Decisions & Choices

Douglas County voucher supporters encouraged by Supreme Court decision in similar case

James Lyons, representing the Douglas County School District, speaks during oral arguments at the Colorado Supreme Court in the Douglas County vouchers case. (Photo by RJ Sangosti/The Denver Post)

A significant U.S. Supreme Court ruling Monday on a church-state issue opens a new chapter in a court fight over a Douglas County private school voucher program, with both supporters and opponents finding encouragement in the high court’s decision.

The court ruled that the state of Missouri violated the U.S. Constitution when it barred a church-run preschool from participating in a state program that repaved playgrounds.

While the court’s narrow 7-2 decision fell far short of legalizing private school voucher programs, it still has implications for the Douglas County program, which the state Supreme Court rejected.

Most likely, observers said, the Douglas County case will be kicked back to the Colorado Supreme Court for examination under the precedent the U.S. Supreme Court set with its new ruling. Or the U.S. Supreme Court could hear the case, the preferred outcome of voucher backers who would like to set a more sweeping precedent for their cause.

“This is a huge victory for folks who are believers in religious liberty,” said Ross Izard, a senior education policy analyst at the Independence Institute, a Denver-based free-market think tank. “Unfortunately for those of us who are invested in the school choice movement, it doesn’t accomplish everything we hoped it would.”

The legal fight over vouchers has engulfed the suburban school district south of Denver since 2011. That’s when a new conservative school board established the Choice Scholarship Program.

Unlike other voucher programs, which are designed to provide low-income families with educational alternatives, the Douglas County program was opened to all students in the district with a median household income of $107,650.

Lawyers representing the Douglas County School District and families who participated in the voucher program before it was halted by a lower court said they expect the Supreme Court to decide this week whether they’ll take up the years long debate over the voucher program.

“We’re certainly encouraged,” said William Trachman, general counsel for the Douglas County School District. “The policy reasons that underlie the program are to give students educational choice. That’s what Douglas County cares about.”

The Colorado Supreme Court ruled in 2015 that the Douglas County School District’s voucher program, which would have allowed parents to use taxpayer dollars to send their students to private religious schools, was unconstitutional.

The state’s constitution includes a provision that forbids tax dollars to be used by religious institutions. Colorado is one 38 states that have these so-called Blaine Amendments.

The district, along with three Douglas County families and Colorado’s attorney general, later appealed to the U.S. Supreme Court. The U.S. Supreme Court has held the case for nearly two years as it considered the Missouri case, Trinity Lutheran Church of Columbia, Inc. v. Comer.

In that case, Trinity Lutheran sued the state of Missouri after it prohibited the church from participating in a state program that used recycled tires to resurface playgrounds.

The U.S. Supreme Court said the state could not prohibit the church from participating in the program since the benefit of the program — new asphalt for the playground — was secular and did not further the church’s religious mission.

That’s an important distinction opponents to the Douglas County voucher program highlighted in reacting to the decision.

“The majority opinion in Trinity Lutheran explicitly distinguished the facts in that case from cases like ours where government funds run afoul of state anti-establishment clauses because the funds are being used to pay for religious education,” Cindy Barnard, president of Taxpayers for Public Education, a nonprofit that supports traditional public schools, in a statement. Barnard was the original plaintiff in the Douglas County voucher case.

Mark Silverstein, legal director of the Colorado ACLU, one of the organizations that argued against the voucher program, echoed Barnard.

“The Douglas County school district’s voucher program violated the state’s constitution as of yesterday. It violates the state constitution even today,” he said. “This case today is not about using public money for religious indication. And that’s a distinction I believe most of the justices see as important.”

Mixed messages

Is the Board of Regents hostile to charter schools? Depends upon whom you ask.

PHOTO: Monica Disare
Regent Collins and Regent Johnson engage in a discussion after a Board of Regents meeting.

When the Board of Regents took the unprecedented step of rejecting two new charter schools last week, it sent shudders through the charter school sector.

Even before the meeting last Monday, the Regents had been making charters “nervous,” said Andrea Rogers, the New York State Director for the Northeast Charter Schools Network. The rejections only heightened the anxiety.

“I think these denials skyrocketed the issue to the front of people’s minds,” she said.  

And yet, during the same meeting, the board praised and signed off on the opening of five other charter schools, which brings the number of new schools approved this year to more than any year since 2013.

The meeting was emblematic of the mixed signals that this Board of Regents have been sending over the last few months, feeding different interpretations among both those who advocate for charter schools and those who champion traditional schools

The board’s willingness to criticize and question charters have many believing the Regents are, at best, skeptics and, at worst, opposed to the publicly funded, privately run schools that they authorize and oversee.

At the same time, the Regents have not been without praise for charters, and some charters say they have appreciated the support of the body and the state’s support staff.

Chancellor Betty Rosa said the Regents’ decisions are evidence of nuance, not rigid ideology or partisanship.

“I think there’s too many times when people want to simply say ‘you’re for’ or ‘you’re against.’ It’s so much more complicated than that,” Rosa told Chalkbeat in an interview Wednesday. “To me, if it’s a wonderful opportunity for kids — you got me. If it’s not, I’m probably going to be your worst enemy.”

As an authorizer, the Board of Regents has the power to approve new schools and decide which of its 87 schools should remain open. In addition to deciding the fate of individual schools, the board is rethinking how it evaluates all of its schools   and whether they should take a closer look at measures like surveys or chronic absenteeism.

With several new members and a relatively new leader, the Regents’ actions have been under particular scrutiny for signs of partisanship. Some have seized on recent events, such as critical statements made by some Regents as charter schools have come before the board for approval or renewal.

One Regent suggested that charter schools achieve high test scores by pushing out students; another suggested a charter school in Brooklyn is contributing to segregation.

Rosa has fiercely opposed a proposal that would allow some charter schools to certify their own teachers, calling the idea  “insulting.” The board also rejected a batch of Success Academy renewals, arguing that their authorizer attempted to renew the high-performing but controversial charter schools too soon. (The move had little practical effect, since their authorizer, SUNY, can override the board’s decision.)

Rosa said the sum of these decisions does not mean either she or the board is anti-charter. Her opposition to the teacher certification proposal had nothing to do with the source of the proposal — a charter authorizer — but because, she said, she believes the idea is an affront to the teaching profession and will allow unqualified teachers to enter classrooms.

The Success Academy renewals, she said, were returned based on legal requirements — and were not an appraisal of the charter network.

But taken together, observers of different educational ideologies have concluded that the board is more likely to probe problems with charter schools than in the past.

“It is quite a change from a couple years ago, and it does show greater misgivings about charter schools than what we saw under the board as it was previously constructed,” said Bob Lowry, deputy director of the New York State Council of School Superintendents. (Lowry said he appreciates that the board is paying more attention to how charter schools will affect the funding of surrounding school districts.)

The state’s teachers union has picked up on the change and praised the board for providing more oversight of charter schools, while calling on them to do more.

“The Regents, at this point, are providing much overdue scrutiny of the charter sector,” said NYSUT spokesman Carl Korn. “We believe that the Regents and the state education department need to do more, but this is a good step.”

Charter school advocates agree, seeing the Board of Regents’ actions as worrying. Since the board’s philosophy is hard to pin down, schools are starting to wonder if they can switch authorizers, Rogers said.

Yet there are signs that charters’ fear are based on conclusions that are far too sweeping. As the board rejected two schools outside of New York City, they also lauded applications for schools opening in the city a fact that may suggest differences in how the Regents assess schools in different areas of the state.

Regent Christine Cea welcomed a new school in Staten Island, saying she is “totally in favor of it.” Rosa expressed excitement about a new KIPP school in the Bronx, saying the community has “tremendous support” for its opening.

Rosa said Regents are more thoughtful and involved in reviewing schools now. She suggested that there are educational innovations that can be learned from charter schools, but also offered some critiques. At the top of her list, she worries that charter schools are not well-equipped to serve students with the most severe disabilities.

Several schools that are currently authorized by the board expressed their appreciation for the Board of Regents and those in the state education department’s charter school office who provide technical assistance to schools and create charter school recommendations for the board.

“On our quest to better serve scholars with learning differences, we have found no better ally,” said Eric Tucker, who is a co-founder of Brooklyn Laboratory Charter School. “Through technical assistance and oversight, the Regents push public schools like ours to continually improve to better serve the needs of all students, all days.”

Still, said Bob Bellafiore, an education consultant who works with charter schools, several Regents come from district school backgrounds, and so their default attitude is to question charter schools and support the traditional school model.

“They’re much more district school system people,” Bellafiore said.

What's Your Education Story?

Tips for teaching poetry in a women’s prison. ‘Remember, you are not allowed to hug anyone.’

PHOTO: Lwp Kommunikáció, Flickr CC
Inmates at the Indiana Women's Prison.

Adam Henze was one of seven educators who participated in a story slam sponsored by Chalkbeat, Teachers Lounge Indy, WFYI Public Media and the Indianapolis Public Library on Sept. 5. Every teacher shared stories about their challenges and triumphs in Circle City classrooms.

A poet and educator, Henze read a poem about a day in his life as a poetry instructor at the Indiana Women’s Prison. Henze recounts the painful struggle to reconcile his experiences with the crimes for which his students were serving time — some life sentences for murder

It’s a story full of darkness, but it also offers hope that, as Henze said, “we are the sum of the things that we have done, but we’re also the sum of the things that we have yet to do.”

Check out the video below to hear Henze’s story.

You can find more stories from educators, students and parents here.