Law & Courts

Religion Takes Center Stage in Fight Over County’s Voucher Pilot

By Nancy Mitchell, Education News Colorado — August 03, 2011 6 min read
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Testimony began Tuesday in a lawsuit filed by civil-liberties groups and parents to stop Douglas County’s voucher pilot, slated within weeks to help 500 students attend private schools with public funding.

Attorneys for the plaintiffs are claiming violations of at least six sections of the Colorado Constitution, including the prohibition against public aid to private schools and churches and the requirement that the state provide free public schools to its residents.

“No school district has even attempted a program such as this” in the 135 years since the constitution was enacted, said attorney Matthew Douglas.

He pointed out 18 of the 23 private schools participating in the program are religious, and only one school at the high school level is not—a small Englewood academy targeting students with special needs. “We’re not saying parents don’t have a choice but taxpayer dollars … cannot fund some of those choices,” Douglas said.

Attorneys for the defendants, including the Douglas County school district and the Colorado Department of Education, countered that the program is religion neutral since parents choose among participating private schools.

“This case is not about religion,” said Geoffrey Blue with the state attorney general’s office. “There is no evidence the district is trying to funnel money into religion … The fact there are mostly religious schools is a function of which schools applied” to be part of the program.

Defense attorneys say they’ll present evidence showing the harm that will result if Denver District Judge Michael Martinez stops the program, in which 271 families already have paid more than $250,000 to private schools.

Martinez surprised some when, after opening statements, he said he was treating the plaintiffs’ action as a request for a mandatory injunction, rather than a preliminary injunction.

That means, if the motion is granted, the voucher pilot not only stops while the legal issues are resolved but the families and private schools would likely have to return any money they’ve received.

Judge Chides Education Commissioner

The day’s first witnesses were plaintiffs Cindy Barnard and Kevin Leung, Douglas County property owners and parents of children in district schools, who described in detail their volunteer work with the district.

Details of Douglas County’s Voucher Plan

Who Could Participate:

• Up to 500 students who live in the Douglas County School District and have been enrolled in its public schools for at least one year.
• A lottery would be held if more than 500 apply.

How the Money Would Flow:

• 75 percent of per-pupil funding would follow the student to a participating private school. Based on an expected per-pupil amount of $6,100, that’s $4,575 per student. The remaining 25 percent would stay with the district.
• The value of the voucher would be $4,575 or the actual cost of tuition, whichever is less.
• If 500 students participate, the total would be $3.05 million, with $2.28 million going to private schools and $762,500 staying with the district.

How Private Schools Could Participate:

• Nonpublic schools located within or outside the boundaries of the Douglas County School District could participate.
• Schools could not discriminate on the basis of disability or any other area protected by law. They also must be willing to provide a waiver option to voucher students for any religious portion of their program.
• Each schools would be expected to “demonstrate over time that its educational program produces student achievement and growth results … at least as strong as what district neighborhood and charter schools produce,” according to draft policy.
• Schools must demonstrate financial stability, that their facilities are up to building codes, and that they have a safe school plan as required by law.

How the District Would Use the Money:

• Of the $762,500 possible in the pilot year for the district, $361,199 would be set aside for administrative overhead, such as providing staff to monitor attendance and state testing of voucher students.
• The remaining $401,301 would be set aside for “extenuating circumstances,” including assisting any district school adversely impacted by the voucher pilot.

SOURCE: Board policy/Education News Colorado

Both said they fear the loss of dollars flowing into vouchers will hurt their already cash-strapped schools. The district’s per-pupil funding in 2011-12 is $6,100 and each voucher is worth $4,575. Douglas County officials began dispersing voucher payments last month.

“I’ve given my heart and soul to the Douglas County School District and I appreciate the education my children have received,” said Barnard, who described filing the lawsuit as “absolutely a last resort.”

“I truly see it as … strangling public education,” she said of the voucher pilot. “Revenue out of the public schools hurts.”

But Tuesday’s key witness was state education Commissioner Robert Hammond, called by the plaintiffs as an “adverse” witness and chided three times by the judge during two hours of testimony.

Hammond repeatedly said he didn’t know, was uncertain and couldn’t recall details of special education law, the district’s voucher charter application despite its already being approved by the state or the meaning of the education acronym FAPE—free and appropriate public education. At one point, when asked whether written notes on a voucher document were his, he said he could not recognize his own handwriting.

“He’s not asking that, listen to the question,” Martinez repeated. “We have limited time for this proceeding. Do your best to listen to the question.”

The plaintiffs are arguing that state officials, including Hammond, helped create the voucher pilot by advising Douglas County officials on the best way to get around potential violations of state law.

But Hammond said state officials were simply trying to assist the district with an innovative program, which they would have done whether it involved vouchers or any other unique features.

“We worked with Douglas County to give them the best advice … on the concepts proposed to us,” he said. “We don’t want them to go down a path that is going to cause them a problem.”

The worst thing, Hammond said, would be for a district to have to return money to the state.

And he said it’s still not certain that the state will fund the voucher pilot—that depends on the results of a 2012 audit.

Questioning the Value of Vouchers

The plaintiffs’ attorneys used the last witness of the day to hammer home details of the program they believe to be unconstitutional. Christian Cutter, the district’s assistant superintendent of elementary education, was appointed in December by Superintendent Liz Fagen to help craft the pilot.

“If a private school declined to admit a handicapped child, that would be ok and they could still participate in the program?” asked attorney Michael McCarthy.

“That would be possible,” replied Cutter, also called as an “adverse” witness.

“Or if they refused to admit an HIV-positive child, they could still participate in the program?” asked McCarthy.

“That may be, yeah,” Cutter said.

“Similarly, if an education program incorporated religious teachings, there would be no need for a private school to change that aspect?” asked McCarthy.

Correct, Cutter said.

McCarthy also questioned Cutter about the costs to parents for their students’ participation in the program, noting the voucher amount is less than some private schools’ tuition and it cannot be used to cover books and fees. Annual tuition at one participating private school, Regis Jesuit High School, is $11,225 for 2011-12, according to one family’s affidavit.

“That difference (in costs) has to be made up somehow by the parent of the student. To that extent, that child is not provided with a free education,” McCarthy said. Correct?

“If that’s how you’re characterizing free, then no, it isn’t,” Cutter said.

He later said 13 voucher pilot students qualify for federal meal subsidies, an indicator of poverty.

Injunction Would “Disrupt Lives”

Cutter continues on the witness stand today, when plaintiffs are expected to wrap up their testimony. Their witness list contains two more names—administrators at Lutheran High School and Cherry Hills Christian School.

The defense witness list, likely to begin this afternoon, includes Fagen, Douglas County school board president John Carson and state Sen. Keith King, R-Colorado Springs. The hearing is expected to last through Thursday.

King, who is chair of the Senate Education Committee, is expected to testify about current state programs that use public money to contract with educational providers, including private schools.

Defense attorneys argue that stopping the program could “cause collateral damage to 16 similar public-private partnerships across the state,” including the Colorado Opportunity Fund for college students, James Lyons, attorney for the district, said in his opening statement.

Other defense witnesses are expected to testify about the harm resulting from a mandatory injunction.

Kurt Unruh, the head of Valor Christian School, where 61 voucher students have enrolled, will say it could mean a revenue loss of more than $250,000, Lyons said. He said Terry Martin, with Woodlands Academy, with eight voucher students, will talk about hiring two new teachers and building new classrooms—“all in reliance on this program.”

From EdNews Colorado

Four Douglas County families have filed affidavits discussing their financial hardship if the vouchers are stopped, and the emotional harm their children might suffer if they’re forced to leave their private schools. Some students already have taken summer classes or are playing on sports teams.

“We urge the court not to disrupt their lives,” Lyons said.

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Republished with permission from Education News Colorado. Copyright © 2010 Public Education & Business Coalition. For more information, visit


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