Class Action

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There's no question that the Denver school system is grappling with some serious problems.

Tom Tancredo, who provided some of the ammunition for Rogers' lawsuit, agrees. A former public school teacher, he later worked for the U.S. Department of Education under presidents Reagan and Bush. (On a wall in his office is a large poster of Ronald Reagan wearing a white cowboy hat.) But he is now a vocal critic of the public schools, and he preaches the gospel of vouchers whenever he has the opportunity.

"Escape—that's the bottom line," he says. "Vouchers will allow parents to take their children out of a very bad system. Some will choose to stay incarcerated—and maybe the system serves their purposes. But others are trying desperately to find something better."

There's no question that the Denver school system is grappling with some serious problems. A mandatory desegregation plan implemented in 1973 was dismantled three years ago, ending court-ordered busing. But by then, many whites had already abandoned the system. Hispanics now make up 48 percent of the student body, followed by whites, 25 percent, and blacks, 21 percent.

More than half the district's students are eligible for the federal free-lunch program, twice the statewide rate. About 13,000 students are considered limited-English proficient, an increase of 4,000 students from just five years ago. That's largely due to an influx of Spanish-speaking children in the elementary grades.

Last July, the U.S. Department of Education's office for civil rights found that the district was failing to adequately teach students with limited English skills. The program is being reviewed by the U.S. Department of Justice. Meanwhile, reading scores for all students—but especially for those who attend schools in low-income neighborhoods—lag behind the national average.

District officials were encouraged by the results of a February reading test showing that students improved since they were tested last September. For several years now, the district has made reading a top priority, hiring 300 assistants to help teach the subject in 1st and 2nd grades. Last summer, it implemented a mandatory summer reading program for 3rd, 5th, and 8th grade students with the lowest test scores. And a reading program called Jump Start has resulted in some impressive gains at four middle schools.

But despite these glimmers of hope, many Denver residents continue to believe that the school system simply isn't doing enough to educate its students, particularly those who are Hispanic or African American.

Last May, a survey of Denver voters by Ciruli Associates found that 93 percent of blacks and 80 percent of Hispanics agree that "some children in the Denver public school system are receiving a substandard education."

"People are sick and tired of being sick and tired," says John Wilkins, the co-chair of Rogers' parent association.

"I don't think that anyone in the school district would say that there isn't anything to criticize," says school board member Laura Lefkowits. "We have lots and lots of issues in Denver that don't exist anywhere else in the state." But vouchers, she adds, aren't the answer. "Vouchers will take money away from the school district and put it into the hands of families who already have some means to send their kids to private schools. It will create an even more elitist system."

Beverly Ausfahl, president of the Colorado Education Association, agrees. "We believe there is a legitimate place for private schools," she says. "What we are opposed to is using public dollars to fund those private schools." Besides, she adds, "Private schools have always had the right to say who will be admitted, and they have always had the right to get rid of students they don't want. And they don't have to provide specialized services, either." So how, she asks, will a voucher system benefit the students who need the most attention?

Tancredo counters such criticism with a Utopian vision of a national, voucher-based school system, which he believes is inevitable. "I don't care if whatever system exists after this thing is done is called public or private," he says. "I think we'll have a very difficult time distinguishing them from one another. I think public schools will become entrepreneurial. I think they will figure out ways to keep kids there. They've got talented people, a huge infrastructure. They've got all this they could use to be successful. And if they are, that's fine with me. My guess is that public schools will survive, and my guess is they will thrive. I believe a rising tide will lift all boats."

Tancredo, who recently resigned from the Independence Institute to pursue a possible bid for Congress, calls Rogers' lawsuit "a brilliant idea. I can't tell you how much I admire Joe for coming up with this." But he's the first to admit that Rogers faces a tough battle in court. "The courts have ruled in the past, I think, that all a district has to do is show good faith," he says, "and if no one gets educated, it's not really their fault. So I know Joe is going to have to overcome legal precedence. DPS has already responded by saying, 'Throw this thing out.' "

Indeed, district lawyers, citing a number of legal grounds, have filed a motion asking Judge Herbert Stern III to dismiss Rogers' lawsuit. "The overwhelming majority of courts have rejected educational malpractice claims," the motion asserts. The school district, it argues, cannot be blamed for students' low test scores because "low pass rates may be indicative of factors having nothing to do with the instruction." Further, the breach of contract argument doesn't hold up because "the lack of a contractual relationship in the public elementary or secondary school context is obvious."

In 1992, the Institute for Justice, a libertarian public-interest law firm based in Washington, D.C., filed lawsuits similar to Rogers' in Los Angeles and Chicago.

In 1992, the Institute for Justice, a libertarian public-interest law firm based in Washington, D.C., filed lawsuits similar to Rogers' in Los Angeles and Chicago. Though neither was a class action, each essentially argued that the district and state had not fulfilled their obligation to the public. Both cases were eventually rejected by state appeals courts.

"These kinds of cases are usually publicity stunts," argues Michael Simpson, assistant general counsel for the National Education Association. He acknowleges that he is not familiar with Rogers' suit.

Both of Denver's daily newspapers have editorialized against Denver Parents Association vs. Denver Board of Education. "Achievement in some Denver schools is abysmal, as the lawsuit alleges," acknowledged the Rocky Mountain News, which supports vouchers. But such a "radical break" from current school policy "should be made through the political process—meaning legislation or a citizen initiative—rather than be mandated by an unelected judge." Meanwhile, the Denver Post called the suit "misguided." Yes, the district has "ill-served" its poorer students. "But the answer is not a class action court case," the paper argued. "It would be far more productive if the participants joined the efforts that DPS and concerned parents already have under way, efforts that could improve public education for all students, but especially for youngsters who today are academically deprived."

Earl and Sherdyne Cornish were among the first parents to sign on to the lawsuit, but now they've lost faith—in both the legal action and in Joe Rogers. "In our opinion," Earl says, "we think the court's going to throw it out. It's too broad in scope." Rogers, he believes, initiated the suit for one reason: "To get elected. It's all about politics."

"He wants to be able to say to the community, 'These are some things that I have done,' " Sherdyne says. "You know, you've got to have a platform. But education is not his area."

"He's a dilettante," Earl says.

The Cornishes operate a nonprofit dropout-prevention effort called the Academic Skills Program, which has been used in some Denver public schools. But they are also longtime critics of the school system. Indeed, Sherdyne, a veteran DPS mathematics teacher, is something of a professional gadfly. "I have a long history of fighting with the Denver Public Schools because they're not educating all students," she says.

Last May, Cornish, then teaching at Martin Luther King Jr. Middle School, was placed on administrative leave—four days after she publicly urged others to join Rogers' suit. "They were retaliating against me," says the teacher, who was later transferred to another middle school. DPS spokesman Mark Stevens says the action was "totally unrelated to any political involvement." It was, he says, a personnel matter. But Cornish was unconvinced, and she filed her own suit against the district, accusing superintendent Moscowitz of violating her First Amendment rights. (Initially, Rogers represented Cornish, but she has since switched to a different lawyer.)

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