Proponents tell Colorado reviewers proposed initiatives would enshrine public school choice and alter charter appeals

Proponents of three proposed Colorado ballot initiatives told Legislative Council Staff and the Office of Legislative Legal Services on Feb. 20 that the measures would create a statutory right to public school choice, prohibit tuition at public schools and change how some denied charter applications are handled.

Matthew Beck, of the Legislative Council Staff, opened the review in Room 109 and framed the session as a statutory review required under section 1‑40‑105.1 of the Colorado Revised Statutes. He walked through staff comments and questions about initiatives 2‑29, 2‑30 and 2‑31, which were submitted by the same designated representatives and are being reviewed together.

The measures share several stated goals. Jacob Baus, with the Office of Legislative Legal Services, summarized initiative 2‑29 as intending to: (1) create a statutory ‘‘fundamental right’’ to public school choice; (2) prohibit tuition at neighborhood district schools, public charter schools and open‑enrollment public schools; and (3) bar an appeal to a local school board’s denial of a charter application or renewal and, in some cases, require release of the charter school to the Colorado Charter School Institute (CSI). Baus described similar purposes for 2‑30 (adding limits on excessive or unrelated fees and a priority for pupils who return to the same school or program) and for 2‑31 (which also includes the CSI release mechanism when a charter does not pursue an appeal).

Ben Larson, counsel for the proponents with Ireland Stapleton Pryor & Pasco, said the proponents’ intent is reflected in the measures’ text. When staff raised a constitutional question, Larson said: "To create a right to school choice." That exchange followed staff reference to San Antonio Independent School District v. Rodriguez (411 U.S. 1 (1973)), in which the U.S. Supreme Court held that there is no fundamental right to education under the U.S. Constitution. Staff asked how creating a statutory ‘‘fundamental right to public school choice’’ should be understood in light of Rodriguez; proponents responded the initiatives do not create a constitutional right to education but instead set a statutory right to school choice as described in the measures.

Staff pressed for definitions and statutory cross‑references. On the phrase "opportunity to access," staff asked whether the measure means only the opportunity to apply; proponents said the phrase should be read according to the measure language. Staff also asked what the draft means by a "public open enrollment option" and how the initiatives would interact with existing public‑school‑choice requirements in Article 36 of Title 22, Colorado Revised Statutes. Larson said proponents will include appropriate statutory revisions so the initiatives control in the event of a conflict.

A recurring technical and practical concern was the provision that open enrollment is available "as space allows." Staff observed that phrasing could narrow the practical effect of the statutory right and asked who determines available space and what parameters govern that determination. Proponents said the operation of open enrollment and related limits is governed by existing open‑enrollment law and that the measures do not guarantee an individual seat in a specific open‑enrollment school.

The measures also address charter appeals and the role of CSI. Staff asked how subsection 3 (which provides that a local board denial results in the charter being "released" to CSI) aligns with Part 1 of Article 30.5 of Title 22, which sets procedures for charter application, renewal and appeal. Larson clarified that the measure intends that a released charter would be able to apply to CSI, and CSI would retain authority to approve or deny any such application. He further said that if a charter school appeals to the State Board of Education and loses, it would not be released to CSI; if it wins at the State Board, the appeal outcome would control the local‑board result.

Staff also raised Colorado’s single‑subject requirement for initiatives (Article V, section 1(5.5) of the Colorado Constitution). For each initiative proponents said the single subject is ensuring the fundamental right to public school choice. On fees, the draft of 2‑30 would bar fees that are "excessive" or not "rationally related" to the cost of the activity, equipment or supplies; proponents stated a fee is excessive if not related to the actual cost.

Counsel and staff spent the final portion of the review on technical drafting points, including multiple instances of whether statutory language should use "shall" or "must," who is the actor in particular sentences, and awkward phrasing in subsection 3c about whether "open enrollment" or "public schools" is the controlling noun. Proponents and counsel said they would consider the drafting fixes and submit technical revisions; Larson and John Miller thanked staff for the review and signaled they would make appropriate edits.

The hearing concluded with proponents agreeing to take staff comments under advisement and to return with technical revisions; no formal votes or actions were taken during the session.