Denver, Colorado -- "I see no way to interpret the voucher program statute in a way that does not run afoul of the principle of local control," Denver District Judge Joseph Meyer wrote in his 15-page decision handed down Dec. 3. "The goals of the voucher program are laudable. However, even great ideas must be implemented within the framework of the Colorado Constitution."
In the first related decision since the Supreme Court advocated the constitutionality of school vouchers, a Colorado judge issued a ban prohibiting implementation of the state's voucher law.
Colorado is one of six states whose constitutions allow control of instruction to local school boards. Under the voucher law, 11 Colorado school districts that are underperforming were required to offer vouchers for private schools to low-income families while other districts were given choice whether or not to participate.
The U.S. Supreme Court ruled in a 5-4 vote in June 2002 to legalize education-choice program that permits vouchers to be used at religious schools. The issue at the time was a school district in Cleveland, Ohio, that the district was considered violating the constitution of separating church and state with its voucher program.
The coalition that sued the state of Colorado wanted it to have a choice of arguing only two constitutional issues: local control and the ban on "special legislation" aimed at benefitting a small group. The original lawsuit included four religious freedom issues but they are still pending and it will only be used if the coalition loses on appeal.
Colorado Gov. Bill Owens said he will appeal the case to the Supreme Court.
"Securing school choice for the children of Colorado was a long legislative struggle, and there was always the likelihood the struggle would extend to the courts as well," Owens said. "Children from low-income families should not be facing a dead end if they are in a school that is below par. They deserve a choice and that is why we will appeal the court's decision."
Critics of the voucher program said the law would harm many public schools by pulling funding away as it might cost the 11 school districts about $900 million per year. Also some objected to the idea of public money going to a private institution where local school board has no control over.
But from the viewpoint of supporters, the vouchers are considered no different than existing programs such as public school choice, charter schools and special education programs which also have required local districts to conform to state policy.
In the Supreme Court decision, Chief Justice William Rehnquist wrote in the majority opinion that the Cleveland voucher program is one of "true private choice" and thus constitutional.
Citing three opinions during the past two decades, Rehnquist said the court had made it clear "that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the establishment clause. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits."