Denver District Court to Hear Oral Arguments On Colorado School Choice Program

John Kramer
John Kramer · November 12, 2003

Washington, D.C. –The Denver District Court will hear oral arguments today in a case that could decide whether low-income Colorado families will be set free to choose quality private schools for their children.

The case pits lawyers for teachers’ unions and other special interest groups against the Colorado Attorney General and 12 low-income families represented by the Institute for Justice. The unions and their allies are suing the State to block the Opportunity Contract program, the nation’s first new school choice program since the U.S. Supreme Court upheld choice in Cleveland in 2002. The Honorable Joseph E. Meyer III will hear the case at 1:30 p.m. in Courtroom 18 of the Denver District Court at 1437 Bannock Street.

“The Opportunity Contract program is the latest in a long line of vital education reforms undertaken by the State to meet the increasingly complex needs of Colorado schoolchildren,” said Chip Mellor, president and general counsel of the Washington, D.C.-based Institute for Justice, which has defended school choice programs nationwide. “Opportunity Contracts will play a critical role in fulfilling the promise of equal educational opportunity granted to all American schoolchildren in Brown v. Board of Education, and we are confident the court will not find the Colorado Constitution a barrier to meaningful education reform.”

In the opening round of litigation, choice opponents allege that the program violates two arcane and technical provisions of the Colorado Constitution. The first bars “special legislation” that singles out one entity for special benefits or burdens. They claim the 11 failing school districts targeted for Opportunity Contracts are unreasonably singled out for a special burden.

But the true target of the legislation is the thousands of families who will benefit from school choice. The point of barring special legislation is to prevent the legislature from playing favorites rather than setting broad and neutral law. Accordingly, the Opportunity Contract pilot program sets neutral and widely applicable criteria for student participation. (Similarly, the legislature established broad, neutral criteria for school district participation, and additional districts may easily opt-in.) Moreover, the 11 participating districts face no additional burden: a financial analysis by the Colorado Legislative Council Staff finds that districts will actually end up with a net gain in per-pupil funds over the life of the pilot program.

The second claim argues that the program is unconstitutional because it removes instruction in public schools from the control of local school districts. But the Opportunity Contract program does not at all threaten the control of local school boards over instruction in public schools; in fact, it gives districts an active role in the program by selecting participating private schools and administering state tests to choice students. Moreover, state courts have approved a long line of recent legislative initiatives designed to equalize educational opportunity in Colorado—charter schools, public school choice, magnet schools and special education programs—without fear that they impair the authority of local school districts.

As IJ’s brief argues, “It would be a perverse consequence indeed if judicial decree elevated school district hegemony over the interests of schoolchildren, and frustrated the state’s effort to provide additional educational opportunities to failing kids in failing schools.”

Pending the outcome of today’s hearing, Judge Meyer will next take up the remaining four counts alleged by the unions and their allies. They contend that the program violates the Colorado Constitution by using public funds to support religious institutions—even though parental choice funding supports the education of children, not institutions.

“Each child learns differently and the public schools do not teach children effectively who do not fit their standard model of instruction,” said Patsy Hill, a Denver mother who intends to use Opportunity Contracts to send her sons Jonathan and Antonio to a private school. “From my experience, the private schools can provide the structure and order my sons need to learn and to succeed in life.”

IJ represents 12 Colorado families in its defense of Opportunity Contracts. Six of the families are from Colorado Springs, and six from Denver—all hope to use Opportunity Contracts to secure a better education for their children than they currently receive.

In addition to helping win a victory in the U.S. Supreme Court for school choice when it represented parents participating in Cleveland’s school choice program, IJ also successfully defended vouchers in Milwaukee and tax credits in Illinois and Arizona. IJ is currently defending Florida’s groundbreaking Opportunity Scholarships program and is fighting state-based barriers to choice in Maine and Vermont.