Choice Scholarships – in Douglas County, Colorado and Indiana

This year has seen a wealth of new school choice programs around the country. As it happens, both Douglas County School District—running from southern Denver to the northern edge of Colorado Springs—and the State of Indiana passed what they each called "choice scholarship programs." These programs help parents pay for educational expenses at private schools, both religious and nonreligious. This article examines some of their key similarities and differences. (NB: The author and many others at Rothgerber Johnson & Lyons (effective September 1, 2013, Lewis and Roca LLP) have helped Douglas County in writing and defending its Choice Scholarship Program, and will continue to do so on appeal.)?

Their similarities are far more pronounced than their differences. Both require scholarship students to take the State's standardized test: CSAP for Douglas County and ISTEP for Indiana. Both programs explicitly state that they want to honor the autonomy of the participating private schools. See Douglas County School Board Policy JCB § E.2 & 3; Ind. Code § 20-51-4-1(a). However, both also require an initial showing that the private schools provide a quality educational program. Both permit parents to choose what school is best for their child from a list of participating schools.

Their differences are more a matter of degree than of kind. For instance, both forbid private schools to discriminate against certain protected classes. Douglas County's policy is far broader, forbidding discrimination in enrollment "on any basis protected under applicable federal or state law" (see Policy JCB § E.3.f.); Indiana's is narrower and more specific, forbidding discrimination "on the basis of race, color, or national origin" (see IC § 20-51-4-3(a)). Both permit religious schools to continue to discriminate based on religion, although Douglas County's policy is explicit about this (see Policy JCB § E.3.f), while Indiana's is implicit, in that (1) it permits schools to continue to operate as they did in the past, which for some means discriminating on the basis of religion, and (2) it does not explicitly forbid such religious discrimination. See Ind. Code § 20-51-4-1(a)(1) (state may not change how private schools operate); Ind. Code § 20-51-4-3(b) (schools may continue to apply their written admissions policies, which presumably includes religious discrimination for some). See also Indiana's FAQs for Schools #20. Both permit schools to continue to employ their prior admissions criteria, so long as they are administered fairly. See Policy JCB § E.3.h; Ind. Code § 20-51-4-3(b). As to employment, Indiana's program leaves private schools alone, prohibiting the State to regulate "teacher and staff hiring requirements." See Ind. Code § 20-51-4-1(a)(1). Thus, religious schools may continue to apply the same hiring requirements they did previously. Douglas County, by contrast, affirmatively forbids participating schools from discriminating "in its employment … decisions on any basis protected under federal or state law," except that religious schools may make hiring decisions based upon religion. See Policy JCB § E.3.f. This is a change for Colorado religious schools, because under Colorado's Anti-Discrimination Act they were not subject to anti-discrimination rules at all prior to joining the program. However, since Colorado's Act lifts that exemption if a religious school is supported by tax dollars, as they would be under the program, this change was inevitable. See C.R.S. § 24-34-401(3) (exempting "religious organizations or associations" from being "employers" at all, thus exempt from the anti-discrimination rules, unless the religious organizations are "supported in whole or in part by money raised by taxation or public borrowing," which, of course, they would be under the program).

The value of Douglas County's scholarships are the lesser of the cost of tuition or 75 percent of per-pupil revenue (of about $6,100), which put it at $4,575. Indiana scholarships are capped at the lesser of (1) actual cost of tuition and fees; (2) $4,500 for children in grades 1-8; or (3) for high-school students, (3.1) 50 percent of state tuition support for families at 150 percent of the national poverty line and (3.2) 90 percent of state tuition support for families at or below poverty. This means that some Indiana high-school students could receive close to $7,000, depending on where they live. Under both programs, parents must pay the difference not covered by the scholarship.

Douglas County set a maximum of 500 students for its program, which is less than one percent of its total school population. Indiana capped its at 7,500 for 2011-12, which is also less than one percent of its state-wide school population.

As far as the educational program, both largely permit schools to continue as before. Douglas County evaluates all schools that apply, to ensure that they provide a quality educational program "at least as strong as what District neighborhood and charter schools provide." See Policy JCB § E.3.a. Indiana also permits the schools to have autonomy as to their "curriculum content [and] classroom teaching." See Ind. Code § 20-51-4-1(a)(1). Indiana, however, places some very specific requirements on its schools, such as requiring instruction on voting, civics and character, and good citizenship. See Ind. Code § 20-51-4-1(f)(6-8). It also requires instruction on American and Indiana history, a study of the Holocaust, and "the role religious extremism played in the events of September 11, 2001." See Ind. Code § 20-51-4-1(f)(9)(C)(iii).

By far, the largest difference between the two programs is how they were treated by trial courts when challenged: Douglas County's was enjoined for allegedly violating the Colorado Constitution, while Indiana's was upheld and is being implemented. Both will work their way through the appellate courts.