educational choice

Win for School Choice in Georgia

Lost in all the commotion over the U.S. Supreme Court’s several decisions today is another important decision with ramifications for school choice. The Georgia Supreme Court unanimously ruled in Gaddy v. Georgia Department of Revenue that plaintiffs had no standing to challenge the state’s tax-credit scholarship program because the scholarship funds are private funds, not a government expenditure:

We also reject the assertion that plaintiffs have standing because these tax credits actually amount to unconstitutional expenditures of tax revenues or public funds. The statutes that govern the Program demonstrate that only private funds, and not public revenue, are used.

The program allows donors to receive tax credits in return for contributions to qualified nonprofit scholarship organizations that help families send their children to the schools of their choice. Plaintiffs asserted that the program violated Georgia’s Blaine Amendment, which prohibits the state from giving public funds to religious schools. However, as we explained in our amicus brief, no public funds are involved. “Taxpayers choose to donate voluntarily using their own private funds and receive a tax credit for the amount of the donation; no money ever enters or leaves the treasury.” Neither does the state direct where the funds are used. “The state exercises no control over which scholarship organizations donors choose to support, which students receive scholarships, or at which schools parents choose to use the scholarships.” The Georgia Supreme Court agreed:

Individuals and corporations chose the [scholarship organizations] to which they wish to direct contributions; these private [scholarship organizations] select the student recipients of the scholarships they award; and the students and their parents decide whether to use their scholarships at religious or other private schools. The State controls none of these decisions. Nor does it control the contributed funds or the educational entities that ultimately receive the funds.

“Today’s victory has secured Georgia parents’ right to continue choosing the best education for their children,” stated Erica Smith, an attorney for the Institute for Justice, which represented scholarship parents in the Gaddy case. “This Court correctly recognized that government should promote educational opportunity and choice, not limit it as the plaintiffs proposed.” 

Want Satisfied Parents? Empower Them to Choose

Parents are more satisfied with their child’s learning environment when they choose it. Indeed, as economist Tyler Cowen put it recently, “the single most overwhelming (yet neglected) empirical fact” about educational choice programs is that “they improve parent satisfaction.” A slew of new reports add a number of hefty boulders to the mountain of evidence. 

As I explained in greater detail last week, bureaucrats tend to focus excessively on test scores but parents take a more holistic approach to evaluating the quality of an education provider. As Cowen notes, “parents may like the academic programs, teacher skills, school discipline, safety, student respect for teachers, moral values, class size, teacher-parent relations, parental involvement, and freedom to observe religious traditions, among other facets of school choice.” Parents know their children are more than scores.

Voters generally tend to reflect the views of parents more so than education technocrats. In a recent survey from Public School Options, only 14 percent of voters said they “consider state standardized test scores the critical factor in assessing a student’s overall success in school” and 78 percent said that schools “should never be closed primarily on the results of that particular school’s average” on the state’s standardized test. Moreover, 65 percent said they “believe an ongoing summary of each school’s status using a dashboard of multiple measurements would be more helpful to parents and policy makers” than a “system that provides a single letter grade for each school.” If we want an education system that considers the individual needs of each child rather than grading schools on a few narrow measures of performance for an imagined “typical” child, then we should entrust parents with holding education providers accountable for academic outcomes.

Education savings accounts (ESAs) are one way to accomplish that goal. With an ESA, parents can customize their child’s education, using it to pay for private school tuition as well as tutors, textbooks, online courses, educational therapy, and more. The ESAs are typically funded from a portion of the funds that the state would have spent on a child at his or her assigned district school, but they could also be funded through tax-credit eligible donations. In a 2013 survey, Arizona parents of students with special needs expressed unanimous satisfaction with the educational settings they chose for their children using the ESA funds. Moreover, the lowest-income families were the most likely to express dissatisfaction with their assigned district school (67 percent) and the most likely to say they were “very satisfied” with the education their child obtained through the ESA (89 percent).

Last week, Empower Mississippi released a similar survey of parents of students with special needs using Mississippi’s ESA. Participating students had an array of conditions, including autism, hearing or visual impairments, traumatic brain injuries, speech impairment, emotional disturbances, and more. The results mirrored those from Arizona. As shown in the two figures below, most participants were dissatisfied with their previous experience in their assigned district school (67 percent) but they overwhelmingly expressed satisfaction with the educational setting they chose using ESA funds (98 percent). 

Empower Mississippi: Parental Satisfaction

Source: Empower Mississippi

Want Accountability in Education? Empower Parents

The selection of Betsy DeVos for Secretary of Education has exposed longstanding tensions among education reformers who are united in their support for expanding educational choice but divided over the government’s role in regulating such programs.

The schism is often portrayed as being between those who support or reject “accountability,” but this isn’t quite accurate. The real disagreement is not whether there should be accountability, but to whom schools should be held accountable: parents or bureaucrats. As Lindsey Burke and I argue in a new report published by the Heritage Foundation and the Texas Public Policy Foundation, educational choice programs like education savings accounts should place the accountability for academic outcomes with parents.

For decades, the term “accountability” primarily referred, in education policy circles, to government regulations intended to ensure quality. That’s because most children attend their assigned district schools, which are not directly answerable to parents and function as de facto monopolies. As Lindsey and I explain:

A distinctive feature of monopolies is lack of accountability. Because district schools are not held directly accountable to parents, some policymakers have attempted to impose accountability through top-down government regulations. Yet decades of attempts to regulate district schools into quality have had little effect. Unfortunately, too many policymakers have still come to see centralized government regulations as synonymous with “accountability” rather than an inferior alternative to direct accountability to parents, and have therefore sought to impose similar regulations on choice programs. However, regulations designed for a monopoly system are inappropriate for a market-based system.

In a market-based system, producers are held directly accountable to consumers for results. The government sets certain rules against fraud or health and safety standards, but the consumers ultimately decide whether a product or service meets their needs. Likewise, the government could ensure that ESA funds are spent on qualifying educational products and services, but the accountability for results should lie with parents, who are in the best position to evaluate those results. Holding education providers directly accountable to parents creates a feedback loop that does not exist in more centralized, top-down systems like the district schools. As social scientist Yuval Levin has argued, this enables the system to “channel social knowledge from the bottom up rather than…impose technical knowledge from the top down.” This channeling is accomplished “through a process of experimentation, evaluation, and evolution.”

If we want an education system that makes significant improvements in quality over time, education providers must be free to innovate and parents must be free to choose the providers that work best for their own children. This system evolves over time because higher-quality providers will attract more parents and lower-quality providers will face pressure to either improve or shut down.

However, technocratic attempts to guarantee quality through imposing uniform standards can interrupt this evolutionary process.

The Price of Technocratic Accountability

The technocratic approach to accountability requires that all schools are judged according to uniform metrics, therefore the technocrats rely heavily (indeed, almost exclusively) on standardized test scores, particularly in math and language arts. The technocratic reformers want to use these scores to set a minimum standard, meaning “underperforming” schools would be excluded from receiving voucher funds–or, in the case of charter schools, be shut down entirely–even against the will of parents who still want to enroll their children there.

Let us be clear about what is at stake. The technocratic approach would eliminate a family’s least-bad educational alternative, leaving children worse off “for their own good.” For example, parents may have chosen a private or charter school that did not perform well on the state’s standardized test overall, but the school may have provided a safer environment than the local district school. Or perhaps the school was succeeding at its mission to aid the most at-risk students, but the state’s uniform “accountability” system failed to take its mission into account. The damage done to children who lose the opportunity to attend schools that their parents believe are better than the alternative is incalculable.

We should also be realistic about the unintended consequences of over-reliance on test scores. Although standardized tests can provide parents with useful information about their child’s academic performance, using them to impose uniform standards that so narrowly define “quality” creates perverse incentives that narrow the curriculum, stifle innovation, and can drive away quality schools from participating in the choice program. As Lindsey and I explain:

When schools are rewarded or punished based on their students’ performance on math and reading tests, they have a strong incentive to divert their time and resources to tested subjects and away from others. A study by the Center on Education Policy found that the time district schools spent on subjects besides math and reading declined considerably after Congress enacted the No Child Left Behind Act (NLCB), which mandated that states require district schools to administer the state standardized math and reading tests in grades three through eight and report the results. In the five years after NCLB was implemented, approximately 62 percent of elementary district schools reported increasing the amount of time spent on English language arts and/or math, and 44 percent reported decreasing time spent on social studies, science, art and music, physical education, lunch, or recess.

The narrowing curriculum is particularly alarming because, as Jay P. Greene has noted, recent research has found that “later success in math, reading, and science depends on early acquisition of the kind of ‘general knowledge’ and fine-motor skills learned through art and other subjects.” In other words, a narrower curriculum not only deprives students of having a broader and more enriching education, but also negatively impacts their performance in the tested subjects. “If we narrow education to the mechanics of math and reading as captured by yearly testing,” Greene concludes, “we short-change the broader knowledge that is the key to academic success later.”

Mandating a single test exacerbates this phenomenon. Within the tested subjects, schools have a strong incentive to teach the concepts that will be on the mandated test. This incentive to “teach to the test” can result in a de facto curriculum. For example, if a school had been teaching math concepts A, B, and C in grade 7, but the new state test was going to cover concepts B, D, and E, the school would almost certainly drop concepts A and C in favor of D and E, even if the math teachers believe that the original curriculum was superior. Keeping the original curriculum would put their students at a disadvantage on the state test vis-à-vis students at other schools that had aligned their curriculum to the test. This standardization might make sense in a world in which there was one right way to teach math, or at least one right order to teach concepts, but that is not the case.

Again, this isn’t to say that we should do away with testing entirely. As Robert Pondiscio recently wrote, standardized tests should be “used to illuminate and inform parent choice, but not to limit it.” Tests can provide valuable information, but using the tests as the sole or primary metric of performance does more harm than good. What’s needed is a more comprehensive understanding of quality that considers the needs of individual students, not just the “typical” student, and that’s something that parents are in a much better position to determine than technocrats.

Markets in Education Work, But Keep the Feds Out of It

President-Elect Trump’s selection of philanthropist and long-time school choice advocate Betsy DeVos for Secretary of Education has the public education establishment and its allies in panic mode. American Federation of Teachers President Randi Weingarten tweeted “Trump has chosen the most ideological, anti-public ed nominee since the creation of the Dept of Education.” Over at Slate, Dana Goldstein frets that “Trump could gut public education“—even though federal dollars account for less than 10 percent of district school funding nationwide. The New York Times has also run series of hand-wringing pieces about what the Trump administration has in store for our nation’s education system.

At the center of the panic over Trump’s nomination of DeVos is their support for school choice. Although light on details, Trump has pledged to devote $20 billion to a federal voucher program. As is so often the case, the most vocal opponents of federal school choice are right for the wrong reasons. Not only does the federal government lack constitutional jurisdiction (outside of Washington, D.C., military installations, and tribal lands), but a federal voucher program poses a danger to school choice efforts nationwide because a less-friendly future administration could attach regulations that undermine choice policies. Such regulations are always a threat to the effectiveness of school choice policies, but when a particular state adopts harmful regulations, the negative effects are localized. Louisiana’s folly does not affect Florida. Not so with a national voucher program. Moreover, harmful regulations are easier to fight at the state level than at the federal level, where the exercise of “pen and phone” executive authority is increasingly (and unfortunately) the norm.

Many of Trump’s critics have not addressed very real federalism concerns, but have instead used the DeVos appointment to attack school choice generally, particularly its more free-market forms.

Fact-Checking the Dallas Morning News on School Choice

In a recent editorial, the Dallas Morning News inveighed against expanding educational choice in Texas, arguing that legislative leaders should “focus on improving public schools” instead. What the DMN editorial board means, of course, is “spend more money,” as they make clear in the penultimate paragraph. Yet although the national average annual expenditure per pupil for district school students has, after adjusting for inflation, nearly tripled in the last forty years, student performance remains flat. Moreover, there is little evidence that merely increasing spending improves school performance or student outcomes. Nevertheless, the DMN has reservations about the possible effects of expanding educational choice:

One proposal would create education savings accounts. If a parent decides against public schools, the money that would have gone with the student to the local school district would instead go to the account, for parents to use on private school.

That could decimate public schools. What about the quality of education for the students left behind?

Carpe Diem: Fix the Nevada ESA Funding Issue

In 2015, Nevada lawmakers passed the most ambitious educational choice law in the nation: a nearly universal education savings account (ESA) program. The program was scheduled to launch this year, but it immediately drew two separate lawsuits from opponents of educational choice. Last week, the Supreme Court of Nevada upheld the constitutionality of the ESAs, but ruled that the program was improperly funded. Choice opponents were quick to declare that the ESA program is dead, but as Tim Keller of the Institute for Justice noted, the program is only mostly dead, which means it is slightly alive.

Whether the program is fully revived depends entirely on the lawmakers who won plaudits for enacting it in the first place. On Monday, the legislature will meet in a special session to consider whether to subsidize the construction of a football stadium for the Raiders. Fixing the ESA funding would be a much more productive and beneficial use of their time. Sadly, Governor Brian Sandoval announced this week that ESAs would not be on the agenda:

Passage of Education Savings Accounts (ESAs) set a national precedent for school choice and symbolized a significant step toward education equality for every student. I recognize the magnitude of this sweeping policy measure and consider it a major component of the reform package ushered in during the last legislative session. Protecting this program is a top priority for me. There is simply not enough time to add it to next week’s Special Session with full confidence that a rushed outcome will pass constitutional muster.

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.

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.

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