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This election season, voters across Colorado will decide on a host of proposals and amendments touching on areas such as bail, abortion and trophy hunting. Among the boxes waiting to be filled in is , which would add language establishing, among other things, a “right to school choice” into Colorado’s constitution.

Amendment 80 needs to bring in 55% of the vote to go into effect since it changes the constitution. Kevin Welner, professor in the School of Education at CU Boulder, is a legal scholar and director of the (NEPC). He’s examined policies across the United States around issues like charter schools and school vouchers—or programs in which states give K-12 students subsidies to attend private schools. Welner co-authored the 2021 book “” and co-edited the 2023 book “.”

To help voters make an informed choice, he gives his take on the language in Amendment 80—and the types of new lawsuits its passage might lead to.

What is Amendment 80?

The , which is the information provided to voters about the initiatives on the Colorado ballot, identifies three things this amendment would do: One is to create a right to school choice. It also creates a right for parents to direct the education of their children. The third is that it creates a right for all children to have an equal opportunity to access a quality education. 

The second two that I mentioned are identified in a separate section of the amendment that's labeled “Purpose and Findings.” Whether a court would interpret that language as actually creating those rights is up in the air—one of many questions that will be left to judges in the future.

Doesn’t Colorado already allow school choice?

Colorado is among the states that have most enthusiastically embraced school choice. We have the choice to send our children to a neighborhood school, as well as other public schools within our local districts. We can also send our children to public schools outside our local districts. And we have magnet schools, innovation schools and many charter schools. Of course, parents can choose to homeschool or to send their children to private schools, including private religious schools. A key exception is that, in Colorado, we don’t have vouchers.

Kevin Welner

If that’s the case, why do proponents say that Colorado needs a constitutional amendment?

The stated reason is that, by putting this into the Colorado constitution, we would prevent the state legislature from ever taking away all the forms of school choice that we currently have. What if, for example, a future state legislature and governor decided to repeal our laws around charter schools? 

I'm skeptical, however, that this is really the reason behind the ballot initiative. It’s hard to imagine a circumstance where any of these school choice options would be eliminated in the state.

What do you think is the main concern?

The advocates behind this initiative are advocates of school vouchers and probably see this as a way to advance that cause. I do think that if this got into the state constitution, it would make vouchers more likely in the state—vouchers, in this case, being a public subsidy for private school tuition. 

Around the country, we have about a dozen states now that have universal or near-universal voucher programs, where almost every student is eligible for a subsidy.

You’ve studied those programs. What have we learned from them so far?

We have strong evidence in two areas: academic outcomes and budgetary impacts.

On the academic side, we have high-quality studies of four large-scale voucher programs. For three of these programs—in Louisiana, Indiana and Ohio—the research shows strongly negative outcomes, particularly in mathematics test scores. For the fourth, in Washington, D.C., the research shows no academic impact.

What about on the budgetary side?

We see these universal programs blowing a hole in state budgets. The lingo that we use when we talk about voucher uptake is that there are “switchers” and “stayers.” The switchers are people who see the voucher and say, “I'm now enticed to move from public school to private school.” A stayer, in contrast, already attends private school or intends to. In those cases, the state is subsidizing education that it otherwise wouldn't have subsidized at all. Switchers generally help the state budget, while stayers hurt the state budget. 

When you're calculating the budgetary impact of a voucher policy, you have to guess at that ratio of switchers and stayers. A lot of states guessed way wrong. Most notably, a price tag for fiscal year 2024 of $65 million, but the actual cost was $332 million.

You’ve said that Amendment 80 might kick off a lot of lawsuits. How so?

The most likely litigation that would be successful would be from a parent challenging a school district's decision to deny a charter school application or revoke or non-renew a school’s charter. 

Imagine you're the parent of a child who either is attending or wants to attend a charter school. The district doesn't allow that charter school to go forward because of poor performance, low enrollment or fiancial mismanagement. If there's no other charter school nearby at the child’s grade level, the parent could point to Amendment 80 and say, “Well, I have a right to send my kid to a charter school, and you've just taken away that right.”

What other litigation is possible?

It's sort of (perverse) fun as a legal scholar to play with this language and come up with all the lawsuits that it could engender. Lots of people anticipate lawsuits from parents who can’t afford tuition and therefore demand that the state subsidize a private school education—so that they have a meaningful right to choose that private school education.

For the parents’ right to direct their child’s education: If I, as a parent, object to a history class where my child is taught that the South left the union to preserve slavery, can I insist that my child be excused or the lesson be changed? Can I do the same with a science class where my child is taught Darwinian evolution? Can I object to assigned books with passages I don’t like? This can go on and on, with each individual parent exercising this new right in various ways and making things very difficult for everyone else in the school.