Last month, I warned that the 9th Circuit Court of Appeals would soon be handing the school choice movement a legal setback. Well, it’s here.
As expected, the 9th Circuit has reinstated a lower court challenge to Arizona’s scholarship donation tax credit program. The program allows taxpayers to contribute to non‐profit Scholarship Tuition Organizations (STOs) that provide financial assistance to families choosing private schools. The taxpayers can then claim a dollar for dollar credit for their donation.
While this ruling leaves the program intact for the time being, it would almost surely require the tax credit program to be amended if it is allowed to stand. Fortunately, as I noted in my earlier post, the 9th Circuit is overturned as often as a caber at the Highland Games. Its ruling is unlikely to stand if appealed to the U.S. Supreme Court.
At issue is the fact that taxpayers are free to choose the STOs to which they donate their money, and private STOs are free to set criteria for the schools at which their scholarships can be redeemed. There are thus some STOs that offer scholarships only to religious schools. This is essentially the same situation that obtains when taxpayers claim deductions for contributions to non‐profit charities. The charities can legally be religious or secular, and they can infuse the services they offer with religion, or not, as they choose. The whole thing is constitutional because it is the taxpayers, not the government, that decides which charity gets their funds. This is all settled law.
To get around the fact that the legal precedents were against it, the 9th Circuit decided to do a compelling impression of Marcel Marceau, pretending to hem itself into an invisible legal box. Specifically, the 9th Circuit decided to pretend that the constitutional restrictions limiting government expenditures (as in school voucher programs) also apply to the private funds at issue under tax credit programs.
That box, of course, does not exist. No government money is spent under the tax credit program, and the tax credits are themselves available on an entirely religiously neutral basis, in scrupulous conformance with the Establishment Clause of the First Amendment.
So here’s my next legal prediction: the constitutionality of the Arizona education tax credit program will ultimately be upheld by the U.S. Supreme Court, and opponents of educational freedom will have to resort to some new ploy in their efforts to herd American families back onto the public school plantation.
The California Assembly Committee on Revenue and Taxation is holding hearings today on bill AB 279, the "Great Schools Tax Credit Act." This bill is much like the scholarship donation tax credit program in Florida, which is a bi-partisan success that saves the state $1.49 for every $1 it reduces state revenue.
But you wouldn't know that if you read the Committee's remarkably flawed official Bill Analysis.
Among other things, the Bill Analysis glaringly misrepresents Adam Schaeffer's "Public Education Tax Credit" paper, incorrectly calls tax credited donations public funds, omits crucial findings from other states that favor credits, and engages in unsubstantiated speculation.
To address its failings, I penned the following letter which is being distributed to the committee today.
Dear California state legislators,
The official Bill Analysis of AB 279 suffers errors of fact and omission, misrepresents the findings of a paper published by my organization, and will mislead legislators unless these problems are corrected. To address these problems, I respectfully submit this letter.
As readers of this blog, and other fine blogs, have no doubt noticed over the last few weeks, Fridays have been kind of popular with the Obama administration for quietly doing questionable education stuff. Well somehow we’ve gotten through this Friday (as far as we know) without Obama and company trying to slip anything past us, leaving us with nothing new to add to recent posts like this one, and this one, and this one.
Look at this as a blessing, and a chance to catch up on all the recent federal edu‐action by checking out today’s Cato Daily Podcast featuring yours truly. I give a quick summary of what the Obama administration has promised and done to date, and a prediction of what it will — and won’t — do when edu‐push finally comes to edu‐shove. It’s a perfect bit of listening for a surprisingly uneventful Friday afternoon.
How does U.S. Secretary of Education Arne Duncan live with what must be some of the most painful cognitive dissonance in the history of mankind? I mean how, fresh off of doing all he could to make even more untimely the untimely death of the D.C. voucher program — and opposing private school choice generally — could Duncan say this in a new Time interview:
I’m a big fan of choice and competition, and in our country, historically, wealthy families have had a lot of options as to where to send their children. And families that didn’t come from a lot of money had one option — and usually that option wasn’t a good one. The more options available, the more we give parents a chance to figure out what the best learning environment is for their child.
How could Duncan say all this great stuff about competition and maximizing choice right after what he’s done to private school choice — which maximizes options for the very poor who have typically had none — in the nation’s capital? It is simply impossible to reconcile the words and actions.
Unless, that is, the words don’t really mean what the words, to a normal person, really mean. And to Duncan — like lots of political creatures – they don’t. He offered those gushing words of love for choice and competition in response to a question about charter schools, and in continuing to answer the question went right into this:
To me it’s not about letting a thousand flowers bloom. You need to have a really high bar about whom you let open the charter school. [You need] a really rigorous front‐end competitive process. If not, you just get mediocrity. Once you let them in, you need to have two things. You need to give those charter operators great autonomy — to really free them from the education bureaucracy. You have to couple that with very strong accountability.
And finally, it is clear how Duncan twistedly reconciles both killing school choice and competition, and loving school choice and competition: It is all about who is doing the choosing. If schools and potential schools have to compete for the approval of government — of the same smarter‐than‐thou, bureaucratic apparatchiks who have given us atrocious public schools for decades — then that’s competition Duncan can embrace. But compete based on the approval and demands of the people the schools are actually supposed to serve, the people most interested in schools performing to high standards? In other words, compete for the approval and business of parents, especially without the choices first being fully vetted and approved by parents’ government betters? Well, that just shouldn’t be any choice at all!
Yesterday on Fox News' Special Report, Juan Williams had this to say about Obama's silence and Duncan's hostility to the DC voucher program, recently put on the chopping block by Democrats in Congress:
This is an outrage to me. ... This is so important that you give young people a chance to have an education in America and especially in a failing public school system like you have in the District of Columbia. This voucher system is a direct threat to the unions. And so I think everybody on Capitol Hill, that's getting money from the NEA or AFT, they should be called on the table. They should ask them, 'where do you send your kids to school? And are you willing to say these kids getting the vouchers...and doing better than the rest of the kids, that these kids aren't deserving of an opportunity to succeed in America?' You just want to scream. Why Duncan and Obama aren't in the forefront of education reform is an outrage and an insult to the very base that voted for them.
But we don't have to ask President Obama where he sends his kids to school, do we? We already know he sends them to the prestigious private Sidwell Friends school also attended by several of the poor DC voucher students. But those voucher students will only remain classmates of Sasha and Malia for another year or so. After that, they're out... because Barack Obama lacks the courage, the wisdom, or both to get his own party behind this program -- a program that his own education department has shown is a success. Better results at a quarter the cost, and the reaction of our unified Democratic government ranges from outright opposition to malign neglect.
Future generations will look back on these politicians and bureaucrats as the Oral Faubuses of the 21st century. Like Faubus, they will ultimately fail.
Like Faubus, their names will live in infamy.
The Obama administration’s stance on the voucher program is transparently political and insulting. President Obama claims he wants to help the poor and improve education, and yet he has aided and abetted Congress in the murder of the only federal education program with evidence of sustained and increasing achievement gains for participants (and at a quarter of the cost).
From Bloomberg today:
A spending law signed by Obama last month will end a program that gives low‐income parents tuition vouchers of as much as $7,500 a year to send their children to private schools. Among 54 participating schools are Sidwell Friends, where Sasha and Malia Obama are students, and Ambassador Baptist Church Christian School, where Sherrise Greene sends her two daughters and had wanted to enroll Marquis.
“I had high hopes that he would be attending with a scholarship with his sisters,” Greene said in an interview. “I’m just really hurt that it’s being ended, because I think it’s a good program.”
Ms. Greene should feel hurt. And she should be angry as well. Many of the scholarship parents are meeting tonight to force Congress and the administration to recognize that they are real people who will be hurt by this payoff to the teachers unions. I look forward to their protests.
The most loathsome character in this sordid story, perhaps … it’s difficult to choose … is Secretary of Education Arne Duncan. This self‐proclaimed “reformer” had this to say to the parents of this wildly popular and proven program:
Duncan said the Education Department findings don’t warrant a continuation of the voucher program, except for children already enrolled. While some students showed “modest gains” in reading, those who had switched to private schools from “low performing” public schools showed no improvement, he said in an e‑mailed statement.
How stupid and insignificant do Duncan and Obama think these parents and children are? The whole affair is disgusting.
Maybe, just maybe, word might finally be getting out, and people might finally be getting angry, about the dirty dealings in Washington, DC, that are quietly killing the city’s desperately needed school voucher program.
The story has been percolating for more than ten days, ever since the U.S. Department of Education staged a stealthy and too‐late‐to‐matter release of a study showing that DC’s voucher program works. But the coverage has largely been restricted to the blogosphere, along with a smattering of newspaper opinion pieces.
What might be changing that? A smarmy Education Department letter released late last week telling parents who thought they had won a voucher for the 2009-10 school year that no such voucher would be forthcoming. This despite the fact that the voucher program is not scheduled to end until 2010-11. Apparently, Secretary of Education Arne Duncan – who seems to be doing all of the political dirty work against DC school choice – decided that it just doesn’t make sense to let kids have a year of private schooling if they’ll just have to go back to DC public schools. Never mind that a year of good schooling is better than no good schooling, or that the program can still be saved if Congress and the DC City Council vote to reauthorize it — barring the door to quality education right now is clearly in the children’s best interest.
The department’s letter has finally sparked some news media interest in the plight of DC school choice. Spurred by the letter, this afternoon Fox News ran what, to my knowledge, is the first non‐opinion piece about the Obama administration’s quiet‐but‐deadly campaign against choice in DC. There is also word that voucher parents are beginning to organize a response to the assault on their children’s educational lifelines, with a strategy meeting scheduled for Wednesday night. Oh, and the opinion pieces keep on coming.
Sadly, as I and a few others have noted over the least week‐and‐a‐half, when it comes to education it seems that President Obama’s rhetoric about putting evidence ahead of politics is just that – rhetoric. Hopefully, more people are starting to see the dim, disappointing light.