Tag: school choice

School Choice Lawsuit Explained

Last week, the New Hampshire Supreme Court heard oral arguments in Duncan v. New Hampshire, concerning the constitutionality of the “Live Free or Die” state’s trailblazing scholarship tax credit program. The Cato Institute filed an amicus brief in support of the program. Over at the Friedman Foundation’s blog, I summarize the law’s history and the primary legal arguments on each side, including legal standing, public versus private money, and the use of public funds at religious schools. I conclude by outlining four possible outcomes:

1. The court rules that the plaintiffs lack standing. In this case, the trial court’s opinion would be overturned and scholarship students would be able to attend the school of their choice, religious or secular.

2. The court rules in favor of the program on the merits. That would mean either the court holds that tax credits are private money or that public money may be spent at a religious school so long as it reaches the schools in a manner that is indirect and incidental to the choices of parents. As in the first scenario, scholarship students would be able to attend the school of their choice, religious or secular.

3. The court upholds the trial court’s decision. In this case, the tax-credit scholarship program would continue as it has in the last year. The trial court forbid the use of scholarships at religious schools but allowed their use at secular private schools, out-of-district public schools, and homeschool environments. In this scenario, the Institute for Justice likely would challenge the decision in federal court for violating the Free Exercise clause of the First Amendment since such a decision would require legislative hostility toward religion rather than neutrality.

4. The court rules against the program and rejects the severability clause. The trial court found that the severability clause that the legislature had added was valid, therefore the program could continue for parents selecting secular schools or homeschooling. The state supreme court could reach the same conclusion on the merits, but reject the severability clause. This would be the most devastating outcome for educational choice in New Hampshire, as it would completely obliterate the tax-credit scholarship program.

Ideally, New Hampshire’s Supreme Court will follow the precedent of the U.S. Supreme Court and the Arizona Supreme Court by holding that taxpayers’ money is their own until it reaches the tax collector’s hand.

School Choice Lawsuits and Legislation Roundup

We’re only at hump day but this week has already seen the filing of a new anti-school choice lawsuit, the dismissal of another, the potential resolution of a third, and the adoption of a new school choice program. [UPDATE: Plus the passage of a second school choice program. See below.]

Alabama: Yesterday, a federal judge dismissed the Southern Poverty Law Center’s ridiculous lawsuit against Alabama’s scholarship tax credit program which essentially claimed that the program unconstitutionally violated the Equal Protection clause since it did not solve all the problems facing education in Alabama. The SPLC argued that the law creates two classes of citizens: those who can afford decent schooling and those who cannot. In fact, those classes already exist, but the law moves some students from the latter category into the former, as the judge wisely recognized:

“The requested remedy is arguably mean: Withdraw benefits from those students who can afford to escape non-failing schools. The only remedy requested thus far would leave the plaintiffs in exactly the same situation to which they are currently subject, but with the company of their better-situated classmates. The equal protection requested is, in effect, equally bad treatment,” the judge said.

The scholarship program still faces a lawsuit from Alabama’s teachers union.

Georgia: Anti-school choice activists filed a lawsuit against Georgia’s scholarship tax credit program, alleging that it violates the state constitution’s ban on granting public funds to religious institutions. The lawsuit is longer and more complicated than similar suits in other states, and portions requesting that the government enforce certain accountability measures (e.g. - making sure that only eligible students are receiving scholarships) may actually have merit. However, the central claim that a private individual’s money becomes the government’s even before reaching the tax collector’s hand has been forcefully rejected by the U.S. Supreme Court and other state supreme courts with similar constitutional language.

Kansas: In the best school choice news of the week, as a part of its school finance legislation, Kansas lawmakers included both a scholarship tax credit program for low-income students and a personal-use tax credit. The former would grant corporations tax credits worth 70% of their donations to scholarship organizations that aid students from families earning up to 185% of the federal poverty line. The program is capped at $10 million. The personal-use tax credit grants $1,000 per child in tax credits against the family’s property tax liability up to $2,500 in total for any family without any students attending a government school. [UPDATE: The personal-use tax credit was not adopted in the final committee of conference report.]

Louisiana: A federal judge has mostly sided with the U.S. Department of Justice in its lawsuit demanding that Louisiana fork over data about students participating in the state’s school voucher program, including their race and the racial breakdown of both the government schools they are leaving and the private schools they want to attend. The DOJ wanted that data so that it can challenge individual vouchers if a student’s departure would leave a district “too white” or “too black” (no word yet on whether the DOJ will challenge families whose decision to move out of the district has the exact same impact). However, the judge required the state to provide the data to the DOJ only 10 days before issuing vouchers rather than 45 days beforehand, as the DOJ had requested. A study sponsored by the state of Louisiana determined that the voucher program has had a positive impact on racial integration.

Lawsuits against scholarship tax credit programs in New Hampshire, North Carolina, and Oklahoma are still pending. Parents for Educational Freedom in North Carolina released the following video announcing their efforts to fight the lawsuit:

UPDATE: 

Alaska: Last night, Alaska’s House of Representatives passed a scholarship tax credit program. The bill still has to go to the state senate and the governor.

Education, Standards, and Private Certification

Can there be standards in education without the government imposing them?

Too many education policy wonks, including some with a pro-market bent, take it for granted that standards emanate solely from the government. But that does not have to be the case. Indeed, the lack of a government-imposed standard leaves space for competing standards. As a result of market incentives, these standards are likely to be higher, more diverse, more comprehensive, and more responsive to change than the top-down, one-size-fits-all standards that governments tend to impose. I explain why this is so at Education Next today in What Education Reformers Can Learn from Kosher Certification.” 

Cutting the Tie Between Education and Housing

We already have a market in education: the real estate market. Controlling for other factors, houses in districts with higher-performing government schools are more expensive than those in areas with lower-performing schools. In 2012, the Brookings Institution issued a report finding that in “the 100 largest metropolitan areas, housing costs an average of 2.4 times as much, or nearly $11,000 more per year, near a high-scoring public school than near a low-scoring public school.” The report also found that “the average low-income student attends a school that scores at the 42nd percentile on state exams, while the average middle/high-income student attends a school that scores at the 61st percentile on state exams.”

Essentially, access to a quality education depends on one’s parents’ ability to purchase a relatively more expensive house in an area with a good school. That this is a horribly unjust policy for low-income children is obvious and oft-discussed, but what’s often overlooked is that the negative consequences also extend to middle-income families.

With quality education tied to housing, middle-income parents who desire the best for their children must seek out housing in areas with better government schools or scrape together money for private school tuition. Unfortunately, as a new Brookings report reveals, this too-often means purchasing a home that is just barely within a family’s financial means, creating a situation where millions of middle-income families live “hand-to-mouth” with very low levels of liquid savings though they have considerable non-liquid assets. The Atlantic’s Matthew O’Brien explains:

This shouldn’t be too much of a mystery. Imagine a couple that’s getting ready to have kids, and wants to buy a house near good schools. Well, that’s expensive. As Elizabeth Warren and Amelia Tyagi pointed out in The Two Income Trap, buying a house in a school district you can’t really afford is one of the biggest causes of bankruptcies. Couples can only afford the mortgage with both their salaries, so they’ll get in trouble if either of them loses their job. 

But even if everything goes right, they’ll still be cash-poor for a long time. They’ll probably have to use most of their savings on the down payment, and use a big part of their income on the mortgage payments. In other words, the wealthy hand-to-mouth are parents overextending themselves to get their kids into the best schools possible in our de facto private system.

As O’Brien notes, a system of school choice would sever the ties between housing and education, which is a policy that could keep “many people from becoming cash-poor and wealthy—a precarious thing—in the first place.” School choice also provides a passport out of poverty for those students whose parents could not afford an expensive house at all.

Why Don’t Public Schools Give Parents What They Want?

The Washington Post reports today that it’s “harder to describe” the mission of one of the magnet schools in Arlington County, Virginia: Arlington Traditional School. Not that hard, if you just read the quotes from the principal and parents:

“Our emphasis is on basic education,” Principal Holly Hawthorne said….

“The word ‘traditional’ implies a cachet to us,” said Craig Montesano, a lobbyist for the shipping industry who visited Arlington Traditional with his wife. To him, the word conjures ancient Rome and Greece and the promise that his daughter will be “grounded in the learning that has come down through the ages in Western civilization.”

Some parents say the selective nature and more disciplined culture remind them of private school. 

And it seems to work:

The federal government has twice named Arlington Traditional a National Blue Ribbon School for its academic performance. And its students routinely outscore district averages on the Standards of Learning tests.

And parents like it:

Last spring, 298 families applied for 72 slots.

So why doesn’t the Arlington County School Board expand it, or build more such schools around the county to accommodate all the parents who want their children to get this exotic thing called “traditional” or “back to basics” education? Maybe they just didn’t realize until today – or last spring – how popular it is? Well, as it happens, I live in Arlington, and I recall that the Washington Post has been reporting on the popularity of Arlington Traditional School since the late 1970s. Parents used to camp out overnight to get their children into the school until they created a lottery system. Through the Nexis service, I found some of the stories I recalled. Most of these articles are not online. 

Here’s what the Post reported in September 1982 when the school, then called Page Traditional School, was three years old: 

For Arlington school board member Margaret A. Bocek and her husband, the first day of school this year began late Monday night when they and 40 other parents camped out on the lawn of the county’s Page Traditional School to ensure that their 3-year-old children could attend there on opening day, 1984…. 

In the last three years, such parent stakeouts have become commonplace at Page, a public alternative school that stresses a traditional format of self-contained classrooms, regular homework and strict standards for behavior and appearance. Page parents have been lobbying recently for expanding the program to the eighth grade and for expansion of the school’s program to other schools.

And here’s a report from September 1985:

This year, the line began to form at 10 a.m. on Labor Day, 23 hours before Page Traditional School in Arlington would begin accepting applications for the kindergarten class of 1987.

By the time Principal Frank Miller arrived at 9 a.m. the next day, about 80 parents were waiting on the lawn – more than triple the 25 slots that would be available in the school’s one kindergarten class.

Seven years after its much-heralded establishment as a back-to-basics, structured alternative to the open-classroom schools popular in the mid-1970s, Page is a cause of both enthusiasm and consternation in Arlington.

Each September, eager parents camp out on the lawn at 1501 N. Lincoln St. to put the names of their 3-year-olds on the kindergarten waiting list.

December 1991:

In an effort to stop overnight campouts by parents eager to register their children at Arlington’s three popular alternative schools, county school officials have proposed dropping the first-come, first-served admissions policy in favor of a random drawing.

An October 1999 headline:

School’s Excellence Is in Demand

Now you’ll notice that the 1991 story mentions three “popular alternative schools,” and indeed the other two, Drew Elementary and H-B Woodlawn Secondary, offer a very different alternative, a more informal, individualized style of education reflecting the “alternative” ideas of the 1960s and 1970s. The Post referred in 2004 to Woodlawn’s “quirky, counterculture ways.” In November 1991 the Post reported that “Last weekend, dozens of parents camped in front of H-B Woodlawn to register their children for the 70 sixth-grade slots.”

In 2012 the Arlington school board did vote to expand Arlington Traditional School by 12 classrooms. But why did it take so long? And why not open more “back to basics” schools, and also more “counterculture” schools, if that’s what parents want?

I wrote about that years ago in a book I edited, Liberating Schools: Education in the Inner City.   

In the marketplace, competition keeps businesses on their toes.  They get constant feedback from satisfied and dissatisfied customers. Firms that serve customers well prosper and expand. Firms that don’t respond to the message they get from customers go out of business. Like all government institutions, the public schools lack that feedback and those incentives.

No principal or teacher will get a raise for attracting more students to his or her school. A successful manager in a private business gets a raise, or gets hired away for a bigger salary. A successful entrepreneur expands his or her store or opens a branch. Can one imagine a public school choice system allowing a successful principal to open another school across town and run both of them? 

If Virginia were even a little bit tolerant of charter schools, or if Virginia allowed real private school choice, parent groups or entrepreneurs could organize to deliver the kinds of schools – from traditional to counterculture – that families want. But in a bureaucratic monopoly, the local paper can run thirty years of stories about parents desperate to get their children into particular types of schools, and the central planners can ignore them. 

The Silver Lining in the Florida School Choice Expansion Loss

Supporters of the Florida Tax-Credit Scholarship (FTS) program are understandably disappointed that the state senate abandoned legislation to expand the program on Thursday. The FTS assists low-income families that want to enroll their children in private schools by offering tax credits to donors of nonprofit scholarship organizations. This year, the state’s only active scholarship organization, Step Up For Students, was able to aid more than 60,000 students but there were not enough funds to aid the more than 30,000 additional applicants. The proposed expansion would have provided enough funds to aid about 6,000 more students. The bill’s withdrawal therefore leaves 6,000 students without the funds they need to attend the school of their choice.

However, the disappointment should be tempered by a large measure of relief. While the legislation contained several praiseworthy changes and eliminated some red tape (including a requirement that would-be scholarship recipients spend a year in a government-run school first), legislative negotiations threatened to add a poison pill that would have severely affected school autonomy and parental choice.

The FTS currently mandates that all participating schools administer a nationally norm-referenced test. Nevertheless, Florida Senate President Don Gaetz insisted that the FTC expansion bill include a provision requiring that scholarship students take the Florida Comprehensive Assessment Test (FCAT), which is soon to be replaced by a Common Core-aligned assessment.

While the existing mandate is unnecessary because private schools are already directly accountable to parents, it still allows schools and parents some measure of flexibility in deciding how best to measure performance. By contrast, the proposed state testing mandate would have forced all schools into a uniform testing regime. Since tests dictate what is taught, when, and how, this mandate would have induced conformity at the expense of diversity and innovation. As explained in the open letter on choice and accountability that the Cato Institute recently issued along with the Heritage Foundation, Friedman Foundation for Educational Choice, and others, such mandates undermine the central purpose of educational choice:

Educational choice has also been repeatedly shown to produce far higher levels of parental satisfaction than does centrally planned schooling. That’s because choice empowers parents to find the best education for their children, and test scores are not their only consideration. Research shows that many parents care more about safety and discipline, graduation and college acceptance rates, and moral values.

Dictating uniform standards and tests threatens those other valued features by redirecting educators’ focus from serving families to catering to bureaucrats. It also contributes to a culture of “teaching to the test” that has already resulted in several large-scale public-school cheating scandals.

Children are not interchangeable widgets that can be beneficially fed through their education on the same conveyor belt. Even within a single family, children often learn different subjects at different speeds. Myriad new options are arising in response to that reality that allow students to learn at their own pace in every subject, helping all to fulfill their individual potential — the very antithesis of uniform government mandates.

Fortunately, the FTS already contains an “escalator” provision that allows it to grow over time, albeit not as quickly as it would have under the expansion bill. Hopefully, Florida legislators will take a second look at some of the important reforms that would have expanded access to the program. Meanwhile, other states that are considering scholarship tax credit legislation should learn from Florida’s experience. Design matters.

WaPo Blogger Wrong About School Choice… Again

Once again, the Washington Post’s education blogger, Valerie Strauss, failed to do her due diligence before posting a hit piece on school choice. A year ago, she falsely claimed that scholarship tax credit programs benefit corporate donors and wealthy recipients. In fact, donors break even at most and the best evidence suggests that low-income families are the primary beneficiaries even in the few programs that are not means-tested. Unfortunately, Strauss has still failed to issue a correction.

Now Strauss has posted an op-ed from an anti-school choice activist in Florida that contains numerous additional errors, which the good folks at RedefinED.org have thoroughly debunked, including the following canard:  

Any way you look at it, private entities receive public tax dollars with no accountability.”

One can certainly debate whether there is sufficient accountability, but there is certainly more than none. All scholarship students take state-approved nationally norm referenced tests such as the Stanford 10 or Terra Nova. The gain scores are reported publicly, both at the state level and for every school with 30 or more tested scholarship students. Additionally, schools with $250,000 or more in scholarship funds must submit independent financial reports to the state.

Not only did the op-ed’s author fail to correctly explain the law, she failed to understand that school choice is accountability. As explained in an open letter that the Cato Institute recently issued along with the Heritage Foundation, Friedman Foundation for Educational Choice, and others: “True accountability comes not from top-down regulations but from parents financially empowered to exit schools that fail to meet their child’s needs.” 

Moreover, the claim that “private entities receive public tax dollars” is also false. The money flows from private donors to private nonprofits to private citizens to spend on their children’s tuition at private schools. That the donors receive a tax credit does not transmogrify their donation into “public” money. Indeed, the U.S. Supreme Court ruled that this view erroneously “assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands. Private bank accounts cannot be equated with the … State Treasury.” Likewise, neither tax deductions for donations to a church nor the church’s own property tax exemption mean that churches are therefore funded by “public tax dollars.”

The Washington Post has an in-house fact-checking team. They should not have to rely on RedefinED.org or others to ensure the veracity of what their bloggers post. 

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