Douglas County’s school board may have decided it has little chance of winning a U.S. Supreme Court battle defending a program that uses taxpayer money to pay for K-12 students to attend private schools, including religious ones, both inside and outside the district.
The board is backing out of the parts of the program dubbed unconstitutional last June by the Colorado Supreme Court — particularly, funding students to go to private religious schools.
Taxpayers for Public Education sued the district in 2011, claiming the vouchers were unconstitutional. The Court agreed. In September, the district appealed the Court’s decision to the U.S. Supreme Court, where the case has sat ever since.
The High Court was slated to discuss the case last month, but according to Court records, that discussion never occurred and has not been rescheduled.
The death of conservative firebrand Justice Antonin Scalia last month may tilt the case toward forcing the voucher program to comply with Colorado law.
Scalia would have likely viewed the voucher program favorably. He was one of five justices to rule in support of a voucher program developed by the Ohio legislature to address failing schools in Cleveland. The case, Zelman v. Simmons-Harris, was decided 5-4 in favor of the voucher program.
The Ohio program allowed for vouchers of up to $2,250 for any child attending a participating public or private school. In the program’s first year, 82 percent of the private schools had religious affiliations, and 96 percent of students in the program attended religiously-affiliated schools.
However, in sharp contrast to the DougCo program, the Zelman voucher program was income-based and designed to help low-income students in failing schools.
DougCo’s program does not rely on income qualification. Any student, rich or poor, can receive a voucher. The county is considered among the wealthiest in the state and most DougCo schools rank in the top 20 percent of best schools statewide, according to ColoradoSchoolGrades.com.
The Court held that Ohio’s Zelman program was “neutral in all respects towards (sic) religion.” In addition, according to the Court’s opinion, written by Chief Justice William Rehnquist, the vouchers go directly to students without regard to religion, and permit participation of all district schools, religious or nonreligious, as well as adjacent district schools.
Since 2002, when Zelman was decided, the Court’s philosophical balance has not changed. President George W. Bush replaced Rehnquist with Chief Justice John Roberts. Justice Sandra Day O’Connor retired, and Bush replaced her with another conservative, Samuel Alito.
With Scalia’s passing, the Court, should it hear the case, is likely to split 4-4. When the Court ties on an issue, the most recent lower court decision prevails, and that’s the decision of the Colorado Supreme Court.
According to Chalkbeat Colorado, which broke the news about the revision last week, 23 schools were accepted into the Choice program. Of those schools, 16 are religious and 14 are outside the county.
Many of those attending last night’s Douglas County school board meeting criticized the program and its purpose, which several said was to set up an entitlement program for rich families and wealthy private and religious schools.
One speaker, Bob Kaser, said the program would cost the district more than $3 million for 500 participants, and that vouchers “represent the failure of the district to provide the greatest spectrum of educational services.”
Use that $3 million instead to find out why parents and their children are leaving the district, Kaser suggested.
Cindy Barnard, representing Taxpayers for Public Education, said the proposed changes to the voucher program fail to solve the constitutional issue, because the program would still use taxpayer money to pay for private schools. Taxpayers for Public Education filed the original lawsuit against the district, which has relied on grants from the Daniels Fund to pay for its legal expenses.
Three new board members elected last November also objected to the changes, in a heated discussion. Wendy Vogel led off the opposition, stating that the revised program still violates the state’s School Finance Act, which requires districts to fund schools, not students, and to provide a free education. “We fund public schools, not private ones,” she said, citing the concurring opinion of Justice Monica Marquez.
“We will open ourselves to another lawsuit,” Vogel warned.
Board member Doug Benevento, who proposed the changes, disputed Vogel’s claims, pointing out Marquez wrote a minority opinion that had no force of law and that the Colorado Court of Appeals had upheld the program, until that decision was overturned by the state Supreme Court.
“This is a modest pilot program to determine if there is demand in the district for something we aren’t providing,” Benevento said. He noted a representative from the ACLU even admitted the program was likely to help a small number of kids.
“It’s not a small number of kids if it’s your kid,” Benevento said, adding if the program helps just one kid, it’s worth it.
The ACLU opposes the revised program. In a statement issued Tuesday, the organization said the energy, time, and money spent to revise the voucher program to benefit a “small handful of students and private schools, at the expense of all others, should be devoted instead to improving educational opportunities for everyone in the district.”
The program changes were adopted on a 4-3 vote, with the conservative majority winning the day.
And the changes to the voucher program are coming at an interesting time for the district.
Last week, about 60 students at Ponderosa High School walked out to protest high teacher turnover at the Parker school. In addition, there’s a petition on change.org from DougCo parents, with more than 1,000 signatures, demanding the resignation of district Superintendent Liz Fagen, whom they charge has made changes that have forced high teacher turnover double the rate of neighboring districts that compete for the best teachers.
But there’s another change in the works to the school board itself. Board President Meghann Silverthorn, a Republican, has decided to run for the state Senate seat held by term-limited Sen. Mark Scheffel of Parker.
State law does not allow a member of the House or Senate to hold another elected position, so if Silverthorn were to win the seat, she’d have to resign her school board seat. Silverthorn is one of five Republicans running for the Senate District 4 seat. No candidates from any other party, or unaffiliated candidates, have filed to run for the seat. Whomever wins the June 28 primary is likely to run unopposed in the general election.
And that could put the board in a tight spot.
Last fall, three new members, all supported by parent/teacher groups, were elected to the board, defeating three conservative candidates. The election changed the board make-up from a 7-0 conservative majority to 4-3 conservative majority. Should Silverthorn step down, that leaves the board at 3-3 until a replacement is chosen.
But board rules on vacancies allow the board to choose a replacement with a simple majority vote. Silverthorn would be allowed to choose her replacement, which would likely maintain the conservative majority.
Photo credit: Afronie, Creative Commons, Flickr.