Academic journal article Journal of Law and Education

Colorado's Constitutional Controversy: An Analysis of the Colorado Supreme Court's Ruling in Taxpayers for Public Education V. Douglas County School District

Academic journal article Journal of Law and Education

Colorado's Constitutional Controversy: An Analysis of the Colorado Supreme Court's Ruling in Taxpayers for Public Education V. Douglas County School District

Article excerpt

I. INTRODUCTION

In the United States, nearly 50 million children were enrolled in the public educational system during the 2012-2013 school year.1 In that same year, state governments spent from between 22% and 40% of their budgets on education.2 It is therefore not surprising that there is considerable debate at the national, state, and local level as to the most effective use of educational funding. One of the proposed uses for taxpayer funds are school vouchers and they have been the subject of political and legal controversy over the past 50 years.3

School vouchers programs reassign the per-pupil state funding from public schools to the student's parents for the sole purpose of paying for private school tuition.4 As of 2015, thirteen states and the District of Columbia had some form of voucher program in place, but those programs are not without controversy.5 Voucher supporters argue that parents-when given the choice-will send their children to the best performing schools. To continue to attract students, the poorest performing schools will have to improve in order to compete.6 Voucher opponents counter by pointing out that vouchers remove funds from already underfunded schools, raise real concerns about the separation of church and state, and the educational results are inconclusive at best.7 That argument is perhaps best illustrated in Colorado.

Section II of this chalk talk will survey the history of the modem voucher movement in the United States and Colorado. Section III will examine the Colorado Supreme Court case Taxpayers for Public Education v. Douglas County School District and Section IV concludes with potential arguments that voucher supporters will make in their appeal to the United States Supreme Court and request for certiorari.

n. VOUCHERS IN THE UNITED STATES

A. Legal Foundations

Although voucher programs have existed in Maine and Vermont for over 140 years, it was not until the 1980's and 1990's that voucher programs began to spread across the rest of the country.8 In 1989, the Wisconsin legislature passed the first modem school voucher program in the country.9 Teachers unions and local civil rights groups challenged the program in state court and argued that the program violated the Establishment Clause of the Constitution of the United States, parallel provisions in the Wisconsin Constitution, procedural violations of the Wisconsin Constitution, and Wisconsin's public purpose doctrine that requires public funds only be used for public purposes.10 The Wisconsin Supreme Court rejected each of those arguments and found the voucher program constitutional.11 Voucher advocates had achieved their first legal victory and that victory paved the way for similar voucher programs in other states.

B. Zelman v. Simmons-Harris

Hoping to build upon Wisconsin's success, voucher supporters in other state, including Ohio, began to design and implement their own programs.12 In 1999, voucher opponents filed suit against the Ohio program alleging that the program violated the Establishment Clause.13

Eventually, the United States Supreme Court heard their claim in Zelman v. Simmons-Harris. The Court held that the voucher program did not violate the Establishment Clause because it was "neutral in all respects toward religion" and allowed student participation in all schools whether secular or sacred.14 The Court stated that it had "never found [that] a program of true private choice" offended the Establishment Clause and that the Ohio program was an example of such a program.15 Therefore, the majority concluded the program did not violate the Establishment Clause.16 In its ruling, the Court provided a roadmap for future voucher programs. That roadmap meant that voucher programs that were neutral with respect to religion and offered indirect funding to parents so they have true choice as to the type of school they select are constitutional.17

The ruling allowed for an expansion of voucher programs and by 2015, there were thirteen states plus the District of Columbia with school voucher programs. …

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