Choice and consequences

Could school vouchers come to Colorado under a Trump administration? It’s a long shot.

PHOTO: RJ Sangosti/The Denver Post

Donald Trump’s selection of conservative Michigan billionaire Betsy DeVos to lead the federal education department has spurred plenty of speculation about whether the new administration can make good on a campaign promise to fund a nationwide school voucher program.

DeVos is an adamant supporter of vouchers and has spent her personal wealth to champion advocates of school choice including some in Colorado, such as U.S. Sen. Cory Gardner, a Republican from Yuma.

Gardner, who supports vouchers, received $5,200 from DeVos during his 2014 Senate run.

Trump’s plan, outlined in one of his few education policy speeches, pledged $20 billion of existing federal dollars to be sent to the states as grants for low-income students to use at private schools.

Details have yet to surface, and likely won’t for several more months. And while it would be a significant uphill battle for that plan to become federal law and an even greater feat for vouchers to become a reality in Colorado, it isn’t totally outside the realm of possibility.

Here’s how a Trump administration bring vouchers to Colorado, a state that has wrestled with the thorny subject for nearly two decades.

First, Congress would have to act.

That’s a big first step, especially since lawmakers in Washington just passed bipartisan legislation that rewrote the nation’s education laws.

“Lawmakers used a lot of time and effort in Congress to write the Every Student Succeeds Act,” said Michelle Exstrom, a program director for the National Conference of State Legislatures.

She added that many Republican lawmakers walked away happy and are likely to turn their attention to other issues, such as health care reform.

Even if there was interest in passing new legislation that would authorize a federal voucher program, the money would need to come from somewhere. As Education Week pointed out, lawmakers probably won’t be in keen on repurposing any current federal funds spent on education.

But let’s pretend everything goes as planned in Washington. Then what?

For a federal voucher plan to fly in Colorado, it would have to meet at least two basic legal requirements: First, the program would have to be voluntary for local school districts. Second, no state funds could be used to fund vouchers to religious schools (at least for now).

James Lyons, representing the Douglas County School District, speaks during oral arguments at the Colorado Supreme Court in the Douglas County vouchers case.
James Lyons, representing the Douglas County School District, speaks during oral arguments at the Colorado Supreme Court in the Douglas County vouchers case.

Both requirements stem from previous state Supreme Court decisions on vouchers.

The first decision was handed down in 2004 after Republican Gov. Bill Owens and a Republican legislature tried to create what would have been the largest statewide voucher system at the time. The plan would have allowed students in 11 low-performing school districts to use 85 percent of the state’s per pupil funding amount to go to a private school.

The Colorado Supreme Court, however, ruled that the state could not mandate how school districts use the local tax revenue that funds their schools. That, the court said, would violate the state’s constitutionally protected local control of schools. (The state’s per pupil funding amount is made of taxes collected by the state and local counties.)

The second decision comes from a more recent Supreme Court decision about the Douglas County School District’s voucher plan. The Supreme Court ruled the program was unconstitutional. While four justices said the program was unconstitutional, only three said it was violated a part of the constitution that forbids state funds to be used at private religious schools.

Eric Hall, who represented the Douglas County School District, argues that creates some ambiguity about whether Colorado could use state funds to match federal dollars.

“There isn’t a precedential ruling on whether (the constitution) prohibits tax dollars being spent at private religious schools,” he said. “That will have to be ironed out at some point.”

But Mark Silverstein, legal director for the American Civil Liberties Union of Colorado, said he believes the constitution is clear on the matter.

“I would imagine the state constitution would remain a bar for the state participating in a plan that sends state money to private religious schools,” he said.

The Douglas County School District has appealed the state Supreme Court’s decision to the U.S. Supreme Court.

So let’s say Trump’s plan doesn’t require states to kick in money and that school districts could volunteer for the program. What still has to happen to get vouchers in Colorado?

The state education department likely would be responsible for running the program. But before the department would participate, it would seek input from the State Board of Education, the legislature and the governor, said Patrick Chapman, executive director of federal programs for the department.

Douglas County parents protest the district's voucher program in 2010 (Denver Post photo)
Douglas County parents protest the district’s voucher program in 2010 (Denver Post photo)

“We would not move forward with anything that would be illegal or go against their wishes,” Chapman said.

While the governor has never taken a position on vouchers, a split legislature in which Democrats control the House and a state board soon to be controlled by Democrats by one vote does not bode well for voucher supporters.

Rebecca McClellan, a Democrat from Centennial whose recent victory will flip the balance of partisan control on the state board, campaigned on protecting “neighborhood schools” and opposing vouchers.

“I do not favor voucher schemes that drain funding from our public schools and make an already challenging financial picture that much harder,” McClellan said at a candidate forum in Aurora.

Douglas County makes up a small portion of the district McClellan will represent.

the secretary speaks

In departure from Trump, Betsy DeVos calls out ‘racist bigots’ in Charlottesville

PHOTO: U.S. Department of Education
U.S. Education Secretary Betsy DeVos.

U.S. Education Secretary Betsy DeVos condemned “white nationalists, neo-Nazis and other racist bigots” in an email to her staff Thursday — without mentioning President Trump, whose equivocal stance on the racist violence in Charlottesville last weekend has drawn widespread criticism.

“While we should be anticipating and celebrating students’ returns to campuses across the country, we are engaged in a national discussion that has stirred ugly, hate-filled conversations and reopened hurtful wounds from shameful portions of our nation’s past,” DeVos wrote.

The letter was more pointed — describing the racist views as “cowardly, hateful and just plain wrong” — than DeVos’ initial tweets on the events. She has been silent since those posts until now.

 

In her email to staff, she emphasized that individuals, and schools, had a part in combating hatred.

“We can all play a role. Mentor a student. Volunteer at a school. Lend a helping hand and offer a listening ear,” she wrote.

But DeVos did not specify what role, if any, the department’s policymaking would play. She has received persistent criticism from civil rights groups for proposed federal budget cuts, her stance on discrimination of LGBT students, and her appointment to head the Office of Civil Rights. (DeVos specifically notes that, “Our Department, and particularly the Office for Civil Rights, exists to ensure all students have equal access to a safe, nurturing, quality learning environment free from discrimination or intimidation.”)

Meanwhile, criticism of Trump and Devos from education advocates has intensified in recent days.

New York City charter school leader Eva Moskowitz — who was initially considered for the job DeVos now holds, and who led Ivanka Trump on a school tour — released a strongly worded letter condemning the Trump administration (though she did not mention DeVos). On Twitter, Kevin Huffman, the charter-friendly former Tennessee education commissioner, called on DeVos to resign, saying, “It is not viable to serve all kids under a POTUS who defends and encourages white supremacy.”

This is on top of persistent hostility from many left-of-center charter advocates, including one of DeVos’s predecessors, Arne Duncan, who called bumps in federal spending for charters “blood money” if they came alongside to Trump’s proposed cuts to education.

The note was sent to staff, rather than posted as a press release. DeVos has not been shy in the past about weighing in on topics beyond education — she quickly issued a statement praising Trump’s decision to leave the Paris climate change agreement, for example.

Here’s the text of her letter:

Team,

I write today with a heavy heart for our country. While we should be anticipating and celebrating students’ returns to campuses across the country, we are engaged in a national discussion that has stirred ugly, hate-filled conversations and reopened hurtful wounds from shameful portions of our nation’s past.

There is fear, pain, anger, disappointment, discouragement and embarrassment across America, and I know, too, here within the Department.

Last weekend’s tragic and unthinkable events in Charlottesville, which stole three innocent lives and injured many more, were wholly unacceptable. The views of white nationalists, neo-Nazis and other racist bigots are totally abhorrent to the American ideal. We all have a role to play in rejecting views that pit one group of people against another. Such views are cowardly, hateful and just plain wrong.

This is what makes our work so important. Our Department, and particularly the Office for Civil Rights, exists to ensure all students have equal access to a safe, nurturing, quality learning environment free from discrimination or intimidation.

Our own difficult history reminds us that we must confront, head-on, problems when and where they exist with moral clarity and conviction. Our nation is greater than what it has shown in recent days.

Violence and hate will never be the answer. We must engage, debate and educate. We must remind all what it means to be an American, and while far from perfect, we must never lose sight that America still stands as the brightest beacon for freedom in the world.

My hope is that we will use this as an opportunity to show that what unites and holds America together is far stronger than what seeks to divide and draw us apart. We can all play a role. Mentor a student. Volunteer at a school. Lend a helping hand and offer a listening ear.

Our work is truly the bridge to a stronger future. Let’s recommit ourselves to ensuring the future is brighter for all.

Betsy

choice for most

Chalkbeat explains: When can private schools discriminate against students?

PHOTO: Julia Donheiser

Over $16 million of public funds went to Indiana private schools with anti-LGBT policies last year, a recent Chalkbeat investigation found.

You might be asking: Is it legal to discriminate against those students?

The answer is yes, and that’s become a focus of the national debate about school choice. (U.S. Education Secretary Betsy DeVos fanned the flames on this one when she offered ambiguous answers about whether all students would be welcome in schools that participated in a potential national voucher program.)

But the rules are tricky when it comes to private schools, especially religious ones. Here’s your guide to understanding when, why and how private schools can say no to certain students.

Are there laws in place that prevent discrimination against LGBT students?

There is no federal legislation explicitly protecting LGBT students from discrimination in schools. That means when it comes to gender and sexuality, Title IX of the Civil Rights Act — which prohibits discrimination on the basis of sex — is the main piece of legislation in play.

Title IX applies to private schools that accept federal funds — and many private schools do, usually through school breakfast or lunch programs, grants, or funding for low-income students.

However, some schools qualify for exemptions. All-boys or all-girls schools are allowed to restrict their admissions accordingly, for example.

Most important to the discussion of LGBT students: Private schools run by religious organizations are exempt “to the extent that application of Title IX would be inconsistent with the religious tenets of the organization.” A majority of private schools in the U.S. are religious, which means that most private schools are free to discriminate against LGBT students on religious grounds.

In Indiana, Chalkbeat found that at least 27 schools that accept vouchers have policies that suggest or declare that LGBT students are unwelcome.

What about private schools that aren’t religious?

At non-religious private schools, Title IX’s nondiscrimination rules do apply. But a change in interpretation means the law offers fewer protections to transgender students than it has in the past.

Under the Obama administration, the ban on discriminating on the basis of sex was interpreted as related either to biological sex or to gender identity. However, the Trump administration rescinded guidance on that front — meaning the federal government considers Title IX to only bar discrimination based on a student’s biological sex.

Do any states have laws that prevent discrimination against LGBT students?

Many states have implemented their own nondiscrimination policies regarding sexual orientation and gender identity — in the world of public education. But no voucher programs have such policies in place, research shows.

As a result, private schools are free to turn away LGBT students while still receiving public funding for accepting vouchers.

What about other forms of discrimination?

Private schools can’t discriminate on the basis of race if they want tax-exempt status. The executive director of the Council for American Private Education, Joe McTighe, said he wasn’t “familiar with any nonprofit private schools that elect against tax-exempt status.”

If private schools accept federal funds, they are also bound to Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color or national origin.

When it comes to students with disabilities, private schools have more leeway to turn students away.

This is partly because students who choose to attend a private school — including through a voucher program — forfeit their right to a “free appropriate public education” that they are otherwise guaranteed by the Individuals with Disabilities Education Act.

Another law, the Americans with Disabilities Act, bars discrimination on the basis of disability and requires private schools to accept students so long as only “minor adjustments” are needed to accommodate them. But it exempts religiously run private schools.

Under a third law, Section 504 of the Rehabilitation Act, those protections apply to religious schools, too — if the school receives federal funds.