School Vouchers - Legal Watch

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

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

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

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

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

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

 By:  Tiffany Puckett

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

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

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

[4]Id. 

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

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

[7]Id. at 9.

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

[9]Id.

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

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

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

[13]Id. 

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New Report on "Democracy at Risk"

Today the Forum for Education and Democracy released an important new report on the 25th anniversary of the release of "A Nation at Risk." Entitled "Democracy at Risk: The Need for a New Federal Role in Education," the report--written by Linda Darling-Hammond, George Wood, Beth Glenn, Carl Glickman, Wendy D. Puriefoy, Sharon Robinson, Judith Browne-Dianis, John Goodlad, Gloria Ladson-Billings, Deborah Meier, Larry Myatt, Pedro Noguera, Nancy Sizer, Ted Sizer, and Angela Valenzuela--argues strenuously for a new approach to education at the Federal level.

The authors write:

"We do not provide equal access to a high-quality education to every child in this nation. And even though we have made strides in this direction, we have miles to go before this task is complete. There is a pressing need to redesign our schools to meet the demands of a global 21st century society in which knowledge and technology are changing at a breath-taking pace, and new forms of education are essential for individual and societal survival. Yet, our current policy strategies are constraining rather than enabling the educational innovation our school system needs. Indeed, the path we are pursuing promises to leave our schools, as well as our children, behind."

While the report notes that some innovations have been fostered "on the margins," such as the New Technology High School in Sacramento, California, the overall approach has been to maintain "a compliance-andcontrol regulatory approach that holds the bulk of the system in place, trapping most schools within the constraints of a factory model designed a century ago for another purpose."

The report specifically attacks the No Child Left Behind approach that uses "compliance checklists" instead of true reform initiatives. "Rather than providing access to new programs, technologies, and supports that could dramatically change schools and communities, the law has been managed in ways that push schools back to out-of-date notions of learning and stifle the use of new technologies."

[One example of the ways that NCLB stifles the use of new technologies is the ways in which it forces many schools--particularly those with high numbers of poor and minority children--to focus the curriculum exclusively on "drill" in so-called "basic skills," rather than the type of higher-order thinking tasks and inquiry-based problem solving that new technologies foster.]

The report cites statistics showing that reading improvement under NCLB has been slower than before the law was enacted, that high school graduation rates have started to decline again, that pverty rates among children in the US are the highest in the industrialized world, that the US ranking on international tests has plummeted, that "trust" and "community involvement" among people in the US is in rapid decline, and that increased expenditures on the prison system have far out-paced increases in spending on education.

The report draws a link between the poor quality of education in the US and the poor quality of democracy:

"The challenge is clear: Improving education and improving democracy go hand in hand. We need to build upon the natural curiosity of children to help them make sense of the world. We need to arm them with the knowledge and skills, as well as the resourcefulness and inventiveness, that will be required to invent solutions to tomorrow’s problems. We need to give them the tools to live their lives respectfully and collaboratively with others, building communities that can tackle the challenges that lie ahead. We must think of education as more than a collection of standardized tests if we are to reverse the decline of democracy and create a stronger fabric for “We, the people” among the next generation of citizens."

The report lays out four major priorities that a new Federal policy on education should include:

Federal Priority #1: Pay Off the Educational Debt

• Link federal education support to state progress toward opportunity to learn
• Meet the federal obligation for funding programs for students with special needs
• Invest in high-quality pre-school and health care that enable students to come to school ready to learn.

Federal Priority #2: Develop a World-Class Cadre of Skilled Educators

• Create incentives for recruiting teachers to high-need fields and locations.
• Strengthen teachers’ preparation by focusing on how to teach diverse
• learners, evaluating teacher performance, and creating professional development schools.
• Launch teaching residency programs in high-need communities.
• Support mentoring for all beginning teachers.
• Create sustained, practice-based, collegial learning opportunities for teachers.
• Develop teaching careers that reward, develop, and share expertise.
• Mount a major initiative to prepare and support expert school leaders.

Federal Priority #3: Support Educational Research, Development, and Innovation

• Document and disseminate promising practices.
• Invest in the development of higher quality standards and assessments for genuine accountability.
• Develop data bases, shared measures, and tools to advance educational practice.

Federal Priority #4:Engaging Local Communities

• Foster family engagement in school life and school improvement.
• Provide for genuine community involvement in school improvement processes.
• Place schools at the center of community education.

You can obtain a copy of the full report here.

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Fixing the Community Organizing Funding Disaster (Community Organizing and Urban Education)

To read the entire series, go here.

Community organizing groups spend an inordinate amount of time grubbing after money—often fairly small amounts of money when seen from the perspective of large foundations. And organizing groups often have to tweak what they do in order to fulfil the requirements of a funder. Even more problematically, many organizing groups are forced to get funding for purely service oriented activities in order to survive over the long term. While I think organizing groups need to think more carefully and complexly about how they might embrace more service work in order to reach out to more marginalized populations more effectively, the kind of service funding these groups usually receive is mostly a hodgepodge of what happens to be “hot” at any moment.

It seems obvious that we need to fundamentally change the funding model for community organizing. But how? Here I want to talk about what are called “permanent endowments.” Permanent endowments are large chunks of money that are placed permanently in a fund out of which only a portion of the interest is spent every year. Such endowments provide a guaranteed level of operating funding for those organizations that have them.

Who usually has endowments? Looking across the web, you find the usual suspects: universities, private schools, churches, and museums. But there are a range of other groups that can have foundations, including professional organizations, recreational and other natural areas. I found a ballet group, a music festival, home for pregnant teens, a counseling center, and more.

What brings all these groups together is a sense that their existence and functions are permanent.

This, of course, raises some difficult issues when one comes to organizing. How can one assume that one organizing group or method is going to be the most effective over time? How does one decide “which” organizing group to fund, and how does one prevent an endowment from actually destroying the kind of creativity, flexibility, and radical challenge that organizing may require in order to stay “healthy”.

To cite an old example, many have argued that the reason that Martin Luther King and other new organizing groups were able to emerge in the South during the civil rights movement was ironically because many Southern states had banned the NAACP. This seems to have opened up space for new thinking and new organizations, and removed the suppression of risky action that the NAACP seems to have been perpetuating to some extent. More contemporaneously, I think it is accurate to say that a certain level of uncritical dogmatism and self-congratulatory thinking among the neo-Alinsky organizing groups that currently dominate the organizing “scene” may be hurting the emergence of new approaches.

But one would not need to fund individual organizing groups in order to relieve them from some of the burdens of fundraising and the potentially destructive force of current “fads” and program mandates from distant funding organizations. Instead one could fund a local institution designed specificially to support organizing groups—old ones and new ones. By being based in a building that it owned, this group could provide basics like office space, copy machines, phones, technology and tech support. It could have a grants officer on staff to help organizations target their appeals and reduce the burden of fundraising. It could provide multi-year internships (with benefits) to allow individual organizing groups to bring community members in and train them in organizing. It could provide child care and meals and have a van and money to pay drivers to pick people up and get them to meetings. It could provide small reimbursements to participants to make it at least a “neutral” cost for them to go to a meeting. It could have a shared receptionist, and be open from early in the morning to late at night. It could have a board of directors drawn from a wide range of local progressive organizing groups and a carefully drawn mandate that ensured that it was able to “boot” dying organizations and bring in promising new ones. And it would have a constitution designed to ensure it remained true to a broad set of progressive commitments.

Such an endowed umbrella organization would ensure, just like with museums, universities, and beloved parks, that organizing is here to stay, especially in small cities like Milwaukee, where organizing has long been on “life support.” Through its board, it would force local organizing groups to work together to some extent, despite whatever disagreements they might have. If the building was big enough, it might allow the emergence of some more creative experimental relationships between organizing and service groups which I am increasingly convinced are crucial. In fact, simply because it would (I think of necessity) provide child care and meals and small reimbursements to participants, it would already be involved in a kind of “service” that would make participation as much a reality for people struggling on the margins as for professionals and other middle class folks like myself.

Where would the money come from? Well, of course, I don’t know. But if it had a building and an institutional name, it might be appealing to some funder that usually gives out program grants that do not leave any permanent legacy in the community. I could imagine some rich progressive person who would love to have their name permanently on a building or permanently on the name of an institution whose job was to stick a thumb in the eye of privileged oppressors permanently.

How much money would it require? Well, after glancing around the Internet, it seems like a round number like 4% is about what you can expect to spend every year from an endowment while still maintaining it over time given inflation. So let’s go with that as a rule of thumb (see this for those who are interested). And let’s assume you need, say, 2 million dollars for a building (including renovation) in a not necessarily high-priced part of town. So then if you have an operating budget of $250,000 (which isn’t a lot if you have a few employees), you need an endowment of around 6 or 7 million dollars. Or a total of 8-10 million dollars.

This may seem like a lot of money to most of you (or me) but there are plenty of folks out there in our increasingly income unequal society for whom this isn’t really that much.

Carnegie made his name forever by creating libraries across the United States (and beyond). What if some funder decided to stop trying to fund an endless series of cool sounding projects, and instead said, “I want to provide a permanent base for organizing in a collection of cities in America.”

[For those of you who think I've totally gone "off the rails" of education policy, here . . . . Well, look. If you are going to get interested in education organizing based in the community and not in schools then suddenly you've got to ask a whole new set of questions. We're used to talking about public schools which seem obviously to be a public, government funded function (regardless of how poorly they are funded). But now we're talking about an intervention in education that can't take government funding at all.]

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Coopted by Foundations? (Community Organizing and Urban Education)

[To read the entire series, go here.]

Foundations like Carnegie, Rockefeller, and Ford have a corrosive influence on a democratic society; they represent relatively unregulated and unaccountable concentrations of power and wealth which buy talent, promote causes, and, in effect, establish an agenda of what merits society's attention.

--Arnove, cited in Barker, "Do Capitalists Fund Revolutions?"

Community organizing groups often pride themselves by their refusal of any government money. The general agreement among organizers on this issue rests on very good reasons, grounded on a long history of co-optation of organizing by governmental institutions seeking to eliminate grassroots resistance. During the 1960s, for example, there was a small window of time within which the government actually tried to fund grassroots collective action. This quickly pissed off the powers that be (especially the local powers that be that were most affected by empowered citizens) and the funding was quickly cut or shifted into more service oriented work. (Fisher's Let the People Decide gives a nice overview of this history). Today, nearly all "community groups" funded by government sources focus almost exclusively on "service" projects. "Community organizing" in organizations like these looks little or nothing like the kind of power focused collective action and institution-building I've been discussing in this series. And in part because these organizations are mostly "professionalized" at the higher levels, they are generally run by people who have little connection to the communities they are located in.

This is especially true for schools, of course. With few exceptions, the only "community" people in inner city schools are support personnel and aides in extremely marginalized positions.

While this refusal of government funding is informed by long experience, it has meant that most local organizing groups depend on foundation funding for their existence. Yes, organizing groups, especially those based in coalitions of organizations like the congregational groups I am most familiar with, try to generate funding out of their members. But without significant foundation funding, as I understand it, most would limp along at best.

This brings us to Michael Barker's just published pair of essays, "Do Capitalists Fund Revolutions?" (see Part One and Part Two). Barker's intent is mostly to focus on the ways in which foundation funding prevents radical social change designed to transform capitalism. I'm not exactly opposed to such a transformation if it could be made pragmatically effective and workable, but I'm not holding my breath. However, his articles draw together a range of interesting writings about the ways foundations often try to soften and de-radicalize the efforts to community organizing and other social action groups.

To extend somewhat on Barker's argument, as I have argued elsewhere in this series, "progressive" activism is grounded in the emergence of what was essentially a middle-class professional movement at the turn of the 20th Century. Stromquist's book on social class and the progressive movement, Reinventing "The People", focuses extensively on how foundations funding social change were integrally part of this middle-class "progressivism." And the middle-class progressives (who were, it must be remembered, an alternative to the communists and the union movements) were focused on the idea that social change could occur through the kind of measured dialogue that they, themselves, were used to.

Even for those of us that aren't necessarily pushing for socialist revolution (not that Barker, for example, is this simplistic--he's clearly not) this gives an indication that there may be something fundamentally anti-power and anti-confrontation about the most important foundations of our time (which, in large part, were the most important foundations then as well).

I wonder if one of the key issues about foundations is their tendency on the left to fund "projects" instead of long-term institutional structure, like the foundations on the right are more likely to do. Barker cites Guilloud and Cordery who note that "funders determine funding trends and non-profits develop programs to bend to these requests rather than assess real needs and realistic goals."

What if foundations on the left instead were more willing to endow local organizing institutions so that they had the independence to do what they thought needed to be done? This, it seems to me, could fundamentally alter the way community organizing groups operate. Instead of constantly grubbing for money and changing their "'product' to bend to" foundation "requests", there might be opportunities for more independent action.

What might such local endowed organizations look like? Along with a friend of mine, I've begun to imagine something like the old settlement house movement:

• where multiple organizations could be housed, rent free;
• where transportation and reimbursement and child-care could be provided to poorer citizens who might then be able to actively participate;
• where a fundraising expert could be permanently sited to identify funds and help relieve organizers from spending so much time finding where there next buck would come from;
• where service providers might also be sited so they could work to support citizens on the margins, again, so that they might actually be able to participate effectively in social action (this aversion to service is another key problem for organizing groups, even though, again, they have good reasons for it);
• that might support interns from the local community on a rotating basis to bring local "expertise" into the building along with "professional" organizers.

Of course, this raises as many questions as it answers. But if someone gave an endowment of, say, 6 million dollars to a collaboration between multiple organizing groups in Milwaukee, only a portion of the interest of which could be spent every year, I wonder how it might change the depressingly limited status of social action and resistance in this community.

Thinking of education, specifically, it might allow the emergence of a permanent grassroots organization with the power to hold the school district accountable over the long term, instead of the kind of momentary and often not sustained engagements that have historically taken place.

(A good example of why this is a problem is the SAGE class-size reduction program that MOVE fought to bring to Milwaukee Public Schools. I have heard that a number of schools are starting to refuse this money because it isn't enough to actually make the program happen and the requirements that come with it saddles them with costs that they then can't really pay. We should be on this. We aren't. In part this is because we're caught up in other complex issues. Our group simply doesn't have the institutional resources to keep good track of what is going on in the moving target that is always the reality of an inner city school district.)

What do other people think?

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