v(ouch)!

Plaintiffs: Dougco voucher program thwarts constitution

Highlands Ranch High School science teacher Bob MacArthur leads a class discussion in 2014. (Photo by Nicholas Garcia)

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

Future of Schools

How this Indiana district realized counselors weren’t spending enough time counseling

PHOTO: Denver Post file

About a year ago, the counselors in the Beech Grove school district made a discovery: They were spending less than half of their time on counseling.

Instead of meeting with students one-on-one or in small groups, they were spending most of their days on routine tasks, such as overseeing lunch, proctoring exams, and filling in for secretaries.

When they realized how much time those other tasks were taking away from counseling work, it was “an eye-opener for everyone,” said Paige Anderson, the district college and career coordinator.

The counselors began tracking their time as part of a planning grant from the Lilly Endowment, a prominent Indianapolis-based philanthropy. In 2016, the foundation launched Comprehensive Counseling Initiative for Indiana K-12 Students, a $49 million effort to improve counseling in Indiana. Experts say meaningful counseling can help schools support students as they navigate problems both at home and in the classroom. (The Lilly Endowment also supports Chalkbeat. Learn more about our funding here.)

What Beech Grove staff members learned during their planning process is already changing their approach to counseling, said Trudi Wolfe, a counselor at Central Elementary School, who was instrumental in applying for the Lilly grants. Now, administrators are taking on more tasks like proctoring tests. And one intermediate school hired a new counselor.

“The schools will take counselors and meet the needs of the school,” Wolfe said. “Part of the process is helping administrators understand, school counselors need to be doing school counseling.”

Last month, the endowment announced its second round of implementation grants, which awarded about $12.2 million to 39 schools and districts. Beech Grove will receive $259,727 to redesign its counseling program to focus on the social and emotional needs of students, with the largest chunk of that money going to staff training.

The aim is to develop a strategy for handling the trauma that students face at home, said Wolfe. Over the past 10 years, the number of students in the district who are poor enough to get subsidized meals has risen by about 25 percentage points to 72 percent of students.

Beech Grove has also been affected by the opioid crisis, said Wolfe. “We have kids living with parents who are dependent on drugs, and they are not meeting the needs of their children.”

Those growing challenges mean that it is essential for counselors to have a plan for helping students instead of just meeting the needs of each day, Wolfe said.

Counseling is an investment that can have long-term benefits. After Colorado began an initiative to hire more school counselors, participating schools had higher graduation rates, increased enrollment in career-and-technical programs, and more students taking college-level courses. A 2016 report found that by keeping students from dropping out, the Colorado program saved taxpayers more than $319 million.

But in Indiana schools, counselors often have large caseloads. In 2014-2015, Indiana had an average of 543 students per counselor, above the national average and significantly higher than the American School Counselor Association recommendation of no more than 250 students per counselor.

Hiring more counselors alone is not enough to create stronger school counseling programs, said Tim Poynton, an associate professor at the University of Massachusetts Boston who studies counseling. They also have to spend their time on meaningful counseling work.

“You need more school counselors. That’s necessary, but it’s also not sufficient,” said Poynton. “If you hire more school counselors, and you have them doing lunch duty and things that basically you don’t need a master’s degree in school counseling to do, then you’re not going to see those important metrics move.”

When schools were applying for the Lilly Endowment grants, many reported that counselors were focused on urgent social and emotional challenges and struggled to help students plan for the future, according to the endowment.

Those challenges can have ripple effects, making it harder for school staff to tackle long-term goals such as ensuring that students sign up and meet the requirements for the state’s scholarship program, 21st Century Scholars.

If counseling is done well, most students will be prepared to go to college, even if they do not seem interested when they are in high school, Poynton said. But when counselors are dealing with urgent problems, they have significantly less time to devote to college preparation, he said.

“In urban schools, school counselors are often focused on getting students to school and meeting their immediate needs,” Poynton said. “In the higher-performing suburban schools, where the students and families don’t have those same kind of issues or concerns, the emphasis is almost entirely on the college-going process.”

In a statement from the endowment, Vice President for Education Sara B. Cobb said the response to the Lilly grants shows increased awareness of the crucial need for counseling programs.

“We are impressed with how school leaders have engaged a wide variety of community partners to assess the academic, college, career and social and emotional needs of their students, and respond to them,” Cobb said.

The Lilly grants are going to a broad array of schools, and they are using the money in different ways. At Damar Charter Academy, which educates students with special needs, few students earn traditional diplomas or have good options for higher education. That’s why school staff plan to use the $100,000 counseling grant they received to build relationships with employers and create training programs for skills such as small engine repair, automotive maintenance, landscaping, and culinary arts, said Julie Gurulé, director of student services.

“If we can commit to getting them the skills they need while they are with us,” she said, “they will be able to go out and gain meaningful employment, and … lead the kind of lives that we all want to.”

These are the districts and schools in Marion County that received counseling grants. (Find the full list here.)

  • Beech Grove City Schools $259,727
  • Damar Charter School $100,000
  • Metropolitan School District of Decatur Township $671,300
  • Purdue Polytechnic Indianapolis High School $100,000

Delayed decision

Officials promised to update a Giuliani-era agreement between the NYPD and city schools almost a year ago. So where is it?

PHOTO: Alex Zimmerman
A school safety agent at Staten Island's New Dorp High School.

Last October, city officials said they were on the cusp of announcing changes in the way the New York Police Department interacts with schools — an overhaul that began more than three years ago and sparked months of negotiations with advocacy groups.

But nearly 10 months later, the city has not announced any revisions to the “memorandum of understanding” that governs police involvement with school security, leaving in place a nearly two-decade-old agreement that has not been altered since Rudy Giuliani was mayor and “zero tolerance” discipline policies were in vogue.

Now, police and education officials say revisions won’t be made public until this fall. That timeline has infuriated advocates who said they made progress with senior city officials but have recently been kept in the dark and fear their recommendations are being ignored.

“Here we are three years later without any explanation from the administration,” said Kesi Foster, an organizer with Make the Road New York and the Urban Youth Collaborative who serves on a mayoral task force charged with revising the agreement. “It’s extremely frustrating and disheartening.”

As Mayor Bill de Blasio has worked to overhaul school discipline policies, which have reduced suspensions and student arrests, advocates say the outdated MOU has become a roadblock.

The 1998 agreement officially gives the city’s police department authority over school safety agents, a force that rivals Houston’s entire police department in size. The agreement was controversial at the time, with some city officials saying the presence of police officials made student misbehavior more likely to end in arrests.

Mark Cannizzaro, head of the city’s principals union who was a school administrator in the 1990s, said it was not unheard of for principals to consider calling the police for incidents as minor as shoving. “There was, at one point, a zero tolerance approach that didn’t make sense,” he said.

The current memorandum is a reflection of that era, advocates say, and is one of the reasons students of color are disproportionately likely to wind up in the criminal justice system instead of the principal’s office. It was supposed to be updated every four years, but has still never been revised.

De Blasio seemed to agree that the memorandum needed to be reformed, and convened a group of advocates and senior city officials who recommended changes. Among the group’s recommendations, released in 2016, were giving school leaders the lead role in addressing student misbehavior, making it more difficult for school safety agents to place students in handcuffs, and ensuring students are informed of their rights before they’re questioned.

Johanna Miller, the advocacy director of the New York Civil Liberties Union, said senior officials — including Mark Rampersant, the education department’s director of security, and Brian Conroy, the chief of the police department’s school safety division — participated in the task force and seemed receptive to changes. The group agreed there should be limits to the type of offenses that could trigger police involvement, multiple participants said, excluding offenses such as smoking cigarettes, cutting class, and certain instances of insubordination.

But when the city presented the group with a draft agreement, many of their recommendations had vanished, according to people who were present during the meetings, some of whom requested anonymity because the city required that participants sign nondisclosure agreements.

“They basically eliminated all of the major changes that we made,” Miller said, adding that the group requested another opportunity to change the agreement more than a year ago. “And that was the last we heard of it.”

City officials would not comment on why the process has been delayed or why key recommendations never made it into the draft agreement. Some task force members said they believed education and police department lawyers, who had not participated in the group’s discussions, played a role in stripping the draft agreement of the most important changes.

An education department spokeswoman acknowledged in an email that “agency lawyers have been involved in order to ensure the MOU is aligned with existing local, state, and federal laws and in the best interest of students and families,” but did not comment further on why certain changes were not included.

Asked why task force members were required to sign nondisclosure agreements, the official said the decision was made “To protect the confidentiality of any shared student data and remain within (The Family Educational Rights and Privacy Act) compliance.”

The task force still meets quarterly, although several of its members say they have not received updates and did not know the city planned to release an updated memorandum this fall.

“The DOE and NYPD have been working in close partnership to finalize updates to the MOU and ensure that the changes are done correctly in the best interest of students and families,” education department spokeswoman Miranda Barbot wrote in an email.

Cannizzaro, the principals union chief, said he has not been informed about potential changes to the agreement, adding that school leaders should have discretion in how misconduct is handled and noted the police play an important role in school safety. “We certainly appreciate their presence — we need their presence,” he said.

Some members of the task force wondered whether the selection of a new schools chief has delayed the process, and at their most recent meeting in May, schools Chancellor Richard Carranza stopped by. “He said something to the extent of, he knew it was an issue and was going to put eyes on it,” said Nancy Ginsburg, a lawyer at the Legal Aid Society and a member of the task force.

Ginsburg said she appreciates that changes take time, but also stressed that the current memorandum can make it difficult to hold officials accountable since the agreement is so vague.

“It’s impossible to hold the agencies to anything if there are no rules,” she said.