Policy Interventions or Political Posturing?

National Journal posed the following question, to which Forum Director Chris Lubienski responds:

House Majority Leader Eric Cantor, R-Va., last Friday visited a private Catholic school, St. Mary's Academy in New Orleans, for a tour and a discussion with local education officials and families. The purpose of the visit, (gumbo and sazerac aside) was to promote Louisiana Gov. Bobby Jindal's education agenda, much of which has landed in court. "We want to explore what has been gained in terms of experience to see how we can learn from this at the federal level," Cantor said after the event.

Jindal, a rising star in the Republican party, last year announced an ambitious education plan for Louisiana that has been cheered by school choice advocates and booed by teachers' unions. The plan forms a virtual battleground for a difficult education debate in a state whose schools are ranked among the very worst in the country. Louisiana is the perfect place for radical school proposals, and Jindal doesn't shy away from the task. His plan includes private school vouchers, severely weakened teacher tenure, and fast-tracking for charter schools.

Last week, a Louisiana court threw out Jindal's teacher tenure evaluation measure, saying it violated the state constitution because it contained too many unrelated provisions. Late last year, the same court said the voucher program was unconstitutional because it diverted local tax dollars to private schools.

Jindal is unbowed by the setbacks. "When we embarked on this path of reform, we knew this would not be an easy fight because the coalition of the status quo is entrenched and has worked to hold Louisiana teachers and students back for decades," he said in response to the most recent court ruling.

American Federation of Teachers President Randi Weingarten cheered the ruling, saying elected officials can't force radical changes on the education system without consultation and deliberation. The court decision "should be a wake-up call to so-called reformers determined to ram through top-down dictates that undermine the voice of educators and public schools at all costs," she said.

What does Jindal's plan--and Cantor's interest in it--signify about Republicans' views on education? What is the impact on the public school system from school choice initiatives like Jindal's? What is the impact of eliminating the benefits of teacher tenure? Is it a direct attack on the teachers unions? Where can Democrats find common ground with Republicans in this conversation?

Dr. Lubienski's response:

Poor John White.  The Louisiana Superintendent�s efforts to do right (at least in his mind) by the state�s school children has earned him substantial credibility with the current crop of education reformers around the country.  But he also serves a governor who seems more intent on positioning himself with the right-wing of the GOP for a presidential run than on having a lasting beneficial impact on education in the Bayou state.

His boss, Governor Bobby Jindal has been causing quite a commotion, in the schools and in the courts.  He has tried to deepen and accelerate the market-oriented reforms that proliferated in post-Katrina New Orleans, expanding them across the state.  Jindal�s plan for education reform has a number of elements, but centers on:

�       expanding Louisiana�s voucher program statewide to students at more public schools

�       growing the supply-side by inviting more groups (including businesses) to provide education services

�       opening up more opportunities for �high quality charter operators� with �proven track records� to get established (so much for the local, independent �mom-and-pop� start-ups)

�       and, of course, cultivating a teacher labor market by undercutting tenure and salary scales, giving more authority to employers, and tying teachers� value to students progress.

But then a Republican-appointed judge throws out the tenure reforms on a technicality, and rules that the voucher program undercut local control of public education resources. 

Is that a problem for the Jindal education agenda?  Hardly.  After all, the point isn�t to get these things implemented in order to improve the education of Louisiana kids.  Indeed, there�s precious little clear and compelling evidence that things like vouchers, monetary incentives for teachers, or even charter schools necessarily raise achievement for students (consider the continuing widespread failure in RSD), much less that scaling-up even these programs will work with a wider population. 

Instead, the Jindal education agenda appears to be more about positioning the governor as the standard bearer for ALEC-inspired education reforms, probably in preparation for a run for national office where he�ll need the support of influential and well-heeled conservative groups.  In that sense, it doesn�t matter if these measures �work,� or even if they�re implemented, but only that his proposals demonstrate superior commitment to the cause of attacking unions and elevating market mechanisms.

In that regard, Eric Cantor�s recent visit was likely to produce more in the way of political insights into Jindal�s electability than any policy insights into the efficacy of these programs. 

Meanwhile, as the political circus proceeds through Baton Rouge, and his boss engages in political posturing, John White has a lot of kids in need of a better education.

School Vouchers - Legal Watch

This past week was National School Choice Week.  School Choice continues to be a major area of discussion in the current education policy debates. The National School Board Association recently released facts on voucher programs to counter National School Choice Week.  As school reform advocacy strengthens, this Country will continue to face increased pressure to develop voucher programs.  In 2002, the U.S. Supreme Court in Zelman v. Simmons-Harris[1], held that an Ohio school voucher program was not in violation of the Establishment Clause.  This ruling opened up the opportunity for other states to create similar school voucher programs. The increase in voucher programs has lead to an increase in litigation regarding the constitutionality of these programs.  The success of these legal challenges depends on the language in the individual state�s constitution.

Currently there are several school voucher cases that have been recently decided or are awaiting a decision. These decisions can shape the future of voucher programs.  On November 30, 2012, a Louisiana state court held that its state voucher program is unconstitutional.[2]   The Louisiana Scholarship Program is a program designed to provide students with additional opportunities to attend high quality schools. The voucher program provided vouchers to student within a certain income bracket to allow the opportunity to attend private schools.  Judge Timothy Kelley of State District Court ruled that the Louisiana voucher program is financed in a way that is in violation of the state constitution. The state used their Minimum Foundation Program (MFP), the state�s public school funding formula, to pay for the program.

Another voucher case, Meredith v. Daniels[3], is currently in front of the Indiana Supreme Court.   Meredith, questions the constitutionality of the Indiana school voucher program, the Choice Scholarship Program, hereafter �CSP�.[4]  CSP allows Indiana primary and secondary school students, within a certain household income, to receive voucher scholarships to attend private schools.[5]   The Indiana Marion County Superior Court held that CSP was not in violation of the Indiana Constitution.[6]  The court summarized that �interpreting Article 1, Section 6 to prohibit programs like the CSP would cast double on the validity of a host of other longtime religion-neutral state programs whereby taxpayers funds are ultimately paid to religious institutes by way of individual choice.�[7]  The Plaintiffs appealed this ruling to the Indiana Supreme Court.  On November 21, 2012, the Indiana Supreme Court held oral arguments for Meredith.  We are awaiting a decision on this case.  After listening to the oral arguments in this case, I did not anticipate there not being a decision two months after the arguments.   

The case of Larue v. Colorado Board of Education[8]is currently in the front of the Colorado  Court of Appeals.  Larue, challenges the Choice Scholarship Program, not to be confused with the Indiana CSP.[9]  �The Program, enacted by the Douglas County Board of Education on March 15, 2011, takes public funds provided by the State of Colorado�which are required by law to be spent on public schools�and uses them to pay for tuition at private schools. The vast majorities of these private schools are religious, are controlled by churches or other religious institutions.�[10]  The Plaintiff�s allege that the voucher program is in violations of six sections of the Colorado Constitution, and a public finance act.  The lower court agreed with the plaintiffs and issued an injunction in August 2011.[11]    Oral arguments for this case were held on November 19, 2012.  We are currently awaiting the Colorado Court of Appeals decision.  

In an Oklahoma case, Independent School District No. 5 of Tulsa County v. Spry,  the school district sued the parents regarding the constitutionality of a voucher program that provided vouchers to students with disabilities.[12]  The lower district court ruled that the voucher program was unconstitutional, however, on appeal, the Oklahoma Supreme Court refused to address the constitutionality of the voucher program because the school district did not have standing to sue the parents.  It stated in its unpublished decision, that �the school districts are not taxpayers themselves, whom this Court has long recognized have a right to challenge the illegal expenditure of public funds.�  The court further states, �the parents are clearly not the proper parties against whom to assert these constitutional challenges. We hold that the school districts have neglected to meet the threshold standing requirement for constitutional challenges.� [13]Considering that the court did not make a determination regarding the constitutionality, one could anticipate that the school district will look into possible future action.  This matter will most likely be brought again with individual citizens and taxpayers as the Plaintiffs and the Education Agency as the defendant. 

These school voucher decisions will impact education policy for the years to come.  As more organizations advocate for education reform, we will see more and more states create voucher programs.  The complication or ease in the creation of these programs will depend on the language in that state�s constitution.  The litigation involving these programs will continue to transform the definition of Public Education. Only the future will tell us what that definition will be.  On another note, what is going on with virtual charter schools in Pennsylvania?  I can smell the litigation!!!

 By:  Tiffany Puckett

---

[1]Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

[2]Louisiana Association of Educators, et al, v. State of Louisiana, case number and opinion not available.  The case was decided by the 19^th District Court in Louisiana.  Information regarding the opinion retrieved on December 1, 2012 from various websites, including, the Louisiana Association of Educators website located at http://www.lae.org/news.asp?nid=190. 

[3]Meredith v. Daniels, No. 49S00-1203-PL-00172, (Ind. filed Jan. 20, 2012).

[4]Id. 

[5]See Ind. Code �� 20-51-1-4.7; 20-51-4 et seq.; 20-51-4-1.

[6]Meredith v. Daniels, No. 49D07-1107-PL-025402, slip op. (Ind. Sup. Ct. Jan 13, 2012).

[7]Id. at 9.

[8]Larue v. Board of Education, No. 11CA1856 and 11CA1857. (Colo. Ct. App. filed Sept. 2011).

[9]Id.

[10]Plaintiff�s complaint, Larue v. Board of Education, No. 11CA1856 and 11CA1857.

[11]Larue v. Board of Education, No. 11cv4424 and No.11cv4427.  District Court, Denver County, unpublished opinion. 

[12] Independent School District No. 5 of Tulsa County v. Spry, 2012 OK 98, __ P.3d __, decided November 20, 2012, has not been released for publication.  Until such time it is subject to revision or withdrawal. 

[13]Id. 

Corporate Vouchers Victorious in Florida

When state legislators in Florida offer children and parents either a rundown, under-funded, segregated testing factory or a tax-supported corporate voucher to a Christian school, the school choice has already been made--and it hasn't been made by the parent or the child.

Nevertheless, a growing number of legislators in Florida have seen the light at the bottom of their vortex. They have convinced themselves that they are not voting for vouchers--they are voting for scholarships. They are not giving up their civic commitment to provide for citizens in order that corporations may be relieved of their tax burden--they are saving children, even if it is from their own legislative and moral failure to provide for those children.

The amount of democracy within a society is directly proportionate to the amount of civic space remaining there. Oh, well.

Clips from St. Petersburg Times:

In 2001, Democrats in the Legislature pounded Republican plans to start a private school voucher program for poor and predominantly minority kids. They said it was unconstitutional, a drain on public schools, even un-American. In the end, all but one Democrat voted against it.

Times have changed. This year, a bill to vastly expand the same program passed by large margins.

And this time, a third of the Democratic caucus was on board.

"I'm a strong advocate for public school education, and I'm not necessarily a strong advocate for vouchers," said Rep. Bill Heller, D-St. Petersburg, one of four Tampa Bay-area Democrats to vote yes. But "the bottom line has to be the child. If good things are happening for the child, then you can justify it."

. . . .

The legislation increases the amount of each scholarship to $3,950, up $200 from this year. The average cost per student in public school is about $7,000.

Some Democratic supporters say they back the program because unlike Opportunity Scholarships, the state's first voucher program � which the Florida Supreme Court struck down in 2006 � the money for tax-credit scholarships doesn't come directly out of state coffers. Some offered what critics call a semantic defense.

"I don't think I'm voting for a voucher," said Rep. Betty Reed, a Tampa Democrat who has 13 private schools in her district that accept tax-credit scholarships. "It's a scholarship." . . . .

The Special Needs of Georgia's Voucher Advocates

"Private schools are private schools, they are not obligated to take all these students. There's nothing in the law that requires them to do that." --Jeff Gagne, Overseer of the new Georgia voucher program

A significant cluster of all those children that conservatives do not want to leave behind is comprised of individuals with special needs. Since NCLB became law, these children, not to be left behind, have been forced to take tests that were not made for students with special needs and that, furthermore, do not assess learning that was supposed to accrue from these students' individual educational plans (IEPs). And because no NCLB subgroup's failing scores can be left behind, hundreds, if not thousands, of schools have been added to the federal failure lists because of entirely-predictable shortcomings of special needs students to score high enough to make AYP.

Enter, stage Right, parents and their legal advisors from the conservative think tanks to argue that public schools are not meeting the needs of their special needs students, and that, therefore, the parents of these children should be given vouchers to enroll their children where they can get the special attention they deserve. Remember the tests?

That was January, and now it is July, and Georgia has a brand new law that allows parents to receive a school voucher for their special needs child that is redeemable at any approved private or public school, religious or otherwise. Over a hundred private schools (50 of them religious) have already been approved by the state, and conservatives are high as a kite. In order to not get in the way of the sacred, invisible hand of the marketplace or God, as the case may be, the State has not intruded with bureaucratic requirements for these approved schools, such as certification requirements for teachers, the presence of programs for children with special needs, or regional accreditation (as required by public schools). Most importantly, however, these children now placed in private and religious schools no longer need to take the tests, remember the tests?, because the private schools, by virtue of being private, are not required to be accountable. The invisible hand, or the not so invisible one reaching into the taxpayers' pockets, will take care of all that accountability business.

Coming on the heels of the resegregation decision by SCOTUS, Georgia's voucher advocates have had most their special needs met now. Wealthier parents will be able to have their children classified special ed, declare they are not being served, and head off to the local Baptist academy with a fresh voucher. Poorer parents will have their children, who have been dragging down their schools' test scores, classifed for them and given the choice of a segregated religious school or a segregated secular private school. And that's the kind of choice that the choice advocates are shouting hallelujahs for. From Jim Wooten in the Atlanta Journal-Constitution:

. . . .The truly significant lesson from the week�s education news is that the marketplace has shown a willingness to embrace concepts that educrats think radical and that their interest groups and unions have resisted forever.

A successful introduction is not, however, success. Johnson [Georgia Senate sponsor of the Bill] and other supporters managed to resist attempts to saddle potential competitors with all the rules and regulations that cover traditional public schools. Critics note, for example, that private schools aren�t required to have curriculums tailored to special-needs children, or to hire certified teachers or those trained in special education. True enough.

They note, too, that competitiors are free to accept or reject applicants. True enough.

And hallelujah.

What�s happening here is that the locus of authority is tranferring from government to parents. For the first time in well over a century, the earth is moving in a direction that empowers parents � all parents, not just those with money.

For choice to be real, providers of education services should never, ever, be required to take every applicant. If they can�t serve a child�s particular needs � either because he�s disruptive, not up to grade, or deemed to have problems the school�s not equipped to address � they should be free to reject him.

When enough like-needs children exist, creative educators and entrepreneurs in the free market will create new schools. . . .

The freedom to "accept or reject applications" does not just apply to the white Georgia country clubs of a bygone era.

Cross-posted at Schools Matter.