Education rights and wrongs: publicly funded vouchers, state constitutions, and education death spirals.

• Author: Heise, Michael
• Position: Response to article by Julie F. Mead in this issue, p. 703

A response to Julie F. Mead, The Right to an Education or the Right to Shop for Schooling: Examining Voucher Programs in Relation to State Constitutional Guarantees, 42 Fordham Urb. L.J. 703 (2015).

Table of Contents Introduction I. What to Infer from Increasingly Popular Voucher Programs? II. Reframing the Relation Between Constitutional Obligations and Vouchers A. Alternative Ways to Frame Publicly Funded Voucher Programs B. Money as a Partial Solution for Struggling Public Schools III. Adverse Selection and Death Spirals: The NCLB, ACA, and School Voucher Opposition Conclusion Introduction

Professor Julie Mead's Article considers whether publicly funded voucher programs "subvert" states' ability to provide an "adequate" public education consistent with state constitutional requirements. (1) The critical analytic move in Mead's Article involves characterizing publicly funded voucher programs as a "discretionary option" and, in contrast, a state's duty to adequately fund traditional public schools as a state constitutional "obligation." (2) Mead then argues that the growth in the number of publicly funded voucher programs and the accelerating participation rates in those programs threaten to dilute states' abilities to meet their constitutional obligations owed to traditional public schools. (3) Paradoxically, then, it is the interaction of voucher programs' increased popularity and states' increased willingness to fund them that Mead exploits to support her conclusion that "[s]tate constitutions have clearly established that children have a genuine right to a quality public education, not merely the privilege to shop for schooling in the educational marketplace." (4)

Just to be clear--and this central point bears repetition--Mead's argument seeks to transform voucher programs' increased popularity, and state governments' increased willingness to fund them, into reasons to limit voucher programs rather than expand them. Or, a more modest form of Mead's thesis is that regardless of what happens to voucher programs, struggling traditional public schools need more, rather than less funding that results partly from a diminishing share of students served by traditional public schools.

Perhaps even more important than Mead's argument itself, however, is that the structure of her argument implies an overly constrained understanding of publicly funded vouchers and their relation to a student's right to an adequate education. That is, Mead's argument understands publicly funded vouchers through the lens of only those children who attend public schools (as well as public schools' numerous institutional interests and constituencies, including teacher unions).

Of course, other lenses exist and publicly funded voucher programs are capable of far more nuanced and granular understandings than Mead's Article emphasizes. For example, one alternative way to understand publicly funded voucher programs is to consider how they provide some--perhaps many--students with their only meaningful access to an adequate education. This is certainly the case for far too many students, many of whom are students of color or from low-income households, or both, and assigned to "failing" or "inadequate" public schools. (5) Finally, efforts to limit school choice, particularly in today's No Child Left Behind Act of 2001 (NCLB) (6) motivated intensive standardized test environment, imply an awareness of adverse selection, a core insurance law doctrine. (7) And partly in an effort to ward off more "educational death spirals," those defending public schools, such as Professor Mead, seek to limit alternative educational options and diminish the ability to exit failing (or successful) public schools. The desired background goal--to dampen the increasing number of public schools lurching towards an "educational death spiral"--however, will continue to confront substantial headwinds. Unlike, for example, the individual mandate provision in the Affordable Care Act (ACA), (8) which is singularly essential to what the ACA seeks to accomplish as an insurance instrument, a similar "individual mandate" is simply not constitutionally possible in the education context.

Thus, even if the core argument in Mead's Article succeeded and public financial support for voucher programs diminished, such an outcome would only indirectly assist the struggling public schools Mead seeks to aid. (9) On the one hand, it is certainly plausible that public schools would receive increased funding (funding otherwise committed to voucher programs). On the other hand, however, while reducing one exit option from struggling public schools, it would not eliminate other exit options. (10) To the extent that struggling public schools need not only more funding, as Mead implies, (11) but also to attract and retain the very types of students inclined and motivated to exit struggling public schools, reducing public support for voucher programs will only reduce, but not eliminate, avenues to exit failing public schools. Moreover, reducing access to voucher programs as an exit option will also disproportionately harm students from low-income households and exacerbate differences between public and private school profiles. (12) While the Constitution permits states to compel education, it does not permit states to compel (or "mandate") public-only education. (13) Consequently, adverse selection will persist as a threat to public schools unable to deliver satisfactory education services.

1. What to Infer from Increasingly Popular Voucher Programs?

   Professor Mead's Article nicely inventories the surprising recent growth of publicly funded voucher programs as well as various "voucher-like" programs. (14) In Table 1, Mead rightly emphasizes that twenty states now have some form of a publicly funded voucher program and "fifteen programs have been enacted since just 2013." (15) This recent surge will not surprise families participating in voucher programs. It will surprise few, if any, to learn that the survey data from those participating in voucher programs convey genuine enthusiasm. (16) Of course, self-selection assuredly explains much of these results, as one would expect to detect enthusiasm for voucher programs from those who willingly chose to participate in them. More telling, perhaps, is the more generalized increased demand for greater education options. (17)

   Notwithstanding participants' unsurprising enthusiasm for school voucher programs, the spike in the growth of the publicly funded voucher programs that Mead describes will likely surprise many, particularly when assessed in light of the even more pronounced and sustained growth of charter schools during the past decades. (18) One source of surprise flows from the sustained, persistent, and important forces that act against publicly funded voucher programs. Public school teacher unions supply one predictable, vocal, and powerful source of opposition to publicly funded voucher programs. (19) Indeed, the nation's two leading teacher unions, the National Education Association and the American Federation of Teachers, benefit from "vast resources, huge memberships, pervasive political clout, and by almost any estimate are among the most powerful interest groups in all of American politics." (20) That teacher unions typically--and enthusiastically--oppose publicly funded voucher programs will surprise few. Non-public schools pose an important threat to union membership and parochial union interests to the extent that these schools and their growth threaten to redirect public resources away from public schools and toward private schools. Thus, teacher union opposition to voucher programs is both obvious and well-understood.

   Yet other factors also fuel opposition to publicly funded voucher programs. One such factor involves the public's overall satisfaction with public schools. As Professor Terry Moe notes, public opinion data, at least through the year 2000, tends to suggest that on average Americans are "fairly satisfied" with public education. (21) Even if the American public opinion was somehow mistaken, many Americans are financially incented towards satisfaction with public schools. After all, in many suburban contexts, particularly suburbs that benefit from high-performing public schools, home prices reflect the perceived (and real) efficacy of the local public schools. (22) Thus, if nothing else, suburban homeowners possess an important economic incentive that tilts them toward satisfaction with their local public schools and, as well, against public support for private schools that might compete against their public schools.

   Ambivalence or antipathy towards publicly funded voucher programs, whatever its source or sources, is not confined to abstractions and is evidenced in concrete ways. For example, forces working against publicly funded school voucher programs have coalesced and fueled significant and persistent political losses for school voucher proposals placed on ballots. (23) It would be easy, indeed too easy, to ascribe voucher programs' ballot initiative losses to teacher union political opposition alone. To be sure, teacher unions are among voucher programs' most vocal and organized critics. But responsibility for voucher proposals' political losses is more accurately shared by a convergence of allied interests. Among the less-appreciated opponents of voucher programs is suburban opposition, especially suburbs that benefit from well-functioning and desirable public schools. (24)

   Thus, the publicly funded voucher programs' recent and notable legislative success that Mead documents (25) becomes far more notable when this growth is nested into a general political context noted for indifference, at best, toward voucher programs. The politics that surround voucher programs continue to shift, and they are shifting in directions more amenable to voucher proponents. That is to say, what is notable about the...