Protecting the Choice to Stay: "Education Savings Accounts" and Legislative Priorities

by David R. Garcia  Source:  Teachers College Record, December 07, 2012 Education Savings Accounts" (choice vouchers) are the latest iteration of school voucher proposals and are touted by free market advocates as the future of school choice policies and a vehicle for education reform.  In Arizona, where the state legislature has passed choice vouchers on two occasions, the policy discussion has been framed as a conflict between parental choice and bureaucratic mandates and the courts have sided in favor of parental choice.  More correctly, the public policy discussion should be framed as a matter of competing parental choices; the choice to divert public funds away from public schools and the "constitutionally-supported" choice to send students to public schools.  In setting priorities to resolve this conflict in an environment of scarce resources, I argue that the next available public school dollar must go toward meeting the constitutional mandate to fully maintain public schools on behalf of those parents who have chosen for their students to attend them before allowing other parents to divert public funds away from public schools.  Alternately, if the legislature wants to hold true to their commitment to provide parents with the option to divert public funds away from public schools, a policy option with some legal precedent, then it must first maintain its public schools on behalf of the parents who have chosen for their students to attend them. This latter solution has the potential side benefit of achieving the education reform that advocates covet - maybe in a properly maintained public school system, there will no longer be anymore failing schools or underserved students. In 2011, the Arizona state legislature approved “education savings accounts” (choice vouchers) that direct state-generated dollars that would otherwise go to public schools into education accounts that parents of special needs students can use to purchase educational services, including private school tuition. The next year, in the name of education reform, the Arizona legislature extended the choice voucher program to include the parents of students in failing schools, gifted students and military families. Looking forward, the Arizona legislature is poised to expand the program again and the Friedman Foundation is promoting the choice vouchers “for every American family” (Ladner, 2012), despite little evidence to support the purported benefits (Gulosino & Liebert, 2012). The legal arguments about the constitutionality of the choice vouchers have hinged on decisions about the use and destination of the public funds after exiting the public school system. The public policy discussion has followed similar reasoning. The purpose of this commentary is to propose a fundamental shift in the policy discussion over the exodus of public funds via choice vouchers. I reframe the public policy discussion around the choice voucher program as a matter of competing choices. Particularly, I argue that in the context of insufficiently maintained public schools, a policy that allows some parents to direct any public funds away from public schools conflicts with the Arizona legislature’s constitutionally-mandated obligation to “the establishment and maintenance a general and uniform public school system” (Ariz.  Const. Art. 11, Sec. 1) for those parents who have made the choice for their student to attend a public school, including charter schools. To be clear, I do not argue that as a policy matter the legislature must eliminate the policy choice for parents to direct public funds away from public schools; previous Arizona court cases have held that the legislature can support alternatives to the public school system (Kotterman v Killian, 1999).  What I do argue is that the legislature’s first responsibility must be the “maintenance” of the public system for those who choose to attend public schools and this responsibility should be fully met before it allows public funds to exit the system.    What is the “education savings account” (choice vouchers) program? The choice voucher program sets aside public funds for parents to direct the education of their child. The public funds can be used for a menu of options both within and outside the public school system, although plaintiffs maintain that the options are effectively private (Nieuhaus v Huppenthal, 2011b). To participate, parents must waive the state’s obligation to educate their children and assume the responsibility themselves, and there are restrictions on students reenrolling in a traditional public or charter school (S.B. 1553, 2011). Finally, the amount of the choice voucher is set at ninety percent of the base state per pupil funding amount. Proponents argue that by leaving the remaining ten percent in the public school system all students benefit from the choice voucher program, including students who do not participate (Ladner, 2012). The legal arguments against the choice vouchers have centered on the appropriate use of such public funds after leaving the public school system. In particular, plaintiffs have argued that the choice vouchers violate the state’s aide and religion clauses, meaning that the state cannot authorize the use of public funds to private or religious entities, even public funds deposited in accounts and directed by parents (Nieuhaus v Huppenthal, 2011b). The superior court judge rejected these arguments based on parental choice, concluding that the choice vouchers are awarded to parents, not institutions, and it is parents who direct the public funds via their individual choices, including the choice to pay private school tuition (Nieuhaus v Huppenthal, 2011a). While the legal battles continue, the policy argument remains at a standstill largely because the underlying issues have been framed as a conflict between parental choice and the public school bureaucracy. Supporters have routinely portrayed the public schools as either a faceless governmental entity or as a group of education bureaucrats who are struggling to maintain the status quo against parents’ will. With respect to public schools, there appears to be an assumption that when a parent enrolls a student in a public school, all subsequent educational decisions are state-directed rather than a partnership between parents and schools. The Arizona court indicated as much in their ruling, claiming that the choice vouchers “allow the parent to directly arrange for services needed for the student” (Nieuhaus v Huppenthal, 2011a, p. 2). By contrast, educational decisions within public schools were described as “relying on and/or appealing to public schools to address the need - a process which in the past has proven to be time consuming and expensive” (Nieuhaus v Huppenthal, 2011a, p. 2). The assumption is that public school parents are subordinating their choice to the public school bureaucracy. Rather, the more appropriate framing is to consider student enrollment in a public school as a conscious choice, and the educational decisions made afterwards as a collaboration between parents and educators.  This is especially true for special education students because parents participate fully in their student’s education as part of the team that develops the student Individual Education Plan. The same dynamics that advocates argue will benefit parents who exit the system already occur in public schools. There is no appreciable difference between the parent/school dynamics either within or outside of public schools. If attendance in a public school is regarded as a choice, then the policy question correctly shifts to a conflict between competing parental choices and not a conflict between parental choice and bureaucratic mandates. The implication of viewing public school attendance as a choice presents policy makers with the more vexing question of setting priorities to reconcile these competing choices in an environment of scarce resources. If both decisions are regarded as choices—parents either choose public schools or they choose to use public funds to pay for a private education--then the logical question before legislators is, which choice do they prioritize?  In light of their constitutional obligation to maintain public schools, both choices are not equal. I argue that the choice to attend a public school takes priority. According to the Arizona constitution, “The legislature shall enact such laws as shall provide for the establishment and maintenance of a general and uniform public school system” where the system is defined as specific types of schools ranging from common (elementary) to high schools (Ariz.  Const. Art. 11, Sec. 1). Therefore, as long as there are parents who choose for their students to attend a public school, the legislature’s first obligation is to maintain public schools for those who have made the constitutionally-supported choice to attend them. Currently, public schools are not maintained per the legislature’s own standards. The Arizona Constitution directs the legislature to make appropriations for the purpose of meeting the maintenance requirement (AZ Const. Art. 11, Sec. 10). The legislature has passed a series of funding formulas to meet this requirement and these formulas can be used as a working standard of the sufficient maintenance per the Arizona Constitution.   The legislature has not fully funded all the formulas it has passed. For example, in the prior two years (Fiscal years 2011 and 2012) the state has withheld final equalization aid payments to districts and has not funded the state School Facilities Board for a number of years, so that schools do not meet the facility standards set out by the state. Thus, the legislature routinely falls short of meeting its own standard for maintaining public schools. The choice vouchers then present a clear conflict between parental choices when the legislature allows parents to divert public funds away from public schools while, at the same time and per the legislature’s own definition, they have failed to maintain the public schools in support of the choice of those parents whose children attend public schools. The policy discussion shifts from whether or not the legislature can allow parent choice to the more appropriate question of how the state must prioritize the use of public funds. Put another way, the test boils down to how the state must use the next available dollar to fund public schools. I argue that the Arizona constitution requires that the next available dollar must first go to maintaining public schools and when, and only when, public schools are maintained, can the legislature pursue the secondary policy choice to allow parents to divert public funds away from public schools. To allow parents to take public funds from public schools that are insufficiently maintained is in direct conflict with the legislature’s obligation to support the choices of public school parents. I do not argue that the legislature must fund all formulas. There are many pressing economic reasons why states may fall short of their funding formulas. Nor, contrary to previous arguments, am I advocating that the legislature must rescind a parent’s choice to divert public funds away from public schools. Rather, I argue that in an environment of scarce resources, the choice vouchers create a conflict between two different types of parental choices. In setting priorities to resolve this conflict, the next available public school dollar must go toward meeting the constitutional mandate to maintain public schools on behalf of the those parents who have chosen for their students to attend them before allowing other parents to divert public funds away from public schools. Presently, the choice vouchers are portrayed as a win-win – as if there are no losers. But if some parents are allowed to divert public funds away from insufficiently funded public schools, there are losers – those students who choose to attend public schools. The legislature can reconcile the conflict in one of two ways. In both cases, the remedy is elegant and the standard is measurable. First, if the legislature chooses not to fund all formulas, then it cannot allow parents to divert public funds away from public schools. This way the legislature remains faithful to their constitutional obligation to maintain public schools and they do not create a conflict between parental choices. Alternately, if the legislature wants to hold true to their commitment to provide parents the option to divert public funds to sources away from public schools, then it must first maintain its public schools on behalf of those parents who have chosen to attend them. In this case, the standard for maintaining public schools is directly measurable: the legislature must fully fund those laws that it has passed for the purpose of maintaining public schools. Once this is done, there is no conflict between parent choices. The legislature has created a true win-win as both the exited parents and the public school parents have reached their goal of adequate funding to support their educational choices. Finally, the latter solution has the potential side benefit of achieving the education reform that advocates covet - maybe in a system of sufficiently maintained public schools, there will no longer be any more failing schools or underserved students. References Arizona Constitution. Article 11, Section 1. Arizona Constitution. Article 11, Section 10. Education Empowerment Accounts, S.B. 1553, 50th Legislature, First Regular Session (2011). Gulosino, C. & Liebert, J. (2012). Review of the way of the future: Education savings accounts for every American family. Retrieved from http://nepc.colorado.edu/thinktank/review-ESA/ Kotterman v Killian. (1999) 193 Ariz. 273, 290, 972 P.2d 606, 623. Ladner, Matthew. (2012). The way of the future: Education savings accounts for every American family. Retrieved from http://www.edchoice.org/Research/Reports/The-Way-of-the-Future--Education-Savings-Accounts-for-Every-American-Family.aspx Niehaus v Huppenthal CV 2011-017911 (2011a). Superior Court of Arizona Maricopa County Nieuhaus v Huppenthal (2011b) Application for Preliminary Injunction.