The deeply divided Douglas County Board of Education last week actually voted unanimously on a controversial issue: vouchers.
The board, on a 7-0 vote, killed the Choice Grant Program, a successor to the original Choice Scholarship Program, saying that the grant program was costing the district too much money and hadn’t generated enough interest. Only five students signed up for it, although the district at one time estimated 500 students would participate.
Conservative board President Meghann Silverthorn and Vice-President Judith Reynolds orchestrated the move to rescind the program about an hour into the Nov. 15 meeting. That the fate of the program would be discussed was not on the agenda as required by the state’s Sunshine Law, and came as a surprise to at least one board member, Anne-Marie Lemieux. However, the board voted unanimously to allow the agenda to be amended in order to vote on the program.
The district has been tied up in lawsuits related to its voucher program since it was started five years ago.
In 2011, the then-conservative seven-member board voted to implement the Choice Scholarship Program, which would provide taxpayer-funded vouchers to any student in Douglas County to attend any private or religious school, even schools not located in the district. Taxpayers for Public Education, a group of taxpayers and parents, successfully sued to block the program. The case went all the way to the Colorado Supreme Court, which in June 2015 ruled it violated the state’s so-called Blaine Amendment, which prohibits government aid to religiously-based schools.
After the Colorado Supreme Court ruling, the board — with three fewer conservative members, but still a conservative majority — went back to the drawing board and came up with Choice Grant in March 2016. That program would have provided vouchers to students attending private schools, but not religious ones. The remade voucher plan sparked two more lawsuits, one from Taxpayers for Public Education, and the second from a coalition of religious schools, which argued that the voucher program discriminated against religious schools.
A Denver District Court judge granted an injunction in August against the district, keeping the grant program grounded.
The legal battles have cost the district more than $1 million, according to an open records request filed by The Colorado Independent a year ago. The Daniels Fund gave the district at least $870,000, and the Walton Family Foundation (Walmart) kicked in at least $300,000, all for legal costs.
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In September 2015, the district appealed the state Supreme Court’s Choice Scholarship decision to the U.S. Supreme Court, challenging the constitutionality of the Blaine amendment.
The case was scheduled for a Court conference last February, but there has been no action on it since and the Court has not said it will hear the case. The Supreme Court has been short one justice since last February, when conservative Justice Antonin Scalia died.
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Reynolds told her fellow board members the district has faced significant expenses for the two voucher programs, and that the grant program hadn’t gotten the interest from students the district had hoped for.
This should not be seen “as an indication of less support for choice for families,” Silverthorn added.
Interim Superintendent Erin Kane informed the board that she has initiated an audit of the costs of the two programs. According to Paula Hans, the district’s public information officer, the district has incurred only legal costs related to the voucher program. The audit will be presented to the board in about a month and available to the public after the board releases it.
That the Choice Grant Program was rescinded just one week after the election is likely not coincidental. Silverthorn did not respond to requests for comment on the timing for ending the grant program.
With a Republican heading into the Oval Office, it’s now more likely that a conservative justice would be selected and confirmed by the Republican-majority Senate. That justice would likely side with the Court’s conservatives on allowing taxpayer money to fund private, religious schools.
Such a decision is not without precedent. In 2002, a 5-4 Court upheld a Cleveland, Ohio program that allowed taxpayer-funded vouchers to go to private and/or religious schools. That program, approved by the Ohio legislature, was formed to address failing schools in the poorest neighborhoods in Cleveland. Out of the 56 schools in the voucher program, 46 were religiously-based.
But the Ohio case was based on a different principle than the one at the heart of the DougCo case. The Ohio case was based on the Establishment Clause within the First Amendment to the U.S. Constitution, which says that government cannot formally endorse any religion or favor one over another.
That differs from the Blaine Amendment, a failed amendment proposed to the U.S. Constitution in the 19th century that bars taxpayers funds from being used to pay for religious education. Forty states have adopted the amendment in one form or another, including Colorado.
Lemieux and fellow board member Wendy Vogel said they were pleased by the vote, for which, Vogel said, she had been asking for several months.
