A U.S. Supreme Court ruling that cleared the way for public dollars in a Maine tuition assistance program to flow to private religious schools could embolden conservative Colorado lawmakers to more aggressively pursue a statewide program that would feed taxpayer money to private schools, including religious ones.
Previous legislative attempts in Colorado to create a voucher program — which gives families public money to use to cover private school tuition — have failed. The few school voucher programs that did manage to move forward were legally challenged and ultimately dissolved, including a school voucher law rejected by a Denver judge in 2003 on the grounds that it violated local control provisions in the state Constitution.
The Supreme Court’s recent decision, a 6-3 vote, with the court’s three liberal justices dissenting, could animate conservative legislators’ efforts to open up student access to education opportunities beyond public schools, using taxpayer dollars to help cover tuition.
Sen. Paul Lundeen, a Monument Republican who serves on the Senate Education Committee, is optimistic that a voucher program is in Colorado’s future as he anticipates that education leaders and parents will begin demanding the level of options that states like Maine have. It’s a bold, even unlikely, outlook in a state where Democrats control the legislature and have consistently struck down proposals seeking to start up a voucher program.
“It’s a huge win for parents,” Lundeen said of the recent ruling. “I think it will have ripple effects across the country beyond just the boundaries of Maine, and the biggest and most important part of the whole thing is it will expand educational opportunities for students in Colorado and in every state of the union.”
“It’s not going to happen overnight,” he added, “but I think over time this legal framework allows for a broader conversation.”
Van Schoales, senior policy director for the nonprofit Keystone Policy Center and a longtime education policy expert in Colorado, expects the Supreme Court’s ruling to amplify conservative lawmakers’ efforts to develop a school voucher or tax-credit program while also motivating public school advocates to double down on their fight to keep public dollars in public education.
“It will likely embolden folks on the other side to fight harder against such things,” Schoales said.
He doesn’t envision the ruling creating much immediate change in a state controlled by Democrats, but he acknowledged that the ruling “provides another degree of flexibility policy wise.”
A spokesperson for the Colorado Department of Education had no comment on the ruling, stating that the department doesn’t “have enough information on the ruling and its implications for Colorado.”
William Bethke, an attorney at Lakewood-based Kutz & Bethke LLC who has primarily represented charter schools for the last 25 years, doesn’t see a way for a statewide voucher program to gain traction, with local control outlined in the state constitution. Colorado’s Constitution leaves policy decisions, including around curriculum and teacher pay, in the hands of local school boards. A state school board and department of education set learning standards and monitor academic progress across districts, but they are largely hands off.
Local school districts could attempt to start their own voucher programs, he said, but it would be up to CDE to decide whether a district program would be eligible for state funding.
School districts would “be taking a risk,” Bethke said, as any voucher program they tried to start may not be seen as an appropriate use of public funds in the eyes of the state education department.
A court case determined that CDE holds the power in deciding whether a local voucher program would qualify to receive state funds, Bethke said, noting the legislature could then consider whether the department properly interpreted and applied the law. The case centered around a private school voucher program Douglas County School District tried to introduce in 2011. The program violated the state constitution, according to a 2015 ruling by the Colorado Supreme Court. The U.S. Supreme Court ordered the state Supreme Court to look into the case again in 2017, following a ruling that favored a church-run preschool in Missouri in a separate case, Chalkbeat Colorado reported.
The Douglas County program was never implemented and was ultimately terminated in 2017 in a unanimous vote of the school board. The Colorado Supreme Court dismissed the court case as moot in 2018, Chalkbeat Colorado reported.
Douglas County School District is not planning to introduce a voucher program for its nearly 64,000 students, according to board president Mike Peterson, who was elected last fall as part of a conservative slate of candidates who flipped the board.
When asked in November about whether he and other new board members would try to revive discussions of a voucher program in the district, Peterson told The Colorado Sun that it wasn’t a top priority as the board contended with many other issues.
“Anything is possible down the road,” Peterson said in November.
On Tuesday, he said doesn’t believe Douglas County School District needs a voucher program right now since the district already has “incredible school choice,” with a variety of neighborhood schools and public charter schools available. Nearly a quarter of students enrolled in the district attend public charter schools, Peterson said. Statewide, about 15% of public school students in preschool through grade 12 attend charter schools.
“Vouchers may make sense in some parts of our country where there are failing schools and a lack of choice, but that’s not the case here in Douglas County,” Peterson said.
Bethke is not aware of any other districts that plan to try to start their own voucher program.
“It would not shock me if somebody attempted to do that at some point, but I think that there are probably other issues that people are focused on right now,” he said.
A financial tug of war between school choice and public education
Lundeen plans to keep building momentum around conversations about a state program that would use public money to send students to non-public schools. A big believer in parent autonomy, he wants to expand options at a time he sees Colorado public schools “failing far too many students.”
Lundeen said he has not yet drafted any legislation related to a state voucher program or scholarship program for the next session, but he hopes a bill could be passed as soon as next year. During this year’s lawmaking term, he introduced legislation to create a scholarship program that would essentially have operated as a voucher program, earmarking state funds for students to use at a private school, online school or for homeschooling. The bill failed to move out of the Senate Education Committee.
“We’ll continue to have that conversation, and I hope it will lead to legislation in this next session that we can actually pass that will provide for more parent choice, more student choice,” Lundeen said.
Along with Lundeen’s recent legislative attempt to funnel public funds to private institutions, a statewide ballot measure drew controversy last year with opponents arguing that it could act as a stepping stone toward bolder efforts to privatize education.
Proposition 119 sought to create the Learning Enrichment and Academic Progress in the wake of pandemic-related disruptions to student learning. The proposal called for increasing taxes on the retail sale of marijuana to pay service providers, including private tutoring companies and public school teachers, to offer additional help to students, especially those from low-income families.
Proponents rejected criticisms that they were creating a precursor to a voucher program and also denied opponents’ claims that religious service providers benefitting from the program could discriminate against certain groups of students, including those in the LGBTQ+ community.
Voters rejected the measure.
Cindy Barnard, a vocal public school advocate who was among the loudest opponents of Proposition 119, said she is feeling defeated after the U.S. Supreme Court’s decision to include religious schools in Maine’s tuition assistance program.
Barnard helped form the Colorado-based group Taxpayers for Public Education in 2011, convening supporters of public education to stand against Douglas County’s private school voucher program.
The Maine ruling is “devastating” for public education and for children, said Barnard, who has also invested a lot of time and energy in rallying against voucher programs proposed by Colorado legislators.
“To watch this happen, it’s hard when our schools are so underfunded across the country,” she said.
Voucher programs play a central role in widening gaps between students from different socioeconomic backgrounds, who often attend schools with significant disparities in the kinds of resources they have, Barnard said.
“They exacerbate segregation,” she said. “You have schools for the haves and the have-nots. We just all work better when we’re together, when we can learn from one another instead of segregating us.”
U.S. Supreme Court justices have taken the decision-making power out of states’ hands with regard to voucher programs, Barnard added.
“It’s pretty dire,” she said. “The Supreme Court has spoken. It’s the law of the land.”
Proponents of voucher programs, like Tyler Sandberg, a consultant at conservative education group Ready Colorado, see the court decision as a win for parents and students and a move toward ensuring that kids can attend schools that have a track record of success.
“I’m an outcomes person,” Sandberg said, “and the outcomes always should drive where we send our dollars.”
Public dollars already flow to private religious schools in both preschool and higher education, he said. While the Denver Preschool Program allows families to use tuition credits to send their children to religious-based schools, federal Pell Grants can be applied toward private institutions of higher education.
Sandberg, who was “overjoyed” by the ruling in Maine, is adamant that education systems and the adults leading them need to keep their focus on what is best for students — with as many options as possible ranging from public schools to private schools to private religious schools to homeschooling.
“I’m agnostic on school type,” he said. “I am religious on school outcomes.”
CORRECTION: The captions in this story were updated at 7:24 p.m. on July 7, 2022, to correct the number of high schools in Douglas County School District. The district has nine high schools.