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- Contents:
- IN THIS REPORT
Readers will find the details on a major judicial victory for Arizona parents and the school choice movement; many exciting state-level developments; an essay by David W. Kirkpatrick on “School Choice Movements and Precedents”; and the Editor’s View on “EFM Not Going Gently Into That Good Night.”
ARIZONA
The Arizona Supreme Court strongly upheld the state’s
1997 tuition tax credit law last month, signifying a major victory for
both parental freedom in Arizona and for the national school choice movement.
On January 26 the Court voted 3-2 against the opponents of the tax credit
law who claimed that the law was in violation of both the federal and the
state constitutions. The 1997 law allows taxpayers to take up to
$500 in tax credit for money donated to private school tuition organizations
and up to $200 for donations to public schools for extracurricular activities.
The majority opinion, written by Chief Justice Thomas A. Zlacket, states unreservedly that the law does not violate either the federal or the state constitutions, because the primary beneficiaries of the law are taxpayers, “parents who might otherwise be deprived of an opportunity to make meaningful decisions about their children’s education, and the children themselves.” Private schools are “at best only incidental beneficiaries.” Giving rightful credit to the legislature, the court ruled that the legislature passed the law in order to “encourage the development of educational settings that would invigorate learning, improve academic achievement, and provide additional choices to parents and children.”
In addition to upholding the Arizona law, the ruling provides precedent for other judicial rulings in the nation. The Arizona Supreme Court made two statements in particular that help the cause of parental freedom greatly. First, the court decided that the 1997 tax credit law does not violate the Arizona Constitution’s prohibition of using public funds “in aid” of religious schools, because they stated that tax credits do not constitute public funds. Second, even though the Court found that the language of Arizona’s Constitution does not constitute a Blaine Amendment — amendments found in some state constitutions that explicitly disallow public funds from ending up at religious institutions — the Court nonetheless quoted Joseph Viteritti of New York University in condemning the Blaine Amendment as a “clear manifestation of religious bigotry.” This is exactly the argument put forth by Fr. Virgil Blum in the 1950’s. What a great good that it should be pronounced so directly by one of the nation’s state supreme courts in 1999!
The Arizona decision (Kotterman v. Killian, No. CV-97-0412-SA) is available on the Arizona Supreme Court’s website (http://www.supreme.state.az.us). For detailed questions about the decision, contact either the Blum Center or the Institute for Justice at 202-955-1300. (January 27 memo from the Institute for Justice; Education Week, 02/03/99)
CALIFORNIA
Part of the effort to organize school choice activities
in California is now under the care of venture capitalist Timothy Draper.
Last year Mr. Draper created a website designed to mobilize grassroots
support for school choice (http://www.localchoice2000.com). Mr. Draper’s
website now features the draft of a school voucher ballot initiative, which
he assembled based on the input he received from California citizens.
The ballot initiative draft proposes the creation of a $4,000 tuition “annual
credit” program that would simultaneously provide alternatives to public
schools and increase per-pupil funding for students who remain in public
schools. The “Local Choice Amendment” could qualify for the ballot
as soon as March of 2000. (Forbes, 12/28/98; Local Choice Amendment website)
FLORIDA
On January 25 Governor Jeb Bush released his plan
for Florida schools, which contains a limited proposal that would allow
children in the worst-performing public schools to attend private and religious
schools using public funds. Bush said, however, that if public schools
perform well under his care, no such voucher plan would be necessary.
Under the proposal private schools would not be allowed to charge voucher
students more for tuition than the average amount spent on a public school
student. (Miami Herald, 01/26/99)
GEORGIA
State Senator Clay Land has proposed that lottery-funded
vouchers be provided to low-income children for use at public or private
schools of their choice. In order to qualify, a student would have
to come from one of the worst-performing schools in the state and would
have to come from a family that earned no more than twice the poverty rate.
(Atlanta Journal, 02/02/99)
MICHIGAN
A poll conducted February 1-4 by EPIC/MRA of Lansing
for the Detroit Free Press found that 77% of Detroit voters support a K-12
tuition tax credit for tuition paid to nonpublic schools. Sixty-five
percent would support a voucher plan. EPIC/MRA surveyed 502 Detroit
voters. (Detroit Free Press, 02/06/99)
NEW MEXICO
Governor Gary Johnson, now beginning his second
term, presented an eight-item education agenda for New Mexico schools in
his January 19 address. One of the eight items which Gov. Johnson
recognizes as a top priority for the improvement of New Mexico schools
is a voucher program. “We would lead the country with the simple
passage of a voucher bill,” said Gov. Johnson. Gov. Johnson began
voicing strong support at the end of 1997 and has been supporting school
choice legislation since then. His voucher proposal was defeated
in last year’s legislative session, but the effort ought clearly be touted
as a positive first step, especially considering Gov. Johnson’s reelection.
(Education Week, 01/27/99)
NEW YORK
Despite great opposition, New York Mayor Rudolph
Giuliani continues to push the idea of a limited voucher program for the
city. For his support of school choice Mayor Giuliani has now been
opposed by the United Federation of Teachers, the New York Civil Liberties
Union, State Assembly Education Committee Chairman Steven Sanders, Council
Speaker Peter Valone, and even an ally of his — Schools Chancellor Rudy
Crew. Many say that his proposal would be unconstitutional.
Nonetheless, Giuliani Senior Advisor Anthony Coles has said that “so long
as vouchers are given to parents, and parents can choose the school of
their choice, the program will be constitutional.” Giuliani and his
aides also say that because the program would be small and experimental,
it would require no more approval beyond the Board of Education. (New York
Times, 01/26/99; Newsday, 01/16/99)
PENNSYLVANIA
On February 4 Governor Tom Ridge proposed an Educational
Opportunity Grant (EOG) pilot program in his Budget Address to the General
Assembly. The program would begin with the 1999-2000 school year
and expand over an initial five-year period. Grants would be available
in six counties (Allegheny, Delaware, Chester, Lancaster, Montgomery, and
Philadelphia) and nine municipalities (Allentown, Altoona, Bensalem, Bristol,
Erie, Harrisburg, Reading, Scranton, and Wilkes-Barre). Student participation
would go from an estimated 40,000 in the first year to over 176,000 in
the fifth. The budget for the program would start at $63.6 million
in the first year and grow to an estimated $164.2 million in the fifth
year.
Initially, families with incomes of less than $15,000 per year could receive $700 grants for half-day kindergarten students and $1,400 for K-8 students. Families above the income eligibility level could receive, instead, $350 and $700 grants for the aforementioned levels. Income eligibility for the larger grants would rise to $25,000 in the second year, $35,000 in the third, $50,000 in the fourth, and $75,000 in the fifth. Grades 9-12 would not be included in the first year, but participating students would carry their grants to the next grade each year, eventually involving all of grades K-12. Gov. Ridge’s office is confident that the proposal will make significant progress this session. (02/04/99 memo from the Allegheny Institute; Philadelphia Inquirer, 02/03/99)
TEXAS
Not to be confused with above news from Florida,
Governor George Bush of Texas encouraged the legislature in his January
5 address to pass a pilot voucher program that would allow students in
poorly performing schools to transfer to private and parochial schools.
Gov. Bush said that the time is right for a limited experiment of this
kind. (Education Week, 02/03/99)
VIRGINIA
On January 13 Delegates Jay Kasten and Richard
Black, along with Senator Stephen Martin, introduced House Bill 1740, a
tax credit bill for parents who home school their children or send them
to private schools. Unfortunately, the House Finance Committee defeated
he bill already, on February 5. Parents would have been able to claim
up to $577 per student in the year 2000. By the year 2004 families
could have claimed up to $2,950. (Washington Times, 01/24/99; Virginia
General Assembly Website)
Noteworthy Items
* On March 26-27 the Allegheny Institute for Public
Policy will be hosting “The School Choice Declaration of Independence Conference”
at the Philadelphia Holiday Inn. Speakers include Milwaukee Mayor
John Norquist, Jersey City Mayor Bret Schundler, Richard Komer of the Institute
for Justice, and former Secretary of Education Lamar Alexander. For
details contact David Kirkpatrick, Senior Fellow at the Allegheny Institute,
at 717-232-2146.
* Correction: The correct phone number for Ms. Bert Holt, Director of the Cleveland Scholarship & Tutoring Program, is 216-787-5680.
* We became aware of some delivery problems with Freedom Report #67. If you did not receive it last month, please call so we can send you a copy.
On March 18, 1998, Pennsylvania’s Southeast Delco School District adopted a local student grant program to begin with the 1998-1999 school year. It would have provided $250 for each kindergarten student, $500 for every student in grades 1-8, and $1,000 for each grade 9-12 high school student to attend a school of his or her choice, public or private.
On April 16th a coalition of opponents asked the Delaware County Court of Common Pleas to stop the program. A July 28 legal maneuver asked the court to throw out the voucher plan without even a hearing. On October 14, Delaware County Judge Joseph Battle ruled against the program saying, “A common sense reading of the public school code results in a finding that there is not any express authority granted...” for the board’s action.
While proponents may appeal the decision they have not done so as of this writing. One reason why is that, since Judge Battle’s decision is primarily based on the Pennsylvania Public School Code, it could be overturned by legislative action without the necessity of expending time and money that a lengthy court case would require, or by amending the state constitution, which, in Pennsylvania, requires approval by two successive sessions of the legislature. This could take from two to four years, and the proposed amendment would be on the ballot for voter approval.
There is currently a strong possibility that the legislature and Governor Tom Ridge may approve a voucher proposal in the next legislative session. The state senator whose district includes the state capitol of Harrisburg has publicly predicted that such a law will be passed by June 1999. In that event it might be possible to incorporate in that legislation a modification of the public school code to give local school boards express authority such as that which Southeast Delco is attempting to exercise. Requests have already been made to Gov. Ridge, and to legislators, that such an amendment be passed.
An irony here is that the Pennsylvania School Boards Association (PSBA), which opposes vouchers, took the side of the Southeast Delco School Board before the court, arguing that the local district should have the broader authority to take such an action even though the PSBA would ultimately oppose the enactment of any such voucher program.
The Southeast Delco plan makes eminent sense, even from the point of view of the professional staff in the district, though they may not be able to see that at the moment.
In the past five years the enrollment in the district’s public schools has increased from 3700 to 4100 while enrollment in the local nonpublic schools has decreased by about 300, to 1900. The district is now approaching capacity. Should this trend continue it will face a costly school building program.
Assume that the district needs a new school for only 500 students. A new school can typically cost $30,000 for each pupil space, or $15 million for a 500-pupil school. And that’s just for construction costs. Adding the cost of interest, paying off a bond issue may double that cost by the time it is paid off. That could bring the total cost to $30 million or more — a very costly item in a district whose total annual budget is currently $32.6 million. And there would still be the annual instructional costs for the 500 pupils thereafter.
That’s $30 million that cannot be used to hire teachers, increase teacher salaries, buy computers or textbooks, repair and upgrade current buildings, or any of many other things the district might like or need to do. As David Boldt, former Editorial Page Editor of The Philadelphia Inquirer, once wrote, money that is spent on construction cannot be spent on instruction.
When opponents “win” by preventing effective and economical alternatives from being adopted that could avoid costly building programs, everyone loses — except, of course, those employed in the construction industry. In the case of Southeast Delco, which is not a wealthy district, which has both a significant senior citizen and nonpublic school population, and where taxes are already high, one way to pay at least partially for a new building would be to cut back in other areas — mainly reducing staff and increasing class size, since personnel costs, as in all school districts, make up most of the budget. Educators in such an instance may find they have won a Pyrrhic victory, at best.
There are ample precedents for those who care to look, judges or otherwise. A study a few years ago by Janet Beales found that public schools send 100,000 special education students to private schools. It has been said there are more than 3,000 private special education schools, and another 2,000 that house 353,000 juveniles under court care.
The Catholic church has 195 schools for disabled youngsters, for whom the schools receive public funds. In Pennsylvania, the Bethlehem diocese alone has three schools enrolling special education students, including those from area public schools who pay a tuition as low as $6500 per year, less than the public school spends on its own regular students.
Under federal programs for disadvantaged and disabled children, the U.S. Department of Education requires that private schools receive enough public funds to provide an education at least as good as that in the public system.
Even in Milwaukee the controversial voucher program has been upheld by the courts as constitutional. More than that, though, since 1986-87 the Milwaukee Public Schools (MPS) has contracted with community-based groups that educate up to 30% of the district’s at-risk students.
It is rare for any of these programs to face objection from the public school establishment and its defenders, or be faced with court challenges. The difference apparently arises from two facts. First, it is the districts that decide which students are removed from the regular classrooms, not the students and/or parents.
Second, it is the students with special needs, who
are at-risk or who cause difficulties, that are removed and sent to other
schools and institutions, including religious-related ones, at public expense.
No cries of “dumping” or “creaming,” (since it is the district that does
it, and retains the “cream”) or even taking students and money from the
district thus causing problems.
If districts can make such decisions without harm,
why can’t students and parents?
Although the year is young and legislative sessions have only just begun, 1999 has already shown itself to be a year of transition for school choice activity across the nation. As we mentioned in our summary of last year’s activity (Freedom Report #66), 1998 saw solid and exciting developments, including: very important and helpful legal decisions (those pertaining to the Milwaukee Parental Choice Program, for example); elections and re-elections of governors and other candidates who campaigned strongly in favor of parental freedom in education; and numerous polls demonstrating that the general public is ready for school choice. It is now clear that 1998 was a turning point in the school choice movement.
As of 1998, enough has happened that things are now happening
by themselves; the social inertia that has kept educational finance monopoly
(EFM) in place for so long is loosening. By no means is school choice
inevitable, but more of the nation is familiar and comfortable with the
idea than ever before thanks to the happy events of 1998. 1999 will
therefore begin a new stage in the progress of school choice. Especially
in places where school choice has taken root, the task will now be not
so much a matter of introducing the general public to the great evil being
done by EFM and to the great good which can be done with school choice.
Instead, the newer task will be to engage in an intermediate-level discussion
of how school choice will work.
It is wise at this point to ask: How do we prepare ourselves
for the continuation of progress? As the general public starts working
out the difficult questions of who, when, where, how, and why, it will
be ever more important for leaders of the school choice movement to remember
their north star: comprehensive parental freedom in education, meaning
that the educational rights of every parent match their responsibilities.
Proponents of school choice should prepare to respond to citizens who ask
questions about the concrete details of school choice. It will become
important for advocates of parental freedom not to be distracted by such
benevolent challenges. No questions are unwelcome if we use the north
star of comprehensive parental freedom to guide us to our end-goal.
So if proponents devote more effort toward the working-out
of details, what will the unhappy defenders of EFM do? Plenty of
evidence suggests that EFM will not die quietly. On July 26 of last
year — about a month after the Wisconsin
Supreme Court had upheld the constitutionality of the
newly-expanded Milwaukee Parental Choice Program — the state Department
of Public Instruction (DPI) announced that single-sex private schools could
not participate in the newly-expanded program. This attempted intrusion
is a perfect example of the desperate means to which staunch defenders
of EFM tend to resort when they see their monopoly in danger. In
our August, 1998, issue of the Freedom Report we characterized this event
as a final attempt of “EFM’s bureaucratic last bastion” to send in one
last “destructive torpedo.” DPI announced four days later that they
would not attempt to enforce their July 26 announcement, because they were
confronted with the threat of legislation that would act against them,
should they choose to proceed to enforce their announced policy.
Thus failed Wisconsin-EFM’s last-ditch, ridiculous effort to combat the
parental freedom that was so carefully secured by the Wisconsin legislature
and so diligently upheld by the Wisconsin Supreme Court.
EFM’s method of attack in this case from Wisconsin is not rare. It is cousin to the threat of “witch schools” that arose in California when Proposition 174 looked like it might provide California voters with the chance to deliver educational freedom to its citizens in 1993. The mentality that drives this kind of desperate action stems from EFM’s primary scare-tactic, and it can be heard from EFM defenders across the country: “School Choice is a crafty plan, being used to destroy the public school system.” School choice is most definitely not that. Those who know the north star of parental freedom know that if you love public schools, you love parental choice in education — the most certain way to encourage excellence in public schools.
As defenders of EFM become more desperate, funny though it may sound, they will need the help of more level-headed folks to see the true good of parental freedom in education and let go of the “old system” of monopoly. This will be the third stage of progress. To help prepare for that third stage of progress, it is good to recall that EFM is not a person, nor is it a group of people: it is a funding method — a poor way of doing things. Given the proper opportunities, reasonable people, even those with vested interests, will give up EFM’s poor way of doing things. We count on it. Mr. Adam Meyerson of the Heritage Foundation said it very eloquently in a piece that appeared in the Washington Times on January 20: “It is precisely because they care about public schools so deeply” that school choice supporters “denounce the ‘evil empire’ of monopoly and bureaucracy, of low standards and expectations.” Advocates of parental freedom must show themselves to be “friends of teachers and principals, friends of public schools.”
Some desperate defenders of EFM mentality may vow to go
down with the ship, closing themselves off from any genuine reform, but
it is in no one’s good interest to watch such a thing happen. To
ready ourselves for the third stage of progress, we must begin thinking
creatively about another new task: the task of joining with former defenders
of EFM to usher EFM to its grave patiently and diplomatically. Patience
is crucial, since these second and third movements will take time — certainly
longer than the first stage — and effort. Diplomacy demonstrates
genuine concern for the broader cause of American education. We do
not support school choice to see the downfall of anyone, least of all public
educators. We are fighting this battle to see the healing of American
education through much needed reform. Meanwhile, from the EFM defenders
who choose to go down with the ship, we can probably expect some shrill
screeches, wild tactics, and ungraceful endings. n
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The Blum Center grants full permission for all of its documents to be copied, in part or in whole, to extend the reach of the Center's messages and information. We appreciate it when our readers keep us apprised of state and national developments in the area of school choice, particularly legislative developments. Any Blum Center documents not available on our web page may be obtained by contacting us by telephone, fax, or mail. Virgil C. Blum Center for Parental Freedom in Education |
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