Topic: Education and Child Policy

UT-Austin’s Secret Racial Preferences Undermine Its Admissions Policy

In 2013’s Fisher v. University of Texas at Austin, the Supreme Court delivered a blow to the use of racial preferences in university admissions by reversing a lower-court opinion that had allowed the use of race in UT-Austin’s admissions policy.

That wasn’t the end of the story, however; after holding that the university bears the burden of proving that its use of racial preferences is necessary and narrowly tailored—a point on which university administrators are due no deference—the Court remanded the case back to the U.S. Court of Appeals for the Fifth Circuit. That court was to determine whether UT had offered evidence sufficient to prove that its use of race was “narrowly tailored to achieving the educational benefits” of diversity. Recall that UT-Austin’s admissions program fills most of its spots through a race-neutral Top Ten Percent Plan—which offers admission to high school graduates in the top 10 percent of their class—then fills the remaining seats with a “holistic” rating that takes into account various factors typical to admissions programs (including race for certain preferred minorities).

Well, on remand, the Fifth Circuit panel split 2-1 but once again sided with the university, holding that even if the Top Ten Percent Plan already provided a “critical mass” of minority students, the use of racial preferences was necessary to achieve some other special kind of diversity. The dissenting opinion by Judge Emilio Garza pointed out how the majority deferred, once again, to the university’s hand-waving claim that its use of racial preferences is tailored to an actual, appropriate interest, without having actually proven anything approaching what is constitutionally required.

After being denied a rehearing before the full Fifth Circuit, Abigail Fisher, the former applicant suing UT-Austin, has now petitioned the Supreme Court to hear her case once again. And Cato has again filed a brief supporting that petition. We argue that the Court should hear the case because (1) UT-Austin’s “qualitative” diversity rationale is still a complete and unjustified sham, (2) the university continues to openly flout its disregard of Supreme Court precedent governing the use of race in higher education admissions, and (3) leaving the Fifth Circuit’s shockingly deferential and judiciously lazy ruling on the books will give other schools a roadmap for circumventing the Equal Protection Clause’s limitations on the use of race.

Among other evidence we marshal is the recently discovered program of secret racial preferences run out of the university president’s office, which flouts Supreme Court precedent and belies the stated rationale of UT’s admissions policy. This is just the latest example of college administrators’ massive resistance to the Fourteenth Amendment’s charge not to discriminate based on race or ethnicity.

The Court will decide whether to take up Fisher v. UT-Austin (again) later this spring.

Cato legal associate Julio Colomba contributed to this blogpost.

Did Common Core Do That? We Don’t Actually Know

Common Core supporters love to accuse opponents of peddling misinformation, and sometimes opponents do. On the flip side, Core supporters are frequently guilty not only of peddling deceptive information of their own, but promising the world without sufficient evidence to justify it. A new report from Harvard’s Paul Peterson – generally a pretty sober analyst – comes a bit too close to making such a leap, strongly suggesting that the Common Core has caused appreciable improvement in the rigor of state standards.

Based on a rough trend of decreasing differences between the percentage of students scoring “proficient” on state tests and on the National Assessment of Educational Progress, Peterson and co-author Matthew Ackerman report that state standards are rising. In other words, “proficient” on state tests is looking more like presumably high-flying “proficient” on the “Nation’s Report Card.”

Between 2011 and 2013, “20 states strengthened their standards, while just 8 loosened them,” Peterson and Ackerman report. To what do they attribute this? “A key objective of the CCSS [Common Core] consortium – the raising of proficiency standards – has begun to happen.” In case the text of the report didn’t make the attribution of success to the Core clear, the report’s subhead intoned that, “commitments to the Common Core may be driving the proficiency bar upward.”

At the very least, there should be a huge emphasis on “may,” and the Core probably shouldn’t be mentioned at all.  

Indeed, Peterson and Ackerman’s results could suggest that the Common Core actually dampened rigor. According to the report, of the four states that never adopted the Core, Texas and Virginia raised their standards while Alaska and Nebraska stood pat. That means 50 percent of non-adopters lifted their standards and 50 percent stood their ground. None went backward. Among Core adopters, in contrast, eight states, or 18 percent, lowered their standards; 19, or 42 percent, stood still; and only 18, or 40 percent, raised their bars. (I exclude Minnesota, which adopted the English standards but not the math, and West Virginia, for which data were unavailable. Among adopters I include Indiana and Oklahoma, which eventually dropped out but were Core states as of 2013.)

Are School Choice Technocrats Needed?

In a recent blog post, Andy Smarick of the Fordham Institute declares: “School Choice Technocrats Wanted.” Smarick argues “if civil society and families are to make more decisions and the government is to make fewer,” then “reform-oriented technocrats” will have to play a greater role.

For a century, we relied on the district system to deliver urban public education. There was a single government provider, it controlled all aspects of its schools, and students’ school assignments were based on home addresses. Countless policies and practices (related to facilities, transportation, accountability, and much more) evolved with that particular system in mind.

But as that system is slowly replaced by one marked by an array of nongovernmental school providers, parental choice, and the “portfolio management” mindset, new policies (undergirded by a new understanding of the government’s role in public schooling) are needed. That requires new government activity, much like the transition from a state-controlled to a private enterprise economy requires new rules related to property rights, lending, contracts, and currency.

Mr. Bush, the Lines Are Already Clear

In a Washington Post op-ed laying out his thoughts on the federal role in education, Gov. Jeb Bush wrote, “We are long overdue in setting the lines of authority so clearly.” Alas, the lines he offered would furnish just the sort of “clarity” that has led to nearly limitless federal control over schooling without any meaningful evidence of lasting improvement.

The true heart of what Bush wrote was not his declaration about setting lines, but the three justifications he offered for federal intervention. Washington, he wrote:

should work to create transparency so that parents can see how their local schools measure up; it should support policies that have a proven record; and it should make sure states can’t ignore students who need extra help.

All of this is what has gotten us to the de facto state of federal control we are currently in:

  • “Transparency” has come to mean federally driven tests and curriculum standards – the Common Core – because under No Child Left Behind states had been defining “proficiency” for themselves, and it wasn’t sufficiently “transparent” for some people whether “proficient” kids in Mississippi were as educated as those in Massachusetts. Of course, you can’t have much more complete federal control than Washington deciding what students are taught.
  • Supporting policies with “a proven record” opens the door for any policies politicians declare “proven.” See, for instance, the rhetoric vs. the reality of pre-K education programs.
  • Making sure states “can’t ignore students who need extra help” has also been used to justify national standards and tests. Indeed, it underlies everything Washington does. Sayeth federal politicians, “Some groups aren’t doing so well, and since we spend money to end that we’d better dictate terms. So let’s connect all that money to school nutrition guidelines, teacher evaluations, English and math content, school opening times…”

Quite simply, in setting his lines, Gov. Bush set no lines. Thankfully for him, lines of federal authority have already been drawn. Indeed, they were set centuries ago: the Constitution gives the federal government no authority to impose transparency, offer help, or anything other than prohibit discrimination by state and local governments and govern federal lands.

As I’ve noted before, obeying the Constitution would save folks like Gov. Bush a lot of reinventing work. More importantly, it would save everyone else expensive, ineffectual trouble.

What Does “Fully Funded” Mean?

Maryland is on the verge of enacting a trailblazing expansion of educational freedom.

The Maryland Education Tax Credit would grant tax credits worth 60 percent of donations to nonprofit scholarship organizations that help low-income families cover certain educational expenses. Were it to become law, Maryland would become the second state, following New Hampshire, to allow families to use tax-credit scholarship funds on a wide variety of educational expenses beyond tuition, such as tutoring, books, education-related technology, transportation, and special-needs services. The legislation has some flaws–for example, eligible schools cannot charge tuition higher than the statewide average per pupil expenditure at district schools–but it still represents a significant step in the right direction.

Unfortunately, the proposal might not get an up-or-down vote in the legislature. Today, the Baltimore Sun reports that Maryland Speaker of the House Michael E. Busch opposes the school choice proposal because Maryland’s assigned schools are not “fully funded”:

“It’s hard for the legislature to fund private religious schools when Governor Hogan fails to fully fund the public education system,” said Busch, an Anne Arundel County Democrat.

There are numerous mistaken assumptions in that statement–tax credits are not government appropriations;  parents can use the scholarships at religious or secular schools; scholarship tax credits generally produce fiscal savings by reducing expenditures more than tax revenue,  etc.–but the claim that Maryland’s district schools are not fully funded raises the question: what does “fully funded” mean?

Ignoring the Evidence Doesn’t Make It Disappear

If a study shows the benefits of school choice, but you don’t read it, does it really exist?

Apparently not, at least according to Americans United for Separation of Church and State (AU), an organization ideologically committed to opposing school choice. In a blog post today, AU makes this demonstrably false claim:

For example, voucher boosters often assert that students who receive vouch­ers excel academically in private schools. In fact, no objective study has shown this to be the case. Several studies show that voucher students perform the same or worse academically as their peers in public schools.

In reality, there have been 13 randomized controlled gold standard studies of the effect of school choice policies, all but one of which found a statistically significant positive impact. One study found no discernible impact and none found any harm. For AU’s benefit, here is a sampling:

  • William G. Howell and Paul E. Peterson, The Education Gap: Vouchers and Urban Schools, Brookings Institution, 2002, revised 2006. – After two years, African-American voucher students had combined reading and math scores 6.5 percentile points higher than the control group.
  • Jay P. Greene, “Vouchers in Charlotte,” Education Next, Summer 2001. – After one year, voucher students had combined reading and math scores 6 percentile points higher than the control group.
  • Jay P. Greene, Paul E. Peterson, and Jiangtao Du, “School Choice in Milwaukee: A Randomized Experiment,” in Learning From School Choice, ed. Paul Peterson and Bryan Hassel, Brookings Institution, 1998, pp. 335-56. – After four years, voucher students had reading scores 6 Normal Curve Equivalent (NCE) points higher than the control group, and math scores 11 points higher. NCE points are similar to percentile points.

None of these findings are earth shattering, but each study found a statistically significant positive outcome overall or for certain subgroups, particularly low-income African-Americans who are currently the most choice-deprived. Moreover, these studies were conducted by experienced researchers at some of the most widely respected academic and research institutions in the world, including Harvard, Princeton, the University of Chicago, and the Brookings Institution.

In another blog post, AU does point to the one gold standard study that found a null result, a reexamination of the Peterson/Howell study of New York’s private scholarship program. However, AU never mentions that this reexamination employed unorthodox methods and classifications, or that a further reexamination of the data by other researchers at Harvard and the Cleveland Clinic Foundation confirmed the initial findings.

The AU staff can continue to close their eyes and stick their fingers in their ears, but they should stop making the false assertion that there is “no evidence” that students benefit from school choice.

2015: The Year of Educational Choice

The Wall Street Journal declared 2011 “The Year of School Choice” after 13 states enacted new school choice laws or expanded existing ones. By that measure, 2015 could be “The Year of Educational Choice” as at least 10 state legislatures consider new or expanded education savings accounts (ESAs) in addition to at least 11 states considering new or expanded scholarship tax credits.

ESAs represent a move from school choice to educational choice because families can use ESA funds to pay for a lot more than just private school tuition. Parents can use the ESA funds for tutors, textbooks, homeschool curricula, online classes, educational therapy, and more. They can also save unused funds for future educational expenses, including college.

Currently, two states have ESA laws: Arizona and Florida. Both states redirect 90% of the funds that they would have spent on a student at her assigned district school into her education savings account. The major difference between the two laws is that Arizona’s ESA is managed by the Arizona Department of Education while Florida’s is privately managed by Step Up For Students and AAA Scholarships, the nonprofit scholarship organizations that also issue scholarships through the Sunshine State’s tax credit law. As the Heritage Foundation’s Lindsey Burke and I explained in the most recent edition of National Affairs, there are several reasons to believe that Florida’s model holds advantages over Arizona’s:

First, the non-profit scholarship organizations are less likely to be captured by opponents than is a government agency. The non-profits are dedicated to the scholarships, and the idea of school choice is built into their mission. Second, awarding scholarships is the primary mission of a scholarship organization but only an ancillary function of a state education agency — which means that not only will they be more dedicated to the concept but they can generate and retain best practices more easily. Third, scholarship organizations have the ability and incentives to be more flexible in their operation than government agencies, and therefore more responsive to the needs of families. The Arizona education department did not offer workshops for parents outside of regular business hours because employees were not paid for those hours. Non-profits can more easily implement policies like flextime.

While both Arizona and Florida redirect public funds into the ESAs, a state could create an ESA that is funded through tax credits, which would minimize the threat of overregulation and avoid coercing people into supporting the teaching of ideas that they dislike. New Hampshire’s scholarship tax credit law already has an ESA-style provision that allows homeschoolers to use scholarship funds for a wide variety of educational expenses. 

Several state legislatures are moving fast to enact ESA laws this year. Both the Mississippi Senate and Virginia Assembly passed ESA bills last week. This week, the Virginia Senate’s Education Committee and Oklahoma Senate education subcommittee both approved ESA bills and a Florida Senate panel approved an expansion of their state’s ESA law. Arizona is also considering expanding eligibility for its ESA law.

Other states considering a new ESA law include Colorado, Delaware, Georgia, Montana, and Oregon. Additionally, Politico reported that Iowa, Nebraska, Nevada, Rhode Island, Tennessee, and Texas are likely to take up ESA bills as well. States considering new or expanded scholarship tax credit laws include Georgia, Indiana, Maryland, Missouri, Montana, Nebraska, Nevada, New Mexico, New York, South Carolina, and Texas. In addition, two state senate committees in Colorado have approved a personal-use education tax credit.

There’s no guarantee that any of these bills will become law, but the number of state legislatures exploring educational choice is encouraging.

[Updated to include Oregon’s ESA bill.]