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

The New Chancellor

Tell us: What should the new chancellor, Richard Carranza, know about New York City schools?

PHOTO: Christina Veiga
A student at P.S. 69 Journey Prep in the Bronx paints a picture. The school uses a Reggio Emilia approach and is in the city's Showcase Schools program.

In a few short weeks, Richard Carranza will take over the nation’s largest school system as chancellor of New York City’s public schools.

Carranza, who has never before worked east of the Mississippi, will have to get up to speed quickly on a new city with unfamiliar challenges. The best people to guide him in this endeavor: New Yorkers who understand the city in its complexity.

So we want to hear from you: What does Carranza need to know about the city, its schools, and you to help him as he gets started April 2. Please fill out the survey below; we’ll collect your responses and share them with our readers and Carranza himself.

The deadline is March 23.

buses or bust?

Mayor Duggan says bus plan encourages cooperation. Detroit school board committee wants more details.

PHOTO: Denver Post file
Fourth-graders Kintan Surghani, left, and Rachel Anderson laugh out the school bus window at Mitchell Elementary School in Golden.

Detroit’s school superintendent is asking for more information about the mayor’s initiative to create a joint bus route for charter and district students after realizing the costs could be higher than the district anticipated.

District Superintendent Nikolai Vitti told a school board subcommittee Friday that he thought the original cost to the district was estimated to be around $25,000 total. Instead, he said it could cost the district roughly between $75,000 and a maximum of $125,000 for their five schools on the loop.

“I think there was a misunderstanding….” Vitti said. “I think this needs a deeper review…The understanding was that it would be $25,000 for all schools. Now, there are ongoing conversations about it being $15,000 to $25,000 for each individual school.”

The bus loop connecting charter and district schools was announced earlier this month by Mayor Mike Duggan as a way to draw kids back from the suburbs.

Duggan’s bus loop proposal is based on one that operates in Denver that would travel a circuit in certain neighborhoods, picking up students on designated street corners and dropping them off at both district and charter schools.

The bus routes — which Duggan said would be funded by philanthropy, the schools and the city — could even service afterschool programs that the schools on the bus route could work together to create.

In concept, the finance committee was not opposed to the idea. But despite two-thirds of the cost being covered and splitting the remaining third with charters, they were worried enough about the increased costs that they voted not to recommend approval of the agreement to the full board.  

Vitti said when he saw the draft plan, the higher price made him question whether the loop would be worth it.

“If it was $25,000, it would be an easier decision,” he said.

To better understand the costs and benefits and to ultimately decide, Vitti said he needs more data, which will take a few weeks. 

Alexis Wiley, Duggan’s chief of staff, said the district’s hesitation was a sign they were performing their due diligence before agreeing to the plan.

“I’m not at all deterred by this,” Wiley said. She said the district, charters, and city officials have met twice, and are “working in the same direction, so that we eliminate as many barriers as we can.”

Duggan told a crowd earlier this month at the State of the City address that the bus loop was an effort to grab the city’s children – some 32,500 – back from suburban schools.

Transportation is often cited as one of the reasons children leave the city’s schools and go to other districts, and charter leaders have said they support the bus loop because they believe it will make it easier for students to attend their schools.

But some board members had doubts that the bus loop would be enough to bring those kids back, and were concerned about giving charters an advantage in their competition against the district to increase enrollment.

“I don’t know if transportation would be why these parents send their kids outside of the district,” Angelique Peterson-Mayberry said. “If we could find out some of the reasons why, it would add to the validity” of implementing the bus loop.

Board member LaMar Lemmons echoed other members’ concerns on the impact of the transportation plan, and said many parents left the district because of the poor quality of schools under emergency management, not transportation.

“All those years in emergency management, that drove parents to seek alternatives, as well as charters,” he said. “I’m hesitant to form an unholy alliance with the charters for something like this.”