Class Action

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Joe Rogers, a Denver lawyer and politician, believes the city's schools are so bad that they violate students' civil rights.

On November 3, 1996, Joe Rogers, a Republican, lost in his bid to become U.S. representative from Colorado's 1st Congressional District, which includes the city of Denver, a Democratic stronghold. His opponent, Diana DeGette, won the race easily, taking 57 percent of the votes. Rogers, a 33-year-old African American lawyer who had spent the better part of two years campaigning for the retiring Patricia Schroeder's seat in a race that attracted national attention, suddenly was out of the spotlight. During the campaign, Newt Gingrich, Colin Powell, and Oklahoma Representative J.C. Watts had all journeyed to Colorado to stump for the candidate. The New York Times had called him "young, articulate, energetic, and well-prepared." But now he was just another losing candidate with a lot of time on his hands.

"After the election," he told a Denver Post reporter in January 1997, "people think you're dead. You feel like you've been to your own funeral."

These days, however, Joe Rogers is very much alive.

Not only is he running for lieutenant governor, but he is also leading a controversial class action lawsuit against the Denver Public Schools and the Colorado State Board of Education. Filed last May in Denver District Court on behalf of about 40 African American parents and their children, the suit charges the school system with failing to teach basic skills to poor and minority students, and it calls for the district to grant publicly funded vouchers to low- and middle-income parents who want to send their children to private or parochial schools. This past fall, Rogers amended the suit to include the names of more than 3,000 additional plaintiffs—equally divided, he says, among African Americans, Hispanics, and whites. Rogers and his supporters collected the signatures at grocery stores, churches, and schools throughout Denver. "I think if we had kept going," he says, "we would have had double the number of people we have now. I really do. You can't underestimate how disappointed and frustrated many parents are with the Denver Public Schools."

Both the school district and the state board have filed motions seeking to have the suit dismissed. "We don't think there are grounds for this kind of lawsuit," says Denver school board member Laura Lefkowits, "or that it's a constructive way to deal with the problem." Others—including some parents who have signed on to the suit—accuse Rogers of political opportunism. They say the lawyer initiated the class action in an attempt to gain visibility in his bid for the lieutenant governorship, and they question his commitment to solving the problems spelled out in the lawsuit.

But Rogers bristles at such charges. Indeed, he sees himself as something of a latter-day Thurgood Marshall, and he believes his lawsuit is firmly rooted in such landmark civil rights cases as Brown v. Board of Education of Topeka, which Marshall, then a lawyer for the National Association for the Advancement of Colored People, successfully argued before the U.S. Supreme Court. (The unanimous decision ended segregation laws requiring separate but equal public schools for blacks and whites.)

"Quality education is a civil right," Rogers likes to say. And the court system, he believes, is just the place to make certain that right is upheld. "It's really in the classic American tradition," he says, "to ask the courts to resolve a problem that a school district refuses to solve on its own, and an elected school board has no power to solve."

Legal experts say Rogers will have a hard time winning his case. Nationwide, only a handful of similar suits have been filed, none of them successful. But whatever the outcome, the suit underscores a trend: the increasing popularity of vouchers—or rather, the promise of vouchers—among blacks and Hispanics, many of whom are fed up with the public schools. Last year, a poll taken by the Joint Center for Political and Economic Studies, a Washington, D.C., research group that focuses on black issues, found that 57.3 percent of African Americans and 65.4 percent of Hispanics support school vouchers, while whites are evenly divided on the issue. The strongest support—86.5 percent—comes from blacks between the ages of 26 and 35.

One of the most outspoken proponents of vouchers these days is the Rev. Floyd Flake—a liberal, black, six-term Democratic congressman from New York who resigned from the House last year to devote more time to his church in the Jamaica section of Queens. Like Rogers, he too calls vouchers "a moral issue, a civil rights issue."

"Many of my friends are saying we don't need any alternatives, we can do it with public education," he said in a speech last year at the conservative Manhattan Institute. "If you can do it with public education, why have you not done it?"

"Quality education is a civil right."

Joe Rogers

The National Education Association and the American Federation of Teachers continue to oppose vouchers, as does the NAACP. And the publicly funded voucher programs that have been established in the United States—in Milwaukee, Cleveland, and rural Vermont—face challenges in the courts. But conservatives hope that the growing interest in vouchers among minorities will turn the tide in their favor. The traditional liberal-conservative lines on the issue, they say, are blurring, and strange political alliances are forming.

"Democrat, Republican—none of that stuff really matters," Rogers says. "People, many of them Democrats, have said to me, 'Listen, I don't really care if you're a Republican. The solution makes sense for our kids.' "

Sharlot Smith, one of the plaintiffs in the lawsuit, is a case in point. "I'm a registered Democrat," she says, "but that doesn't play a part in how I feel about vouchers. My decision is one from the heart, from being a parent. It's not a political thing."

A few days before the 1996 election, one Denver reporter referred to Rogers as "at once charismatic and enigmatic." It's an apt description. A passionate orator, he can easily bring a crowd to its feet. In conversation, he's affable and engaging, but his voice fills with emotion when he talks about the public schools. During a nearly two-hour lunch at the Airport Broker Restaurant, not far from his Northeast Denver home, Rogers, wearing a dark-blue business suit, often pounds his fist on the table to emphasize a point. Then he apologizes for getting so worked up.

Married and the father of three young children, Rogers grew up poor in Commerce City, adjacent to Denver. "Joe Rogers knows what it's like to use food stamps," he would say in campaign speeches, using the third-person voice favored by many politicians. But he's no fan of federal assistance programs. "Success," he has said, "should be measured by how few people we have on welfare." He attended public schools, graduating from Adams City High School, where he was a top student. "I believe in public schools," he says. "I always attended public schools. But I'll be doggone if I'm going to tell you or anyone else that you have to send your child there." He says his own experience merely proves that "all cream rises to the top, regardless of the school."

Rogers had hoped that his personality and message would appeal to members of both political parties, but when the votes were counted, it was clear that few Democrats had switched ranks. "I met so many people who said they agreed with 95 percent of what I said, but they couldn't vote for me because I'm a Republican," he said a few months after the election. "I thought people would look at me as Joe Rogers, but the Democrats put out this message that a vote for Joe Rogers was a vote for Newt Gingrich. They pushed Denver to vote Democratic."

Not long after the election, Rogers was at home with his family one night watching a Disney Channel miniseries called Separate But Equal about Thurgood Marshall and the Brown v. Board decision. "I was so fascinated by it," he says. "And what struck me about it was that in 1954, they were dealing with many of the same issues we're dealing with now." Rogers was surprised to learn that the landmark case was more than just an effort to end segregation in the public schools. "The issue in '54 was two-fold," he says. "One part dealt with race, but the other tier that nobody pays attention to was quality of education." That is, Marshall and the NAACP argued that the so-called "separate but equal" doctrine was inherently unfair because black schools were, in fact, inferior to white schools.

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