Implications of voucher ruling not clear

Update – Douglas County school board members did not publicly discuss the voucher pilot at Tuesday’s meeting though they heard public comment from those urging them to appeal the judge’s ruling and from those questioning any further action. Wednesday, district spokesman Randy Barber said decisions on further legal action and the recovery of $300,000 in voucher payments may come by week’s end.

Douglas County school district officials on Monday were still sorting through the implications of a judge’s order Friday putting a halt to their voucher pilot – including whether the district is on the hook for $300,000 already sent out in voucher payments.

Douglas County School Board President John Carson
Douglas County School Board President John Carson made the rounds of radio and news shows Monday discussing the district's plans to appeal. / File photo

Part of the confusion stems from the fact that the parents and civil-liberties groups who filed a lawsuit to stop the pilot sought only a preliminary injunction, which would have suspended the pilot while the legal challenges were resolved.

Denver District Judge Michael Martinez granted the preliminary injunction and went even further, declaring the evidence presented in a three-day hearing warranted the injunction stopping the Choice Scholarship Program be made permanent.

In other words, that’s it, the legal argument is over unless the district decides to appeal. At least that’s how the 68-page ruling is being interpreted.

“We are done unless the district makes a move,” said Cindy Barnard, a Douglas County parent who was one of the plaintiffs and who is president of Taxpayers for Public Education. “The next move is in the district’s hands.”

District spokesman Randy Barber said district officials “were a bit surprised that he went to a permanent injunction” though “we knew it was going to end up in the appeals court eventually.”

Dougco school board members are reviewing their legal options, including whether to work through the state court of appeals or to go straight to the state’s highest court and ask to be heard. They could announce a decision at their first meeting of the new school year, tonight at Mesa Ridge Middle School.

If not, Barber said district leaders hope to make their decision by week’s end.

Unclear if families, private schools must return money

Figuring out what to do about the 500 voucher students, including the 304 already accepted into private schools, as well as the $300,000 that have gone out in voucher payments, may take longer.

In his ruling, Martinez said he was returning the district to the status quo, which he defined as “the absence of the scholarship program.”

But he also noted the plaintiffs “have expressly not asked the court to direct the disenrollment of scholarship recipients already attending private partner schools or the return of funds already expended.”

That sounds as if students already enrolled in private schools can keep the payments – equaling one quarter of the $4,575 total voucher – already made.

But what about students who’ve already started private school, believing the voucher money was on its way? Or families who can’t afford private school without the remaining three voucher payments?

Barber said those are the kinds of questions that kept district phones ringing Monday as voucher families tried to work through their options.

The district’s contract with its private school partners says any voucher payments to the schools are pro-rated, meaning they keep the money only for the period of time a voucher student actually attended. The schools have to repay any remaining balance within 45 days of a student’s decision to leave.

So Dougco officials may easily recoup payments made for students who return to district schools. It’s not clear what the district may do, if anything, to recover the first voucher payments for students who stay with their private schools.

At the injunction hearing, leaders of some private schools testified about the hardship they would endure if the voucher program were stopped.

Kurt Unruh, head of Valor Christian High School in Highlands Ranch, said as many as 40 students were likely to leave without vouchers, which would cost the school $558,000. Valor’s annual tuition is $13,950. Unruh did not return a message seeking comment Monday.

Tuesday, Barber said the district is not likely to seek a clarification of the judge’s ruling, as previously stated, but is consulting with its own lawyers to interpret the different issues.

State uncertain about appeal, will audit Dougco as usual

Janelle Asmus, spokeswoman for the Colorado Department of Education, said the state will audit the district as usual this spring and, as usual, the district must have spent money in accordance with state law and State Board of Education regulations.

If any problems are found, the district will have the opportunity to fix the problem, she said.

“If (money) was spent outside of the confines of the law, for example, we would give them an opportunity to rectify that problem,” she said.

The CDE, a defendant in the lawsuit, has not decided its next legal steps, including whether it might join Dougco in an appeal.

“That doesn’t stop us from marching forward with our oversight responsibilities,” Asmus said, “and we will conduct our audit as we usually do.”

Dougco leaders established a legal fund when they approved the voucher pilot 7-0 on March 15, acknowledging the program would likely face a court battle. On Monday, Barber said the last available balance for the fund was more than $50,000. He did not know if the Friday ruling had sparked more donations.

Attorneys for the plaintiffs say they’re ready for an appeal.

Mark Silverstein, legal director for the American Civil Liberties Union of Colorado, pointed out the judge agreed with the plaintiffs on nearly every legal issue.

“It was a very good day for us and a very good day for the Colorado Constitution,” he said.

National groups – pro, anti-voucher – ready for appeal fight

Alex Luchenister, senior litigation counsel for Americans United for Separation of Church and State, one of the plaintiffs and a frequent party to voucher legal battles across the country, said, “I don’t know if I’ve ever seen a decision that found a program violates as many constitutional provisions as this program does.”

Martinez, appointed to the bench by Gov. Bill Owens in 2000

Attorneys for the district and the state repeatedly urged the judge to consider a 2002 U.S. Supreme Court ruling which upheld a Cleveland voucher program that includes religious and non-religious schools.

Martinez, however, said disregarding the more specific religion provisions of the Colorado Constitution would be akin to saying the state’s founders “must have debated, drafted and ratified these provisions without purpose.”

Luchenister said most state constitutions have much stricter limits on public aid to religion than the federal constitution, “at least it is currently interpreted by the Supreme Court.”

“A number of states have struck down voucher programs under their state constitutions, including most recently before Colorado, Arizona in 2009,” he said, referring to a case also cited by Martinez.

And while the U.S. Supreme Court may be the nation’s highest court, he added, “the U.S. Supreme Court doesn’t have any right to interpret state constitutions – each state has its own constitution and each state supreme court has the ultimate authority to interpret their own state constitution.”

Attorneys supporting the voucher pilot, however, are just as adamant that they can win.

“The court’s decision is surprising given existing Colorado and U.S. Supreme Court precedent that would clearly uphold the scholarship program,” said Michael Bindas, with the Institute for Justice, which represented Dougco families receiving vouchers and which also joins voucher legal battles nationwide. “We are confident that the court’s attempt to rationalize away that precedent will be corrected on appeal.”

Barber said district staff members have fielded phone calls questioning the district’s decision to appeal.

“We feel strongly that providing students with choice is the thing that we should do,” he said. “We think that eventually it will stand up in court.”

Voucher pilot, ruling likely to influence November election

Ramifications of the school board’s voucher decisions are likely to reverberate through the November school board elections.

Three of seven school board seats are up for grabs, with two incumbents supporting the pilot – Craig Richardson and Justin Williams – filing paperwork to campaign to keep their seats. Cliff Stahl, the incumbent in the third seat, is not expected to seek re-election.

Williams’ opponent, Susan McMahon, has come out in support of the judge’s ruling, giving voters in northeast Douglas County a clear choice on the issue.

All votes involving the voucher pilot, from approval of the pilot to the creation of a charter school to run it, have been 7-0. McMahon issued a press release Saturday calling the judge’s decision a “win.”

“I fully support options for choice within the public school system and believe we should continue to enhance our system of public, charter, and innovation schools,” she said.  “But I disagree wholeheartedly when it comes to giving our tax dollars away to private schools, many of which are not even in Douglas County.”

Monday, McMahon said she wants to “get back to focusing on our children.”

“I made my decision to run for school board because I choose to represent the needs and the concerns of many people in the community that may feel the board rushed into a policy that the judge said was illegal,” she said. “I want to return the focus on how we meet the needs of all of the children in the community.”

A poll of 500 likely Douglas County voters conducted in April, weeks after the March 15 vote approving the voucher pilot, showed a divided community.

Asked whether they favored or opposed the “private school scholarship program,” 49 percent said they strongly favored or favored the program while 47 percent said they strongly opposed or opposed the program.

The response was less positive, however, when the question involved adding $1 million for the scholarship program to a proposed tax ballot question this fall.

Asked whether they favored or opposed such a question, 52 percent said they strongly opposed or opposed it while 44 percent said they strongly favored or favored it. The poll had a margin of error of 4.38 percent.

a 'meaningful' education?

How a Colorado court case could change how public schools everywhere serve students with special needs

Dougco headquarters in Castle Rock (John Leyba/The Denver Post).

The U.S. Supreme Court on Wednesday grappled with the question of what kind of education public schools must provide students with disabilities, hearing arguments in a case that originated with a complaint against a suburban Denver school district and that could have profound implications nationwide.

The case involves a student diagnosed with autism and attention deficit/hyperactive disorder. His parents pulled him out of his Douglas County elementary school, saying he wasn’t making enough progress and the district’s response was lacking.

They enrolled the boy in a private school for children with autism and asked the district to reimburse them for the tuition, arguing their son was due a “free appropriate public education” as required by the 1975 Individuals with Disabilities Education Act.

The law spells out the requirements states must meet to receive federal money to educate special-needs students. The district declined, saying it had met the standard of the law.

The family eventually filed a lawsuit against the district. Lower courts all sided with the district, reasoning that it had provided the child “some” educational benefit — the standard cited in the federal statute at issue.

Lower courts across the nation have varied in their definition of the proper standard. The high court arguments Wednesday centered on whether “some” benefit was good enough, or whether special-needs students deserve a more “meaningful” benefit.

Jeffrey Fisher, an attorney for the boy’s family, told the justices that as a general rule, individualized education plans for special education students should include “a level of educational services designed to allow the child to progress from grade to grade in the general curriculum.”

Throughout the arguments, the justices expressed frustration with what Justice Samuel Alito described as “a blizzard of words” that the law and courts have used to define what’s appropriate for special needs students.

Chief Justice John Roberts said regardless of the term used, “the whole package has got to be helpful enough to allow the student to keep up with his peers.”

Neal Katyal, an attorney for the school district, argued that providing children “some benefit” is a reasonable standard.

“That’s the way court after court has interpreted it,” he said. “It’s worked well. This court shouldn’t renege on that.”

Ron Hager, senior staff attorney for special education at the National Disability Rights Network, attended the oral arguments Wednesday and said he was optimistic the lower court’s ruling would be overturned.

He said if the Supreme Court does overturn the federal Tenth Circuit Court’s ruling and requires a higher standard, it won’t necessarily come with major financial costs for school districts. Instead, he said, it will nudge them to be proactive and provide teacher training and intervention services early on instead of waiting until problems — and the expenses associated with them — snowball later.

Marijo Rymer, executive director of the Arc of Colorado, which advocates on behalf of people with intellectual and developmental disabilities, said she was heartened to see the case advance to the Supreme Court. Establishing a clearer standard on what constitutes a fair and appropriate education for students with disabilities is a civil rights issue, she said.

“It’s critical that federal law, which is what this is based on, be reinforced and supported, and the court is in the position to deliver that message to the nation’s schools and the taxpayers that fund them,” Rymer said.

Both Hager and Rymer acknowledged that even if the Supreme Court establishes a new, higher standard, it could be open to interpretation. Still, they said it would send a strong message to school districts about their responsibilities to students with disabilities.

Summer remix

Ten stories you may have missed this summer (and should read now as the new school year kicks in)

PHOTO: Caroline Bauman
Gabrielle Colburn, 7, adds her artistic flair to a mural in downtown Memphis in conjunction with the XQ Super Schools bus tour in June.

Labor Day used to signal the end of summer break and the return to school. That’s no longer the case in Tennessee, but the long holiday is a good time to catch up on all that happened over the summer. Here are 10 stories to get you up to speed on K-12 education in Tennessee and its largest school district.

TNReady is back — with a new test maker.

Last school year ended on a cliffhanger, with the State Department of Education canceling its end-of-year tests for grades 3-8 in the spring and firing testmaker Measurement Inc. after a series of missteps. In July, Commissioner Candice McQueen announced that Minnesota-based Questar will pick up where Measurement Inc. left off. She also outlined the state’s game plan for standardized tests in the coming year.

But fallout over the state’s failed TNReady test in 2015-16 will be felt for years.

The one-year void in standardized test scores has hit Tennessee at the heart of its accountability system, leaving the state digging for other ways to assess whether all of its students are improving.

Speaking of accountability, Tennessee also is updating that plan under a new federal education law.

The state Department of Education has been working with educators, policymakers and community members on new ways to evaluate schools in answer to the federal Every Student Succeeds Act, or ESSA, which requires states to judge schools by non-academic measures as well as test scores.

Meanwhile, issues of race and policing have educators talking about how to foster conversations about social justice in school.

In the wake of police-related killings that rocked the nation, five Memphis teachers talked about how they tackle difficult conversations about race all year long.

School closures made headlines again in Memphis — with more closings likely.

Closing schools has become an annual event as Tennessee’s largest district loses students and funding, and this year was no exception. The shuttering of Carver and Northside high schools brought the total number of district-run school closures to at least 21 since 2012. And more are likely. This month, Shelby County Schools is scheduled to release a facilities analysis that should set the stage for future closures. Superintendent Dorsey Hopson has said the district needs to shed as many as two dozen schools — and 27,000 seats — over the next four years. A Chalkbeat analysis identifies 25 schools at risk.

Exacerbating the challenges of shifting enrollment, families in Foote Homes scrambled to register their children for school as Memphis’ last public housing project prepared to close this month amid a delay in delivering housing vouchers to move elsewhere.

The new school year has officially begun, with the budget approved not a moment too soon for Shelby County Schools.

District leaders that began the budget season facing an $86 million shortfall eventually convinced county commissioners to significantly increase local funding, while also pulling some money from the school system’s reserve funds. The result is a $959 million budget that gives most of the district’s teachers a 3 percent raise and restores funding for positions deemed critical for continued academic progress.

The district also unveiled its first annual report on its growing sector of charter schools.

With charter schools now firmly entrenched in Memphis’ educational landscape, a Shelby County Schools analysis shows a mixed bag of performance, while calling on traditional and charter schools to learn from each other and promising better ways to track quality.