school choice battle

Douglas County School District to appeal voucher case to U.S. Supreme Court

Douglas County school board president Kevin Larsen, left, and board member Craig Richardson. ( Photo by Nicholas Garcia )

Two months after Colorado’s highest court rejected the Douglas County School District’s controversial school voucher program, officials in the wealthy, high-achieving suburban district announced Wednesday they will ask the U.S. Supreme Court to consider the case.

The district also gained a key ally in the Colorado Attorney General’s Office, which will be filing its own petition backing the district’s Choice Scholarship Program, district officials said.

The district’s move is not a surprise. District leaders all but promised to take the step after the Colorado Supreme Court held in a 4-3 judgment June 29 that the program violated a state constitutional provision barring spending public money on religious schools.

District officials also followed through on their pledge to enlist elite legal help, announcing their team would be headlined by Paul Clement, a former U.S. solicitor general who has been mentioned as a potential Republican appointee to the U.S. Supreme Court.

The AG’s office signing on is another boost to the district. After the state Supreme Court ruling, Republican AG Cynthia Coffman issued a statement lamenting districts “now have one fewer tool to support parents in choosing the education that best fits their children’s needs.” A spokesman for the AG said the office would not be issuing any statements Wednesday commenting on its involvement in the Dougco case.

“When the Colorado Supreme Court’s opinion was announced in late June, we promised a careful, thorough and rigorous legal analysis to determine our next steps,” school board president Kevin Larsen said in a statement. “Today we announce that we will be seeking U.S. Supreme Court review of our case. To achieve that end, we have retained the very best legal minds in the country to make our argument that the June 29 opinion runs afoul of the United States Constitution.”

Mixed legal results on vouchers

Just about every program nationwide that uses public money to subsidize private education has been tested in court, with mixed results but the majority surviving, analysts say. Framers of the Dougco pilot program modeled it on an Ohio voucher program that weathered a U.S. Supreme Court challenge.

Legal experts disagree on whether the nation’s highest court will take the Douglas County case. Some say it’s unlikely the court would wade into a case brought solely on a state constitutional matter. Others argue the anti-Catholic roots of Colorado’s law – similar to those in more than 35 other states – and other issues make it a strong candidate and could plow new ground beyond traditional arguments over the First Amendment.

The district has signaled it will argue that prejudiced history taints the law enough that it violates the 14th Amendment’s equal protection clause. Opponents of the voucher program point to precedent holding that state courts can interpret their own constitutions to recognize broader rights than what might be afforded under the U.S. Constitution.

The involvement of Clement — who as U.S. solicitor general from 2005 to 2008 represented the federal government in U.S. Supreme Court arguments — is another wrinkle.

Larsen said Clement will be supported by a “dream team” of lawyers involved in the state court proceedings and scholars from “the highest ranking law schools in America.”

Alan Chen, a constitutional law expert at the University of Denver’s Strum College of Law, said Wednesday he does not believe the Colorado Attorney General’s Office involvement will factor in whether the court takes the case. While crediting Clement’s stature and experience, Chen said he remains skeptical the court will grant the review because the case is built entirely on state constitutional law.

Mark Silverstein, legal director for the ACLU of Colorado, which represented most of the individual plaintiffs, noted that the Attorney General’s office has been involved from the beginning. The State Board of Education was one of the defendants and was represented by the AG’s office.

Silverstein said he “wants to see what they write and how they frame the issue” in the petition to the Supreme Court before commenting further.

An unorthodox voucher program

The Dougco voucher case has endured a long and bumpy road. The district established the Choice Scholarship Program in 2011 after a conservative takeover of the school board, reasoning that competition can lift all schools even in a district consistently ranked as one of the state’s top academic achievers.

While most voucher programs are restricted to low-income students or those with special needs, Douglas County invited all families to apply — although the program was limited to 500 slots. Sixteen of the 23 participating private schools were religious; 14 were outside the county.

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.
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.

In 2011, the first 304 students were about to enroll when a lawsuit brought it to a halt. Voucher opponents prevailed in Denver District Court. But in 2013, the Colorado Court of Appeals upheld the program’s constitutionality in a 2-1 vote, setting the stage for state Supreme Court arguments.

In the prevailing opinion, Supreme Court Chief Justice Nancy Rice cited Colorado’s “stark constitutional provision” forbidding the use of public money to fund religious schools. Although the money came in the form of financial aid to students, the prohibition is not limited to direct funding, she wrote.

School board member Craig Richardson said in an interview the decision to continue the legal fight is consistent with the district’s “broader strategic vision of freedom.” That, he said, includes empowering parents to choose their children’s schools and extends to the district’s teacher pay-for-performance system.

“The district is proceeding because it’s good for the Douglas County School District to proceed,” Richardson said.

District looking at proceeding with secular schools

He said the district has yet to complete a separate legal review of whether it can move ahead with the voucher program with changes. The district previously floated the possibility of revamping the program as early as this fall, but ran out of time before the school year began.

One question the district is evaluating, Richardson said, is whether moving forward only with secular private schools would meet the legal parameters of the state Supreme Court ruling. Given that most students chose to enroll in religious schools, it’s unclear how much appeal that would hold.

The decision to petition the high court – and assemble the high-powered legal team — also will send legal costs soaring beyond the $1.2 million the district already has reported. District officials say private donations have covered all costs.

“We continue to have as our goal that all legal costs associated with this case will be funded with the generous contributions of private donors who similarly believe in choice and competition in K-12 education and are not affiliated with any religious institutions,” Richardson said. “We strongly believe this is not a cause to which we want to put taxpayer dollars.”

The district faces a deadline at the end of September to ask for a U.S. Supreme Court review. Richardson said the district plans to ask for a month’s extension to file but will move forward even if that is denied.

Behind the brawl

Three things to know about the Tennessee school behind this week’s graduation brawl

PHOTO: Arlington Community Schools
Arlington High School is a 2,000-plus-student school in suburban Shelby County in southwest Tennessee.

Arlington High School is considered the crown jewel of a 3-year-old district in suburban Shelby County, even as its school community deals with the unwelcome attention of several viral videos showing a fight that broke out among adults attending its graduation ceremony.

The brawl, which reportedly began with a dispute over saved seats, detracted from Tuesday’s pomp and circumstance and the more than $30 million in scholarships earned by the school’s Class of 2017. No students were involved.

“It was unfortunate that a couple of adults in the audience exhibited the behavior they did prior to the ceremony beginning and thus has caused a distraction from the celebration of our students’ accomplishments,” Arlington Community Schools Superintendent Tammy Mason said in a statement.

Here are three things to know about the 13-year-old school in northwest Shelby County.

With more than 2,000 students, Arlington is one of the largest high schools in Shelby County and is part of a relatively new district.

It’s the pride of a suburban municipality that is one of six that seceded from Shelby County Schools in 2014 following the merger of the city and county districts the year before. (School district secessions are a national trend, usually of predominantly white communities leaving predominantly black urban school systems.) More than 70 percent of Arlington’s students are white, and 6 percent are considered economically disadvantaged — in stark contrast to the Memphis district where less than 8 percent are white, and almost 60 percent are considered economically disadvantaged.

The school’s graduation rate is high … and climbing.

Last year, after adding interventions for struggling students, the school’s graduation rate jumped a full point to more than 96 percent. Its students taking the ACT college entrance exam scored an average composite of 22.5 out of a possible 36, higher than the state average of 19.9. But only a fifth scored proficient or advanced in math and a third in English language arts during 2015-16, the last school year for which scores are available and a transition year for Tennessee under a new test.

PHOTO: Caroline Bauman
Education Commissioner Candice McQueen visits with students at Arlington High School during a 2016 tour.

The school was in the news last August when Tennessee Education Commissioner Candice McQueen visited its campus.

The commissioner spoke with students there to kick off her statewide listening tour that’s focused on ways to get students ready for college and career. McQueen highlighted the school’s extracurricular activities and students’  opportunities to intern for or shadow local professionals. She also complimented Arlington for having an engaged education community. 

poster campaign

How one Memphis student is elevating the conversation about school discipline

PHOTO: Laura Faith Kebede
Posters created by junior Janiya Douglas have amplified student voices about the culture of White Station High School in Memphis.

Now in her third year of attending a premier public high school in Memphis, Janiya Douglas says she’s observed discipline being handed out unevenly to her classmates, depending on whether they are on the college preparatory track.

PHOTO: Laura Faith Kebede
From left: Janiya Douglas and Michal Mckay are student leaders in Bridge Builders CHANGE program.

“We’re heavily divided in an academic hierarchy,” said Janiya, a junior in the optional program for high-achieving students at White Station High School. “It’s obvious students are treated differently if they are in traditional classes.”

Janiya also has observed racial disparities in how students are disciplined, and the state’s data backs that up. White Station students who are black or Hispanic are suspended at significantly higher rates than students who are white.

Frustrated by what she’s seen, Janiya took her concerns last Friday to the hallways of White Station and hung 14 posters to declare that “our school doesn’t treat everybody equally.”

By Monday morning, the posters were gone — removed by school administrators because Janiya did not get prior approval — but not before other students shared images of some of the messages on social media.

Now, Janiya is seeing some fruits of her activism, spawned by her participation in Bridge Builders CHANGE, a student leadership program offered by a local nonprofit organization.

In the last week, she’s met with Principal David Mansfield, a school counselor and a district discipline specialist to discuss her concerns. She’s encouraged that someone is listening, and hopes wider conversations will follow.

The discussions also are bringing attention to an online petition by the education justice arm of Bridge Builders calling for suspension alternatives across schools in Memphis.

White Station often is cited as one of the jewels of Shelby County Schools, a district wrought with academic challenges. The East Memphis school is partially optional, meaning some students test into the college prep program from across the county.

But Janiya and some of her classmates say they also see an academically and racially segregated school where students zoned to the traditional program are looked down upon by teachers. Those students often get harsher punishments, they say, than their optional program counterparts for the same actions.

“Our school doesn’t treat everybody equally. A lot of groups aren’t treated equally in our school system,” junior Tyra Akoto said in a quote featured on one poster.

“If we get wrong with a teacher, they’ll probably write us up. But if a white student was to do it, they’ll just play it off or something like that,” said Kelsey Brown, another junior, also quoted in the poster campaign.

A district spokeswoman did not respond to questions about disciplinary issues raised by the posters, but offered a statement about their removal from the school’s walls.

White Station is known for “enabling student voice and allowing students to express their opinions in various ways,” the statement reads. “However, there are protocols in place that must be followed before placing signs, posters, or other messages on school property. Schools administrators will always work with students to ensure they feel their voices are heard.”

PHOTO: @edj.youth/Instagram
Members of the education justice arm of the Bridge Builders CHANGE program

To create the posters, Janiya interviewed about two dozen students and had been learning about about school discipline disparities as part of the Bridge Builders CHANGE program.

State discipline data does not differentiate academic subgroups in optional schools. But white students in Shelby County Schools are more likely to be in an optional school program and less likely to be suspended. And statewide in 2014-15, black students were more than five times as likely as white students to be suspended.

White Station reflects those same disparities. About 28 percent of black boys and 19 percent of black girls were suspended that same year — significantly higher than the school’s overall suspension rate of 14 percent. About 17 percent of Hispanic boys and 7 percent of Hispanic girls were suspended. By comparison, 9 percent of white boys and 2 percent of white girls were suspended.

Shelby County Schools has been working to overhaul its disciplinary practices to move from punitive practices to a “restorative justice” approach — a transition that is not as widespread as officials would like, according to Gina True, one of four specialists implementing a behavior system called Positive Behavior Interventions and Supports, or PBIS.

“The whole goal is to not get them suspended, because we want to educate them,” said True, who met this week with Janiya and several other students from Bridge Builders. “When students are cared for emotionally, they perform better academically. As counselors, that’s what we’ve been saying for years.”

Janiya acknowledges that she didn’t follow her school’s policy last week when hanging posters without permission at White Station. But she thinks her action has been a catalyst for hard conversations that need to happen. And she hopes the discussions will include more student input from her school — and across the district.

“Those most affected by the issues should always be a part of the solution,” she said.

Correction: April 10, 2017: A previous version of this story said Janiya put up 50 posters at her school. She designed 50 but actually posted only 14.