School Choice
Chapter 10
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Using public funds for private schools has a major impact on the overall aspects of school finance. Although the public, in general, supports its local public schools, forces continue to promote using taxpayer dollars to assist in providing revenues for nonpublic schools. Legislators, private entrepreneurs, and some citizens are questioning the ability of personnel in the public sector to operate the schools efficiently and to offer enough options to meet the needs of students. Privately sponsored schools have been encouraged for those groups and individuals who are willing to support them financially in addition to participating in financing the public school system. However, such groups have become more vocal, stressing that because the states have a responsibility to provide a free education for the school-age population, they should provide for students in both private and public schools. The use of public funds for educating children in private schools was essentially a non-issue for more than a century. The interpretation of the First Amendment of the U.S. Constitution as part of the Bill of Rights (1791), as well as established state codes, was that an interrelationship between church and state was prohibited, and that direct government support for private or parochial schools was illegal. In 1875, President Ulysses S. Grant called for a Constitutional Amendment that would prohibit the use of public funds for private “sectarian schools.” Motivated by Grant’s speech, Congressman James G. Blaine proposed the following amendment in the U.S. House of Representatives: No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof, and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted therein, shall ever by under the control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations.1 Blaine’s proposal passed the House but did not pass by two-thirds vote in the Senate. The proposal had a great impact on states; however, as many as 37 states included laws with similar criteria with some included in state constitutions.2 The State Blaine influence has been felt in several court cases as late as 2015. The first court case that opened a door for those who advocated using public funds for church-related schools was Pierce v. Society of Sisters (268 U.S. 510, 1925). In its ruling, the U.S. Supreme Court stated, “The fundamental theory of liberty under which all governments in this union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers.”3 From this decision to the present day, many changes have occurred that have had and will have a great effect on financing public schools during the next decade. The arguments for and against the use of public funds for nonpublic schools have changed little in the past half century, as seen here: Parents should have freedom of choice in the education of their children at public expense. There is no evidence to support the contention that divisiveness in education will be caused by the existence and operation of nonpublic schools. The failure of nonpublic schools would have a tremendous financial impact on public education. The free exercise clause of the First Amendment allows such action. The Fourteenth Amendment due process clause promotes it. Opponents of financial aid to nonpublic schools make the following arguments: Parochial aid represents a backward step, as this country once maintained such a system of education but has since altered the concept. Private schools may tend to discriminate against students in terms of race and religious background. Such a practice violates the establishment clause of the First Amendment. Solution of the problem should be based on principle, not on economic considerations. Public education is underfunded; if additional revenue becomes available, it should be expended in public schools. About 10 percent of U.S. students in kindergarten through grade 12 are enrolled in nonpublic schools. In the fall of 2011, there were 30,861 private elementary and secondary schools in the United States, serving 4,494,845 students and employing 420,880 full-time equivalent (FTE) teachers. Within these private schools, 68.0 percent of students attended parochial schools; 32.0 percent attended privately sponsored schools.4 Enrollments have generally remained quite constant. However, with the downturn in the economy in 2009–2013, enrollments dropped, and the number of schools decreased. A report released by the National Center for Education Statistics in July 2013 notes that students being taught at home increased by almost 300,000 from 2007 to 2012. The totals increased from 850,000 in 1999, to 1.1 million in 2003, and to 1.5 million in 2007. The new report indicates that approximately 1.77 students are home schooled which is nearly 3.4 percent of the total school-age population.5
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The problem of the state financing education provided by nonpublic schools is not merely a question of the number of students or the number of schools involved; there is also the question of where those schools and students are located. Nonpublic schools and students are typically concentrated in states with large populations. Major closings of nonpublic schools in these states would impose a tremendous financial burden on their public schools. The effect might be even more dramatic for smaller states in which students in private schools account for a large percentage of the total student population, such as Rhode Island (16 percent). Failure of nonpublic schools in states with a small percentage of private schools m
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THE LAW AND CHURCH–STATE RELATIONS
· Determining an acceptable relationship between church and state has been a concern in this country since its founding. The early New England colonies, except for Rhode Island, made the Congregational Church their official church, whereas the colonies south of Maryland were Anglican. New York had a “multiple establishment” pattern of church–state relationship. Only Rhode Island, Pennsylvania, and Delaware had no officially established church. Vestiges of church–state relations have persisted in many areas in one form or another.
· Legal Provisions for Separation
The U.S. Constitution Article VI, Section 3, and the First Amendment placed in U.S. law the principles of freedom of religion and separation of church and state. Article VI provides that “no religious test should ever be required as a qualification to any office or public trust under the United States.” How to provide the proper and complete application of these principles is highly controversial. The Fourteenth Amendment, often referred to as the “due process” amendment, was established in 1868. In the years since its inception, it has been interpreted by the courts as applying the First Amendment and other federal guarantees to the individual states. It provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny any person within its jurisdiction the equal protection of the laws.”
The Courts and the Child-Benefit Theory
· The Supreme Court of the United States has ruled a number of times on the legal relationship of church and state as intended by the amendments to the Constitution. For the various state legislative bodies and for the people in general, the Court’s decisions have had varying degrees of palatability. The lack of complete support by the states for the federal position is partially vindicated by the general lack of unanimity among the Court members themselves in many of these decisions, some of which were made by the narrowest possible vote of the Court. In Cochran v. Louisiana State Board of Education,6 the U.S. Supreme Court upheld the practice of Louisiana in providing free textbooks, paid for by tax funds, for pupils attending nonpublic schools. In the view of the Court, this was not a violation of the First or Fourteenth Amendment and was therefore legal. The basis for this reasoning was the child-benefit theory, which held that funding benefited the child (directly), not the private school or the churches (which benefited indirectly). In its ruling in Everson v. Board of Education,7 the Supreme Court held that New Jersey’s practice of allocating tax funds to school districts to reimburse parents for the cost of bus fares to attend nonpublic schools was legal and did not violate the First or Fourteenth Amendment. Seeking the protective cloak of the child-benefit theory, the Court regarded the action as safe, legal, and expeditious public welfare legislation. The decisions in Cochran and Everson are not binding on other states; such actions remain an individual state decision. A few of the states have reacted by aligning their policies in support of the Cochran decision; about half of them have accepted the essence of the Everson verdict. However, state courts in Alaska, Wisconsin, Oklahoma, and Delaware “have struck down enactments authorizing free busing of children attending denomination[al] schools.”8 Connecticut and Pennsylvania courts upheld some variations of the Everson decision. In other rulings, the U.S. Supreme Court (Meek v. Pittenger, 421 U.S. 349, 95 S. Ct. 1753) has allowed textbooks to be loaned to nonpublic school students, but disallowed the use of public funds to purchase services and instructional materials and equipment for them. The Court (Wolman v. Walter, 433 U.S. 229, 97 S. Ct. 2593) has also ruled that the provision of books as well as testing and scoring and diagnostic and therapeutic services to nonpublic school students is constitutional, based on the child-benefit theory. State support of field trips and instructional materials and equipment has been ruled unconstitutional, as these measures aid the school rather than the child per se.
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· One of the first setbacks for opponents of using state funds for parochial schools came in Pennsylvania in 1968. The court passed an act authorizing the state superintendent of public instruction to contract for the purchase of secular education services for students from nonpublic schools located in the Commonwealth. The legislation provided that certain revenues from state harness racing should go into a nonpublic elementary and secondary education fund for the financing of all of these expenditures. No public school funds were involved. In this case the state court ruled the law “neither creates nor supports the establishment of religion.” Because the Pennsylvania legislation was controversial and might potentially influence other states, further litigation was expected. It soon materialized: Suit was brought against the state superintendent of public instruction and the state auditor general. The plaintiffs, including many professional and religious groups, charged that the legislation violated the First and Fourteenth Amendments to the U.S. Constitution. Acclaim for the action in Pennsylvania was short-lived. The U.S. Supreme Court in Lemon v. Kurtzman (403 U.S. 602 [1971]) declared the law to be in violation of the First and Fourteenth Amendments. The Lemon case became the touchstone for future cases dealing with funds for private and parochial schools and a broader measure for guiding church–state decisions. It established what was to be known as the Lemon test The three prongs of this test are as follows: The statute must have a secular legislative purpose. Its principal or primary effect must be one that neither advances nor inhibits religion. The statute must not foster an excessive government entanglement with religion.9
Other Court Action
The courts have often relied on the Lemon test in reaching decisions on state–church matters. Although not specifically directed to the education finance issue, many of these cases involve public schools. The Lee v. Weisman case (decided in 1992),10 the Jones v. Clear Creek Independent School District case (decided in 1992),11 and the Goluba v. Ripon case (decided in 1995)12 dealt with uncertainty regarding how the church–state relationship operates. These cases involved the constitutionality of ceremonial prayer at public school events such as graduation. In Weisman, the U.S. Supreme Court held that “religious exercises may not be conducted at a graduation where those who object to the prayer are induced to conform.”13 In Jones, the Fifth Circuit held that such prayers were constitutional, if they were student initiated. The Court stated, “The practical result of our decision . . . is that students can do what the state acting on its own cannot do to incorporate prayer in public high school graduation ceremonies.”14 This case was appealed to the U.S. Supreme Court, which remanded it back to the Circuit Court. In 1995, the Seventh Circuit ruled in Goluba that when a graduating student’s initiated prayer occurred—even when school officials were aware that it would happen—such action was acceptable. In 2000, in a case involving prayer at high school football games, the U.S. Supreme Court in Santa Fe Independent School District v. Doe (Case No. 99-62) struck down the practice of student-led prayer at such events. One reason given was that the microphone used in prayer was purchased with taxpayers’ money. Since this ruling, prayers in the South have continued without using a microphone. Court cases related to this issue are expected to continue, citing Santa Fe as a precedent. More directly related to the finance issue, the U.S. Supreme Court acted simultaneously on
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three appeals: Tilton v. Richardson, Lemon v. Kurtzman, and DiCenso v. Robinson. In considering the cases, the Court looked at a number of issues: Is aid to church-related colleges and universities constitutionally different from similar aid to church-related elementary and secondary schools? May the state or the federal government, or both, provide direct aid to nonpublic schools, or must they confine themselves to indirect assistance like that already approved in the Everson and Cochran cases? To what extent do these cases support or violate the establishment clause, which requires avoidance of excessive government involvement or entanglement with religion?15 In Tilton, the Court sustained the Connecticut issue for public aid to colleges and universities. In Lemon, it rejected the Pennsylvania law to aid nonpublic elementary and secondary schools. And in DiCenso, the Court rejected the Rhode Island plan for supplementing teacher salaries in nonpublic schools. These cases determined that there is less likelihood of state involvement or entanglement in the affairs of a church-related college than in a church-related elementary or secondary school.16 The Lemon test held firm through many court cases. It was not, however, universally accepted as the final word by all judges, as expressed in the following opinion by Chief Justice Warren Burger: The Court’s extended treatment of the “test” of Lemon . . . suggests a naïve pre-occupation with an easy, bright-line approach for addressing constitutional issues. We have repeatedly cautioned that Lemon did not establish a rigid caliper capable of resolving every Establishment Clause issue, but that it sought only to provide “signposts”. . . . (O)ur responsibility is not to apply tidy formulas by rote; our duty is to determine whether the statute or practice at issue is a step toward establishing a state religion.17 Continued criticism mounted on the application of the Lemon test. In the Goluba case, the U.S. Department of Justice, in a friend-of-the-court brief, urged the Supreme Court to scrap the Lemon test and allow “for greater civic acknowledgments of religion in public life.”18 In more recent rulings, various judicial opinions have indicated that using the test as a guide may be prejudicial. Justice Antonin Scalia and Chief Justice William Rehnquist in 2005 questioned the viability of the Lemon test, and currently the law literature is replete with articles questioning its use.19 Evidence of the controversial nature of many other state and federal plans for using or not using public funds for nonpublic schools is shown by the following representative examples of many laws and court rulings: The U.S. Supreme Court ruled against tax benefits for any private segregated school set up in Mississippi to avoid integration. The Maine Supreme Court ruled against legislation related to church–state issues. The court pointed out that financial conditions created by closing parochial schools were not the issue—the U.S. Constitution, not economics, was at stake. The California legislature made profit-making enterprises not connected to their tax-exempt purpose (religion) subject to the state’s 7 percent tax on net income. The West Virginia Supreme Court ruled that county school systems must furnish bus transportation to parochial school students. A New York law that would have provided $33 million per year to church-related schools for teacher salaries, instructional materials, and other costs of instruction was declared unconstitutional by a three-judge federal panel.
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The National Defense Education Act, the Elementary and Secondary Education Act, the Education and Consolidation and Improvement Act of 1981, the Improving America’s Schools Act of 1994, and the No Child Left Behind Act of 2001 have all provided federal funds to public school districts that aid students in nonpublic schools via the “pass-through” provision. The U.S. Eighth Circuit Court of Appeals unanimously overturned a lower court decision in a Missouri case (Pulido v. Cavazo), which held that the U.S. Department of Education’s allocation of Title I funds that provided “off the top” money to supply leased mobile vans or portable classrooms for pupils in religious schools was unconstitutional. In a split vote, the panel also overturned the lower court’s ruling that such vans and portable units could not be placed on the property of a church-affiliated school. The Circuit Court said that the units would be viewed as “religiously neutral” under proper circumstances.20 In Sloan v. Lemon, the U.S. Supreme Court held that Pennsylvania’s Parent Reimbursement Act for Nonpublic Education was unconstitutional. This legislation provided funds to reimburse parents for some of the tuition expenses they incurred to send their children to nonpublic schools. The Court also ruled unconstitutional a New York statute that provided funds for nonpublic schools serving low-income families. The funds were to be spent for the maintenance and repair of buildings, for tuition grants, and for certain tax benefits for low-income parents of students attending nonpublic schools. The major arguments presented against the Pennsylvania and New York laws were as follows: Providing state funds for nonpublic schools violates the establishment clause of the First Amendment to the U.S. Constitution. Such allocation of funds could have a serious effect on the capability of the public schools to discharge their responsibility. Such funding would divert money from public education to private education. This funding would tend to renew the conflict over church–state relations. Such funding would increase the number of students in nonpublic schools and change the mix of students in public schools. In reviewing Sloan v. Lemon (Pennsylvania) and Committee for Public Education and Religious Liberty v. Nyquist (New York),21 the Supreme Court rejected both statutes, stating that the “maintenance and repair provisions violate the Establishment Clause because their effect, inevitably, is to subsidize and advance the religious mission of sectarian schools.” It held that the tuition reimbursement parts of both statutes fail the “effect” test for the same reason as those governing the maintenance and repair grants. The Court ruled that the tax benefit to parents of nonpublic school children did not fit the pattern of property tax exemptions sustained in Walz v. Tax Commission.22 (In the view of the Court, tax exemptions for property used solely for religious purposes tended to reinforce the separation of church and state and to avoid excessive government entanglement with religion.) The controlling factor, in the view of the Supreme Court, was that although both statutes would aid all nonpublic schools, 90 percent of the students affected were attending schools controlled by religious organizations. Thus, the statutes had the practical effect of advancing religion. In Aguilar v. Felton, the point at issue was that nonpublic schools were being used (and reim-
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bursed by the state) as “part-time public schools.” These religious schools identified themselves as public during the time they were teaching secular subjects. The U.S. Supreme Court held that this practice was unconstitutional: Schools in this case are thus “pervasively sectarian,” [and] the challenged public school programs operating in the religious schools may impermissibly advance religion in three different ways. First, the teachers participating in the programs may unintentionally or inadvertently inculcate particular religious tenets or beliefs into the curriculum. Second, the programs may provide a crucial symbolic link between government and the school indicating a support of the religious denomination operating the school. Third, the programs may have the effect of directly promoting religion by impermissibly providing a subsidy to the primary religious mission of the institutions affected.23 To circumvent this ruling, many districts in the country, including New York City, leased or purchased mobile classrooms (vans or trailers) that traveled to parochial schools to provide the mandated services to qualifying Title I students. Congress appropriated some capital expense money for compliance with Aguilar v. Felton, and the U.S. Department of Education required that if the allocated funds were insufficient, money would need to come “off the top” of the state’s entire Title I allocation.24 This issue was readdressed in Agostini v. Felton, which eventually made its way to the U.S. Supreme Court.25 The appeal was based on the premise that the previous ruling cost taxpayers millions of dollars and that a new look at the entanglement question was warranted. A brief filed on behalf of the U.S. Department of Education noted, “Aguilar has led to considerable cost to education and the public but has yielded little constitutional benefit, in the sense of preventing any real entanglement between governmental and religious institutions.”26 The Court reviewed the Agostini case, and by a 5–4 vote, overturned the 1985 Aguilar decision. Some believe that Agostini altered the thinking of the Lemon test; it changed the requirements in the Aguilar decision. Justice Sandra Day O’Connor, writing for the majority, stated: New York City’s Title I program does not run afoul of any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion. It does not result in government indoctrination, define its recipients by referent to religion, [or] create an excessive entanglement between government and religion. We therefore hold that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid.27 The U.S. Supreme Court reaffirmed the Agostini doctrine when it ruled in the Louisiana-based Mitchell v. Helms case.28 Three issues were considered: (1) the on-site delivery of special education for children in religiously affiliated nonpublic schools, (2) the constitutionality of providing the use of equipment owned by the school district but used by nonpublic parochial schools, and (3) the legality of providing transportation to students who attended religiously affiliated private schools. The third issue was deemed constitutional by the District Court and the Fifth Circuit Court and was not part of the appeal in Mitchell v. Helms. Those courts’ decisions and the omission in the appeal confirmed other rulings that have upheld the child-benefit theory in issues dealing with transporting students to private and parochial schools. The Supreme Court upheld the Agostini tenets by concluding that the law “neither results in religious indoctrination by the government nor defines its recipients by reference to religion.”29 Another significant case dealing with the church–state issue made its way to the U.S. Supreme Court in 1994. The Joel Village School District et al. v. Louis Grumet and Albert W. Hawk (512 U.S. 687) suit dealt with a school district that was established by the New York State Legislature in a special act. The Monroe-Woodbury Central School District and the Satmar religious community within the district were enmeshed in several disputes over ways to accommodate some of the religious traditions that were in conflict with district policies and procedures. The Second Circuit U.S. Court of Appeals determined that the New York City Board of Education’s arrangement with the Satmar community to educate its children in a walled-off, segregated section of a public school in the Williamsburg section of New York City was an unconstitutional accommodation of religion. The Monroe-Woodbury school district attempted to meet the requests of the Satmar community by assigning only male bus drivers to service public school bus routes assigned to transport male Satmar students to private schools in the Village of Kiryas Joel. The federal district court ruled that the school district had violated the establishment clause of the U.S. Constitution. After the legislative action, the New York State School Boards Association filed suit. Louis Grumet, Executive Director of the Association stressed the belief that the statute “confers on an exclusively religious community the extraordinary governmental benefit of a separate public school district system serving the village . . . (and that) public tax dollars are being spent to support this clear violation of the Establishment Clause.”30 The Supreme Court agreed with Grumet when it affirmed the Second Circuit’s opinion that the arrangement with the Satmar community was an “unconstitutional accommodation of religion.”31 The New York Court of Appeals visited the issue again in Grumet v. Cuomo. Another ruling stated that the new legislation also violated the establishment clause of the U.S. Constitution.32
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EDUCATIONAL CHOICE
· An issue needing to be addressed for various reasons, including its great implications for funding education, is school choice. This subject has been hotly debated at the national level, and several governors and legislatures throughout the country have endorsed the concept as a way to restructure education. Choice is not a new issue. Since the founding of the United States, a question often asked is whether the public sector or the private sector should be charged with the major responsibility of providing education. The negative claims against the public schools have included their alleged discrimination against the gifted and children with disabilities, their presumed failure to teach all students fundamental skills, and their reputation for fostering inequality among the rich and the poor. These and numerous other charges have resulted in various proposals for radical changes in the organization and administration of schools. Some of these proposals purport to be panaceas; others are proposed as partial solutions to the many problems that education critics claim are not solvable under the present public school systems of the 50 states. The Education Commission of the States describes some of the choice options for parents and students: Open enrollment: This option allows parents to send their children to a public school within their school district. Interdistrict open enrollment allows parents to send their children to a public school of their choice in surrounding school districts. Magnet schools: These public schools specialize in a certain curricular area. Typically such schools draw students from various attendance areas within and without the district.
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· Dual/concurrent enrollment: Secondary school students are allowed to enroll in postsecondary courses and apply course credits at the secondary or postsecondary institution, or both. Charter schools: This option allow parents, community groups, or private organizations to establish what are essentially deregulated public schools. Charter schools are funded with public taxpayer money. Vouchers: Payments are made to a parent, or an institution on a parent’s behalf, to be used to pay for a child’s education expenses, usually at a private or parochial school. Some voucher programs are financed through private sources; others use public tax dollars to fund tuition at private institutions. Tax credits and deductions: Parents are allowed a tax credit to offset some expenses incurred by sending their child to a private school. Other tax credits and deductions allow individuals and corporations to redirect tax dollars to scholarship-granting organizations, which in turn redistribute these contributions to students in the form of private school scholarships. Home schooling: In this alternative form of education, parents or guardians are allowed to bypass the public school system and teach their children at home. In addition to these options, public schools may offer alternative schools in and out of the district, high school graduation incentives, online courses for credit, and area learning centers that offer a broader curriculum than some high schools. Virtual education programs have increased significantly during the past decade, utilizing e-learning and expanding the distance learning concept. Postsecondary schools have used the approach successfully, which lays a pattern for secondary schools to follow. Once thought of as an expansion for the gifted and talented, this process is now being utilized for students needing remedial assistance at various levels. Defining the term virtual education is somewhat elusive. It encompasses a variety of activities that those who have instigated the programs in the various states have defined. In essence, the terms virtual and cyber indicate that a student works in isolation at home, has parental assistance to access course materials, has access to a computer at home, and may have additional supervisory assistants on a limited basis. Blended learning expands on the virtual/cyber concept by including online and in-person instruction “with some elements of student control over time and space and at least in part in a brick and mortar location away from home.” The state of Florida established the Florida Virtual School (FLVS) in 1997 that functions as a statewide public school district serving public, private, and home-school students across the state. In 2012–13, over 206,000 students were served by mostly adjunct teachers responsible for a single course. The state requires that all high school students complete at least one online course. In recent years, the program has suffered from declining enrollment, decreased funding, the lack of accountability measurements, and achievement results.33 These are some of the same concerns in the various virtual programs throughout the United States where reviews are generally mixed. Twenty-six states indicate that they have functioning virtual education programs in place. Many individual districts, schools, and teachers have devised their own programs to include cyber-technology into their instruction methods. “One of the earliest hopes for blended learning—along with the promise that it would nurture students’ technology skills and foster personalized instruction—is that it would help schools and districts save money.” Results for that realization are still pending.
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Charter Schools
· Historically, the choice movement made slow gains. Continual push from legislatures to provide more opportunity for modifying the administration of public schools and an opportunity for entrepreneurs to compete in the billion-dollar education market made inroads possible. (See the discussion of local control by contract, and the emergence of Education Management Organizations [EMOs] in Chapter 6.) Now, generally accepted, the growth and expansion of charter schools throughout the United States has increased each year. The variety of options for parents has added to the success of the movement. The federal government was an early advocate, publicizing charters and award incentives to promote the concept. While serving as Secretary of Education, Arne Duncan stated, “The charter movement is one of the most profound changes in American education—bringing new options to underserved communities and introducing competitions and innovation into the education system.34” Defining what qualifies as a “charter school” is challenging because state requirements for charter holders differ markedly. Even today, the many different descriptions in use make it difficult to narrow down categories for the various approaches. The Education Commission of the States offers this definition: Charter schools are semiautonomous public schools, founded by educators, parents, community groups or private organizations, that operate under a written contract with a state, district or other entity. This contract, or charter, details how the school will be organized and managed, what students will be taught and expected to achieve, and how success will be measured. Many charter schools enjoy the freedom from rules and regulations affecting public schools, as long as they can meet the terms of their charters. Charter schools can be closed for failing to satisfy these terms.35 Federal Public Law 103-382 suggests that charter schools share the following features: Charter schools are public schools that are exempted from significant state or local rules that inhibit the flexible operation and management of public schools. Charter schools are created by developers as public schools or adapted from existing public schools, and are operated under public supervision and direction. Charter schools operate in pursuit of a specific set of educational objectives determined by the schools’ developers and agreed to by the authorized public chartering agency. Charter schools provide a program of elementary or secondary education, or both. Charter schools are nonsectarian in their programs, admissions policy, employment practices and all other operations, and are not affiliated with a sectarian school or a religious institution. Charter schools do not charge tuition. Charter schools comply with federal civil rights legislation. Charter schools admit students based on a lottery if more students apply for admission than can be accommodated. Charter schools agree to comply with the same federal and state audit requirements as do other elementary and secondary schools in the state unless the requirements are specifically waived. Charter schools meet all the applicable federal, state, and local health and safety requirements. Charter schools operate in accordance with state law.36
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· According to the Phi Delta Kappa/Gallup Poll conducted in 2013, public approval of charter schools has climbed from 42 percent in 2000, to 53 percent in 2006, and to 70 percent in 2013.37 Nevertheless, this finding must be weighed against responses indicating that the concept is not clearly understood. Here are some comparisons: Forty-five percent of respondents say charter schools are public schools; 51 percent say they are not. (Fact: They are public schools.) Forty-six percent say charter schools are free to teach religion; 47 percent say they are not. (Fact: They are not.) Fifty-seven percent say charter schools can charge tuition; 39 percent say they cannot. (Fact: They cannot.) Seventy-one percent say charter schools can base student selection on ability; 25 percent say they cannot. (Fact: They cannot.) 38 The charter school movement has grown significantly since the first one was established in Minnesota in 1992–93. In February 2014, the National Alliance for Public Charter Schools reported that more than 2.5 million students were attending more than 6,400 charter schools in 41 states and the District of Columbia. This organization also noted that the student population in 2004 was 798,000, increased to 1.45 million in 2009, and grew to 2.57 million in 2014.39 As the number of charter schools increase, facilities are becoming an issue. Some states are now providing additional funds to compensate for the problem, and some are asking that buildings be shared with noncharter public schools. In January 2014, the Federal Register announced an awards program that offers grants to charter schools. The purpose for the Credit Enhancement for Charter School Facilities Program, is noted here: This program provides grants to eligible entities to permit them to enhance the credit of the schools so that they can access private sector and other non-Federal capital in order to acquire, construct, and renovate facilities at a reasonable cost. Grants projects awarded under this program will be of sufficient size, scope, and quality to enable the grantees to implement effective strategies for reaching the objective.40 Some states have awarded charters to organizations representing parents of home schoolers. About 3 percent of K–12 students, or about 1.77 million students, were taught at home in 2012. As the practice continues to increase, more states are requiring districts to provide at least some educational services if parents request them. The home school issue takes the private school finance question to an extended dimension, as the number of home-schooled students continues to increase. This trend brings up a key question: Should home-schooled students be eligible for the per-pupil state revenue provided to public schools? Some find that the arguments are strong for such support if the state has the responsibility to provide funding for the education of each student in the state, irrespective of the delivery system. However, the impact and strain on education dollars from such funding could be staggering, and the question of funding religious education looms large. Another question is this: Should home-schooled students be able to participate in school-sponsored activities, teams, and particular classes? These questions raise complex funding issues for public schools.
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Education Vouchers
· A greater emphasis on providing parents the opportunity to have the flexibility of selecting a school of choice was a continual push by proponents of vouchers for students to attend nonpublic schools at the expense of taxpayers. The first real inroad for the concept materialized in 1990 with the establishment of the Milwaukee Parental Choice Plan (MPCP). Numerous versions of voucher plans had been promoted through the years, with Milton Friedman espousing its use in his Capitalism and Freedom. Reduced to its simplest form, his plan recommended the following elements: (1) the determination of a minimum level of education by each state, (2) the issuance of vouchers that parents could use in approved schools to purchase the education obtainable in that school, and (3) the payment by parents of the additional amount of money required by a particular school over and above the amount of the voucher. Advocates of school vouchers claim that such an arrangement would allow parents a choice among the educational programs available to their children by paying the amount required above the cost allowed by the voucher. The schools could be of any type—private, parochial, or public—provided they met the established state standards. McCarthy described the basic voucher system as “one where parents can use state-funded vouchers of a designated amount to pay for their children to attend a public or private school of their choice. Plans vary as to the amount of government regulation involved and whether participating private schools can charge more for tuition than the basic voucher amount.”41 It is relatively easy to see limitations and possible defects in this organizational system. It seems apparent that the affluent would be able to purchase education at the more expensive and prestigious schools, whereas the less affluent would be forced to purchase education for their children at less expensive institutions. Undoubtedly, this factor would accentuate undesirable economic segregation and social class distinction. Although such a program might offer a choice of schools and curricula for students in central cities or in other areas of dense population, the idea of competitive schools in rural areas is not feasible from the point of view of basic economics, considering the limited number of students available. Some proponents of a voucher system argue that it would result in greater competition between and decentralization of schools. This, they say, is highly desirable, since it would bring the schools closer to the people whose children attend them. However, chaos could potentially develop if each school were allowed to set its own standards or values, to determine the subjects to be taught, and to establish its own costs of attendance. Advocates say that such a plan would give parents a wider choice of education for their children and that the schools would be better as a result of the natural competition that would arise. They point to the fact that the public schools now maintain a natural monopoly and are very slow to react to public pressure and criticism, whereas private schools are dependent on favorable public opinion and therefore react quickly to the desires and needs of their students. The legal implications that lead to the greatest controversy focus on the state-supported voucher programs—which include religious (mostly parochial) schools. The basic question is whether the participation of schools with religious ties violates the various constitutions of the states and the establishment clause of the First Amendment of the U.S. Constitution. This is a major issue, as nearly 70 percent of private schools are religious in nature. The Milwaukee Parental Choice Plan (MPCP), established in 1990, is the oldest and largest voucher plan in the country. It originally allowed 1,000 public school students the opportunity of attending nonsectarian private schools at state expense. The measure was specifically aimed at low-income students who were currently enrolled in public schools or who had dropped out of school. The plan was expanded to include parochial schools and increased the number of students participating to 15,000. When this system was challenged, a circuit court ruled that the inclusion of religious schools in the voucher program violated the state constitution, indicating that “millions of dollars would be directed to religious institutions.”
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· The ruling also struck down the expansion of the program. Later, the Wisconsin Supreme Court reversed the lower court’s decision and upheld the inclusion of parochial schools in the voucher program.42 The U.S. Supreme Court declined to review the case. In 2013–14, there were 110 participating schools with a total enrollment of 25, 820 students in the program.43 Some have proposed expanding the private school voucher program statewide.44 The courts have been reviewing cases dealing with vouchers with various results. The Supreme Court of Wisconsin (Jackson v. Benson, 1998) upheld the use of vouchers by students who attended religious schools. A Florida court did as well (Holmes v. Bush, 2000, 2001), but the program was ultimately rejected on state constitutional grounds at the State Supreme Court level.45 In Bagley v. Raymond School Department (1999), Maine’s appellate court approved a voucher program but prohibited schools with religious ties from qualifying for the funds. The action resulted in a case challenging that decision. (See Eulitt v. State of Maine, October 2004.46) The First Circuit Court ruled, “The case calls to decide whether the equal protection clause requires Maine to extend tuition payments to private sectarian secondary schools on behalf of students who reside in a school district that makes such payments available on a limited basis to private nonsectarian secondary schools. We hold that the equal protection clause does not impose any such obligation.” The Vermont Supreme Court (Chittendon Town School District v. Vermont Department of Education) struck down a school district’s policy allowing tuition payments for children to attend sectarian high schools, noting that the practice violated the state constitution, which prohibits taxpayers from supporting religious worship in schools. The U.S. Supreme Court refused to hear the case.47 In 1995, the Ohio General Assembly enacted a law that had as its intent to give greater educational choices to students and parents. The Ohio Pilot Project Scholarship Program (OPPSP) made it possible for students to attend alternative schools and, for some students, to receive tutor services. In addition, the OPPSP made a provision for the creation of community schools (charter) and magnet schools. Students and parents could select a registered private school, including one sponsored by a religious organization located in Cleveland, or one in an adjoining district. Out of the qualifying schools, 82 percent were parochial, with 96 percent of the students in the program being enrolled in the religiously oriented schools. Funding was provided through tax dollars by issuing scholarships (vouchers) to qualifying students. Checks were sent directly to parents, who then had to turn the checks over to the participating school.48 The Supreme Court of Ohio upheld the validity of the OPPSP but determined that the program violated the state constitution’s “one-subject” rule in Simmons-Harris v. Goff. The Ohio General Assembly then changed the statute to more directly meet court demands. A federal trial court in Ohio ruled that the voucher program violated the establishment clause, but the court allowed for the continuation of the program for a semester.49 The Sixth Circuit Court of Ohio ruled in Simmons-Harris v. Zelman that the OPPSP violated the establishment clause by having the impermissible effect of advancing religion. In June 2002, the Zelman case was heard in the U.S. Supreme Court, which relied heavily on the Agostini v. Felton ruling in making its decision. The Court indicated that in the Ohio program the “aid is allocated on the basis of neutral secular criteria that neither favors nor disfavors religion and secular beneficiaries on a nondiscrimination basis.”50 Reasoning in the case was based on the fact “that the program was one of true private choice, with no evidence that the State deliberately skewed incentives toward religious schools, [which] was sufficient for the program to survive scrutiny under the Establishment Clause.”51 The court said that this is a state decision, however.
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· In summary, students in the Ohio pilot project may use vouchers to attend religious schools. In 2006, the Ohio legislature increased the scope of the program from 20,000 eligible students to 50,000.52 The Florida Supreme Court (Holmes v. Bush, January 2006) ruled that a private school voucher plan (Opportunity School Program) violated the state constitution’s requirement to provide “a uniform, efficient, safe, secure, and high quality system of free public schools.” The court indicated that vouchers diverted public revenues to private schools, contrary to the requirement that the state fund only “public schools.” In addition, “because voucher payments reduce funding for the public education system . . . by its very nature [the voucher] undermines the system of ‘high quality’ free public schools.”53 A Florida judge would not allow a voucher initiative to be placed on the ballot in 2008. In Colorado, in LaRue v. Colorado Board of Education case, the District Court ruled that the Douglas County Pilot Choice Scholarship Plan (CSP) violated the Colorado Public School Finance Act. The plan provided “little or no government oversight.” Aspects of the Blaine Amendment were a factor in that Article IX, Section 7, prohibits any government entity, including school districts, from using public funds “to help support . . . any school . . . controlled by any church or sectarian denomination whatsoever.”54 The judgment was reversed and remanded with directions in a suit that followed with the Colorado Court of Appeals. In a 2 to 1 decision, the Court indicated that the “Plaintiffs failed to carry their burden of proving the unconstitutionality of the CSP beyond a reasonable doubt, or any other potentially applicable standard, none of them have standing to assert a claim under the Act. Accordingly, the District Court Judgment cannot stand” (announced February 28, 2013).55 In Hart v. State of North Carolina, the plaintiffs sought action in the state Superior Court to declare the new voucher law passed in May 2013 to be unconstitutional, as the law was designed to provide vouchers for students in private schools at taxpayer expense without “ensuring that students actually receive an education.”56 In addition, the plaintiffs claimed that the act violated Article V of the state constitution in that the “taxation shall be exercised in a just and equitable manner, for public purposes only.”57 The Superior Court ruled in favor of the plaintiffs in February 2014. The Louisiana Supreme Court ruled in the Louisiana Federation of Teachers et al. v. State of Louisiana et al. that the voucher program, passed by the legislature in 2012 and acted on in the district court (agreeing), was unconstitutional. On May 7, 2013, the Court stated: After reviewing the record, the legislative instruments, and the constitutional provisions at issue, we agree with the district court that once funds are dedicated to the state’s Minimum Foundation Program for public education, the constitution prohibits those funds from being expended on the tuition costs of nonpublic schools and nonpublic entities. Unlike the district court, we also find the procedures employed to enact SCR 99 violated the constitution inasmuch as that legislative instrument was intended to have the effect of law, but several requirements for enacting law were not observed. 58 There are other issues with the voucher program in Louisiana. The U.S. Department of Justice was seeking data regarding participation by students in school systems still under court-supervised desegregation plans. Thirty-four of Louisiana’s 64 parish school systems have been under federal court supervision.59
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· In June 2013, the National Conference of State Legislatures reported that 12 states had voucher programs, while 40 states had considered legislation approving vouchers and/or tax credit scholarships since 2011.60 The Arizona legislature passed a voucher bill in 2004. It was established to pay private school tuition for students with disabilities and for foster children. This program was challenged in the courts (Cain v. Horne [No 08-0189 Ariz. Mar. 25, 2009]), and the Arizona Supreme Court ruled unanimously that the two state voucher issues violated the “aid clause” of the Arizona constitution and was unconstitutional. Of interest, it appears from various polls that the public is not enamored with voucher programs. An American Federation of Teachers survey reports that parents overwhelmingly support public schools. Summing up results of a national survey, respondents indicated that “the single most important institution for the future of their community and of our nation they choose strong neighborhood public schools over expanding choice, charters and vouchers.”61 Seventy-seven of the respondents agreed. The 2013 Phi Delta Kappa/Gallup Poll reports, “Seventy percent of Americans oppose private school vouchers—the highest level of opposition to vouchers ever recorded in this survey.” Compare this number to 55 percent in 2012.62 Voters have defeated voucher propositions in several states. In California, such a measure was defeated by a margin of 70.5 percent to 29.5 percent. Voters in Michigan defeated a measure by a similar margin: 69.1 against and 30.9 for the proposal. In Colorado, voters rejected two proposals that would provide vouchers to some students. In Utah, the state legislature passed, and the governor signed into law, a “revolutionary” voucher program known as the Parent Choice in Education Act. It was described by proponents as “the most comprehensive school choice program in the nation.” The public was not as enamored with the program, and opponents to it began a movement to gather signatures to put the measure on the ballot. The results were a hotly contested election in which 62 percent of voters cast ballots against the measure, thereby ending the use of vouchers in the state. In summing up the nature of the debate over school vouchers, McCarthy notes, “No topic is generating more volatile debate in legislative, judicial and educational forums than voucher systems to fund schooling. Discussions elicit strong emotions, positions are entrenched, and few people are objective about or neutral toward this issue!”63 Tax Credits Some states have ventured into the realm of tax relief programs that indirectly divert some public funds to the support of activities related to nonpublic school education. The U.S. Supreme Court, in Mueller v. Allen, approved a Minnesota law that permits taxpayers to deduct from their state income tax expenses for tuition, textbooks, and transportation. Expenses for tutoring, academic summer school and camps, and up to $200 toward the cost of a computer or education-related software are included in this coverage. The deduction is available to every family with children of school age, so it is considered neutral, rather than favoring private school students. With the tuition factor, however, the program is especially beneficial for parents who send their children to private schools. In Illinois, legislation was passed to award families state income tax credits to help pay costs of private schools. The Illinois tuition tax credit program allows parents of students in K–12 under the age of 21 in either public or private schools to claim tax credit for expenditures for tuition, books, and lab fees. “Taxpayers can annually claim a 25 percent credit on qualified education expenses they incur over and above $250, up to a maximum of $500, parents would therefore have to spend $2,250 on qualified education expenses. To claim a $100 credit, parents have to spend $650 on qualified education expenses.”64 According to some, “since only private schools charge tuition—which can be a significant expense—the tax credit serves primarily as a reward for Illinois parents who send their children to private schools.”65 A lawsuit filed by several families and supported by the Illinois Education Association challenged this law as unconstitutional. A U.S. District Court judge ruled that the tax credits were constitutional if they were offered to parents of public school students as well. The legislature in Arizona enacted a law that provides tax credits for those making contributions to a “school tuition organization.” This law allows funds to flow to private schools, including religious institutions. “An individual may claim a credit for making a donation to a school Tuition Organization for scholarships to private schools.”66 In 2013, the credit ranged from $517 to $1,034, depending on the marital status of the filer. A tax credit up to $200 is allowed against the taxes imposed for the amount of any fees paid by a taxpayer for the support of extracurricular activities of the public schools. When a suit against this plan was presented to the Arizona Supreme Court, it ruled that parochial schools were only “incidental beneficiaries” of the tax deduction allowance. The U.S. Supreme Court denied a hearing, allowing the program to continue.67 The Arizona Individual Scholarship plan was enhanced in 2006 by legislation that provided matching dollar-for-dollar tax credits to corporations making donations to the fund.68 In January 2014, the U.S. Supreme Court granted a hearing (writ of certiorari) in the Garriott v. Winn case to determine “whether a tax credit program unconstitutionally endorses or advances religion simply because taxpayers choose to direct more contributions to religious organizations than nonreligious ones.”69 In New Hampshire, businesses are able to take advantage of a tax break by making donations to organizations established to provide scholarships for students attending private schools. The Education Tax Credit Program took effect January 1, 2013. It immediately brought court action. The lawsuit (Bill Duncan et al. v. State of New Hampshire) asked the court “to declare the tax-credit program unlawful and block the state from further implementation.” The court concurred on June 17, 2013.70 The tax credit approach circumvents the First Amendment issue by requiring that participants make donations to private scholarship organizations. The fact that donations are being matched by revenue generated by taxpayers and those scholarships eventually benefit students in parochial schools can be an incentive for other states to pass similar legislation.
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