Defendants: Dougco voucher program constitutional based on previous Colo. Supreme Court decisions

PHOTO: Nicholas Garcia
Sophomores at Highlands Ranch High School work on a science project.

Responding to claims that a private school voucher program is unconstitutional, lawyers for the Douglas County School District and parents hit back last month in a pair of briefs filed with the Colorado Supreme Court that argue the district is within its right to fund the “religiously neutral” program.

The briefs also contend the plaintiffs, who filed their briefs in May, do not have standing.

The voucher plan, which is on hold pending a decision by the Supreme Court, would allow Douglas County students to use public tax dollars to enroll in private — and often religious — schools. The purpose of plan was to provide parents with control over their student’s education, the briefs argue.

“A family may continue to attend their neighborhood school, or they may choose a charter school, home education, online education, open enrollment, a magnet school, or [the voucher program],” lawyers for Dougco schools wrote. “The [voucher program] is but one of about 30 strategies for improving educational choice in the District. If a family receives a scholarship, then the parents have further choice as to the partner school in which to enroll their child.”

The combined 109 pages, filed on behalf of the district, Colorado Department of Education and three Dougco families enrolled in the voucher program, argue that the district-created voucher program, known as the Choice Scholarship Program, should be permitted to launch.

In sum, the lawyers maintain Colorado’s “deep constitutional roots of local control” allow Douglas County to use their tax dollars any way the board of education there sees fit.

The Colorado Supreme Court agreed to hear the case earlier this year after a three-member appellate court overturned a lower court’s 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.

According to the briefs, many of the constitutional questions have already been answered.

“Over 30 years ago, [the Colorado Supreme Court] in Americans United approved a program of public aid to Colorado students that enabled them to spend that aid at any qualified school of their choice, including private, religious institutions,” the brief says. “That decision was located squarely within this court’s jurisprudence holding that government must affirmatively accommodate religion and show a benevolent neutrality toward religious believers. [T]he legislature, department of education, and other Colorado school districts have approved and utilized scores of current programs spending public funds at private schools, including those that are religiously-affiliated, at all levels of education throughout Colorado.”

The defendants’ briefs is one of a few initial steps in what is expected to be a rather long and uncertain process. A date for oral arguments has not been set. Those arguments may not be heard until next year.

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.

From the briefs

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. But lawyers for the parents enrolled in the program claim the program is religiously neutral and any funds that go to a religious institution is by parent choice and incidental.

Other state supreme courts have rejected similar challenges to student-aid programs indistinguishable from Douglas County’s. … In Zelman, children in the Cleveland School District received scholarships they could use to attend private schools. A large majority of participating schools were religious, and the overwhelming majority of students selected religious schools. The Court nevertheless upheld the program because it was “neutral with the respect to religion … permit[ting] the participation of all schools within the district, religious or nonreligious.

[T]he District Court recognized the Program is designed “for the benefit of the students, not the benefit of the private religious schools.” And as the Court of Appeals held, it is “neutral toward religion.” Fund “make their way to private schools with religious affiliation by means of personal choices of students’ parents” and “any benefit to the participating schools” is merely “incidental.”

Lawyers for Dougco schools and the state argue in their brief that program fits within the larger context of school choice in Colorado. It compares the suburban voucher program to the seemingly popular Denver Preschool Program that collects tax revenue and provides families pre-kindergarten tuition credits. Denver families may choose to use their credits at religious programs.

The Denver Preschool Program allows residents to apply tax-derived funds toward tuition at any qualified preschool. All licensed preschools — for-profit, nonprofit, public, private, home-baed, religious, and regardless of location (inside or outside of Denver) — are eligible to participate.

The district also argues the Supreme Court is not the place to decide whether the program violates state school finance laws.

Indeed, their request is unprecedented; no private party has ever asserted a private right of action under the [School Finance] Act, given that the legislature created an explicit administrative system for resolving funding disputes. Were it otherwise, small groups of disgruntled parents, like [the] plaintiffs, would essentially transform Colorado’s courts into perpetual overseers of every spending decision made by local school districts.

‘Answer’ brief from Douglas County School District

‘Answer’ brief from Dougco parents

What's Your Education Story?

As the 2018 school year begins, join us for storytelling from Indianapolis educators

PHOTO: Dylan Peers McCoy/Chalkbeat
Sarah TeKolste, right, and Lori Jenkins at a Teacher Story Slam, in April.

In partnership with Teachers Lounge Indy, Chalkbeat is hosting another teacher story slam this fall featuring educators from across the city.

Over the past couple of years, Chalkbeat has brought readers personal stories from teachers and students through the events. Some of our favorites touched on how a teacher won the trust of her most skeptical student, why another teacher decided to come out to his students, and one educator’s call to ramp up the number of students pursuing a college education.

The event, 5:30 p.m. Thursday, Sept. 13, is free and open to the public — please RSVP here.

Event details:

5:30 p.m. to 7:30 p.m.
Thursday, Sept. 13, 2018
Tube Factory artspace
1125 Cruft St., Indianapolis, IN 46203
Get tickets here and find more on Facebook

More in What's Your Education Story?

School safety

Hiring more security officers in Memphis after school shootings could have unintended consequences

PHOTO: Jahi Chikwendiu/The Washington Post/Getty Images

Tennessee’s largest district, Shelby County Schools, is slated to add more school resource officers under the proposed budget for next school year.

Superintendent Dorsey Hopson earmarked $2 million to hire 30 school resource officers in addition to the 98 already in some of its 150-plus schools. The school board is scheduled to vote on the budget Tuesday.

But an increase in law enforcement officers could have unintended consequences.

A new state law that bans local governments from refusing to cooperate with federal immigration officials could put school resource officers in an awkward position.

Tennessee Education Commissioner Candice McQueen recently reminded school personnel they are not obligated to release student information regarding immigration status. School resource officers employed by police or sheriff’s departments, however, do not answer to school districts. Shelby County Schools is still reviewing the law, but school board members have previously gone on the record emphasizing their commitment to protecting undocumented students.

“Right now we are just trying to get a better understanding of the law and the impact that it may have,” said Natalia Powers, a district spokeswoman.

Also, incidents of excessive force and racial bias toward black students have cropped up in recent years. Two white Memphis officers were fired in 2013 after hitting a black student and wrestling her to the ground because she was “yelling and cussing” on school grounds. And mothers of four elementary school students recently filed a lawsuit against a Murfreesboro officer who arrested them at school in 2016 for failing to break up a fight that occurred off-campus.

Just how common those incidents are in Memphis is unclear. In response to Chalkbeat’s query for the number and type of complaints in the last two school years, Shelby County Schools said it “does not have any documents responsive to this request.”

Currently, 38 school resource officers are sheriff’s deputies, and the rest are security officers hired by Shelby County Schools. The officers respond and work to prevent criminal activity in all high schools and middle schools, Hopson said. The 30 additional officers would augment staffing at some schools and for the first time, branch out to some elementary schools. Hopson said those decisions will be based on crime rates in surrounding neighborhoods and school incidents.

Hopson’s initial recommendation for more school resource officers was in response to the school shooting in Parkland, Florida, that killed 17 people and sparked a wave of student activism on school safety, including in Memphis.

Gov. Bill Haslam’s recent $30 million budget boost would allow school districts across Tennessee to hire more law enforcement officers or improve building security. Measures to arm some teachers with guns or outlaw certain types of guns have fallen flat.

For more on the role and history of school resource officers in Tennessee, read our five things to know.

Sheriff’s deputies and district security officers meet weekly, said Capt. Dallas Lavergne of the Shelby County Sheriff’s Office. When the Memphis Police Department pulled their officers out of school buildings following the merger of city and county school systems, the county Sheriff’s Office replaced them with deputies.

All deputy recruits go through school resource officer training, and those who are assigned to schools get additional annual training. In a 2013 review of police academies across the nation, Tennessee was cited as the only state that had specific training for officers deployed to schools.