The Colorado state Senate’s Education Committee on Thursday gave a party-line OK to a bill removing school-choice language from a 2018 measure on foster children that was the subject of a court challenge.

The action followed a Denver District Court ruling last month that declared a portion of the 2018 bill unconstitutional.

On a 3-2 vote, the committee sent Senate Bill 39 to the full Senate for debate — and there will be debate, given the partisan rift on the issue.

At the tail end of the 2018 session, Senate Republicans inserted language from an unrelated, failed measure — Senate Bill 18-228 — into House Bill 18-1306, which was intended to help foster children stay in their original schools when they’re moved from one foster home to another. HB 1306 was intended to help foster kids maintain relationships with peers and teachers, leading to better graduation outcomes.

The Colorado Department of Human Services reports that only 23 percent of foster kids graduate from high school in four years, and that is due in part to what the federal Department of Education  calls a “high rate of mobility.”

The language inserted into HB 18-1306 would have allowed any child to attend any school in any district, with the home district paying for transportation, even if the district didn’t agree to the child moving to another district. The inserted language was backed by Senate Republicans who support school choice. The language remained in HB 18-1306 when it passed the legislature.

But school superintendents testified Thursday that the lack of cooperation could allow one school district with declining enrollments to “poach” kids to boost their state funding, for example.

When Gov. John Hickenlooper signed HB 18-1306 into law last year, he practically begged for someone to file a lawsuit over the inserted language. And he got it, courtesy of a suit filed by several Colorado school districts, the Colorado Association of School Boards and other plaintiffs.

The Denver judge in December ruled that the inserted language —  known as Section 7 in HB 18-1306, was unconstitutional because it violated the state’s single-subject law. That law requires every section of a bill to apply to the bill’s title.

Section 7, which was about providing transportation to any child at state expense, did not conform with the title for HB 18-1306, which applied to educational stability only for foster children, the judge ruled.

The case is now under appeal to the Colorado Supreme Court. 

That’s what prompted Sen. Paul Lundeen, R-Monument, to argue that Senate Bill 39 — the new bill advanced by the Education Committee Thursday that would remove the Section 7 language from last year’s HB 18-1306 — was premature and should not move forward until the lawsuit is resolved by the Colorado Supreme Court.

Foster parents at Thursday’s hearing also raised concerns that the new measure would increase the burden of making sure their kids could continue at the most appropriate school. SB 39 bill requires school districts that plan to transport kids from one to another to cooperate and that the districts must be adjacent. 

Attorney Brent Owen of the law firm Squire Patton Boggs testified that legally, the 2019 measure would not prevent foster kids from being transported to the most appropriate school. But in practice, that’s another matter, and the new bill would make it more difficult, he said.

Parents who want to take advantage of moving their children to better schools (not necessarily foster children) also testified against the bill. One parent, Fish Abrhaley, told the committee that without the transportation reimbursements it will be harder for children to attend the school of their choice, leaving that option available only to “rich families whose kids attend the best schools.” 

Foster parents Kyle and Hope Fort said they believe SB 39 no longer provides the option to transport foster kids to the most appropriate school.

Lundeen and Republican Sen. Owen Hill of Colorado Springs, the senator who inserted the Section 7 language into the 2018 House bill, said SB 39 will create more hurdles for foster parents.

Several school superintendents testified that the system already works well.

Wendy Rubin, superintendent of the Englewood School District, and Brian Ewert, superintendent of Littleton Public Schools, described the already-existing process when a foster child comes into a new school district. Rubin also pointed out that federal law already requires the school district to transport the foster child to the right school, and in 2018 Englewood spent $65,000 doing just that.

“Nothing in the law prohibits districts from working together,” and they already do, Rubin said. The collaboration between districts is such that foster kids who show up in her district can be on their way back to their original school the next day, she said. 

The downside to leaving the law as is, Ewert said, is that schools with declining enrollments can go after students from other districts in order to boost their per-pupil funding.

“Why provide a mechanism for a larger school district to dismantle” a smaller one? he asked.

Bill sponsor Sen. Rachel Zenzinger of Arvada told Colorado Politics that SB 39 leaves the existing transportation program for foster kids intact. 

Tyler Sandberg, a co-founder of school choice advocacy group Ready Colorado, said Thursday that with 178 school districts, foster parents will have trouble getting cooperation when both districts have to sign off on transporting the child.

“This bill is about permission,” Sandberg said. “It essentially gives both districts veto power over transportation. That hurts working families who then become at the whim of both districts to come to an individual agreement.”