Tag: school choice

Nevada Supreme Court: Education Savings Accounts Are Constitutional, Funding Mechanism Isn’t

In a landmark decision, the Supreme Court of Nevada today upheld the constitutionality of the nation’s most expansive educational choice law. However, the court ruled that the funding mechanism the legislature adopted is unconstitutional. If the legislature creates a new funding mechanism–as it could and should in a special session–then the ESA program could be implemented right away.

Enacted in 2015, Nevada’s education savings account (ESA) policy was originally scheduled to launch at the beginning of this year, but it immediately drew two separate legal challenges from the government schooling establishment and the ACLU and its allies. Nevada’s ESA provides students with $5,100 per year (plus an additional $600 for low-income students or students with special needs) to use for a wide variety of approved educational expenditures, including private school tuition, tutoring, text books, online courses, homeschool curricula, and more. Families can also roll over unspent funds from year to year. As the Heritage Foundation’s Lindsey Burke and I have explained, the ability to customize a child’s education and save funds for later are significant improvements over school vouchers:

ESAs offer several key advantages over traditional school-choice programs. Because families can spend ESA funds at multiple providers and can save unspent funds for later, ESAs incentivize families to economize and maximize the value of each dollar spent, in a manner similar to the way they would spend their own money. ESAs also create incentives for education providers to unbundle services and products to better meet students’ individual learning needs. 

Of the five existing ESA programs, Nevada’s is the most expansive. Florida, Mississippi, and Tennessee restrict their ESAs to students with special needs. Arizona originally restricted ESA eligibility to students with special needs, but has since included foster children, children of active-duty military personnel, students assigned to district schools rated D or F, and children living in Native American reservations. In Nevada, all students who attended a public school for at least 100 days in the previous academic year are eligible. 

In two separate lawsuits, opponents of educational choice alleged that Nevada’s ESA violated the state constitution’s mandate that the state provide a “uniform system of common schools” (Article 11, Section 2), its prohibition against using public funds for sectarian purposes (Article 11, Section 6), and a clause requiring the state to appropriate funds to operate the district schools before any other appropriation is enacted for the biennium (Article 11, Section 10). The court found that the ESA was constitutional under the first two constitutional provisions, but the way it was funded violated the third.

Turn “Banned Books Week” into “Educational Freedom Week”

We are in the midst of “Banned Books Week,” a time dedicated not so much to shining light on books that have actually been banned—that no one may legally read—but that parents object to their children being forced or encouraged to read by the public schools for which they must pay and, de facto, use. Such parents are frequently accused of “banning,” but are often really objecting to a public school—a government school—pushing their children to read material they think violates their religious convictions, is offensive, or is just age-inappropriate. They aren’t trying to ban books, they are trying to escape government-privileged reading they do not think is right for their kids. It is parents doing what school boards, librarians, and teachers do whenever they assign or purchase one book, and reject another.

The more basic violation is not parents objecting to books—a free society lets people freely choose what they read, and parents are the guardians of their children—but government placing some people’s speech above others. Indeed, public schools are supposedly democratically controlled, so in theory every parent is supposed to be able to raise objections to any book, and if they can convince a majority to remove it that is supposed to be just fine. But the country is not supposed to be a democracy. Rather, it is built on individual liberty that is to be defended even against—perhaps especially against—the majority will.

But how do you protect liberty with a public schooling system? How can one elementary school, or district, to which people are assigned based on their home address, tailor instruction and readings to each individual family and child?

The answer is it can’t, and one consequence is wrenching, divisive conflict. You can get a sense for this with Cato’s interactive Public Schooling Battle Map, which contains summaries of more than 220 book battles in public schools. And the map only contains conflicts that have made headlines or been reported to the American Library Association. Likely many others have occurred that did not make the news, and no doubt many parents object to readings but do not feel they can fight.

Scholarship Tax Credits: Still the Reigning School Choice Champion

Today, Education Next released the results of its annual survey of public opinion on education policy. The 2016 results are somewhat disappointing for advocates of school choice because support for some types of choice programs has diminished over the last decade, particularly for voucher programs targeted to the poor. However, support for scholarship tax credit (STC) programs – once again, the most popular type of school choice program – has remained high and steady.

When asked whether they favored or opposed a proposal to offer a “tax credit for individuals and corporate donations that pay for scholarships to help low-income parents send their children to private schools,” 53 percent responded favorably while only 29 percent expressed opposition. Respondents were nearly evenly divided over universal vouchers, with 45 percent in support and 44 percent opposed. However, nearly half of respondents opposed targeted vouchers while only 37 percent supported them. Charter schools fared better, but many people don’t know what they are. When the survey asked about charter schools without defining what they are, nearly half of respondents were neutral. However, when the survey defined them as “publicly funded” schools that are “not managed by the local school board” that “are expected to meet promised objectives, but are exempt from many state regulations,” the amount of respondents who expressed no opinion dropped to 21 percent while support increased from 34 percent to 51 percent and opposition increased from 17 percent to 28 percent.

2016 Education Next Survey: Support for Various Types of School Choice

2016 Education Next survey results.

Unfortunately, once again the survey failed to ask about education savings accounts.

Support for STCs was even higher among parents (60 percent), African-Americans (64 percent), and Hispanics (62 percent). This is not surprising since minorities are more likely to be low-income and therefore choice deprived. Interestingly, support for STCs was higher among self-described Democrats (57 percent) than Republicans (49 percent), although the GOP has generally been more supportive of school choice than the Democratic Party. Democrats were also more likely to support both universal and targeted vouchers (49 and 42 percent, respectively) than Republicans (41 and 31 percent, respectively). 

Previous Education Next surveys also found that STCs garnered the highest amount of support from among the various school choice policies. Since 2009, support has increased from 46 percent to 53 percent, although it is down from a high of 60 percent in 2014. However, at 29 percent, opposition to STCs is also at its highest level since EdNext began including the question in their survey. Neverthess, there is a 24 percentage point advantage for those who favor STCs. (Note: EdNext did not ask about STCs in their 2013 survey.)

Education Next Surveys: Support for STCs

Education Next survey results, 2009-2016 

With the addition of South Dakota earlier this year, there are now 17 states that have 21 STC programs. Last year, more than 230,000 students used tax-credit scholarships to attend the private school of their choice, compared to about 150,000 students who used school vouchers and about 6,000 who used education savings accounts ESAs. Their high level of public support makes them the most politically viable form of school choice and because they are privately (rather than publicly) funded, they have a perfect record of being upheld as constitutional, making them the most constitutionally viable form of school choice yet devised as well.

Although ESAs have some advantages over both vouchers and traditional STC programs because they allow for greater customization, it is possible to combine the advantages of ESAs and STCs by privately funding the education savings accounts with the assistance of tax credits. For more information, see the report I coauthored with Jonathan Butcher of the Goldwater Institute and Arizona Justice Clint Bolick (then of Goldwater): “Taking Credit for Education: How to Fund Education Savings Accounts through Tax Credits.”

The EdNext survey also covered topics such as Common Core, testing, merit pay, tenure, teachers unions, blended learning, and more. You can find the full results along with ten-year trend data here.

Case Dismissed in Lawsuit Against Florida School Choice… Again

In yesterday’s update regarding school choice lawsuits, I noted that a judge recently denied a request to fast-track one of the two anti-school-choice lawsuits (Citizens for Strong Schools v. Florida Board of Education). Today, a three-judge panel unanimously dismissed the other lawsuit (McCall v. Scott), in which the state teachers’ union alleged that Florida’s tax-credit scholarship program unconstitutionally supported a “parallel” system of public education and violated the state constitution’s historically anti-Catholic Blaine Amendment, which prohibits publicly funding religious schools. Last year, a trial court judge dismissed the case, holding that the plaintiffs lacked standing to bring the case because the scholarships were privately (not publicly) funded and that they were unable to prove that the scholarship program adversely impacted the district school system. The appellate judges unanimously agreed with the trial court, as Travis Pillow of RedefinED explains:

“[D]espite arguing that public funds have been diverted from the public school system, [the plaintiffs] make no argument whatsoever that public school funding has actually declined,” they wrote. Further, the court called the diversion theory “incorrect as a matter of law.”

The appellate judges held the case centered on political questions about school choice and education funding, and wrote that the ultimate “remedy is at the polls.”

“This is precisely the type of dispute into which the courts must decline to intervene under the separation of powers doctrine,” they wrote.

Earlier this year, thousands of parents and students held a rally calling on the teachers’ union to drop the suit.

School Choice Lawsuits Update: Summer 2016 Edition

As school choice wins in the court of public opinion, opponents have resorted to fighting it in the courts of law. Here are a few brief updates regarding pending lawsuits against school choice programs around the country.

Colorado: Douglas County’s School Choice Grant Program

Last summer, the Colorado Supreme Court struck down Douglas County’s school voucher program with a plurality ruling that the law violates the state’s historically anti-Catholic Blaine Amendment, which forbids public money from being used at religious schools. District officials responded to the ruling by creating a new voucher program that excludes religious schools, which drew lawsuits from both opponents and supporters of school choice.

The Institute for Justice, which had previously defended the school voucher program, sued the county for unconstitutionally discriminating against religious groups. According to IJ, the “exclusion of religious options from the program violates the Free Exercise, Establishment, Equal Protection, and Free Speech Clauses of the United States Constitution, as well as the Due Process Clause, which guarantees the fundamental right of parents to control and direct the education and upbringing of their children.” IJ contends–correctly, in my view–that the First Amendment requires the government to be neutral both among religions and between religion and non-religion, but it may not actively favor nor discriminate against either religious or non-religious groups or institutions. This case is still pending.

In a separate lawsuit, opponents of school choice contended that the new voucher program was not materially different than the old one. Earlier this month, a district court agreed, striking down the program yet again. Although by excluding religious schools, the new program appears to be in compliance with the Colorado Supreme Court’s ruling, the district court explained that the state supreme court did not rule on the merits of several other alleged violations of state constitutional provisions under which the district court had previously invalidated the program. This case is likely going to return to the state supreme court for resolution.

Florida: Tax-Credit Scholarships

There are currently two lawsuits pending against Florida’s tax-credit scholarship program. As RedefinED reports, a judge recently denied an attempt to fast-track one of the two suits, which primarily concerns the adequacy of the state’s funding of district schools. A judge dismissed the portion of the suit related to the tax-credit program but plaintiffs filed an appeal and asked for the case to skip the appellate court and go straight to the state supreme court. That request has been denied, so the case will go before the appellate court first. That means the program is likely to serve more than 100,000 students by the time it comes before the state supreme court.

Nevada Supreme Court Hears Education Savings Accounts Lawsuits

Today, on Milton Friedman Legacy Day, the Nevada Supreme Court will hear oral arguments in two lawsuits against the state’s education savings account (ESA) law. Under the law, students who leave their assigned district school can receive a portion of the funds that would have been allocated to them in their district school (about $5,100 to $5,700 depending on family income). The parents can use those funds to customize their child’s education by purchasing a wide variety of educational good and services, including private school tuition, text books, online courses, homeschool curricula, and more. They can even save funds for future expenditures. A similar program in Arizona has proved highly popular among parents.

However, a group dedicated to protecting the district school monopoly is asking the state supreme court to strike down the program before it goes into effect:

“I fear that, because this is the most aggressive model for this program, the privatization of education … will spread like wildfire,” said Electra McGrath-Skrzydlewski, whose 12-year-old daughter is a student in the Clark County School District.

McGrath-Skrzydlewski joined several parents last October to sue the state in a Carson City court, challenging SB302 on the grounds that it diverts money meant “exclusively” for public schools to private schools and other private expenses. Their complaint also claims the bill violates a constitutional requirement that lawmakers create a “uniform” system of public schools.

As Neal McCluskey noted on Twitter, even the opponents of the ESA assume that parents want it. And they’re right: more than 8,000 eager families have already applied.

David Boaz on educational choice

In separate case, the ACLU claims that the ESA law violates the state constitition’s “uniformity” clause as well as a separate constitutional provision prohibiting the state funding of religious instititions. However, as I’ve discussed previously, these arguments do not hold water. The ACLU wants the court to interpret the constitutional mandate that the state create a system of “uniform” and nonsectarian schools to mean that it must exclusively fund those schools. Fortunately, the lower court rejected this strained interpretation, holding instead that “the Nevada constitution requires the state to establish a non-sectarian system of public schools, but it is also empowered to encourage education by other means that are not limited to non-sectarian schooling.”

Likewise, the lower court rejected the ACLU’s Blaine Amendment claim, holding that it “was not intended to preclude any expenditure that has an incidental benefit to religion, where such is made for a primary secular purpose,” and that the ESA “was enacted for the valid secular purpose of providing financial assistance to parents to take advantage of educational options available to Nevada children.”

For more information on the two cases and to watch live feed of the oral arguments beginning at 1:00pm EDT, go to Choice Media’s website.

Revising Gladwell’s “Revisionist History”

Does the American Dream exist? Are poor but highly skilled individuals able to achieve their full potential? These questions are at the heart of recent episodes of Malcom Gladwell’s new podcast, Revisionist History.

In “Carlos Doesn’t Remember,” Gladwell examines the idea of “capitalization,” or how well America makes use of its human potential. Americans typically believe people are able to climb the ladder to success through hard work and determination, but Gladwell uses the story of one smart, low-income student to express doubts about American meritocracy.

“Carlos” is a bright but low-income student in Los Angeles, who secured a spot at an elite private school thanks to entertainment lawyer Eric Eisner’s YES program. The episode is a stark reminder that low-income students—even the most talented ones—face large barriers to success. Gladwell calls Carlos’ journey a “one in a million shot.” He identifies two large obstacles that smart, low-income students must overcome, but fails to discuss the best solution to these problems: school choice. The public education system traps students like Carlos in underperforming schools that Gladwell likens to concentration camps, but choice policies could help more poor students like Carlos access good schools.

The first barrier to success is a lack of advocates for talented, low-income students. But must it take an Eric Eisner to discover such kids and help them capitalize on their potential? The underlying assumption is that advocates will not be parents or teachers, but only rare, outside forces.

Really? Most parents want the best for their children, and work hard to give them opportunities for success. The problem may well be that wealthier families can access private institutions or choose expensive homes zoned for high-quality public schools, while low-income families are relegated to cheap addresses assigning them to subpar schools. Low-income parents, as Gladwell and others imply, are not necessarily uninformed or uncaring. They just lack the resources of wealthier families.

School choice policies help to give parents those resources. In The School Choice Journey, Thomas Stewart and Patrick Wolf show that given choices, low-income parents transition from passive clients to active consumers, seeking out information on options for their children.