DougCo school voucher lawsuit nearing critical junction
Will the high-stakes case make it to the Supreme Court before a school board election could render the case moot?
Proponents of school vouchers in Douglas County have spent 16 months waiting for the U.S. Supreme Court to decide if it will consider their appeal of a case that could have national implications for spending tax dollars on religious schools.
The longer the appeal sits in limbo, the nearer draws the November Douglas County school board election — an election that could deliver to the anti-voucher minority the one seat needed to pull the plug on the suit before the Supreme Court can rule.
“Public education across the country is at stake, both in Douglas County and around the nation,” said former Lt. Gov. Gail Schoettler, a Democrat who has served on the Douglas County Board of Education.
A high-stakes countdown is underway. What will come first? A possible ruling (should the Court accept the case) or a pivotal school board election? As it stands now, legal scholars say, the odds of the election coming first are much greater.
The case dates back to 2011 when Douglas County’s seven-member school board, then made up entirely of conservative education reformers, approved a voucher program that would have allowed any Douglas County student to attend any school, including private or religious schools in or outside the county. EdChoice, a pro-voucher education reform foundation based in Indianapolis, claims that 95 percent of the county’s 61,000 students in the 2011-12 school year would have been eligible for the vouchers, which at the time were worth $1,143 a year per student.
But the program never went into effect because a group of Douglas County parents and residents, known as Taxpayers for Public Education, filed a lawsuit to block its implementation. The case wound its way up to the Colorado Supreme Court, which in June 2015 ruled the voucher program unconstitutional based on a law saying that tax dollars cannot be used for religious purposes, including religious-based schools.
That law, known as the Blaine Amendment, was written into Colorado’s Constitution in 1876 and also is in place in at least 34 other states. It was named for a failed amendment to the U.S. Constitution pushed by Maine Congressman James Blaine during an era of anti-Catholic sentiment in the mid-1870s. Blaine wanted to keep public funds from going to parochial education.
The Douglas County School District, hoping to preserve its voucher program and challenge the constitutionality of Blaine, appealed the Colorado Supreme Court ruling to the U.S. Supreme Court in October 2015, bolstered by $1.8 million in donations to cover its legal expenses. Open records information obtained by The Colorado Independent showed that all but $30,000 in donations came from the Daniels Fund, a Denver-based foundation supported by the estate of the late cable pioneer Bill Daniels, and from the Walton Family Foundation, started by WalMart founder Sam Walton. The Walton Foundation is the nation’s largest funder of charter schools and a leading proponent of privatizing public education.
Records obtained by The Independent reveal the school district has spent down its legal fund. Two sources told The Independent that the district is seeking more donations to cover what the now 4-3 pro-voucher majority on the school board hopes will be a Supreme Court fight.
The Supreme Court scheduled a conference for Feb. 19, 2016 to decide whether to take up the case. But six days before that, on Feb. 13, Justice Antonin Scalia died. Since then, the Court has taken no action on the Douglas County appeal, even to reschedule the conference on whether to hear it, which is known as granting a writ of certiorari or granting cert.
It takes four of the nine justices to grant cert. But without a ninth justice for the hearing itself, the court risks a 4-4 ruling, which would let Colorado’s ruling against the voucher program stand. The wild card here is if and when the U.S. Senate will confirm President Trump’s nominee, 10th Circuit Court of Appeals Judge Neil Gorsuch of Niwot, to fill the vacancy. Senate Majority Leader Mitch McConnell has said he wants to see Gorsuch confirmed by April 10.
The Court has continued agreeing to hear other appeals since Scalia’s death and, most notably for Colorado, it agreed to hear a case involving education for children with disabilities that also came out of Douglas County. The eight sitting justices heard arguments in that case in January.
After Scalia’s death, those backing the DougCo voucher program asked the Court for an expedited review of the appeal, either on its own or concurrently with an appeal from Missouri that also pivots on the Blaine Amendment. But the Court decided to hear the Missouri case by itself on April 19.
The Missouri appeal, Trinity Lutheran Church of Columbia, Inc. v. Pauley, isn’t about vouchers, but rather a church challenging a state decision, based on Blaine. Missouri’s Department of Natural Resources (then headed by Sarah Pauley, the respondent named in the lawsuit) offered grants to schools to pay for crushed rubber tires as playground material. The church’s application for its preschool program was rated highly, but then denied by the state based on Blaine’s prohibition of using taxpayer money for religious purposes.
Both Trinity and the DougCo case base their arguments against Blaine on two constitutional issues: the equal protection clause of the 14th Amendment and the free exercise of religion clause in the First Amendment. The equal protection clause says no state shall deny anyone equal protection of the law; the free exercise clause says Congress shall not prohibit the free exercise of religion.
It’s unclear how willing justices will be to chip away at the Blaine Amendment as it relates to school vouchers. David Kopel, who teaches law at the University of Denver and also works for the Independence Institute, a Denver-based free-market think tank, says one issue is whether the Court would look at the DougCo appeal as a states’ rights issue and would consider overturning a law that is in the constitutions of the vast majority of states.
DougCo parent Cindy Barnard of Taxpayers for Public Education told The Independent that should the Court take up the case, her hope is that the ruling would come down in favor of states’ rights instead of an “overreaching decision” on the larger constitutional questions.
The opportunity for a 2016-17 Supreme Court hearing this session, should justices agree to consider the case, is diminishing. The Court’s hearing calendar, which ends on April 26, is loaded for this session. Joan Biskupic, Reuters’ editor in charge of legal affairs who has been covering the Court since 1989, said appeals accepted in March and April would likely be pushed for hearing into the Court’s fall session, which starts the first Monday in October. On the question of process and timing, Alan Chen, a University of Denver professor of constitutional law, said it would be “very unlikely [the Court] would grant review, brief it, have arguments, and decide it by November.”
The new school board will be seated at the end of November. Richard Collins, a law professor at CU-Boulder, said that if the school board changed politically before the court could decide the case and the board wanted to end the appeal entirely, it could simply abolish the voucher program. The issue then becomes moot, Chen said. A live dispute no longer exists. All three of the school board’s anti-voucher members, none of whom face elections in November, have said they would eliminate the voucher program given the chance to do so.
In the meantime, both the pro- and anti-voucher camps are readying for the election — albeit for now in a very low-profile way. Four seats, all held by pro-voucher school board members, are up for grabs.
Board President Meghann Silverthorn is term-limited. New board member Steve Peck, who was appointed by the pro-voucher majority last fall, could run for his first full term, and fellow conservatives Dr. Jim Geddes and board Vice-President Judith Reynolds can run for a second term if they so choose.*
No one has yet filed their papers for candidacy, and no potential candidate (and a few names are in circulation in both camps) was willing to speak on the record because state campaign finance laws require a candidate to file an affidavit as soon as he or she announces candidacy.
Should an anti-voucher candidate win any one of the four seats in November, the board would shift from a pro-voucher majority to an anti-voucher one. Sources told The Independent that parents and activists whose efforts helped mobilize support for the anti-voucher winners in 2015 are gearing up the 2017 race that they hope will reverse the school board’s eight-year agenda to bust the teachers’ union and institute other market-based reforms they say run counter to the district’s mission of educating kids.
Kallie Leyba, head of the Douglas County Federation of Teachers, said she believes the fall elections will draw substantial donations from people both in and out of Colorado who would want to see the conservative majority remain in place. Leyba says the anti-voucher camp does not have the same kind of big-dollar donors, but that those who want to see the voucher program axed are in the early planning stages of seeking candidates and raising money for what is expected to be an expensive race. The DougCo federation is part of the American Federation of Teachers, which is part of AFL-CIO.
The DougCo voucher case is being watched nationwide, by both pro- and anti-voucher groups. The appeal has drawn nine “friend of the court” briefs, all taking the side of the school district in support of its voucher program. One brief came from U.S. Sen. Cory Gardner of Yuma. Another was filed by the Pueblo Catholic diocese and state Reps. Polly Lawrence of Roxborough Park, Justin Everett of Littleton, Paul Lundeen of Monument, now-Sen. Kevin Priola of Henderson and former Rep. Tim Dore of Elizabeth. The lawmakers’ brief pointed out Blaine discriminates against religious people and is therefore a violation of the Equal Protection clause of the U.S.Constitution. In addition, six states, including Utah, Arizona and Nevada, have filed briefs in support of the Douglas County appeal. The Foundation for Excellence in Education and three other pro-voucher groups, which also filed a joint brief defending the program, claim that a decision favoring Douglas County would clear the way for vouchers in all 50 states.
Among conservatives expected to be champions for vouchers: new Secretary of Education Betsy DeVos, who has supported voucher programs in the past. Catherine Brown of the Center for American Progress, which opposed her nomination, said DeVos’ support for vouchers comes out of her strong religious beliefs, and that raises First Amendment questions.
DeVos’ views on vouchers are shared by her boss, President Trump. Last September, then-candidate Trump rolled out his major policy goals on education, which include putting $20 billion into block grants to the states. Parents could then choose where to send their kids, whether to private, charter or traditional public schools.
On the anti-voucher side are the ACLU and Americans United for Separation of Church and State. The Independent contacted the American Federation of Teachers for comment on the suit, but has not received a response. Richard Katskee, an attorney for Americans United, said that because of the potential to open up the floodgates to vouchers across the nation the appeal is important not only for Colorado but also for other states.
Schoettler says she sees the voucher lawsuit as part of a “massive attack on public schools, which provide opportunities for all Americans of every background.”
“This lawsuit is part of a national effort to take taxpayer money out of public schools and put it into private and sectarian schools,” she said.
The voucher suit comes at a time when K-12 education in Colorado is struggling financially The state is ranked 42nd in the nation in per-pupil funding for K-12 education, funding that isn’t going to improve this year, with the state expecting a $170 million drop in property tax revenues for K-12 education. The state still owes about $900 million to schools in the wake of budget cuts from six years ago, and Colorado schools are already pinched, budget-wise, without the extra potential strain of vouchers that would divert money away from public schools. Several school districts, including in Jefferson County and Denver, are looking at closing schools because of funding or performance issues.
The DougCo school district has also faced budget woes in recent years, addressing some of them by increasing class size, cutting middle school spending, construction projects and instructional time in the high schools. In addition, school board members have been advocating for a bond measure that would help the district pay for more than $100 million in new school buildings for anticipated student enrollment growth over the next five years. The board sought a bond measure in 2011 for this and other district needs, but voters overwhelmingly rejected it.
Diane Ravitch, a professor at New York University and a national leader in the effort to support public education, believes a ruling in favor of vouchers could spell catastrophe for funding public education.
“Since money for schools is not growing, it would mean that three sectors are competing for the same pie,” she said, meaning that taxpayer dollars would be split among public, private and religious schools.
Under a nationwide voucher system, public schools would be left with the kids that the others don’t want, the most expensive to educate, “the kids with profound disabilities, the English language learners, the behavior problems,” Ravitch said. That, in turn, would result in a nationwide school system with ”intensified segregation by race, religion [and] income,” which she said is already happening in Chile and Sweden.
Currently, 14 states and the District of Columbia have voucher programs, all of them statewide, according to the National Conference of State Legislatures. In all but two states, families who want their children to receive vouchers must qualify based on federal poverty level guidelines or whether the child has a disability. In the last two states, it’s a matter of geography. Students are given vouchers to attend schools outside their counties when there are no schools available within the county.
The Douglas County voucher program differs from these programs in several ways: DougCo is a district-wide program, not a statewide one, and DougCo has no income or disability requirement for students.
Even as the pro-voucher majority has waned from seven board members in 2013 to four since 2015, it has held true to its support of vouchers. It attempted in 2015 to start another voucher program that would exclude religious schools, with the three anti-voucher members voting against it. However, that new program led to more lawsuits for the district from Taxpayers for Public Education as well as from religious schools, which argued they should have been included. A U.S. District Court judge put the kibosh on that second voucher program last summer.
Correction: A previous version said that DougCo Board Vice-President Judith Reynolds is term-limited in 2017; she is finishing out her first term and can run again if she chooses.
Photo by NCinDC, Creative Commons, Flickr
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