Assembly convenes in January.

• Nationally, a voucher program begins in the fall in Washington, D.C., and vouchers are being used in Milwaukee, Cleveland and Florida.

• State lawmakers in Utah, Missouri, South Carolina and New Jersey are among those set to consider voucher programs in coming months.

mitchelln@RockyMountainNews.com or 303-892-5245


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