Topic: Education and Child Policy

Rule by ‘Dear Colleague’ Letter: The Department of Education’s Stealth Regulation

We’ve noted repeatedly how the U.S. Department of Education, using authority it claims under Title IX and other federal laws, has arm-twisted the nation’s colleges and universities into stripping away procedural protections for faculty and students facing charges of sexual misconduct, sought to regulate speech as “verbal conduct,” and urged colleges to record microaggressive behaviors that do not rise to the level of harassment or assault but might add up in time to some future pattern. The resulting federal pressure has done much to generate a campus atmosphere in which administrators like those at the University of Virginia react even to unsubstantiated and soon-refuted assault claims with harsh crackdowns directed at whole groups of students against whom no misconduct whatsoever has been charged.

The substance of what the feds have been doing in this area has rightly stirred outrage, but another side of it also deserves scrutiny: it’s based on sheer fiat, on a series of “because we say so” edicts. A few recent items:

  • Early this year, the Senate Health, Education and Labor Committee released “Recalibrating Regulation of Colleges and Universities,” the lengthy report of a group called the Task Force on Federal Regulation of Higher Education with assistance from the American Council on Education. The federal government, according to the report, has entangled colleges in a continually expanding “jungle of red tape” (the Department of Education now “issues official guidance to amend or clarify its rules at a rate of more than one document per work day”). Not only does the department’s regulatory process (see pp. 32 et seq.) generate new rulemakings that are not well grounded in statutory authority, but it regularly takes the form of “Dear Colleague” letters, informal field advisories, and other “subregulatory guidance” that dodges the important legal safeguards of actual rulemaking, such as notice and comment to the public and the generating of a decisionmaking record well suited to judicial review (pp. 35–37). The crackdown on college discipline famously has taken the form of a “Dear Colleague” letter and associated guidance, not a formal regulation.
  • Both the task force report and our friend Hans Bader of the Competitive Enterprise Institute show how the Department now routinely uses these free-floating processes to extend regulatory burdens across a whole range of issues, not just Title IX: rules on for-profit college performance, Clery-law crime reporting, disability-based harassment (on which more, and note the push for school authority over students’ off-campus social media use), race-conscious K–12 discipline, information collection, and on and on.
  • Boston College Prof. R. Shep Melnick, an expert on regulatory procedure, casts a critical eye on the enforcement practices of the Department’s Office for Civil Rights (OCR) in this Liberty Law Forum podcast (and don’t miss Michael Greve’s eloquent reactions here and here, focusing on OCR’s interpretation of “disparate impact” theory to devise new guidance on what it calls “resource comparability” between schools). Relatedly, a symposium in the Federalist Society’s Harvard Journal of Law and Public Policy last year examined possible remedies to stealth or back-door regulation [see John Graham and James Broughel’s summary]

All that brings us to the big question: were someone to challenge OCR’s kangaroo-court regulations on college discipline, would they stand up in court? David Bernstein at Volokh Conspiracy in November offered three reasons why they might not. It may be difficult to persuade a college to serve as a test case, given the annihilating possibility of a federal funds cutoff as the penalty of its presumption. But given the spectacular collapse of the University of Virginia allegations, might this not be a good time to try?

Fed Ed, by Every Other Name, Still Smells Rank

With yesterday’s release of a new, Senate, No Child Left Behind revision, there certainly seems to be a serious effort to reauthorize the Elementary and Secondary Education Act, due since 2007. Perhaps the first thing they should do, though, is keep the name simply “Elementary and Secondary Education Act” so I don’t always have to explain that the ESEA is the same as NCLB.  But no: this is the Every Child Achieves Act of 2015, in keeping with the political need to have names no one could possibly oppose. (You want to leave kids behind? You want some kids not to achieve?) That said, while the bill seems to be a step in the right direction, it would still keep us miles from our necessary destination: no federal education control.

The new bill, like the Student Success Act in the House (yup, another loaded name) gets rid of NCLB’s “adequate yearly progress” mandate and the cascade of punishments for schools that fail to meet it, and tries to curb the U.S. Secretary of Education’s ability to coerce states to use specific standards and tests such as the Common Core and related exams. But it would still require states to have uniform standards and tests – sorry, local control – and state accountability plans would have to be approved by the secretary. This approval provision is especially concerning because, despite NCLB giving the secretary no authority to attach conditions to waivers out of its requirements, the Obama administration attached conditions anyway. In other words, we already have concrete experience with an education secretary blatantly exceeding the authority given to him by law. To think a future administration wouldn’t do so again is wishful thinking. Yes, there is a “peer review” process for state plans, and some rules on what a secretary may not require a state to do, but never underestimate the power of regulation-writing to fill in gaps with unexpected power, or future administrations to interpret imprecise wording as expansively as possible.  And the bill calls for states to have “challenging” standards, which certainly seems to require that the feds define what, exactly, “challenging” means. So maybe the worst parts of NCLB are gone, but the biggest danger – rule by executive fiat – remains.

Victories for Educational Choice in the Southwest

It’s looking more and more like the Year of Educational Choice each week.

Yesterday, Arizona Governor Doug Ducey signed a bill expanding eligibility for the state’s pioneering education savings account (ESA) law to all students living on Native American tribal lands. The ESAs were originally limited to students with special needs, but the state subsquently expanded eligibility to include students in adoptive care, students with an active-duty military parent, siblings of an ESA recipient, and students zoned to a district school rated D or F.

On the same day, Nevada became the third state this year to adopt a new educational choice law in both legislative chambers, behind Mississippi and Arkansas. In addition, the Montana Senate recently voted to create a new scholarship tax credit (STC) law, and Alabama Senate voted last week to expand the state’s existing STC law.

Nevada’s Assembly Bill 165 creates a STC law. Corporate donors will be able to receive tax credits for contributions to nonprofit scholarship organizations that aid low- and middle-income students attend the school of their family’s choice. The scholarships can be worth up to $7,755 in the first year, which is significantly less than the average $9,650 cost per pupil in Nevada’s district schools.

Do Housing Vouchers Help Poor Children?

Why do poor parents have children who also grow up to be poor? One possible reason is that poor families do not have access to credit that would allow parents to invest more in the improvement of the human capital of their children. The conventional policy recommendation for this diagnosis is to increase transfers to poor families in order to remove their credit constraints.

The expansion of the Earned Income Tax Credit (EITC)—which uses the tax system to transfer money to low-income households—has been shown to increase standardized test scores. But critics of this research argue that factors unobservable to researchers but correlated with EITC receipt are responsible for children’s success, not the EITC transfers themselves.

Increasingly, economists use clever research designs that involve an element of random assignment, much like clinical trials of new pharmaceuticals, to provide more conclusive evidence of a program’s effectiveness or ineffectiveness. Recently, three researchers used a policy change in Chicago to test the effects of a change in housing subsidies.

Unlike many other welfare programs, housing subsidies are not given to everyone who qualifies for them, but are handed out on the basis of availability. In 1997, for the first time in 12 years, Chicago accepted applications for housing vouchers. About 82,000 people applied out of 300,000 poverty households in Chicago at the time. The applicants were randomly assigned a position in the waiting list. The first 35,000 on the list were told their number and that they would be offered a voucher within three years. The rest were told that they would not receive vouchers.

By 2003, 18,000 of the first 35,000 applicants had received vouchers. The Chicago Housing Authority had issued as many vouchers as it could fund, and stopped offering any new vouchers.

In a study I review in my “Working Papers” column in the current Regulation, Brian Jacob, Max Kapustin, and Jens Ludwig examine the outcomes 14 years later for children whose families “won” the Chicago housing vouchers versus the children of families that were told they would not receive a voucher. Families that won the lottery received a very large positive income shock—the equivalent of $12,000 a year—relative to the average income in the sample ($19,000 a year). If income alone allows families to improve the human capital in their children, we should see results from this experiment. 

The authors find very few effects on schooling, crime, or health outcomes—and none were significant. “Our estimates imply that extra cash transfers beyond the current level provided in the United States are likely to have a smaller impact per dollar than the best-practice educational interventions explicitly designed to improve children’s human capital,” they write. Their results are consistent with the findings of sociologist Susan Mayer, who concluded in her 1997 book What Money Can’t Buy (Harvard University Press) that there is “little reason to expect that policies to increase the income of poor families alone will substantially improve their children’s life chances.”

Disagreement over Chile’s National School Choice Program

A week ago, the Atlanta Journal Constitution published an on-line op-ed critiquing Chile’s nationwide public-and-private school choice program. In a letter to the editor, I objected to several of the op-ed’s central claims. The authors responded, and the AJC has now published the entire exchange. A follow-up is warranted, which I offer here:

Comment on the Gaete, Jones response to my critique:

Their response consists chiefly of “moving the goalposts”—changing the issue under debate rather than responding to the critique of the original point. The first claim in their original op-ed to which I objected was that “there is no clear evidence that [Chilean] students have significantly improved their performance on standardized tests.” In contradiction of this claim I cited the study “Achievement Growth” by top education economists and political scientists from Harvard and Stanford Universities. That study discovered that Chile is one of the fastest-improving nations in the world on international tests such as PISA and TIMSS—which were specifically designed to allow the observation of national trends over time. It is hard to conceive of clearer evidence that Chilean students “have significantly improved their performance”, contrary to the claim of Gaete and Jones.

A Win for Educational Choice in Mississippi

Mississippi is poised to become the third state, behind Arizona and Florida, to enact an education savings account (ESA) law. Yesterday, the Mississippi Senate voted to concur with the state House’s version of the bill, which would provide ESAs for students with special needs to cover numerous education expenses, including private school tuition and fees, tutoring, textbooks, educational therapy, assistive technology, and higher education expenses. Gov. Phil Bryant has indicated that he will sign the legislation.

The Friedman Foundation for Educational Choice provides a useful breakdown of the ESA legislation. While about 63,000 Magnolia State students would be eligible for an ESA next year, “this opportunity is limited to 500 students in year one, with an additional 500 students added to the program each year during a ‘pilot’ period of five years.”

The state will fund the ESAs at $6,500 annually in the form of reimbursements for eligible expenses. The reimbursement model may make it difficult for lower-income families to participate—something policymakers should monitor and address if necessary. Arizona provides ESA parents with restricted-use debit cards that allow parents to conveniently access ESA funds while minimizing the potential for fraud.

In a 2013 survey, parents of students with special needs in Arizona overwhelmingly reported being satisfied with the education they purchased for their children with ESAs. ESAs empower parents to completely customize their child’s education based on his or her unique learning needs. As Lindsey Burke of the Heritage Foundation and I explained in a recent article:

Parents can also save unused funds from year to year and roll the funds into a college savings account. These two features of ESAs—the ability of parents to completely customize their child’s education and save for future educational expenses—make them distinct from and improvements upon traditional school vouchers. ESAs empower parents with the ability to maximize the value their children get from their education services. And because they control how and when the money is spent, parents also have a greater incentive to control costs.

Whether or not 2015 ends up being the Year of Educational Choice, Mississippi has taken an important step toward educational freedom.

National School Choice Proposal Heartening, Frightening

According to the American Federation for Children, Sen. Marco Rubio (R-FL) and Rep. Todd Rokita (R-IN) have reintroduced “the Educational Opportunities Act, which would create an individual and corporate tax credit for donations that pay for scholarships for students to attend a private school of their parents’ choice.”

It is encouraging to see growing support for scholarship tax credit school choice programs, which have been found to simultaneously boost achievement for students who switch to private schools, do the same for students who remain in public schools, and save taxpayers millions of dollars every year–a win-win-win scenario. Nevertheless, it is ill advised to pursue such a program (or other school choice programs) at the federal level.

Years ago I summarized those problems when President George W. Bush advocated creating a federal school voucher program. Such programs are not only beyond the mandate accorded to Congress by the Constitution, they bear the risk of suffocating private schools nationwide with a raft of new regulation, defeating their very purpose of increasing the range of educational options available to families with limited means.

In the past few years I have visited Sweden and Chile and studied their federal school chioce programs. Both confirm my earlier worries about national programs. Chile’s entrepreneurial voucher schools grew rapidly at first, but with a recent change of government hostile to the program they have sensed the new climate and stopped expanding.The new government is trying to enact regulations to diminish the scope and freedom of private schooling in Chile.

Meanwhile, something similar is happening in Sweden. Among other things, the government has mandated that all schools hire graduates of government-certified teacher training programs, despite the well known fact that those programs are currently attracting the lowest-achieving college students.

National school choice programs have proven to be a prime case of “staff car legislating.” The legislators who enact them are not always the ones in the official staff cars, making the rules. New lawmakers with different preferences ultimately come to power and can wreak havok on a nation’s entire K-12 education sector.

This problem can be minimized by leaving school choice legislation to the state level, where the Constitution rightfully leaves it. We thus have a “laboratory of federalism”–a variety of different policies across states that make it easier to determine how best to design such programs.