Testimony began Tuesday on a request in a lawsuit filed by civil-liberties groups and parents to stop the Douglas County 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.
Education commissioner is day’s key witness; chided by judge
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.
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. Dougco 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 Dougco 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; participation of low-income students
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”; next witnesses
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, Dougco school board president John Carson and state Sen. Keith King, R-Colorado Springs. The hearing is expected to last through Thursday.
King, who is vice 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.”
Four Dougco 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.
As ordered in plaintiffs’ opening statement
- Article IX, Section 7: Aid to private schools, churches, sectarian purpose, forbidden – “Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose …”
- Article II, Section 4: Religious freedom – “… No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent.”
- Article IX, Section 8: Religious test and race discrimination forbidden – No religious test or qualification shall ever be required of any person as a condition of admission into any public educational institution of the state, either as a teacher or student; and no teacher or student of any such institution shall ever be required to attend or participate in any religious service whatsoever. No sectarian tenets or doctrines shall ever be taught in the public school …”
- Article IX, Section 2: Establishment and maintenance of public schools – “The general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously.”
- Article IX, Section 3: School fund inviolate – “The public school fund of the state shall, except as provided in this article IX, forever remain inviolate and intact and the interest and other income thereon, only, shall be expended in the maintenance of the schools of the state …”
- Article IX, Section 15: School districts – board of education – “The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respective districts.”
Source: Colorado Constitution, linked from Colorado General Assembly homepage.