dissenting.
The Colorado Opportunity Contract Pilot Program (the "Pilot Program" or the "program"), §§ 22-56-101 to -110, 7A C.R.S. (20083), takes state and local education dollars, assigns them to a particular student who qualifies, and allows that student to expend the dollars on education at identified nonpublic institutions. Maj. op. at 986. The question before the court, simply stated, is whether that program violates article IX, section 15 of the Colorado Constitution, which gives school districts in this state control over the instruction that students receive in the public schools of their respective districts. Because the school district loses no control whatsoever over the education provided in its public schools, but merely loses some revenue that it would otherwise have, I do not view the program as unconstitutional.
The majority reaches its conclusion based in part on its understanding of our constitutional history and based in part on this court's precedent. I disagree that the historical context suggests today's outcome. Further, although I agree that this court authored four cases dated between 1915 and 1931 that appear to equate local control over instruction with local control over educational tax dollars, in my view, the court has already moved away from that strict formulation in our more recent cases and it would be inconsistent with those modern cases to hold the Pilot Program unconstitutional. According ly, I respectfully dissent.
L. Historical Background to Article IX of the Colorado Constitution
Article IX, section 15 of the Colorado Constitution states:
The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respective districts.
Colo. Const. art. IX, § 15 (emphasis added). All parties agree that the outcome of today's case turns on our interpretation of the emphasized language. I think it is also true that all parties agree that the language of the constitution itself does not, on its face, preclude the Pilot Program.
In attempting to apply the dispositive constitutional article, we must also take into account article IX, section 1 of the Colorado Constitution. That provision states in relevant part that "[the general supervision of the public schools of the state shall be vested in a board of education whose powers and duties shall be as now or hereafter prescribed by law." Colo. Const. art. IX, § 1 (emphasis added).
«Like the majority, I view the historical context as somewhat instructive. However, I find a different emphasis in that context than does the majority. To my reading, the drafters of our constitution intended to protect local schools from the political influences of the state legislature by assuring that local districts were able to retain the right to decide which textbooks to purchase, and which courses of instruction to offer.
*945As the majority notes, an initial draft of article IX, section 1 provided that "[the supervision of instruction in the public schools of this State shall be vested in a board of education, whose powers and duties shall be prescribed by law." Proceedings of the Colorado Constitutional Convention for the State of Colorado 185 (1907) (emphasis added). The majority holds that because delegates of the Colorado Constitutional Convention (the "convention") considered and rejected vesting the state board with supervisory authority over instruction, and instead granted authority over instruction to local school boards by way of article IX, section 15, there is to be no role for a state-level power, including the general assembly, to have any effect over the instruction funded by dollars raised by the local school district.
My review of the history suggests a different goal. As originally proposed, section 1 provided that all public schools would be managed by the state board of education (the "state board"). In that initial version as well, the state board was to consist of the State Superintendent of Public Instruction, the Secretary of State, and the Attorney General.1 Id. One convention delegate opined that vesting the supervision of instruction in the state board placed too much power in the hands of three politicians who may or may not have adequate knowledge regarding the appropriate instruction of students. - Constitutional Convention, Denver Daily Times, Feb. 12, 1876. 'That delegate "was of the opinion that school teachers and [local] superintendents ought to have a voice in the matter." Id. He argued that the supervision of instruction should be left with the "Teachers' Institutes of the Territory." Id. Another delegate agreed and explained that the supervision of instruction should rest with the "Teachers' Institutes or the local School Boards." The Constitutional Convention, Denver Daily Tribune, Feb. 14, 1876.
The majority acknowledges that various convention delegates were concerned that permitting the state board to supervise instruction would inevitably lead to corruption in the process of choosing textbooks. Maj. op. at 938-989. One delegate expressed grave concerns that the section as proposed gave "unlimited power to fix the matter of text-books" to a body that was "purely political." The Constitutional Convention, Denver Daily Tribune, Feb. 14, 1876. While the state board was a necessary entity in the uniform oversight of public schools, many delegates believed that permitting it to control instruction would lead to inappropriate lobbying by textbook publishers. Id. Some delegates were surprised by the fact that other delegates read the phrase "supervision of instruction" as a potential mine of bribery. Id. It did not occur to them that "the Board of Education would have anything to do with the fixing of text books, but that [the state board] should have a general supervision of the public schools, ... assuming somewhat the powers of the General Superintendent of schools." Id.
"[Tlo harmonize these conflicting sentiments, [one delegate] offered an amendment, making the first line of section 1 to read as follows: 'The general supervision of the public schools shall be vested in a Board of Education.! " Id. Stating his approval of the changed line, one delegate exclaimed that "[the principle [of removing the power of textbook selection from the authority of the state board] should be to distribute those {voting] majorities to as small a degree as possible, and bring it home to each district." Id. To this day, that line remains, nearly verbatim, in the constitution. Unlike section 1, section 15 of article IX passed the convention without amendment. Proceedings of the Constitutional Convention for the State of Colorado 360, 362-63 (1907) (then codified at section 16).
Thus, the history surrounding these see-tions suggests that the delegates to the convention were interested in securing to the local school boards the right to choose and buy textbooks, and the associated right to *946oversee the course of instruction offered in the local schools. They were willing to assign an oversight role to the state board, but not a day-to-day control of curriculum.
It is against this historical backdrop that I view article IX, section 15 and the cases interpreting it.
II. . Analysis
a. The Belier line of cases
In the early part of the Twentieth Century in Colorado, there was an insufficient population base to support a high school in every school district. Therefore, the legislature struggled with how to fund high schools that served more than one school district In Belier v. Wilson, 59 Colo. 96, 147 P. 355 (1915), this court held that a tax levied on property in one school district in Otero County for the support of a high school in another school district in the same county was invalid. In a one-paragraph decision, the court held that the tax violated article IX, section 15, because the statute permitting the tax did not give "the electors in the former district any voice in the selection of those who manage and control the school at La Junta." 59 Colo. at 98, 147 P. at 856.
That same year, we decided School District No. 16 v. Union High School No. 1, 60 Colo. 292, 152 P. 1149 (1915). There, we reviewed a statute that permitted a student who resided in a school district without a high school to attend a high school in a different school district located in the same county of his residence at the expense of the student's local school district. 60 Colo. at 292, 152 P. at 1149. Because the statute did not grant the school district without the high school any degree of control over the instruction that its resident students would receive in the adjacent district at the expense of the student's resident district, we held that the receiving school was not entitled to a judgment against the sending school district for tuition fees. 60 Colo. at 298-94, 152 P. at 1149-50. We stated that "[the Legislature, in providing for the education of the pupils of a given district in the schools of another district, and imposing the costs thereof upon the former, clearly interfered with the control of instruction in such district." 60 Colo. at 2983, 152 P. at 1149.
In Hotchkiss v. Montrose County High School, 85 Colo. 67, 273 P. 652 (1928), we again reviewed a statute that permitted a student living in a school district without a high school to attend a high school in another school district in the same county at the expense of the student's local school district. Similar to the statutes at issue in Belter and Union High School No. 1, the statute under review in Hotchkiss compelled the local school district to fund the high school instruction that a student received in a different school district. 85 Colo. at 69, 278 P. at 653. Because the statute did not vest the local school district with any discretion over instruction, the court concluded that the statute violated article IX, section 15. Id.
The last in this line of old cases is Craig v. People ex rel. Hazzard, 89 Colo. 139, 299 P. 1064 (1981). There, we reviewed a statute that permitted a student residing in one district to attend a high school in another district at state expense. 89 Colo. at 142-44, 299 P. at 1065-66. Because the statute did not compel a school district to pay for instruction not under the district's control, we held that it did not violate article IX, section 15. We stated that "[it is eminently fair that a school district furnishing the education should be compensated therefor out of the [state] school income furd rather than to bestow all or a portion of such gratuity upon a county or school district not furnishing, and not required to pay for, such instruction." 89 Colo. at 148, 299 P. at 1067-68.
From these four cases, the majority draws the proposition that local control over instruction is synonymous with local control over all educational tax dollars.2 I suggest that even these older cases do not go that far, and could not support a conclusion that *947local control over instruction means local control over all educational dollars that might come to the schools.
More importantly, I read our two most recent cases as having moved away from a formula that equates local control with local tax dollar discretion, and having rather embraced a balancing test that gives greater deference to education legislation enacted by the General Assembly.
b. Lujan and Booth
The majority holds that our decision in Lujan v. Colorado State Board of Education, 649 P.2d 1005 (Colo.1982), reaffirmed the marriage of funding and control. There, we reviewed the constitutionality of the entire state school finance system. Because of varying property values throughout the state, some school districts were able to raise more revenue than other school districts, producing a disparity of funding among the various school districts in the state. Id. at 1013-14. The plaintiffs challenged that system, arguing that it violated the Equal Protection Clauses of the United States and Colorado Constitutions. Id. at 1014.
We reviewed the constitutionality of the school finance system under a rational basis review. Along those lines, we stated that to uphold the school finance system, the system had to be reasonably related to furthering a legitimate state purpose. Id. at 1022. Because the General Assembly had not identified a purpose with particularity, we had to infer the purpose from the statute itself as well as from other relevant enactments.
As part of that inquiry, we reviewed "the history of Colorado's educational system along with selected constitutional provisions and interpretive case law." Id. at 10283. Cit, ing to article IX, section 15 of the Colorado Constitution, as well as to Union High School No. 1, among other cases, we stated that "[the historical development of public education in Colorado has been centered on the philosophy of local control." Id. at 1021. We explained that "[tJaxation of local property has not only been the primary means of funding local education, but also of insuring that the local citizenry direct the business of providing public school education in their school district." Id. Thus, because the philosophy of local control was a pervasive theme both in the constitution and in our cases, we inferred that the purpose of the school finance system was to ensure local control. Id. at 1028.
Importantly, however, we made these pronouncements not to construe or interpret article IX, section 15, but only to identify the legislative purpose underlying the state school finance system. We stated that "utilizing local property taxation to partly finance Colorado's schools is rationally related to effectuating local control over public schools." Id. Thus, we relied on the Belier line of cases only to support the conclusion that the purpose of the Public School Finance Act was to ensure local control through local funding. We did not hold that such funding was the purpose of article IX, section 15.
Instead, the real import of Lyjan is its emphasis on the complimentary constitutional roles of the state and local entities in providing public education. Far from enshrining the notion that local control equals local funding, Lan underscores the necessary balance of control between the state and the local school district that must be considered in reviewing any piece of educational legislation. |
. Indeed, we specifically stated that judicial intrusions into the decisions of the General Assembly are to be avoided, "especially ... where the controversy ... is essentially directed toward what is the best public policy which can be adopted to attain quality schooling and equal educational opportunity for all children who attend our public schools." Lu-jan, 649 P.2d at 1018.
In Lujan, we did, indeed, recognize very important principles-but not, in my view, the ones that the majority endorses. Rather, we recognized that every eligible student in the state has a right to a free and thorough education, and that both the state and the local governmental entities have a role in fulfilling that promise. Id. at 1025. Hence, the actions of the general assembly must be judged against its charge to provide a free and uniform system of public schools within *948each school district, and against whatever level of control is needed by the local school district to implement the state's mandate. Id.
That pronouncement hearkened back to Wilmore v. Annear, 100 Colo. 106, 115, 65 P.2d 1433, 1487 (1937), where we held that "the establishment and financial maintenance of the public schools of the state is the carrying out of a state and not a local or municipal purpose." Indeed, "(bly vesting the power in districts to levy and collect taxes for the support of the school or schools in such districts, the state was but adopting a means for carrying out its purposes." Id. Wilmore made clear that local funding is a mechanism to implement the state-wide responsibility regarding education; it is not an end to itself.
Against that backdrop, and affording the legislature a strong presumption of constitutionality, we upheld the state's system of public funding in Lujan. 649 P.2d at 1025. Lujan stands for the proposition that both the general assembly and the local school board have a role in assuring that we meet our educational responsibilities.
That careful balancing of responsibilities is even clearer in our most recent relevant case, Board of Education of School District No. 1 v. Booth, 984 P.2d 639 (Colo.1999). In Booth, we reviewed a constitutional challenge to a portion of the Charter Schools Act, section 22-30.5-108(8), 7A C.R.S. (2008). The statute at issue in that case permitted an applicant charter school to appeal to the state board of education a local school district's denial of its application. The statute instructed the state board to determine whether the local school board's denial of the application was " 'contrary to the best interests of the pupils, school district, or community.' " Id. at 648 (quoting § 22-30.5-1088)(d)). If the state board found that the local school board's decision was contrary to those interests, the statute directed it to remand the decision back to the local board " 'with instructions to approve the charter application." " Id. (quoting § 22-30.5-108@8)(d)).
In that case, the local school board had denied a charter school application. On appeal, finding that the denial of the application was contrary to the best interests of the pupils, school district, or local community, the state board ordered the local board to approve the application. Id. at 644. The local school board challenged that decision, arguing that the appeal provision of section 22-30.5-108(8) violated the "control of instruction" clause of article IX, section 15, because it interfered with the management of local resources. Id. at 645. The state board countered that the statute was constitutional because it was passed pursuant to article IX, section 1 of the Colorado Constitution, which grants the power of "general supervision" to the state board. Id.
We rejected both of these categorical arguments "because each failled] to recognize or reconcile the potential for competing responsibilities created by the constitution." Id. at 645. In considering those competing responsibilities, we distanced ourselves from the assumption-prevalent in Belier and its progeny-that any effect on a school district's financial resources triggered its right to control instruction. In so doing, we applied a concept of "control of instruction" that did not involve money, but that contemplated instead a school district's responsibility to oversee and implement its educational programs-a notion that the local board had the right to control the instruction for which it was to be held accountable.
We first took note of the general assembly's primary constitutional responsibility concerning education-its duty to "provid{e] for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state." Id. (quoting Colo. Const. art. IX, § 2). We stated that "[alny meaningful regulation in furtherance of this responsibility, whether it involves curriculum, facilities, programs, management, services, or employment, will inevitably influence the allocation of resources." Id. (emphasis added). In that vein, we stated that "Iwle will not seriously entertain the notion that the General Assembly's constitutional responsibility for public education can be carried out only to the extent that its regulations have no discernable effect on local resources." Id. We then held that pursuant to article IX, section 1, the state board is "to *949serve as both a conduit of and a source for educational information and policy, and they [the framers of the constitution] intended the General Assembly to have broad but not unlimited authority to delegate to the State Board 'powers and duties' consistent with this intent." Id. at 648 (quoting Colo. Const. art. IX, § 1).
We held that the district's control of instruction "requires power or authority to guide and manage both the action and practice of instruction as well as the quality and state of instruction" and involves "substantial discretion regarding the character of instruction that students will receive at the district's expense." Id. at 648. Thus, "als long as a school district exists, the local board has undeniable constitutional authority." Id. at 646. Nevertheless, "just as even core constitutional rights are not absolute, this constitutional authority is subject to limits." Id. Accordingly, "[the contours of constitutional rights are typically determined by balancing competing interests." Id. Hence, a school district's right to local control is not absolute and must be weighed against other considerations.
' After noting the competing roles and responsibilities of the general assembly and the school districts, we proceeded to develop a specific balancing test in order to reconcile the competing interests presented in that case. We weighed the authority of the state board as an extension of the General Assembly on the one hand against the local board as an extension of the school district on the other. Id. at 646-648. The overarching purpose of the Booth test, we stated, was to determine whether the legislation at issue unduly interfered with the local school dis-triet's constitutional authority.3 Id. at 649.
As formulated, that test permits the local board's control of instruction and any concomitant discretion to be "restricted or limited :.. by statutory criteria and/or judicial review" provided that any such limitations do "not have the effect of usurping the local board's decision-making authority or its ability to implement, guide, or manage the educational programs for which it is ultimately responsible." Id. (emphasis added). Thus, we held that "in the context of novel education reform legislation, we cannot attempt a definitive constitutional demarcation." Id. Rather, we must take the principles of the balancing test and "review each case on its facts." Id. at 650. We must apply that understanding in reviewing "the statute whose language and operation are specifically before us." Id.
Where the statute advances a legitimate educational purpose, we give deference to the balance that the General Assembly sought to maintain between state authority and local board authority.4 Id. at 650. We presume that balance is permissible unless it poses a clear impediment upon either the state actor or the local board to exercise its own constitutional authority. Id. Foremost, the party alleging that the statute is unconstitutional bears the burden at all times of proving that the statute is unconstitutional beyond a reasonable doubt. Id. -
With these principles in mind, I turn to the General Assembly's role in passing the Pilot Program and the effect of the program upon *950the local board's constitutional authority to control instruction.
c. The Pilot Program
The Pilot Program directs "[a] nonpublic school that chooses to participate in the pilot program [to] file an application with a school district." § 22-56-106(1), 7A C.R.S. (2008). In that application, the nonpublic school must provide the school district with information that indicates it meets certain standards. Id. First, the nonpublic school cannot discriminate in admissions "on the basis of race, color, religion, national origin, or disability." § 22-56-106(1)(b). Second, the nonpublic school must not "advocate or foster unlawful behavior or teach hatred of a person or a group." § 22-56-106(1)(c). Third, the nonpublic school must meet all health and safety laws or codes applicable to public schools. § 22-56-106(1)(d). - Fourth, the nonpublic school must agree to let the school district, at the nonpublic school's expense, administer statewide assessment exams for those children attending the nonpublic school under the program. § 22-56-106(1)(e). Fifth, the nonpublic school must perform background checks on its employees. § 22-56-106(1)(F). Finally, the nonpublic school must permit students attending the school through the Pilot Program to withdraw at any time. § 22-56-106(1)(g). The nonpublic school must reaffirm that it meets these standards each year that it wishes to continue in the program. § 22-56-106(4).
The school district has little discretion to refuse enrollment in the program to eligible students, § 22-56-104(2), 7A C.R.S. (2003), but it may deny participation in the program to a nonpublic school for failing to meet the standards listed above. § 22-56-106(8)(b)(ID). Within thirty days of a denial, the nonpublic school may appeal the decision to the state board. § 22-56-106(8)(c).
The Pilot Program may be funded in part through local revenue from the school districts affected by the program.5 It is also funded by state dollars. There is even evidence to suggest that federal dollars make up a portion of the total contribution.
The majority concludes that because the program interferes with the local school dis-triets' control over instruction financed to any extent by locally-raised funds, it is unconstitutional. I disagree. Rather, applying the directives of Booth, I find that the opponents to the program have failed to meet their burden of demonstrating unconstitutionality.
Booth instructs us that a "generally applicable law triggers control of instruction concerns when applied to specific local board decisions likely to implicate important education policy." 984 P.2d at 649. There, we upheld an innovative state program that clearly interfered to some extent with local control over instruction because it did not have the effect of "usurping the local board's decision-making authority or its ability to implement, guide, or manage the educational programs for which it is ultimately responsible." Id.
Article IX, section 15, provides that the directors of the state's school districts "shall have control of instruction in the public schools of their respective districts" (emphasis added). School districts-with or without the Pilot Program-are not ultimately responsible for the instruction that students receive at nonpublic schools. Similarly, the Pilot Program does not affect the local board's ability to implement, guide, or manage the instruction that students do receive at public schools. In my view, the incursions into local control that the Pilot Program represents are nowhere near as serious as those we have already upheld in Booth.
Booth, in particular, directs our focus back to the plain language of article IX, section 15, and instructs us to review the Pilot Program out from under the shadows of constitutional interpretation that Belier and its progeny cast upon the majority's holding. Booth, 984 P.2d at 653 n. 6. Booth further acknowledges *951that "[wle bave traditionally treated education policy choices with special deference and are particularly averse to the judicially intrusive effect of invalidating a statute in this context." Id.
The language of the constitution itself does not in any way preclude the Pilot Program. Instead, the only support for that conclusion arises out of cases that responded to educational dilemmas entirely different from those faced today-cases that this court has already discounted in its more recent pronouncements. - Legislatures must be innovative and creative in their policy decisions. Courts, in turn, must evaluate those innovations against the more stable drumbeat of constitutional mandate and precedent. Here, I see no conflict between the constitution and the Pilot Program.
d. Special Legislation
Since I would otherwise hold the statute constitutional, I would need to reach Plaintiffs argument that the Pilot Program was passed as "special legislation" in violation of article V, section 25 of the Colorado Constitution. In that regard, I would affirm the district court's dismissal of the claim, for all of the factual and legal reasons so aptly set forth by the district court in its opinion of December 3, 2008.
IIL - Conclusion
Because I do not believe that the Pilot Program violates either the language or the spirit of the constitutional provision protecting local control over instruction offered in public schools, I conclude that the Pilot Program is constitutional. Accordingly, I would reverse the district court on that basis, and would remand for further consideration of any remaining issues.
I am authorized to state that Justice RICE and Justice COATS join in this dissent.
. A 1948 amendment to the constitution changed the make-up of the state board of education, replacing the superintendent with an appointed commissioner of education, and replacing the ex officio state board with an elected board that includes a member from each congressional district. S. Con. Res. No. 6, 36th Gen. Assemb. Reg. Sess., 1947 Colo. Sess. Laws 976, 976-77; Ch. 152, Colo. Const. art. IX, § 1, 1949 Colo. Sess. Laws. 359, 359-60.
. The funding sources for education have changed since 1935; whereas once local money financed education, now both state and local money support that function. Lujan v. Colo. State Bd. of Educ., 649 P.2d 1005, 1011 (Colo.1982)("Since 1935, a combination of local property tax levies and direct state contributions has been the principal source of financial support for Colorado's public school system.").
. The majority states that Booth's balancing test is triggered only when a statute pits the state's constitutional authority to supervise education against the local boards' constitutional authority to control instruction. Maj. op. at 942. I suggest that this case does involve just such a tension, see § 22-56-106, 7A C.R.S. (2003), but even if it does not, I view the fundamental holding of Booth to be that local control is not absolute, but is, rather, a component to be weighed in the constitutional equation. Booth provides a framework to review all "novel educational reform" in all cases where a local school district alleges interference with its right to control instruction, as here. Booth, 984 P.2d at 649. This case presents just such a controversy, and therefore invokes the Booth balancing test.
. Section 22-56-1022, 7A CRS. (2003), states that "meeting the educational needs of high-poverty low-achieving children in our state's ' highest-poverty public schools is of the greatest importance to the future welfare of Colorado," § 22-56-102(a), and that the purpose of the Pilot Program is to provide "a broader range of educational options 'to parents ... utilizing existing resources and educational structures [that] may help high poverty, low-achieving students improve their academic achievement," § 22-56-103(c). There is no dispute that the Pilot Program attempts to effectuate a legitimate educational purpose. ©
. The question of whether the local dollars do, indeed, comprise a portion of the funding may be just an accounting issue. Since the legislation provides that only 7% of the students in the district can ever participate in the program, and since the State unequivocally provides at least 50% of the funding, it seems to me that there is an open question about which dollars are going where.