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Plaintiffs: Dougco voucher program thwarts constitution

PHOTO: Nicholas Garcia
Highlands Ranch High School science teacher Bob MacArthur leads a class discussion May 16 on propaganda art. His ninth grade science class was asked to design a propaganda poster in support of an energy source they have been studying.

Gearing up for a constitutional slug match over the fate of private school vouchers in Colorado, lawyers for Douglas County parents and taxpayers made their first pitch to the Colorado Supreme Court on the 2011 suburban scholarship program.

The voucher plan, which is on hold pending litigation, would allow Douglas County students to use public tax dollars to enroll in private — and often religious — schools would siphon away much-needed revenue from public schools and subsidize religious institutions. In effect, the program is unconstitutional, lawyers argued in a brief filed late Thursday with the Colorado Supreme Court.

The 80-page document, filed on behalf of two groups of plaintiffs, argues why the district-created voucher program, known as the Choice Scholarship Program, should not be permitted to launch.

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

“The majority court of appeals opinion that upheld the Program, if allowed to stand, would eviscerate core provisions of the religion and education clauses of the Colorado Constitution, restrict citizens’ ability to enforce the Public School Finance Act, and give school districts around the state carte blanche to implement similar programs, with potentially devastating consequences for the State’s constitutionally mandated public-school system,” the brief says.

The plaintiffs’ brief is one of a few initial steps in what is expected to be a rather long and uncertain process. The Douglas County School District has until Aug. 4 to file its response. A date for oral arguments has not been set. Those arguments may not be heard until next year, according to a spokesman for the the Colorado chapter of the American Civil Liberties Union.

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.

The Douglas County school board remains confident in its case, a spokeswoman for the district said earlier this week referring to a previously issued statement from board member Craig Richardson.

“The District welcomes the opportunity for the state’s highest court to review a case that presents such important issues for our state and our country,” Richardson said in March. “DCSD is committed to expanding choice for parents and one of the ways is our innovative Choice Scholarship Program. We believe the Court of Appeals will be affirmed and that the parents and children of our District will, someday soon, be afforded more educational choice.”

From the brief

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. While there was a waiver policy for students who might not participate in a particular religion, a lower court agreed the waiver was limited at bets. The brief argues:

The Program purports to afford students the right to “receive a waiver from any required religious services at the Private School Partner,” but the waiver only applies to saying prayers aloud; students can still be compelled to attend religious services. Nor may students opt out of full participation in other religious exercises — such as prayer recitations and scriptural readings — that many of the schools mandate throughout the day. Moreover, most of the schools require students to receive instruction in religious doctrine. Even the District acknowledged that this was “[n]ot much of an opt out.”

During the initial trial, testimony suggested one participating religious school only signed up for the program to beef up its own reserves. Here’s why:

There are no restrictions on how participating schools may spend the public funds they receive through the Program. Schools are free to use the funds for religious instruction, worship services, religious literature, clergy salaries, and construction or maintenance of facilities used for worship and prayer.

One of the more nuanced parts of the Dougco voucher case revolves around a charter school established by the district that students in the program were to enroll in. The charter school had no teachers, curriculum, or walls. Its primary function was to cut voucher checks to parents.

In sum, the Voucher Program rests on the transparent fiction that the Charter School is a “qualified charter school” entitled to claim and spend public funds under the Act. The Court should not sanction such a fiction.

If the Douglas County wants to expand school choice, as it has purported to do, there is a constitutional solution, the brief says:

If the citizens of Colorado want to rewrite the State Constitution to allow public funding of religious schools, they can try to do so at the ballot box. Until then, the language and intent of the Colorado Constitution’s framers must be followed.

The plaintiffs’ brief

New Arrivals

Advocates decry Fariña’s explanation of low graduation rates among English learners

PHOTO: Monica Disare
Nancie Adolphe, a case manager at Flanbwayan, a group that helps young Haitian immigrants hosts a press conference on English Language Learner graduation rates.

When the head of New York City schools suggested that English Language Learners fail to graduate, in part, because they lack formal schooling and are “coming from the mountains,” advocates from a group that serves Haitian immigrants said she undoubtedly missed the point.

“We are insulted by her statement,” said Nancie Adolphe, a case manager at Flanbwayan, a group that helps young Haitian immigrants, during a Thursday press conference. “As a community of immigrants, of English learners, we care about what happens to each student, no matter where they come from.”

The city pointed out that combining current and former English Language Learner graduation rates, 57 more students graduated this year. Fariña also said that while she is working to help more English learners graduate, it is harder for students to earn a diploma if they start off years behind.

Members of Flanbwayan have a different explanation for the city’s 27 percent June graduation rate for English learners, a 9.6 percentage point decrease over the previous year. In their view, many ELL students face a huge disadvantage because of how the city’s high school admissions process treats newly arrived immigrants.

New York City’s admissions process, which allows students to apply to any high school throughout the city, is notoriously difficult even for students born and raised in New York. But for newly arrived immigrants, the process is even worse, said Darnell Benoit, director of Flanbwayan.

Students have years to wade through a thick directory of more than 400 high schools, tour the ones they like and apply for competitive programs. For new immigrants, that process is often replaced by a quick trip to an enrollment center. Many times the only seats left are at low-performing schools, and students often find they don’t have access to the language help they need, Benoit said.

“They don’t have a lot of time to fight for their lives,” said Alectus Nadjely, a Haitian immigrant who arrived in the United States when she was twelve and is now a senior in high school, about the process.

A student’s high school placement is directly connected to whether or not they will graduate on time, advocates said. When newly arrived immigrants enter the country, they have to move quickly to pass the state’s required exit exams in time for graduation — and they need all the support they can get, advocates said. Twenty-seven percent of English learners in New York City drop out before graduating, according to state data.

“If a student is not set up in the right placement from the start, the likelihood of being able to stay engaged, be on track for graduation and not drop out, all of that will be impacted,” said Abja Midha, a project director at Advocates for Children. “We really think the high school enrollment piece is a really critical point.”

Education department officials pointed out that the graduation rate for former English learners went up by more than five percentage points this year. They also noted that enrollment information is available in Haitian Creole and that they have increased translation and interpretation services.

“We’ll continue our work to ensure that all our students receive a high-quality education,” said education department spokesman Will Mantell, “and have the support they need to be successful in the classroom and beyond.”

This story has been updated to include additional information.

Charter changes

This sweeping proposal would rewrite Tennessee’s charter school law

PHOTO: Laura Faith Kebede
Rep. Harry Brooks and Assistant Commissioner of policy Elizabeth Fiveash present the charter proposal to lawmakers on Wednesday.

A wide-ranging charter school bill written by the State Department of Education seeks to overhaul Tennessee’s 15-year-old charter law and address concerns of both advocates and opponents.

Called the “Tennessee High-Quality Charter Schools Act,” the bill attempts to address the often rocky relationships between the state’s 105 charter schools and the districts that oversee them. The legislation clarifies rules on everything from applications to closure, and includes measures that charter and local district leaders have fought for — and against.

“This bill develops a stronger partnership between the (districts) and the charter schools,” said Rep. Harry Brooks, the Knoxville Republican sponsor.

But smoothing over fractious relationships won’t be quick or easy, based on the first discussion in a House subcommittee on Wednesday. Lawmakers adjourned before casting a first vote on the proposal, with plans to pick up the discussion next week.  

And while representatives of the Tennessee School Boards Association and the Tennessee Charter School Center told lawmakers that the bill is a “step in the right direction,” some critics remain concerned about the growing sector’s impact on traditional public schools.

For years, local school board members — especially from districts in Memphis and Nashville, which are home to most of the state’s charter schools — have charged that charter schools drain resources from traditional public schools. Charter leaders, meanwhile, have complained that they don’t get enough funding to cover facilities, forcing them to spend money that should go toward students instead on rent and building upkeep.

The Department of Education tried to address both concerns in its bill. The legislation establishes a $6 million fund over three years to help cover leaky roofs and cramped quarters that operators say make their jobs harder. But the bill also allows local districts to charge operators an authorizer fee to offset oversight costs.  

Local districts have sought to charge an authorizer fee for years, and charter operators in Memphis recently have shown willingness to voluntarily pay one. In 2015, the state legislature voted to allow the state’s Achievement School District to begin collecting a fee, too.

The state proposal would allow a district with 21 or more charter schools to charge a fee up to 1 percent of per-pupil funding. Districts with 10 to 20 charters could charge a 2 percent fee, and those with 10 or fewer could charge 3 percent. The change would go into effect in 2018.

“The local district has significant responsibility in regards to being an authorizer of charter school,” Brooks explained when introducing the bill. “There’s expense tied up in that; there’s personnel tied up in that.”

But some think the proposed fee isn’t nearly enough, especially in Memphis and Nashville, where the ASD and State Board of Education can charge charter schools 3 and 4 percent, respectively. In Shelby County Schools, for instance, the district is doubling the size of its charter office to keep up with its oversight duties.

“When state authorizers are getting higher fees than districts, that’s a red flag,” Nashville school board member Will Pinkston told Chalkbeat. “One percent seems like a nice first offer, but districts need to make significant counter offers to get that higher.”

Other parts of the expansive bill would curb local attempts to rein in charter schools. One section says that applications can’t be based on “conditions or contingencies” — a provision that concerns Pinkston, who spearheaded an effort to make the approval of Nashville charter schools contingent on their location.

“Every local school system needs to have the ability to ask for the details they think are necessary before making a decision,” he said.

Charter operators argue that such contingencies put them in impossible situations, unable to secure a location without a contract, and vice versa.