Decisions & Choices

Douglas County voucher supporters encouraged by Supreme Court decision in similar case

James Lyons, representing the Douglas County School District, speaks during oral arguments at the Colorado Supreme Court in the Douglas County vouchers case. (Photo by RJ Sangosti/The Denver Post)

A significant U.S. Supreme Court ruling Monday on a church-state issue opens a new chapter in a court fight over a Douglas County private school voucher program, with both supporters and opponents finding encouragement in the high court’s decision.

The court ruled that the state of Missouri violated the U.S. Constitution when it barred a church-run preschool from participating in a state program that repaved playgrounds.

While the court’s narrow 7-2 decision fell far short of legalizing private school voucher programs, it still has implications for the Douglas County program, which the state Supreme Court rejected.

Most likely, observers said, the Douglas County case will be kicked back to the Colorado Supreme Court for examination under the precedent the U.S. Supreme Court set with its new ruling. Or the U.S. Supreme Court could hear the case, the preferred outcome of voucher backers who would like to set a more sweeping precedent for their cause.

“This is a huge victory for folks who are believers in religious liberty,” said Ross Izard, a senior education policy analyst at the Independence Institute, a Denver-based free-market think tank. “Unfortunately for those of us who are invested in the school choice movement, it doesn’t accomplish everything we hoped it would.”

The legal fight over vouchers has engulfed the suburban school district south of Denver since 2011. That’s when a new conservative school board established the Choice Scholarship Program.

Unlike other voucher programs, which are designed to provide low-income families with educational alternatives, the Douglas County program was opened to all students in the district with a median household income of $107,650.

Lawyers representing the Douglas County School District and families who participated in the voucher program before it was halted by a lower court said they expect the Supreme Court to decide this week whether they’ll take up the years long debate over the voucher program.

“We’re certainly encouraged,” said William Trachman, general counsel for the Douglas County School District. “The policy reasons that underlie the program are to give students educational choice. That’s what Douglas County cares about.”

The Colorado Supreme Court ruled in 2015 that the Douglas County School District’s voucher program, which would have allowed parents to use taxpayer dollars to send their students to private religious schools, was unconstitutional.

The state’s constitution includes a provision that forbids tax dollars to be used by religious institutions. Colorado is one 38 states that have these so-called Blaine Amendments.

The district, along with three Douglas County families and Colorado’s attorney general, later appealed to the U.S. Supreme Court. The U.S. Supreme Court has held the case for nearly two years as it considered the Missouri case, Trinity Lutheran Church of Columbia, Inc. v. Comer.

In that case, Trinity Lutheran sued the state of Missouri after it prohibited the church from participating in a state program that used recycled tires to resurface playgrounds.

The U.S. Supreme Court said the state could not prohibit the church from participating in the program since the benefit of the program — new asphalt for the playground — was secular and did not further the church’s religious mission.

That’s an important distinction opponents to the Douglas County voucher program highlighted in reacting to the decision.

“The majority opinion in Trinity Lutheran explicitly distinguished the facts in that case from cases like ours where government funds run afoul of state anti-establishment clauses because the funds are being used to pay for religious education,” Cindy Barnard, president of Taxpayers for Public Education, a nonprofit that supports traditional public schools, in a statement. Barnard was the original plaintiff in the Douglas County voucher case.

Mark Silverstein, legal director of the Colorado ACLU, one of the organizations that argued against the voucher program, echoed Barnard.

“The Douglas County school district’s voucher program violated the state’s constitution as of yesterday. It violates the state constitution even today,” he said. “This case today is not about using public money for religious indication. And that’s a distinction I believe most of the justices see as important.”

showdown

McQueen’s deadline looms for Memphis and Nashville to share student info with charter schools — and no one is budging

PHOTO: Laura Faith Kebede
A request for student contact information from Green Dot Public Schools to help with enrollment efforts sparked a fight between the state and Shelby County Schools.

As Tennessee’s two largest school districts fought an order to share student information with charter schools, the state education commissioner set a deadline last week.

Candice McQueen told the superintendents of Shelby County Schools and Metropolitan Nashville Public Schools they had to provide the data to charter schools that asked for it by Sept. 25 — or the state would “be forced to consider actions to enforce the law.”

But with just three days until the deadline, neither district has said it will budge. The consequences “will be determined Monday,” McQueen told Chalkbeat on Friday.

McQueen has not offered more information about what those consequences could be, though some lawmakers have worried it could mean funding cuts. There is some precedent for such a move: The Nashville district lost $3.4 million in state funding in 2012 when it refused to approve a controversial charter school, according to The Tennessean.

The clash comes after the Nashville and Memphis districts refused to turn over student contact information to charter networks, who argue that information is vital to their operation. Many Memphis schools, including those in the state-run school district, have been struggling with under-enrollment.

An amendment to an untested U.S. Department of Education rule suggests local districts can withhold information like phone numbers, addresses and email addresses — but a new state law requires Tennessee districts to hand it over to charter schools within 30 days.

The state department of education asked the attorney general’s office to weigh in. Last week, the attorney general said the districts had to turn the information over, but also that districts could take a “reasonable period of time” to notify parents about their right to opt out.

Shelby County Schools posted opt-out forms for parents on its website the next day, and gave parents until Oct. 22 to fill them out. The form allows parents to keep their information from charter schools specifically or from outside entities more broadly, including companies like yearbook providers, for example.

What Memphis parents should know about how schools share student information

The school boards for the two districts have been in lockstep in defying the state’s order, with the Memphis board even offering to write a legal opinion if Nashville were to go to court over the issue.

Shelby County Schools Superintendent Dorsey Hopson said his legal team is still reviewing the attorney general’s opinion.

“We still want to make sure parents know what their options are,” Hopson told Chalkbeat on Tuesday. “When we [McQueen and I] talked, she understood that our opt-out forms were out there.”

Anna Shepherd, board chair for the Nashville district, said the board met with its attorney this week to discuss the issue but took no action.

“We have not had any further conversation with the state concerning the release of data for MNPS students,” Shepherd said by email. “I’m not anticipating any action [before Monday].”

Reporter Caroline Bauman contributed to this report.

what's public?

Private managers of public schools, charter leaders enjoy extra buffer from public-records laws

PHOTO: Monica Disare
Eva Moskowitz, Success Academy Charter Schools CEO.

When Success Academy officials read the news last month that board chair Daniel Loeb had made a racially charged comment about a New York State senator, what did they do next?

Did Success CEO Eva Moskowitz frantically email confidantes about the incident? Did her team craft a new policy on board member conduct?

It turns out, we may never know.

That’s in part because emails sent by Moskowitz and other leaders of New York City’s largest charter network which oversees 46 public schools and 15,500 students are not subject to the same public-records laws as district school officials, such as Chancellor Carmen Fariña.

Moskowitz and officials at other charter school networks are generally exempt from the law because they don’t work for individual schools or city agencies, both of which are required to hand over certain records to members of the public who request them. Instead, they are employed by nonprofit groups called charter management organizations, or CMOs, which aren’t covered by the state records law.

“Success Academy Charter Schools, Inc. (SACS) is a private nonprofit organization that provides services to charter schools, but it is not itself a charter school or a government agency under FOIL,” wrote Success Academy lawyer Robert Dunn in response to an appeal of a Chalkbeat request for Moskowitz’s emails under the state’s Freedom of Information Law, which the network had denied. “Thus, it is not in and of itself subject to FOIL or required to have an appeal process.”

In addition, Success officials said the emails would not need to be released because they qualify as internal communications that are exempt from the public-records law.

The city’s most prominent charter school networks — including KIPP and Uncommon — have similar CMO structures, which appears to shield their leaders from at least some FOIL requests. While “the KIPP NYC public charter schools themselves are subject to the New York Freedom of Information Law,” KIPP spokesperson Steve Mancini said in an email, the “CMOs are not.”

But some government-transparency advocates argue that the law is not so clear cut.

Because CMOs are so heavily involved in the operation of public schools, it could be argued that the vast majority of their records are kept on behalf of public schools and should be public, said Bob Freeman, executive director of the Committee on Open Government and an expert on public-records laws.

Even though nonprofits aren’t covered by FOIL, he said, “Everything you do for an entity that is subject to FOIL — everything you prepare, transmit, and receive — falls within the scope of FOIL.”

Success Academy officials emphasized that the network does not categorically deny public-records requests involving its management organization. For instance, it may hand over CMO records related to the daily operation of its schools, the officials said. The network decides on a case-by-case basis which CMO records are public and which are not, they added.

“We follow the same policies as all other charter management organizations,” said Nicole Sizemore, a Success Academy spokeswoman.

Uncommon Schools spokeswoman Barbara Martinez said that their individual schools are subject to public-records requests and the nonprofit CMO releases budget information on its public tax forms.

“Uncommon Schools is a non-profit organization that follows all local, state and federal laws regarding disclosure,” she said in a statement.

However, because public-records laws mainly apply to government agencies and institutions, it is likely that some important communications related to charter schools — such as charter officials’ emails to real-estate companies, for example and detailed financial records related to their CMOs would be off limits to the public.

The issue of charter management transparency flared up in Connecticut a few years ago.

After the state accused a CMO of nepotism and financial mismanagement of its charter schools, the Hartford Courant requested CMO records under the state’s Freedom of Information law. The CMO refused to hand them over, saying, “We are not a public agency.”

In response, state lawmakers proposed a law to increase CMO transparency and subject them to public-records laws. After charter advocates decried the law as overly broad, lawmakers amended it and the law was passed. (A similar bill was recently introduced in the California legislature but did not pass.)

Similar scandals involving CMOs could happen elsewhere, said Wendy Lecker, an attorney at the Education Law Center. During the debate in Connecticut, she called for making all CMO records public.

“Something done on behalf of a school should be subject to transparency and Freedom of Information laws,” she said. “I don’t see why they’d want to shield the public from that.”

A large number of charter schools are run by charter management organizations. In 2015, about 55 percent of New York City charter schools were managed by CMOs, according to the National Alliance for Public Charter Schools.

The nonprofits help their schools hire, pay, and train staff; analyze data; and handle advertising and public relations, according to a report by the NAPCS. The report notes that these organizations are distinct from textbook companies or other vendors that schools contract with because CMOs “have considerable influence over the instructional design and operations of their affiliated charter schools.”

The nonprofit structure has enabled networks to open new schools more easily, including ones in multiple districts and states, said James Merriman, CEO of the New York City Charter School Center.

Even if New York’s public-records laws applied to CMOs, that would not guarantee that all their records would be accessible or easy to obtain.

New York City’s education department, for instance, is notorious for dragging its feet on FOIL requests. And some information is also exempt from the public-records law.

For instance, opinions or recommendations from within an agency or from outside consultants are exempt from public disclosure. Success’ lawyer argued that even if the network’s executives were subject to public information requests, Moskowitz’s emails to or about Loeb would fall under this “inter-agency” communication exception.

However, government agencies would still have to supply the requested emails, just with the exempted information redacted, said Allan Blutstein, the public-records advisor for the political opposition research group America Rising. Even redacted emails can provide a wealth of information, Blutstein said, since simply seeing when the emails were sent, who they were sent to, and how many were exchanged provides insights into how the organization responded.

“You may not get his or her personal opinion back and forth, but there’s value in knowing how soon they reacted, how soon they’re responding to other people,” Blutstein said. “You can make these types of inferences and learn a lot.”

In addition, institutions that are subject to FOIL must hand over more detailed budget information than nonprofits typically disclose, Blutstein said. While nonprofits are required to release general information, like how much they spend on supplies or training, public institutions must hand over almost every record, he said.