Amendment 80, which would enshrine a student’s right to school choice into the Colorado Constitution, has received criticism from opposers for its vague ballot language. 

Several groups have claimed that the way the language is written would allow for changes in funding, parental rights and government involvement in education. Supporters of the amendment argue that these claims are distracting and come from a fundamental misunderstanding of the amendment.

The language in Amendment 80 would add the following to the constitution: “The people of the state of Colorado hereby find and declare that all children have the right to equal opportunity to access a quality education; that parents have the right to direct the education of their children; and that school choice includes neighborhood, charter, private, and home schools, open enrollment options, and future innovations in education,” and “Each K-12 child has the right to school choice.”

The Summit Daily spoke with University of Colorado Boulder Law Professor Doug Spencer about how the state courts might interpret the legal language in Amendment 80 if it were to pass. Despite this analysis, the interpretation of any claim will depend on the individual judge, court, legislator or entity reading it, meaning it is nearly impossible to predict exactly what the outcome of each claim will be.

The following are Spencer’s responses to the following claims made by opposers:

Voucher programs and reduced funding to public schools

Claim: The amendment language could be interpreted to justify voucher programs for education in Colorado or allow public funding ordinarily used for public schools to be transferred to private or home schools.

“Yes, I think that’s a valid concern,” Spencer said. “Without an explicit statement, because school voucher programs are such a known public policy, I don’t know that a judge would say your right to school choice must mean the right to a voucher.”

He compared the language to the country’s Miranda Rights, which establish the right to an attorney, effectively guaranteeing that those who can’t afford one will have one paid for by the state.

“When you add this language to the Constitution that entrenches this right in the child, then a natural extension would be to say (that) the state is depriving me of a fundamental right by not paying for my private school education,” he said. “I think it’s a reasonable claim for a lawyer to make, (but) I don’t know that a judge will go along with it. … I anticipate people will raise that claim almost immediately if this passes. They’ll ask their kids to go to a private school, and then they won’t be able to afford it, and they’ll file a lawsuit asking for that funding.”

Spencer cited the amendment’s vague language for his analysis, stating that although a judge would likely presume that voucher programs aren’t directly associated with the amendment, their job requires interpretation of the language as it is written without relying on assumptions.

“The language as it’s written is ambiguous on that point, which means it depends on the judge and it depends on their interpretation,” he said. “But it’s certainly not obvious that a school voucher program is not an extension of this, if that’s your fundamental right. So they’ve left it open for interpretation.”

Separation of student and parental rights

Claim: The amendment language could be interpreted to separate a child’s right to school choice from the parent’s right to direct the education of their children, which could increase government interference and undermine parental rights.

“Yes, I think it can, because it’s written in that way, right?” Spencer said. “The language about what the parents are able to do as explained is their ability to direct their students. And it’s not always clear exactly what a court will do, but given that our courts — at least in federal courts — seem to be highly originalist and textualist and care about each of those words, if the right belongs to the child … a judge that’s reading this new constitutional provision could interpret the right as belonging to the child; in which case, then the state could make decisions or the school on behalf of the child that may contradict the parents’ wishes.”

He acknowledged that this isn’t always the case, as juvenile law gives parents ample authority, but the wording of the second section roots the right directly to the child, which “opens the door for that kind of an argument.”

Defining a ‘quality education’ through government-established metrics

Claim: The amendment language would give the government the right to define and enforce the right to “quality education.”

“Absolutely, that resides now with the determination of a judge or the state,” Spencer said. “There will be metrics of quality, and so when you’re saying that ‘I want to go to this other school because I think it will be better,’ there are going to be studies and metrics that will say, this school rates really high in math and science, but not in art, and that’s going to be relevant in these lawsuits, not just that a parent says, ‘I don’t like it.'”

School choice as an avenue to bans books and curriculums

Claim: The amendment language would let students and parents demand that teachers, books or curriculums be removed from schools if they’re perceived to lower the school’s defined quality of education.

“I think these arguments between both groups are valid,” Spencer said. “The opponents are pointing to words and saying it’s a reasonable argument for a judge to say, ‘If you have the right to access to quality education and you feel like you’re not getting that, then you have the right to complain.'”

The important distinction, however, is that because the language defines school choice to include different types of institutions, he said that complaints about a student’s quality of education would be resolved by allowing the student to attend a different school, without relying on alternative remedies like assigning a different teacher or removing the student from a specific classroom. Likewise, a student could choose to attend a school where a disliked book is not part of the curriculum.

“You could say, ‘My teacher is not great.’ But if you’re asking the judge to then support your decision to get another teacher, this proposition is not going to give you the leverage to do that. You’d have to argue that about the school as a whole because of the way that the language is written,” he said.