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


‘Genius grant’ writer to Memphis: ‘We’re losing the only gains we’ve made’ against segregation

PHOTO: Caroline Bauman
Nikole Hannah-Jones, an award-winning New York Times Magazine writer, speaks on school segregation during her first public appearance in Memphis.

Memphis is a “perfectly sad place” to talk about school segregation, a nationally renowned journalist said while visiting the city this week.

Nikole Hannah-Jones, who writes about race and school segregation for the New York Times Magazine, was in Memphis as part of a speaker series sponsored by Center for Southern Literary Arts, Chalkbeat Tennessee and MLK50: Justice in Journalism.

She was among the 24 recent winners of a no-strings-attached prize known as the MacArthur “Genius Award.” (Read more about her work here.)

Her award-winning piece, the “The Resegregation of Jefferson County” was a deeply reported  article on how racially motivated school district secessions are contributing to school segregation in Alabama.

In her talk, Hannah-Jones compared what happened in her article with what happened in Memphis in 2014, when six mostly white municipal districts broke away from the large, predominantly black Shelby County Schools.

Listen to part of Hannah-Jones’s story:

“The resegregation in Jefferson County is exactly what’s happened here,” Hannah-Jones said.

“It’s white communities breaking off from school districts,” she said. “They can wipe their hands of it and say it’s not about race, we just want districts to represent my community. It is about race.”

Hannah-Jones said resegregation is a trend recently documented by national researchers — both in the relatively new trend of district sessessions and in white Americans moving into communities of color but refusing to send their children to neighborhood schools.

Schools were segregated in Tennessee during the first part of the 20th Century. After the U.S. Supreme Court declared in 1954 that racial segregation in public schools was unconstitutional, school districts in Tennessee slowly began to integrate and then stalled. Now, researchers and journalists say segregation is getting worse.

“As the south resegregates, we’re losing the only gains we’ve made,” Hannah-Jones said. “We want to pretend that our decisions aren’t impacting other kids, but they are.… You cannot say you believe in equality and seek to advantage your child every step of the way. ”

Hannah-Jones wrote in 2016 about choosing a school in New York City for her own daughter. She eventually settled on a neighborhood school — one that is majority black and poor. She challenged Memphians, in particular white, middle-class Memphians, to think more equitably about where they send their own children to school.

“White children aren’t hurt at all by going to these schools — their test scores don’t go down,” she said, a statement backed by research. “But look in Detroit, inner-city Memphis, Chicago. No one is coming.”

“The piece I did about my daughter, the reason it had such an impact is that I was honest. It wasn’t an easy choice when I had my own child. Morals and values in abstract are great, but reality is more difficult.”

She began the Tuesday night event with a story about a student she grew close to — and whose story embodies some of the issues of segregation —  before participating in a panel with MLK50 founder Wendi Thomas and Tami Sawyer, a Teach for America director and local activist.

Hannah-Jones said she’s now working on a book about Detroit — specifically looking at how poverty makes educating children “impossible.” (To learn more about schools in Detroit, go here).

In talks

Hopson asks state to let struggling Memphis school remain with local district

PHOTO: Marta W. Aldrich
Superintendent Dorsey Hopson is in talks with state officials about the future of American Way Middle, a struggling Memphis school that the state has identified for conversion to a charter school under Shelby County Schools or takeover by Tennessee's Achievement School District.

Superintendent Dorsey Hopson is asking Tennessee’s education chief to let Shelby County Schools keep control of American Way Middle School and place the struggling school in its own turnaround program, the Innovation Zone.

And Commissioner Candice McQueen is hinting that she’s willing to talk.

Hopson’s official request came this week despite McQueen’s plan for the Memphis district to convert American Way Middle to a charter school or risk having it placed in the state’s Achievement School District.

“Our Board voted to place American Way in the iZone next year,” Hopson wrote McQueen on Tuesday. “The Board was uncomfortable waiting for an additional year before taking action.”

McQueen wants the school to become a charter school in the fall of 2019 under the state’s new accountability plan. The board voted to place it in the iZone a year earlier than that.

But Hopson said the district’s concerns extend beyond timing.

“During its robust discussion regarding a district-led charter conversion, the Board was particularly concerned because we are unaware of any middle school charter operators who have strong track records of success in the turnaround space,” Hopson wrote. “For these reasons, the Board indicated that it will not approve a district-led charter conversation.

He added: “Given the I-Zone’s progress, we respectfully request that the State allow American Way to remain in the I-Zone for at least 3 years. Notably, one of American Way’s feeder schools is also in the I-Zone.”

McQueen said Friday that her office needs more information about the district’s proposal for American Way Middle before she makes a decision.

“We had a conversation with the district this week to make it clear that simply saying the school will be in the iZone next year does not tell us what the plan for that school is, and we still need more details on what it would look like for the school to be served by the iZone,” McQueen told Chalkbeat through a spokeswoman. “It is also not clear what charter options the district explored.”