Colorado Supreme Court to Decide Future of School Choice Program

John Kramer
John Kramer · May 25, 2004

Washington, D.C.–The Colorado Supreme Court will hear oral arguments today in a case that will decide the educational fates of thousands of low-income Colorado families who wish to use the state’s Opportunity Contract program. Poised to become the nation’s largest voucher program, Opportunity Contracts would allow families currently attending substandard public schools to choose quality private schools for their children.

Lawyers for the Colorado Education Association, the National Education Association and other special interest groups sued to block the program last year shortly after it was passed by the Colorado Legislature. In December, Denver District Judge Joseph E. Meyer III struck down Opportunity Contracts as a violation of the “local control” provision of the Colorado Constitution, saying the law removed too much authority from local school boards. Judge Meyer halted implementation of the program, which was scheduled to start this fall.

“The Colorado Supreme Court has a historic opportunity to extend equal educational access to Colorado’s most disadvantaged families,” said Institute for Justice President and General Counsel Chip Mellor. Working in tandem with the Colorado Attorney General, IJ is defending the Opportunity Contract program on behalf of 12 low-income Colorado families. “It would be a perverse result for the Court to elevate the interests of failing school districts over the needs of schoolchildren desperate for a quality education.”

The Colorado Supreme Court will hear the case today (Tuesday, May 25) at 9 a.m.

“The public school my two daughters attend is not giving them the tools necessary to survive in today’s world, and teachers have no incentive to help the students perform better,” said Colorado mother Angelia Teague. “All I want is the same right to choose good schools for my children that more affluent parents enjoy, and this program will give me that freedom.”

Colorado’s “local control” provision, found in only five other state constitutions, gives local school boards control over instruction in public schools. But, as the Institute for Justice argues, Opportunity Contracts allow students to select private schools and does not threaten school board control 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.

The Opportunity Contract program—the first new voucher program since the U.S. Supreme Court upheld Cleveland’s choice program—is the latest front in a state-by-state legal battle against school choice waged by teachers’ unions and their allies. IJ is currently defending Florida’s groundbreaking Opportunity Scholarships program and is fighting state-based barriers to choice in Maine. The Institute also successfully defended vouchers in Cleveland and Milwaukee and tax credits in Illinois and Arizona.

Nationwide momentum has been building for school choice, with two new programs passed in just the past year: Opportunity Contracts in Colorado and the District of Columbia’s new scholarship program, beginning this fall. The four modern publicly funded school voucher programs—Milwaukee, Cleveland, and Florida’s Opportunity Scholarships and McKay programs—have grown from just over 300 participants to more than 31,000 in a mere 13 years.

Opportunity Contracts are targeted to low-income students in the 11 districts with “low” or “unsatisfactory” ratings on the State’s annual academic performance ratings. The program phases in over four school years, so that by the fourth year up to 20,000 children could be using Opportunity Contracts, possibly making Colorado’s the largest parental choice program in the nation.

For more information on Opportunity Contracts and other choice programs, visit

Choice opponents also allege that Opportunity Contracts violate the “special legislation” provision of the Colorado Constitution by unreasonably singling out the 11 failing school districts targeted for Opportunity Contracts. Judge Meyer disagreed and ruled that the program does not constitute unconstitutional special legislation.

If the Colorado Supreme Court upholds Opportunity Contracts against the local control and special legislation claims, the case will return to District court for four remaining counts—all dealing with the Colorado Constitution’s religion clauses—alleged by the unions and their allies.