Voucher verdict provides useful roadmap for a remedy | SummitDaily.com
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Voucher verdict provides useful roadmap for a remedy

State Sen. Mark Hillman

When the Colorado Supreme Court struck down the new voucher program for low-income students in failing public schools, I thought to myself, “Judicial activism strikes again.”However, the 4-3 majority’s decision is logical and well-reasoned. I disagree with its conclusion, but it doesn’t contain the logical gymnastics and disingenuous semantics of judicial activists bent on overturning legislation simply because they don’t like it.Three dissenting justices concluded, also logically and dispassionately, that the opportunity scholarship pilot program does indeed comply with the state Constitution.Before considering the arguments, recall that the Colorado Opportunity Scholarship Pilot Program was narrowly focused to provide options for struggling students in poorly performing schools. Participation was limited to students in school districts containing at least eight poorly performing schools and only to students who were struggling academically and come from low-income families.This factually undisputed explanation is necessary to combat the tidal wave of disinformation spread by virulent opponents of vouchers, primarily the teachers union. The day the ruling was announced, a caller to Jon Caldara’s KOA radio program trotted out the tired old argument that vouchers take “the cream of the crop” from local schools. When confronted with the fact that this program applies only to poor, struggling students and invited to “read it for yourself,” the caller retorted, “Well, who am I supposed to believe, you or my union?” Argh!Colorado’s Constitution is one of just six in the nation to specifically call for local control of schools.Forty-four states give more authority to state government, but Colorado’s system of local control is clearly a better choice. Article IX, Section 15, calls for each school district to establish a board of education, elected by local voters, and entrusts the board with “control of instruction in the public schools of their respective districts.”The majority opinion says that local control of instruction and of locally-raised tax revenues are inextricably linked. Justice Michael Bender cites a litany of state supreme court rulings (“the Belier cases”) to fortify that position. “… The pilot program violates (local control) because it directs the school districts to turn over a portion of their locally raised funds to nonpublic schools over whose instruction they have no control,” wrote Bender.The minority argues that the literal reading of the constitution makes no mention of funding, that the drafters were primarily concerned with selection of textbooks, and that recent court decisions have refuted the notion that local control is absolute.Justice Rebecca Kourlis argued, “Because the school district loses no control whatsoever over the education provided in public schools, but merely loses some revenue that it would otherwise have, I do not view the program as unconstitutional.”While the Belier cases, beginning in 1915, strengthened local school boards’ control over local tax dollars, they are based in part on facts that are quite anachronistic. One case invalidated a law which required a school district, if it did not include a high school, to pay the expense of any of its students who attended high school in a neighboring district. Read 89 years later, this decision makes the bizarre case that “local control of instruction” means control of all local students, including the power to deny students an education beyond eighth grade.Authors of the pilot program sought to involve school districts by having them administer the funding and by allowing local districts to keep 15 to 25 percent of that funding, even though the student would be educated elsewhere.The remedy is fairly simple – given that opponents’ remaining legal arguments, rooted in anti-religious bigotry, are weak. The pilot program can be funded purely from the state dollars, thereby leaving local revenues untouched.That change not only follows the constitutional roadmap constructed by the majority’s decision, but it also offers this poetic justice: the 11 school districts which were to administer the pilot program would have received $69 million over four years for their trouble. By taking them out of the equation, they get no “commission” for failing students.State Sen. Mark Hillman (R-Burlington) is the Majority Leader of the Colorado Senate. His e-mail address is mark.hillman.senate@state.co.us.


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