Parents in Douglas County get their chance tonight to weigh in on the state’s first serious voucher proposal since the Colorado Supreme Court struck down a 2003 law.
Details of the “option certificates” proposal are still in flux and, because of that, so are the legal risks.
“We have not explored what we might do and we don’t have any immediate plans,” said Jeanne Beyer, spokeswoman for the Colorado Education Association, which did much of the legal heavy-lifting to defeat the earlier plan. “But we are saying officially that we are opposing what they are considering doing.”
Discussion by Douglas County school board members during a weekend retreat sparked key questions about the proposal, including:
- Would vouchers be a financial gain or drain on a district that cut millions of dollars and hundreds of jobs to balance its 2010-11 budget?
- Should the district allow participating private schools to keep their admissions policies intact, even if those policies refuse to admit students or hire teachers with different religious beliefs?
- How many of the district’s nearly 60,000 families would make the jump to private schools? Of 4,361 respondents in a July survey, 9 percent checked “private” as their most desired school type.
Board President John Carson told his colleagues that “all options are on the table” as they explore what the final proposal might look like.
“If you just basically believe as I do, that competition and choice in anything gets you a higher quality, I believe we should look at it because we’ve got clear problems in this country with the results we’re getting in public education,” Carson said.
“We have a clear problem in this country but, relative to Douglas County, that may not be the case,” shot back board member Clifton Stahl, referring to the affluent district’s high achievement. “I wholeheartedly agree with you in terms of the competition, but at what cost?”
Lowering the litigation risk
Colorado’s third-largest school district may be best known for rapid growth, affluence – only Aspen reported a lower student poverty rate last year – and high test scores.
But the all-Republican school board, swept into office last November, is looking at a range of ideas that could transform Douglas County into a national model of parental choice. That includes home-schooling centers, an RFP process for new schools and open enrollment.
Vouchers are the most controversial element, and board members seem well aware of the legal risks.
“What would it cost us to defend something like this?” Stahl asked during a working dinner on Friday.
“The litigation risk is a function of scale,” said board member Craig Richardson. “If we do something small and piloted, then I think the litigation risk is lower. If you go with something that is full-scale, the litigation risk is higher … go all the way to the Supreme Court and I think it’s seven figures.”
Eric Hall, the Colorado Springs attorney who helped write the 2003 voucher law and who recently drafted the Dougco plan, said the district might lower its risk by tweaking parts of the proposal.
For example, the way it’s written now, private schools would be required to follow state and federal anti-discrimination policies in admissions and employment – with the exception of religious belief.
“A religious school could say, we would not accept a student because they have a certain religious belief?” Stahl asked.
“Yes,” Hall said. “There are religious schools in Colorado that, for instance, have statements of faith … if you want to come to our school, sign our statement of faith saying I profess these same beliefs.”
The board could require schools not to discriminate on the basis of religion, Hall said, but he added, “It’s going to be less likely you’ll get private schools to participate if you force them to change who they are.”
Discrimination in admissions became an issue during the state’s short-lived voucher pilot in 2003, when a Lakewood Baptist school that prohibited homosexual students sought to join the program.
Financial gain or drain?
Much of the board’s weekend discussion focused on the financial implications of vouchers, with some members contending they’ll be a clear gain for the district and others not as certain.
The proposal calls for the voucher to be either equal to a private school’s tuition or 75 percent of the per-pupil funding Douglas County receives from the state, whichever is less. That works out to just under $5,000.
The district would keep the other 25 percent of the per-pupil funding, or about $1,600 per voucher student.
“We need to do a really good job explaining to people that if we were to implement any kind of proposal that it would not result in a net loss of teachers, it would not result in mass chaos at local schools,” said board member Meghann Silverthorn, “because that’s what people are afraid of.”
Hall, the attorney, said the district gains in two ways. First, the program might draw back some of the 2,500 students who leave Douglas County schools every day for another district. It might also entice students living in nearby districts to cross the county line. So that’s 25 percent more per student than the district is currently receiving.
And, yes, some students currently enrolled in neighborhood schools might exit for private schools, Hall said. But that could happen anyway and the voucher plan means the district keeps 25 percent of their funding dollars, rather than losing it all.
Board member Dan Gerken said the district could end up making money. Consider, for example, if the growing district enrolled 500 new students one year and another 500 students chose vouchers.
“We’re left with the same number of kids and, all things being equal, more money to educate them with because of the 25 percent,” he said.
Other board members were more skeptical. Stahl pointed out that the plan calls for a new office to run the voucher program and questioned whether the overall effect might be a stagnant enrollment.
And Richardson said the number of new students in Dougco, which has seen its growth spurt slow, could be less than those current students departing with vouchers in hand.
“I believe to be credible, we have to say this is a debate about a potential concept for additional choice,” he said. “But we can’t say, at this time, that it will be profitable.”
Figuring out supply and demand
More than 8 in 10 Douglas County students are enrolled in neighborhood schools and another 6 percent attend charters. The others attend alternative, magnet and online programs.
In that July survey of more than 4,300 parents, 84 percent said they were satisfied with their current school. But they also said they were interested in other options.
For example, 10 percent of parents with students in neighborhood schools listed private schools as their desired school type and 15 percent of those with kids in charters said they preferred private schools.
Extrapolate those figures out over the district’s 60,000 students and that means thousands of families are likely to consider vouchers.
Those demand numbers are imprecise but fuzzier still is the interest on the part of Douglas County’s private schools.
In fall 2009, the Colorado Department of Education listed 11 private schools serving 3,296 students in the county. Seven of those were obviously religious. The list is incomplete, however, leaving out such private school powerhouses as Valor Christian High School in Highlands Ranch.
Valor’s tuition this year is $13,350, plus hundreds of dollars more in books, electives and athletics.
Under the current proposal, a student attending a private school with tuition higher than the $5,000 voucher would have to make up the difference.
That prompted a teacher at the board retreat to question whether some families would be left out.
“So who are you benefiting?” Hall responded. “You’re benefiting those parents who would have liked to send their children to private schools but can’t quite afford it…
“And the market idea is that there are other private schools that would grow up to serve the needs of parents who want to use only the voucher amount.”
Similar questions are likely to crop up as the board today begins taking its voucher proposal to the public. All seven members seemed eager to move ahead and hear what others have to say.
“I remain very optimistic that we can fashion a small pilot program that will be a win-win for all of our stakeholders,” Gerken said.
How can they do that? A legal primer on vouchers in Colorado
This Q & A includes three key cases in the legal history of Colorado’s voucher efforts. Voters in 1992 and in 1998 rejected ballot initiatives for vouchers and tuition tax credits. A 2003 pilot approved by lawmakers was halted by the state Supreme Court before a single voucher was issued.
- How can taxpayer money be spent on private and religious schools?
- In 2002, the U.S. Supreme Court ruled that providing parents with vouchers to pay tuition at private schools does not violate the First Amendment’s ban on mixing church and state. The nation’s highest court, in Zelman v. Simmons-Harris, concluded by a 5-4 vote that “neutral educational assistance programs that … offer aid directly to a broad class of individual recipients defined without regard to religion” are legal.
- Isn’t there an amendment to the Colorado constitution that prohibits this?
- The Blaine amendment states, in part, that no school district “shall ever…pay from any public fund or moneys whatever, anything in aid of any church…” Eric Hall, the Colorado Springs attorney who drafted the Douglas County policy, points to a 1982 case involving a state grant program to aid college students. In Americans United for Separation of Church and State Fund, Inc. v. State, the Colorado Supreme Court found the state aid benefited the student and not the institution. This distinction shapes the dollar flow – voucher checks sent to private schools are in the parents’ names and valid only if signed over by them.
- So why was the 2003 Colorado voucher program stopped?
- The state Supreme Court decision that struck down the Opportunity Contract program in 2004 did not address religion. Instead, the court found that the pilot program for students in 11 districts violated the local control vested in elected school boards by the state constitution. In Owens v. Colorado Congress of Parents, Teachers and Students, the court said the law “directs the school districts to turn over a portion of their locally raised funds to nonpublic schools over whose instruction the districts have no control.”
- How is Douglas County getting around that ruling?
- Because it’s a decision by a local school board to include private schools within the district as an educational option, Hall said. The board could be cautious and designate that only locally raised taxes be used for the vouchers – on average, per-pupil funding in Colorado is 35 percent local property taxes and 65 percent state dollars. But Hall doesn’t believe that’s necessary: “I don’t see any barrier to a local district saying we’re providing an educational program that uses some state dollars, just like we use state dollars when we run any other educational program in our district.”