In Narrow Ruling, Colorado Supreme Court Halts School Choice

John Kramer
John Kramer · June 28, 2004

Washington, D.C. –In a narrow ruling issued this morning, the Colorado Supreme Court halted the state’s groundbreaking school choice program, striking it down under the “local control” provision of the Colorado Constitution. The Court in a sharply divided 4-3 decision determined that since the Opportunity Contract program was to be funded in part with local tax dollars, local districts must have control over the instruction paid for with those dollars.

In a strongly worded dissent, Justice Rebecca Kourlis countered that claim, writing, “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 continued, “The language of the constitution itself does not in any way preclude the Pilot Program. Instead, the only support for that conclusion arises out of cases that responded to educational dilemmas entirely different from those faced today—cases that this court has already discounted in its more recent pronouncements.”

The Institute for Justice, the nation’s leading legal advocate for school choice, issued the following statements:

“We are extremely disappointed that disadvantaged Colorado families must continue to wait for the opportunity to select good schools for their children,” said Chip Mellor, president and general counsel of the Institute for Justice. IJ represents 12 Colorado families defending Opportunity Contracts. “Their futures are thrown into doubt with this ruling.”

The Opportunity Contract program would have enabled low-achieving, high-poverty students to opt out of public schools in low-performing Colorado school districts and select qualified private schools instead.

“While disheartening, the Court’s decision was a narrow one that fortunately provides a clear roadmap for designing a constitutional school choice program in Colorado,” Mellor added. “This decision does not touch the merits of school choice as a means to provide desperately needed educational options to children trapped in low-performing public schools.”

“IJ and the families we represent call on the state Legislature to quickly pass new legislation that follows the Court’s guidelines,” said Mellor.

“This decision is horrible for kids like mine here in Colorado,” said Patsy Hill, a Denver mother of two. “It’s just absurd for parents to not have a choice of where to send their children to school, especially those who aren’t getting a good education in the public schools. This decision—by one vote—shows that not enough people are taking the future of our children seriously.”

“The original Opportunity Contract program was the work of an incredibly dedicated and diverse coalition that brought together leaders from the Latino and African-American communities, political and business leaders and grassroots support from across political and social divides,” said Mellor. “We are confident they will not be deterred in their quest for equal educational opportunity.”

“This unfortunate ruling will not stop the nationwide momentum and growing grassroots support for school choice,” Mellor added. Only five other state constitutions contain “local control” provisions, and Colorado’s is by far the most restrictive. “Nationwide, more than 31,000 children currently exercise school choice, and more than a thousand in the District of Columbia are set join them this fall through a new program in the nation’s capital. The demand and support for choice has never been greater.”