Courts reject vouchers for different reasons

Some key differences between the 2003 state law and the 2011 district plan:

• The 2003 law would have required 11 districts with the most low-performing schools, as defined by the state accountability system, to offer vouchers to children from low-income families.
• A Denver judge found the law violated the “local control” clause of the state constitution, which vests control of instruction to locally elected school boards, and the Colorado Supreme Court agreed. Though religious private schools applied to participate, the courts did not address any aspect of religion.
• The 2011 effort, created by a single district school board, did not consider income of families or performance of schools. It opened up 500 seats to Dougco students – a lottery was held when applications surpassed that number – to any participating private school. Most were religious.
• A Denver judge found the program violated five provisions of the state constitution, including a prohibition against funding religious institutions, as well as the state School Finance Act.

What the judge in 2011 did not find was a violation of the “local control” provision of the constitution.

Role of religion in voucher legal rulings

Voucher supporters helped write the 2003 law after a 2002 U.S. Supreme Court ruling upheld a Cleveland voucher plan for low-income families that included religious schools.

The nation’s highest court said the plan was religion neutral, because both religious and non-religious schools were included and because it was up to parents to decide how to spend their voucher dollars.

The case, Zelman v. Simmons-Harris, was widely heralded by voucher supporters because it essentially said the Establishment Clause of the federal constitution – widely viewed as creating a wall of separation between church and state – did not preclude vouchers for religious schools.

Religious schools make up a large portion of private schools and, without them, voucher programs are unlikely to be successful.

But the Colorado Constitution – and those of other states – is more specific in its prohibition of public funding for religious institutions. At least, that’s how Denver District Judge Michael Martinez interpreted the issue in his Aug. 12, 2011 decision.

“This court is not prepared to mandate that Colorado taxpayers fund private religious education,” the judge wrote, noting the voucher plan “violates both financial and religious provisions” of the Colorado Constitution.

Venue for ‘90s voucher efforts was state ballot

Prior to 2003, voucher supporters focused on statewide ballot measures in their efforts to help families use public funding to attend private schools.

In 1992, they backed Amendment 7, which would have created the nation’s first statewide voucher system allowing all parents to choose among public and private schools. Parents educating their children at home also would have been eligible.

Under the plan, each child would have been assigned a voucher worth half the annual cost of education in his or her school district. Parents could have taken the vouchers – averaging $2,100 to $2,500 per child – to any school and the state would have reimbursed the school for each voucher received.

State budget officials estimated vouchers would have cost at least $84 million in state money its first year based on the 44,000 students attending private or home schools that year.

Colorado voters defeated the measure 2-to-1.

In 1998, voters also soundly defeated Amendment 17, which would have allowed parents to claim tax credits of up to $2,500 toward their students’ tuition in the private school of their choice.