Will vouchers arrive in Colorado? The legislature enacts a new voucher law—and the courts say, not so fast

Education Next, Fall, 2004 by Lance D. Fusarelli

In April 2003 the Colorado legislature created a school voucher program that has the potential to become one of the largest in the nation. Initially the number of children eligible for vouchers will be limited to 1 percent of the student population in each of the 11 low-performing school districts targeted by the legislation, or about 3,400 students overall. But by the program's fourth year in operation, when the cap permanently rises to 6 percent, up to 21,000 students statewide could be using state-funded vouchers to attend private and religious schools.

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Coming on the heels of the U.S. Supreme Court's Zelman decision, approving the public funding of religious schooling, Colorado's program was the first enacted without the cloud of a potential First Amendment challenge. Yet that did not inoculate it against a legal attack. Opponents filed suit in May 2003, alleging that the program ran afoul of the Colorado state constitution's guarantee that local school boards "shall have control of instruction in the public schools of their respective districts."

In December a state trial court judge sided with the plaintiffs, ruling that the program violated the state constitution's local control provision by giving Colorado school boards no "input whatsoever into the instruction to be offered by the private schools" that accepted voucher students. In June 2004, the Colorado Supreme Court upheld the lower court's ruling, with the majority holding that the "statewide system of school finance is designed to preserve local control over locally raised tax revenues." The voucher program is on hold unless the state legislature can create a more acceptable funding and regulatory structure for it.

Nevertheless, voucher legislation is under discussion in many states, and Colorado provides an opportunity to examine what it takes to establish a program. Like many controversial yet successful policy initiatives, voucher legislation was enacted in Colorado due to a kind of "perfect storm"--a confluence of unlikely events and trends that came together simultaneously. In Colorado, these factors included a state that has become increasingly Republican and thus receptive to conservative ideology; Republican majorities in the state legislature and a Republican in the state-house; a large, disenfranchised minority community of Latinos with children trapped in low-performing schools; the support of several key Latino business groups, advocacy groups, and elected officials; and a maverick Democrat willing to support a plan he believed would benefit his constituents.

Receptive to Choice

Colorado has long been in the forefront of the school choice movement. In 1993 it became one of the first states to pass legislation enabling the creation of charter schools. Likewise, Colorado offers intra- and interdistrict public school choice statewide. Homeschooling is also an increasingly popular option in Colorado. The widespread adoption of public school choice coupled with the existence of vibrant alternatives to traditional public schools enabled lawmakers to lay the groundwork for vouchers.

However, voucher-type proposals have not been successful in statewide ballot initiatives. In 1992 an initiative that would have provided a voucher to any student, regardless of family income, for use in private schools was defeated by a two-to-one margin. Six years later, a proposal to give tax credits to families who pay tuition for private schooling was defeated by 60 percent of voters.

But with Republicans controlling the state legislature, Bill Owens, the first Republican governor elected in Colorado in 30 years, made it clear that he intended to sign a voucher bill into law during the 2003 legislative session. Throughout his political career, Owens had strongly supported expanded public and private school choice in Colorado, going so far as to publicly endorse pro-voucher candidates for school boards. He was also one of the primary architects of Colorado's strong charter school legislation. Moreover, in the spring of 2004, he signed a bill that will provide state higher education aid directly to students in the form of a voucher for use at the schools of their choice. In the past, aid flowed to the institutions.

Various voucher bills were floated during the 2003 legislative session. Among them, two would have provided tax credits to organizations that made donations to K-12 scholarship programs. These proposals were similar to the programs in Arizona, Pennsylvania, and Florida, but they garnered little support due to hefty price tags and tight state budgets. Senator Ed Jones offered a proposal to create an experimental scholarship program in three school districts--and presented the state senate appropriations committee with a $78,300 check from a special-interest group to fund the plan. But Jones's bill failed to pass the senate.

Support ultimately coalesced around the bill introduced by Republican Nancy Spence, chair of the house education committee. Like the successful legislation in Milwaukee, Cleveland, and Washington, D.C., the Spence bill was sold as a program to help low-income students escape failing schools. It restricted vouchers to students performing at an "unsatisfactory" level in 11 school districts that the state has rated "low" or "unsatisfactory." Parents could enroll their child at a private or religious school with a voucher worth up to 85 percent of the district's per-pupil funding (as much as $4,500). The balance of the per-pupil funding was to remain with the school district. Other districts could opt into the program if the local school board approved--an unlikely outcome.