DENVER (ABP) — Colorado's highest court has ruled unconstitutional a state law that would have set up a school-voucher program, including religious and other private schools.
On a 4-3 vote, the Colorado Supreme Court ruled June 28 that the state's “Colorado Opportunity Contract Pilot Program” violated a state constitutional provision regarding local school boards' control over educational instruction in their districts.
The program was passed by the state legislature and signed into law by Gov. Bill Owens (R) last year. It is the only statewide voucher bill to become law since the United States Supreme Court ruled in 2002 that an Ohio voucher program that included religious schools didn't violate the First Amendment's ban on government support for religion.
Shortly after the Colorado plan was signed into law, a coalition of parents, public-education advocates and civil-liberties groups sued the state. They claimed the program violated a section of the Colorado Constitution that says local school boards “shall have control of instruction in the public schools of their respective districts.”
The state's courts have interpreted that provision in the past to mean that locally raised school-tax revenues should be spent only on instruction controlled by local school boards. The new voucher program would direct both state and local funds for scholarships that would be given to low-income students in public school districts. Those students could then spend the scholarship funds at private schools, including religious academies.
In the majority's opinion, Justice Michael Bender said that provision forced the court to “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.”
While acknowledging that the program was created with the best interests of disadvantaged students in mind, Bender said that wasn't good enough to satisfy the Colorado Constitution's democratic ideals for school boards' authority. “Without control over locally raised funds, the representative body mandated by our state constitution loses any power over the management of public education,” he wrote.
“Irrespective of the fact that the goals of the program and the policy considerations underlying it are laudable, we see no way to reconcile the structure of the program with the requirements of the Colorado Constitution,” Bender continued.
But Justice Rebecca Love Kourlis, writing for the court's dissenters, said that more recent Colorado Supreme Court decisions suggested that the majority was misinterpreting the state's constitution.
“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,” she wrote, adding that “the court has already moved away from” the majority's “strict formulation” of the constitutional provision in question.
Kourlis noted the Colorado Constitution stipulates that local school boards have control over instruction only in the public schools. “School districts — with or without the Pilot Program — are not ultimately responsible for the instruction that students receive at nonpublic schools,” she said.
The ruling leaves legislators the option of crafting a new voucher program that satisfies the constitutional requirements by using only state or federal funds. That may be unlikely anytime soon, since the previous bill passed with a narrow majority and many state legislators are up for re-election in November.
However, if a similar bill passes again, then an attorney for one of the groups that sued Colorado said the coalition would likely file suit on religious-liberty grounds. “If — and it's a big if — the Colorado legislature tries to repass the law looking like the current law … then I feel very strongly that we and others are very likely to file a suit based on the Colorado religion clauses,” said Elliot Mincberg of People for the American Way Foundation.
The state's constitution has a clause that is more explicit than the U.S. Constitution's religion clauses in banning direct or indirect government funding of religion.
“I don't think we'll know until after November,” Mincberg continued. “We're very hopeful that there won't need to be a second lawsuit.”
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