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.”

Every Student Succeeds Act

Plans for a single Indiana diploma advance with new rules that raise the bar for graduation waivers

In a move that might make it more difficult for some students to graduate, Indiana lawmakers are considering raising the threshold for allowing students to earn a diploma when they have fallen short of some state requirements.

A proposal to change the graduation waiver system is the latest attempt by the state to amend graduation requirements as part of a policy initiative to ensure that students are prepared for life after high school. The change in waiver policy could make it more challenging for students who struggle academically to complete high school.

“I want to make sure we have as few waivers as possible,” said Rep. Bob Behning, Republican chairman of the House Education Committee and author of House Bill 1426, which includes the waiver changes. And if a waiver is necessary, he said, he wants the requirements to be stringent enough to ensure post-graduate success.

The proposed waiver requirements are part of a sweeping effort by the state to align state law with the state’s new graduation pathways system. The bill, which passed its first major hurdle with the approval of the House Education Committee on Tuesday, would combine the state’s four diplomas into one to deal with the effects of a change in federal law that no longer counts the state’s less-rigorous general diploma in the federal graduation rate. With one diploma, Indiana would be more likely to pass muster under the new federal rules, but final approval from the federal government won’t come for several months.

An amendment to the bill proposed on Tuesday will change Indiana’s policy for allowing students to receive a waiver that, while controversial, is widely used. More than 8 percent of the more than 70,000 students who graduated last year received waivers from meeting graduation requirements.

Supporters say waivers provide opportunities to students who might face challenges that affect their ability to meet the basic graduation requirements. But critics say they allow high schools to push through students that lack the kind of skills needed to be successfully employed.

Waiver requirements for students with disabilities would not change under the new proposal.

The current system allows students who repeatedly fail required state tests in English and math to be granted a waiver that lets them graduate if they meet other criteria.

But under the new pathways system, which will affect students now in seventh grade, the state graduation exam will be replaced with one of several new graduation pathways requirements, which could include passing a college-entrance exam, taking career and technical education classes, or passing advanced courses.

Under Behning’s proposal, a waiver would be granted if a student had earned an average GPA of 2.0; maintained 95 percent attendance; or if he or she has been admitted to college, a job training program, the military or has an opportunity to start a career.

The bill allows a school’s principal to approve alternative requirements but doesn’t address how those would be developed. The new rules could also be used by students transferring from schools that are out of state or from private schools not held to graduation pathway rules.

The current criteria to receive a waiver do not call for students to be admitted to college, the military or a job. Students do have to maintain a 95 percent attendance record and a 2.0 grade point average, and also have to complete requirements for a general diploma, take a workforce readiness assessment or earn an industry certification approved by the state board. The standards also require students to obtain letters of recommendation from teachers (with approval of the school principal) and to use class work to show students have mastered the subject despite failing the graduation exam.

It’s not yet clear how many students might be affected by a change to the graduation waiver system. In the months since the Indiana State Board of Education approved the new graduation pathways, educators have raised concerns to state board staff members about the types of students who might not have a clear-cut pathway under the plan — for example, a student headed to college who might not have an exceptional academic record. A waiver outlined by HB 1426 could give them another shot. But for students without definite post-graduation plans, that waiver could be out of reach.

None of the educators or education advocates who testified on the bill spoke out specifically on the waiver changes. Mike Brown, director of legislative affairs for the Indiana Department of Education, said that based on a “cursory look,” the department didn’t have any issues with it.

Aside from the diploma and graduation waiver changes, the bill would also:

  • Make Indiana’s high school test a college-entrance exam, such as the ACT or SAT, instead of end-of-year tests in English and math.
  • Encourage the state board to look into alternatives for Algebra 2, currently a diploma requirement.
  • Ask the state board to establish guidelines for how districts and schools can create “local” graduation pathways and how they would be approved by the state board. It would also add $500,000 to fund development of local pathways that districts and schools could apply for.
  • Eliminate the Accuplacer exam, which schools now use to see if high school students need remediation in English or math before they graduate.

Because the bill includes a request for state funding, it next heads to the House Ways and Means Committee.

Making ends meet

Detroit teachers who get second jobs to supplement low salaries might soon have to disclose those gigs

PHOTO: Photo courtesy of Dawn McFarlin
Dawn McFarlin, shown here wearing a shirt from her T-shirt company, is one of many Michigan teachers with a second job.

Teachers in Detroit’s main school district could soon have to tell their supervisors if they are supplementing their salaries with a side job.

The school board’s policy committee last week approved a new policy that says the district  “expects employees to disclose outside employment” and bars employees from working a second job while on any kind of leave.

The policy, which will get more review, including a minimum of two reads before the full school board, before being adopted and put into practice, comes amid a wholesale overhaul of district rules. The school board is reviewing and implementing a host of new policies as part of the ongoing transition from the old Detroit Public Schools district to the new one, the Detroit Public Schools Community District.  

Frequent changes to district policies under the five emergency managers who ran the Detroit district in recent years means that it’s unclear whether the employment disclosure policy is new, although the rules for outside employment under the current employee code of ethics do not require employees to disclose their second jobs. It’s also unclear how many teachers and district staffers the policy might affect, whether any kinds of second jobs might be prohibited, and how the district might use information about teachers’ side gigs.

What is clear is that educators say intervening in teachers’ outside employment does not make sense, given how hard it is to make ends meet as a Detroit educator right now.

“The bottom line is until you start paying teachers enough money, until then, people have to do what they have to do to make ends meet,” said Ivy Bailey, president of the Detroit Federation of Teachers. “It’s really none of their business about what teachers do on their off time unless it’s a conflict of interest.”

Such conflicts, in which a teacher’s second job might interfere with his or her ability to fulfill responsibilities to the district, are exactly why the policy is needed, said Superintendent Nikolai Vitti.

“As we’re rebuilding the district, we really want to avoid as many conflict of interests as possible,” Vitti said. “We’ve seen instances where there are conflicts of interest at the district level at the school level with all employees, so we’re just trying to be proactive with the culture of the district.”

Vitti said the step is intended to “prevent some of the ills of the past,” though he did not offer any specific examples.

But the district’s history is littered with costly and embarrassing scandals that might have been averted if closer attention were being paid to employees’ outside jobs. In one extreme example, a district official created tutoring companies, then billed for services she never delivered.

Vitti also pointed out that many other districts require full disclosure of outside employment. His former district, Duval County Public Schools in Florida, is not one of them, according to an employee handbook posted online. There, employees are not expected to disclose their outside employment, nor are they barred from working other jobs while on leave. But they are not allowed to sell anything to other teachers nor to parents of their students.

If implemented, the policy in Detroit could affect large numbers of teachers. About 19 percent of Michigan teachers reported having a second job as of 2014, according to a study from the National Center for Education Statistics.

In Detroit, where teacher pay is especially low, that number could be even higher. Vitti has vowed to increase teacher pay, and a new contract ratified last summer gave teachers their first real raise in several years. But that was not enough to bring teachers back to where they were when they took a 10 percent pay cut in 2011.

Dawn McFarlin, a former Detroit Public Schools teacher, launched her T-shirt company as a side gig as a way make extra money. After years without a pay increase in the city’s schools, she’s now working in another district, but she’s still hawking shirts to her former colleagues. Her top tee says “I Teach in the D” on the front.

So far, she’s sold about 500 shirts at $25 each, mainly to friends and through her Facebook page. She said she uses the profits to pay bills and fund her children’s travel expenses for sports.

“As a teacher, I know how it feels to be in the grocery store, trying to make ends meet,” McFarlin  said. “I was thinking of the struggle teachers go through, and that’s how the shirt came about.”

Here’s the complete policy that the school board is considering. Board members will review the policy next at the full school board meeting in February, where the public can address the board.

“Outside employment is regarded as employment for compensation that is not within the duties and responsibilities of the employee’s regular position with the school system. Employees shall not be prohibited from holding employment outside the District as long as such employment does not result in a conflict of interest nor interfere with assigned duties as determined by the District.

The Board expects employees to disclose outside employment. The Board expects employees to devote maximum effort to the position in which employed. An employee will not perform any duties related to an outside job during regular working hours or for professional employees during the additional time that the responsibilities of the District’s position require; nor will an employee use any District facilities, equipment or materials in performing outside work.

When the periods of work are such that certain evenings, days or vacation periods are duty free, the employee may use such off-duty time for the purposes of non-school employment.

This policy prohibits outside supplemental employment while on any type of leave.”