State Legislatures magazine, Sept, 1999: School choice, vouchers, public schools

State Legislatures Magazine: September 1999

Editor's Note: This article appeared in the September 1999 issue of NCSL's magazine, State Legislatures. To order copies or to subscribe, contact the marketing department at (303) 364-7700.

Turning Away From Public Education

New Acceptance of Vouchers

Constitutionality and Other Considerations

What Does the Future Hold?

Regulating Home Schooling

Tuition Tax Credits and Deductions

Turning Away From Public Education

As more questions about public schools' performance and safety arise, so do more proposals for alternative schooling. All are controversial.

By Eric Hirsch and Shelby Samuelsen

With a daily barrage of articles condemning student, teacher and school performance, it is no wonder that both parents and policymakers are questioning whether public schools have failed. Increasing enrollment, budget crunches and teacher shortages may have stretched public education beyond its limits.

These concerns are driving parents to look for more and different choices. And state legislatures across the country are trying to accommodate them, examining policies that could help move students from public schools to private schools or away from organized schooling altogether. Through vouchers and tuition tax credits, lawmakers are creating alternatives to public education for a growing number of dissatisfied parents and raising serious questions about the role of public education in the new millennium.

A NEW ACCEPTANCE OF VOUCHERS?

Florida passed the first statewide voucher program this session, and interest in the issue has never been higher. Although this year was not atypical in terms of the number of state legislatures examining vouchers (approximately 16), the seriousness of debate was unprecedented. Pennsylvania, New Mexico and Texas all came close to passing statewide programs.

Vouchers use state money to provide tuition subsidies for students to attend private schools. Until Florida, the only publicly funded voucher programs legislated were pilot programs in Milwaukee and Cleveland.

According to Chester Finn Jr., former assistant secretary of education and president of the Thomas B. Fordham Foundation, state legislatures are considering vouchers for a number of reasons: the continuing proliferation of other choice programs, the surge of interest in private schools for safety and academic reasons, changing public opinion and clarification of constitutional issues. All of these influences are coming together to make the public and state legislators think about new alternatives in education. Charter, magnet and alternative schools are expanding educational opportunities far beyond the neighborhood school.

Although government has been experimenting with choice and private service providers in the health and prison industries, virtually all students attend a traditional public school funded by and reporting to state and local school boards. "Only within education does choice seem like a revolutionary doctrine. The absence of choice is actually the anomaly," Finn says.

Finn believes that "people are unhappy with traditional public school performance for two reasons: Kids aren't learning to read, and kids aren't safe. Parents are beginning to say that if a neighborhood school won't come through, I will find one that will."

The Legislature in Florida became the first to allow parents across the state to "find" a private school, at the taxpayer's expense. Florida passed its voucher plan this year as part of a larger education reform bill proposed by Governor Jeb Bush. The program offers "opportunity scholarships" to students in chronically low-performing schools.

Under a new accountability program, students attending schools performing poorly in any two years during a four-year period will be eligible to receive a voucher to attend any private school or better performing public school.

Support for this new approach was far from unanimous, with many legislators concerned about the impact of the voucher program on Florida's public school system. Vouchers have created a situation where "the biggest opponent of public schools has become the state itself," argues Florida Senate Democratic Leader Buddy Dyer. He contends that Florida's new plan deals a heavy blow to struggling public schools and that it "will never help improve public education."

Bob Chase, president of the National Education Association, agrees, arguing that vouchers are "siphoning off scarce public resources for the benefit of a few." Chase offers alternatives for improving public education, including smaller class sizes and successful models of comprehensive school reforms. "The only credible hope for millions of underprivileged urban children is a reformed and revitalized public education system," he says. "Reform means embracing the truly arduous task of shaping up the management of urban public schools, while holding students and teachers to significantly more ambitious standards."

But Florida Representative Beverly Kilmer, vice chair of the House Education Committee, believes the new voucher program will lead to more ambitious standards in all schools, with failing public schools turning them-selves around, prodded by the embarrassment of bad publicity and the fear of vouchers. "This program allows incentives for [public] schools to pull themselves up and provides the available help, with additional funding earmarked to help low performing schools. Our hope is that children will not have to use vouchers."

As can be seen in voucher debates across the country, a majority of legislators have not reached the same conclusion. In New Mexico, Governor Gary Johnson clashed with the Legislature, vetoing the entire state budget because lawmakers would not consider his voucher plan. A special session was called to consider his plan to create a statewide voucher program that would eventually be available to all New Mexico students.

Senate Education Chair Cynthia Nava believes that the governor's proposal "would ruin public education in New Mexico. It will rob an already poor system." She sees the governor's plan coming on the heels of three years of increased public school funding as no coincidence. "Proponents argue that we are just dumping more money into a broken system and that vouchers will save education."

But she believes that "average citizens are not in favor of vouchers. And in a quiet moment, you can tell that those pushing the plan are not in favor of it either." The governor's plan was defeated during the special session by a vote of 29-11 in the Senate and 50-20 in the House.

CONSTITUTIONALITY AND OTHER CONSIDERATIONS

More states may now be considering vouchers because of a changing legal landscape for these programs. Back in 1971, the Supreme Court established three criteria to evaluate the constitutionality of religious assistance programs: The program must have a secular legislative purpose; the primary effect of the program must neither advance nor inhibit religion; and the program must not result in excessive entanglement of government in religion. The Court then used these criteria to overturn a New York tuition reimbursement program in 1973, arguing that religion was being advanced.

However, using the same criteria, the Wisconsin Supreme Court ruled last year that the inclusion of religious private schools in the Milwaukee voucher program was constitutional, arguing that the money went to parents, not to schools. The U.S. Supreme Court refused to hear an appeal of the case, setting the stage for states to decide for themselves whether or not vouchers meet constitutional requirements.

Since then, other cases have produced contrary rulings, ensuring that the U.S. Supreme Court will have to resolve these conflicting decisions. In Ohio, the state Supreme Court ruled that the Cleveland voucher program was constitutional in regard to the establishment of religion, but its passage in 1995 violated the one-subject rule (it was passed as part of the budget rather than as a stand-alone program) and the program was overturned. The Maine Supreme Court, Vermont Supreme Court and the 1st Circuit Federal Appeals Court ruled that public money being used for tuition at parochial schools is a constitutional violation.

Tuition tax credits (see sidebar) have not had the constitutional problems of vouchers. The Supreme Court ruled the Minnesota program constitutional in 1983, arguing that the tax deduction-not only for private school tuition, but textbooks and other expenses potentially incurred by public school parents-was available to all parents and therefore not advancing religion. The Arizona Supreme Court, ruling the state's new tax credit program constitutional, reinforced that decision earlier this year.

Regardless of constitutionality, several important questions are being raised by both advocates and detractors of these religious school assistance programs. As states continue to debate voucher issues, legislators will have to reach some consensus on how to answer these questions:

Are these programs increasing student achievement? Research has been mixed on both the Milwaukee and Cleveland programs. According to one study of the Cleveland program, voucher recipients during the 1996-97 school year, on average, gained 5 percentile points on reading tests and 15 in math (relative to the national norm), but language skill scores declined 5 percentile points.

A study from the same authors found participating students in Milwaukee scoring higher on math and reading achievement tests. Other researchers have found no significant gains for voucher students in either city. Unfortunately, most of these initial studies have been questioned as researchers on all sides are accused of having special interest in their results.

"States need to build an evaluation system into policy to know five years from now what difference vouchers have made," Finn says. "There is controversy in Milwaukee and virtually no good data in Cleveland."

What are the financial costs to the state and the effect on school districts? The total cost will depend largely on the structure of the voucher or tuition tax credit program.

The Institute for Wisconsin's Future estimates that the net loss to the Milwaukee school district due to the voucher program is $22.2 million this year. They claim that Milwaukee public schools are losing less than nine students per school due to vouchers, making it difficult to reduce costs to compensate for the forgone revenue, and raising questions about resources and class size.

A potential solution can be found in one of Pennsylvania's failed voucher proposals. It contained a "hold harmless" provision, providing school districts with extra state money to compensate for students lost through the creation of a voucher program.

Are there enough private schools with openings available to students with vouchers? It is difficult for vouchers to have an impact on the school marketplace if there are no seats available in private schools. In Florida, of the 800 Pensacola students in the two failing public schools eligible under the new voucher policy, only 91 applied to participate in the program. Yet there were only 59 slots available since only five of the approximately 18 private schools in the area offered to take these students.

In some states, private schools are not well distributed, making vouchers more feasible in populated urban areas. According to information on the New Mexico Department of Education Web site, four of the state's 89 school districts have 10 or more private schools, and more than half have no private schools at all. "There are no private schools available where the low income children that the voucher proponents are targeting reside," Senator Nava says.

Advocates argue that new private schools will open up to meet enrollment demands, as occurred in Cleveland with the creation of two Hope Academies that specifically cater to voucher students.

Should vouchers and tax credits be available to all students? Both Milwaukee and Cleveland make vouchers available for students below a certain income level. Florida's policy, as well as proposed plans in California, Louisiana and Pennsylvania, targets students in low performing schools. New Mexico considered legislation that eventually would have offered a voucher to every student in the state.

What is the role of the state and school district in a voucher system? Many voucher supporters worry about the potential for government to use vouchers to expand the regulation of private schools and create additional layers of bureaucracy. Detractors often cite a lack of accountability for private schools-which do not have to use certified teachers and comply with other state regulations-arguing that state assessments will be necessary as will other means of evaluating the performance of voucher students. Regardless, it will be difficult for the state, school districts and private schools to agree on the appropriate role for all education providers.

WHAT DOES THE FUTURE HOLD?

As options to traditional public schools continue to grow in number and popularity, the stakes of reforming public education are getting higher and the timeline for improvement is getting shorter. State legislators are sensing that parents are no longer willing to wait and see if new public school reforms are successful, adding a new urgency to education debates across the country.

Although Finn believes that "no one has a good crystal ball on this one," he sees "the only thing that is really clear is that school choice in various forms will continue to grow into a system where there are a lot of different flavors to choose from. Five years ago, no one ever would have thought about establishing a publicly funded voucher program. Now the question is where next and how many in what will clearly be a lengthening list of states with programs."

This growth will certainly be encouraged by the perceived failure of traditional public schools. "Florida's education system has been in a critical situation for a long, long time and something drastic needed to happen...we hit rock bottom and we have taken a major step forward," Representative Kilmer says.

Texas Representative Kent Grusendorf concurs, believing that something new must be done to address school performance. "Vouchers are not intended to harm the public schools, but help the public schools. We cannot maintain the status quo. I think people are afraid of change and abandoning the status quo. But how else are we going to improve?"

Eric Hirsch and Shelby Samuelsen track education issues for NCSL.

Regulating Home Schooling

Some parents opt out of both public and private schools, and educate their children at home.

Home schooling was once used primarily by parents wanting a more prominent role for religious education for their kids. Today, parents turning to home schooling are as apt to be concerned about academic quality and large class sizes and unable to afford private school tuition. School violence is another strong motivation for parents to keep students at home. Since the recent Colorado tragedy at Columbine High School, home school organizations across the country have had almost four times their usual number of inquiries.

Between 700,000 and 1.2 million students (approximately 2 percent of the total in K-12 education) are taught at home, triple the 1990 estimate. But it is difficult to gauge the impact of this growth since most states do not track home school students.

According to the Home School Legal Defense Association (HSLDA), 34 states specifically regulate home schooling. Twenty-nine require home school students to have regular evaluations or take standardized tests. Ten states do not have any requirements on the education level or qualifications of parents teaching at home.

How much regulation states should apply to home schoolers remains a contentious issue across legislatures and among home school parents. During the 1999 legislative session, solutions have taken the form of reporting requirements and mandatory testing.

Arkansas now has a penalty for home schooled students who do not participate in state testing and also prohibits students who are under disciplinary action in a public school to withdraw and enroll in a home school.

States are also working to expand options for home schooled students, letting them participate in certain activities. The HSLDA reports that 10 states currently require school districts to allow home schooled students access to classes or athletics. This has not been popular in school districts that have little incentive to provide any services since they receive state education funds only for full-time students.

Washington has addressed this funding issue, and the number of home schoolers has soared in recent years. Supported by tax money, home school "resource centers" are offering classes to home schoolers or allowing them to meet with teachers in the public school system. School districts can receive approximately $3,500 in state education money per student, per year, if the student takes five hours a week of instruction at school and can document 20 to 25 hours per week of independent study.

In Missouri, home school families successfully fought a bill proposed by Representative Bill Skaggs that would have required registration and testing for the state's estimated 30,000 home schooled students.

"Most home schoolers are doing a pretty good job," Skaggs says. "If we test them with the same test that is used in public schools then we can gauge how they are doing." Skaggs argues that if home schoolers are doing well they should not be afraid to be tested.

Tuition Tax Credits and Deductions

In an effort to make private school tuition more affordable to a wider range of parents, four states currently offer some form of tax relief-Minnesota, Iowa, Arizona and Illinois. These programs all differ in their approach and scope.

Minnesota allows a tax deduction for tuition, textbooks and transportation for parents of both public and private school students of up to $1,625 for each dependent in grades K-6 and $2,500 in grades 7-12. Although there is an income tax credit for families with incomes under $33,500, the credit cannot be used for tuition. The Minnesota Department of Revenue has estimated that 273,000 will claim the deduction, costing the state $14.5 million in forgone revenue annually.
Iowa established its tuition tax credit program in 1987. Parents can claim a tax credit of 25 percent of the first $1,000 spent on private school tuition and nonreligious textbooks.
Arizona taxpayers can claim a tax credit for up to $500 donated to a school tuition organization. This charitable organization must allocate at least 90 percent of its annual revenue for educational scholarships or tuition grants to children, allowing them to attend any qualified school of their parents' choice. The state passed a $200 tax credit for fees paid to a public school in support of extracurricular activities at the same time. The Arizona Joint Legislative Budget Committee has estimated the net impact to be from a low of $6.5 million to a high of $20.6 million in the first year and up to $41.2 million in its third year.
After a legislatively passed program was vetoed in 1997, Illinois enacted a tuition tax credit program this year. Taxpayers can claim a credit equal to 25 percent of qualified education expenses-tuition, books and lab fees-up to a maximum of $500.

These programs are different, but they share two important characteristics. First, they include credits and deductions for expenses such as textbooks, student fees, etc. in addition to private school tuition so that all parents qualify for some credit, a fact that has not been overlooked by the courts. Second, they all are somewhat limited in the amount of tuition relief offered, thus lessening the potential impact on public education. The maximum amount available is $250 in Iowa and $500 in Arizona. In 1998, Colorado voters failed to pass a ballot initiative, by a 60-40 margin, that would have created a more expansive tuition tax credit program of up to $3,600.