What Makes a Student Public? An Alternative Outcome for the Douglas County Voucher Program

Although the ruling came in about two weeks ago, lately the Douglas County voucher program hasn't been far from my mind. I credit George Will's column in Friday's Washington Post for making me rethink the case and its outcome, and finally motivating me to organize some loose thoughts that have been floating around in my head.

If you aren't familiar with the case, it basically boils down to this: The Douglas County School Board believed so strongly in school choice that it voted to give 500 "choice scholarships" (vouchers) to its own students to attend area private schools. The scholarships are worth $4,575, or 75% of the district's per pupil revenue. (The district is keeping the remaining 25%.) Several groups representing the interests of taxpayers and those worried about public funding of private religious schools filed lawsuits, and on August 12th Judge Michael Martinez ruled in their favor, saying the plan "violates both financial and religious provisions" of the Colorado Constitution. Some of the consequences of this ruling are unclear, as many students have already accepted part of their scholarships and are enrolled at private schools.

I was a bit surprised by Judge Martinez's ruling. Not because it came down on the side of the plaintiffs, but because it used the public funding of religious schools as a primary reason. In reaching this decision, Martinez seems at odds with Zelman v. Simmons-Harris, a 2002 case where the Supreme Court upheld an Ohio voucher program primarily because the vouchers went to parents and not directly to religious schools. Although I don't know many of the details surrounding either Zelman v. Simmons-Harris or the DougCo case, George Will's assertion that the two are "legally indistinguishable" seems to have some merit. But that got me thinking -- what if Martinez had found different reasoning for his decision, one not relying on religion at all?

I think we tend to focus the debate on public vs. private schools. Instead, let's focus on students. Previous Supreme Court decisions have upheld both students' rights to receive a free appropriate public education and attend private schools, as well as receive vouchers. Students who attend public schools are public school students. Students who attend private schools (without vouchers) are private school students. But what are students who use vouchers to attend private schools? Public or private? Can we have something in-between?  If so, what rights do those students have?

In Douglas County, students who receive the voucher are still required to take the CSAP, Colorado's annual standardized test. Participating private schools are required to provide information to the district about their attendance and the qualifications of their teachers, as well as be willing to waive requirements that participating students attend religious services. It's clear that these provisions are included to meet various requirements of federal education law, namely No Child Left Behind's testing and "highly qualified educator" requirements. These are requirements of public schools and public school students. And let's not forget that Douglas County is keeping 25% of each student's share of state funding. Could it do this if it didn't claim the students were not, at least in some way, students of the Douglas County School District?

Instead of essentially upholding the Establishment Clause, what if Judge Martinez had instead declared the DougCo "scholarship" students as public students and decided that voucher students had the right to simultaneously receive both a free and private education? In essence, what if he had told Douglas County that the vouchers would be legal so long as they covered the entire cost of each student's education at their chosen private school? If the court decided that (a) by benefiting from public monies, the students were public school students (and there is no murky in-between), and (b) public school students have the right to a free education, then (ironically!) Douglas County would be facing a difficult choice about whether or not a voucher program was in their best interest. As proponents of school choice it would be awkward for the district to back away because they couldn't afford the vouchers, although the high cost is surely what keeps many families away from private schools, voucher or no voucher.

At this point I realize that my knowledge of the law is rather limited and this issue was probably dealt with a long time ago. Still, I find it an interesting perspective and it makes me want to hunt down Kevin Welner (who knows a thing or two about vouchers) in the hallways next week to ask him about it. If any of you have any knowledge or thoughts you'd like to share, I'd love to hear it in the comments below.