Colorado Voucher Program Dealt ‘Temporary Setback’

Published January 1, 2004

A Denver District Court halted Colorado’s fledgling voucher program on December 3, ruling the provision of “Opportunity Contract” scholarships for children to attend private schools violated the right of public school districts under the state constitution to exercise “local control” over instruction. While voucher supporters were dismayed by the decision, the ruling was applauded by the National Education Association (NEA), which took credit for successfully blocking the new law.

“This decision is a victory for the children of Colorado, the state of Colorado, and all of public education,” NEA President Reg Weaver said.

Although the NEA and the Colorado Education Association sponsored the suit, Colorado PTA v. Owens, ostensibly to defend local control of education in Colorado from state-approved vouchers, the NEA defended state control of education from locally approved vouchers in Pennsylvania five years ago. When the Southeast Delco School Board approved district-based vouchers in 1998, it was the NEA that took the lead in mounting a lawsuit to block the board’s exercise of local control.

Colorado Senate President John Andrews (R-Centennial) remained convinced the Opportunity Contracts program was constitutionally sound as well as educationally necessary.

“When you try to move a giant bureaucracy and make it more responsive to the needs of poor kids, you’re going to have setbacks,” he said. “I’m optimistic the bill will be upheld by a higher court in time for these scholarships to begin on schedule next year.”

The Institute for Justice (IJ), which is representing 12 Colorado families in the case, vowed to appeal the decision. The Washington DC-based public interest law firm has been defending school choice nationwide since the creation of the Milwaukee voucher program in 1990 and is working with Colorado Attorney General Ken Salazar to protect the Opportunity Contracts program.

“This is a temporary setback in the battle to provide equal educational opportunity and expand access to good schools for Colorado’s low-income schoolchildren,” said Chip Mellor, the Institute’s president and general counsel. “We are confident Opportunity Contracts will be found constitutional on appeal.”

Within a week of the ruling, the families represented by IJ asked the state supreme court for an expedited review. In addition, IJ and Attorney General Salazar both filed motions on December 9 asking the district court to stay the order and allow the program to continue while on appeal.

“Public schooling is failing my two daughters, and I am afraid of what stopping this program may mean for their future,” said Colorado mother Angelia Teague, who was beginning to evaluate private schools for her twin daughters. “All I want is the same right to choose good schools for my children that more affluent parents enjoy.”

The Program

The Colorado Opportunity Contract Pilot Program, enacted in April 2003 and scheduled to start up in the fall of 2004, made publicly funded vouchers available to low-income, under-achieving students in 11 Colorado school districts. Initially open to about 3,300 children, the program could expand to 20,000 by 2007.

Nonpublic schools are approved for participation in the program by the local board, which makes an administrative determination if a nonpublic school meets the program’s statutory standards. These standards include providing “a description of the school’s educational philosophy and curriculum,” prohibiting the teaching of “hatred of a person or a group,” and administering statewide assessments.

Although the plaintiffs in the suit made a number of arguments against the voucher program, the only argument District Court Judge Joseph E. Meyer III found convincing was the one asserting the school choice program violated the state constitution’s provisions regarding local control of education.

Article IX of the Colorado Constitution requires the General Assembly to provide for “a thorough and uniform system of free public schools throughout the state.” Section 15 of the article provides for the establishment of school districts and boards of education with elected directors who “shall have control of instruction in the public schools of their respective districts.”

“I see no way to interpret the voucher program statute in a way that does not run afoul of the principle of local control embodied in section 15,” declared Meyer.

According to the Colorado Supreme Court, “local control provides each district with the opportunity for experimentation, innovation, and a healthy competition for educational excellence.” That local control is brought about by financing part of the cost of public schools with local property taxes.

Previous Decisions

In reviewing previous Colorado Supreme Court decisions, Meyer found section 15 had been interpreted as requiring local boards to have significant control over the funding of instruction for district students. In a 1999 summary of its own decisions on section 15, the state supreme court concluded, “control of instruction requires substantial discretion regarding the character of instruction that students will receive at the district’s expense.”

In reviewing the new voucher program, Meyer found its goals “laudable” and admitted it may be an effective means of addressing educational disparities.

“However, even great ideas must be implemented within the framework of the Colorado Constitution,” he concluded. “By stripping all discretion from the local district over the instruction to be provided in the voucher program, the General Assembly has violated Article IX, Section 15.”

Locally Approved Vouchers

In March 1998, Pennsylvania’s Southeast Delco School Board adopted a locally initiated voucher plan. The aim of the plan was to promote parental choice, reduce overcrowded schools, and save taxpayer dollars by avoiding having to build additional schools for students who increasingly were transferring from non-district schools to district schools. Although district residents were generally supportive of the plan, the NEA and other parties filed a challenge to the program, claiming it exceeded the school board’s authority.

In late December 1999, the Commonwealth Court of Appeals ruled 7-0 that the Southeast Delco School Board lacked authority under Pennsylvania state law to implement a district-funded voucher plan. The ruling suggests that, in Pennsylvania at least, the state legislature needs only to modify the State School Code to give local school districts the authority to institute their own voucher programs.

George A. Clowes is managing editor of School Reform News. His email address is [email protected].

For more information …

The December 3, 2003 ruling of the Denver District Court on Colorado’s Opportunity Contracts program is available online at

The December 23, 1999 ruling of the Commonwealth Court of Appeals on the Southeast Delco voucher program is available online at

A November 1998 report on “School District Based Vouchers” by David W. Kirkpatrick is available online at

A May 20, 2003 summary report for Congress from the Congressional Research Service, “Education Vouchers: Constitutional Issues and Cases,” by David M. Ackerman, is available online at