v(ouch)!

Plaintiffs: Dougco voucher program thwarts constitution

Highlands Ranch High School science teacher Bob MacArthur leads a class discussion in 2014. (Photo by Nicholas Garcia)

Gearing up for a constitutional slug match over the fate of private school vouchers in Colorado, lawyers for Douglas County parents and taxpayers made their first pitch to the Colorado Supreme Court on the 2011 suburban scholarship program.

The voucher plan, which is on hold pending litigation, would allow Douglas County students to use public tax dollars to enroll in private — and often religious — schools would siphon away much-needed revenue from public schools and subsidize religious institutions. In effect, the program is unconstitutional, lawyers argued in a brief filed late Thursday with the Colorado Supreme Court.

The 80-page document, filed on behalf of two groups of plaintiffs, argues why the district-created voucher program, known as the Choice Scholarship Program, should not be permitted to launch.

The Colorado Supreme Court agreed to hear the case earlier this year after a three-member appellate court overturned a lower courts ruling that deemed the program unconstitutional.

The appellate court ruled the plaintiffs, including parents, clergy, and tax payers, did not have legal standing to bring the lawsuit. That decision will be one of six points the Supreme Court will consider in its ruling.

Other questions the Supreme Court will look to answer include whether the program violates Colorado’s Public School Finance Act of 1994 and four different sections of the Colorado Constitution.

“The majority court of appeals opinion that upheld the Program, if allowed to stand, would eviscerate core provisions of the religion and education clauses of the Colorado Constitution, restrict citizens’ ability to enforce the Public School Finance Act, and give school districts around the state carte blanche to implement similar programs, with potentially devastating consequences for the State’s constitutionally mandated public-school system,” the brief says.

The plaintiffs’ brief is one of a few initial steps in what is expected to be a rather long and uncertain process. The Douglas County School District has until Aug. 4 to file its response. A date for oral arguments has not been set. Those arguments may not be heard until next year, according to a spokesman for the the Colorado chapter of the American Civil Liberties Union.

The voucher program, which was unanimously passed by the Dougco school board in 2011, would have allowed up to 500 Douglas County students to use 75 percent of the district’s per-pupil funding – or $4,575 at the time – to attend a participating private school approved by the district.

Students would have been able to use those funds to attend private religious schools.

Thirty-four private schools applied to participate in the voucher program. Dougco approved 23 of those schools.

Of the 23 schools, 14 were located outside Douglas County, and 16 taught religious doctrine.

The voucher program was modeled after other programs across the nation that have prevailed in court. It gave students the right to “receive a waiver from any required religious services at the [participating private school],” according to previous court documents filed by the district.

However, lawyers for the plaintiffs argue the waivers weren’t enough to meet constitutional muster.

The Douglas County school board remains confident in its case, a spokeswoman for the district said earlier this week referring to a previously issued statement from board member Craig Richardson.

“The District welcomes the opportunity for the state’s highest court to review a case that presents such important issues for our state and our country,” Richardson said in March. “DCSD is committed to expanding choice for parents and one of the ways is our innovative Choice Scholarship Program. We believe the Court of Appeals will be affirmed and that the parents and children of our District will, someday soon, be afforded more educational choice.”

From the brief

One of the main objections to the voucher program was the inclusion of religious-run institutions. Critics saw this as a violation as of the Colorado’s Constitution as using public dollars for religious activities. While there was a waiver policy for students who might not participate in a particular religion, a lower court agreed the waiver was limited at bets. The brief argues:

The Program purports to afford students the right to “receive a waiver from any required religious services at the Private School Partner,” but the waiver only applies to saying prayers aloud; students can still be compelled to attend religious services. Nor may students opt out of full participation in other religious exercises — such as prayer recitations and scriptural readings — that many of the schools mandate throughout the day. Moreover, most of the schools require students to receive instruction in religious doctrine. Even the District acknowledged that this was “[n]ot much of an opt out.”

During the initial trial, testimony suggested one participating religious school only signed up for the program to beef up its own reserves. Here’s why:

There are no restrictions on how participating schools may spend the public funds they receive through the Program. Schools are free to use the funds for religious instruction, worship services, religious literature, clergy salaries, and construction or maintenance of facilities used for worship and prayer.

One of the more nuanced parts of the Dougco voucher case revolves around a charter school established by the district that students in the program were to enroll in. The charter school had no teachers, curriculum, or walls. Its primary function was to cut voucher checks to parents.

In sum, the Voucher Program rests on the transparent fiction that the Charter School is a “qualified charter school” entitled to claim and spend public funds under the Act. The Court should not sanction such a fiction.

If the Douglas County wants to expand school choice, as it has purported to do, there is a constitutional solution, the brief says:

If the citizens of Colorado want to rewrite the State Constitution to allow public funding of religious schools, they can try to do so at the ballot box. Until then, the language and intent of the Colorado Constitution’s framers must be followed.

The plaintiffs’ brief

Follow the money

Groups with a stake in Colorado’s school board elections raise $1.5 million to influence them

The nation's second largest teachers union is spending $300,000 to support a slate of candidates running for the Douglas County school board. Those candidates posed for pictures at their campaign kick-off event are from left, Krista Holtzmann, Anthony Graziano, Chris Schor, and Kevin Leung. (Photo by Nic Garcia/Chalkbeat)

Union committees and various political groups have raised nearly $1.5 million so far to influence the outcome of school board elections across the state, according to new campaign finance reports.

The Colorado Education Association, the state’s largest teachers union, and organizations such as Democrats for Education Reform, a political nonprofit, are spending big in an effort to help elect school board members that represent their positions.

It’s become a common storyline in school board elections in Colorado and across the country: On one side, teachers unions hoping to elect members that will improve working conditions and teacher pay, among other things. On the other, education reformers who generally back candidates who support expanding school choice for families, more autonomy for schools and accountability systems that measure school quality, usually based on test scores.

The complete fundraising and spending picture, however, is often murky and incomplete.

State law lays out different rules and disclosure requirements for different types of political committees. The most prevalent this election year appears to be independent expenditure committee, which can raise and spend an unlimited amount of money but are forbidden from coordinating with candidates. (Campaign finance reports for the candidates’ campaigns are due at midnight Tuesday).

Both the union and reform groups operate independent committees. Those committees must report donations and expenditures to the secretary of state. But the donations captured in campaign finance reports are often huge lump sums from parent organizations, which aren’t required to disclose their donations under federal law. (Dues collected out of teachers’ paychecks are often the source for political contributions from unions.)

Several groups are spending money in Denver, where four of the seven school board seats are up for election. The ten candidates vying for those four seats include incumbents who agree with the district’s direction and challengers who do not. The Denver teachers union has endorsed candidates pushing for change.

The Every Student Succeeds group, which has raised almost $300,000 in union donations, is spending the most on one Denver candidate, Xóchitl “Sochi” Gaytán, who is running for a seat in southwest Denver, and on a slate of four Aurora school board candidates endorsed by Aurora’s teachers union.

The group’s largest donations came from the Colorado Fund for Children and Public Education, a fund from the Colorado Education Association. Aurora’s teachers union contributed $35,000 to the committee. The DCTA Fund, a fund created by Denver’s teachers union, also contributed $85,000 to the committee.

Some of the group’s union money is also going to a slate of school board candidates in Mesa County and another in Brighton.

The Students for Education Reform Action Committee has spent equal amounts on two Denver candidates. One, Angela Cobián, is running in Denver’s District 2 against Gaytán and has been endorsed by incumbent Rosemary Rodriguez, who isn’t running again. The other is Rachele Espiritu, an incumbent running in northeast Denver’s District 4. The funds, which were collected during a previous campaign cycle and carried over into this one, have gone toward phone banking, T-shirts and campaign literature.

The group has endorsed Cobián, Espiritu and incumbent Barbara O’Brien, who holds an at-large seat. It did not endorse a candidate in the central-east Denver District 3 race, explaining that it prioritizes “working with communities that reflect the backgrounds and experiences of our members, which are typically low-income and students of color.”

Better Schools for a Stronger Colorado, a committee affiliated with the pro-reform Stand for Children organization, has spent a sizable portion of the more than $100,000 it’s raised thus far on online advertisements and mailers for O’Brien. It has also spent money on mailers for incumbent Mike Johnson, who represents District 3.

Stand for Children has endorsed O’Brien, Johnson and Cobián. The group chose not to endorse in the three-person District 4 race, explaining that both incumbent Espiritu and challenger Jennifer Bacon had surpassed its “threshold for endorsement.”

Another big spender is Raising Colorado, a group reporting $300,000 in donations from New York’s Education Reform Now — the national affiliate of Democrats for Education Reform. That group is spending money on mailers and digital media for four candidates in Denver: Espiritu, Cobián, Johnson and O’Brien, as well as two candidates for Aurora’s school board: Gail Pough and Miguel In Suk Lovato.

In Douglas County, the American Federation of Teachers, the nation’s second largest teachers unions has pumped $300,000 into a committee backing a slate of candidates that opposes the current direction of the state’s third largest school district.

The committee, Douglas Schools for Douglas Kids, has spent most of its war chest on producing TV, digital and mail advertising by firms in Washington D.C., and San Francisco.

The Douglas County arm of AFT lost its collective bargaining agreement with the district in 2012.

A group of parents that also supports the union-backed slate have formed a committee, as well. So far it has raised $42,750, records show. Unlike the union donation, most donations to this committee were small donations, averaging about $50 per person.

The parent committee has spent about $28,000 on T-shirts, bumper stickers, postage and yard signs, records show.

what is a good school?

New York policymakers are taking a closer look at how they evaluate charter schools

PHOTO: Stephanie Snyder
Erica Murphy, school director of Brownsville Ascend Lower Charter School in New York, oversees students in a fourth-grade English class.

New York is rethinking how it judges whether charter schools are successful and deserve to remain open — a discussion that comes as some top education policymakers have asked tough questions about the privately managed schools.

The state education department currently decides which of the more than 70 charter schools it oversees can stay open based largely based on their test scores and graduation rates, though other factors like family involvement and financial management are also reviewed. A set of changes now being considered could add additional performance measures, such as the share of students who are chronically absent and student survey results.

Policymakers also discussed whether to change how they calculate charter-school student enrollment and retention.

The move — which got its first public discussion Monday during a Board of Regents meeting and is expected to become a formal proposal in December — would bring charter schools in line with a shift underway in how the state judges district-run schools. Under the new federal education law, the board has moved away from using test scores as the main metric for evaluating schools and will begin to track absences and eventually suspensions.

Since state’s current system for evaluating charter schools was last revised in 2015, the board has added several new members and elected a new leader, Betty Rosa. Several members at a previous board meeting questioned the enrollment practices at a charter school in Brooklyn.

At Monday’s meeting, some suggested the schools attain high test scores partly by serving fewer high-needs students — and that the system for evaluating charters should take this into account.  

For instance, Regent Kathleen Cashin implied at Monday’s meeting that some charter schools achieve high test scores by pushing out students. Their motivation, she said, “is not pedagogic, I’ll tell you that.” She suggested that, in addition to tracking how well charter schools retain students, the state should survey parents who leave those schools to find out why.

Meanwhile, Chancellor Rosa suggested Monday that it’s unfair to compare charter schools that serve few high-needs students to traditional schools.

Charter schools receive autonomy from many rules, but in return they agree to meet certain performance targets — or risk closure if they do not. The state judges charters based on a variety of metrics, everything from their enrollment figures to how they respond to parent concerns. However, test scores and graduation rates are “the most important factor when determining to renew or revoke a school’s charter,” according to state documents.

Even if the state adds new measures that move beyond test scores, those will still hold the most weight, according to state officials.

The state is also considering whether to change how it measures charter schools’ enrollment and retention targets. Currently, schools must set targets for students with disabilities, English learners, and those eligible for free and reduced-priced lunch. If they fail to meet those targets, they must show they are making yearly progress towards meeting that goal.

During the state’s presentation, officials also floated the idea of a “fiscal dashboard,” which would display charter schools’ financial information. They also said they may compare charter high school graduation rates and Regents exam scores with those of the districts where they’re located, instead of using only the state average or their targets as a comparison point.