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Published in Print: March 1, 2000, as States Giving Choice Bills A Closer Look

States Giving Choice Bills A Closer Look

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Taking on one of the most divisive issues in education, a majority of state legislatures are examining proposals this year that would allow families to use public dollars or tax breaks to help send their children to private schools.

Both supporters and proponents of school choice agree that most of this year's bills stand little or no chance of becoming law, a fate they share with most similar proposals in years past. But some analysts say last year's passage of the nation's first statewide voucher program in Florida is encouraging states to take a harder, longer look at such plans.

"The number of states with legislation proposed is similar to other years; the seriousness of debate around these policies is what has changed," said Eric Hirsch, a senior analyst for the Denver-based National Conference of State Legislatures.

Another shift that seems to be occurring this year is that more policymakers are borrowing a page from Florida's book and linking their choice plans to the performance of public schools.

Following the Sunshine State's lead, a handful of legislatures are looking at plans that base students' eligibility for vouchers on how their public schools stack up on state accountability measures.

"It may be more politically feasible to link these proposals to standards and assessments and accountability," said Todd M. Ziebarth, a policy analyst with the Education Commission of the States, also based in Denver. "If you offer an option that links vouchers to the bigger picture, it may be viewed as part of the total package of reforming public schools."

As states approach what for many is their busiest legislative season, lawmakers in at least 21 states are looking at bills to start voucher programs.

At the same time, some 18 legislatures are considering proposals that would offer tax breaks to help cover the costs of private schooling—a figure that analysts say is higher than in years past.

One reason more policymakers are plugging tax breaks, some experts say, is the perception that such plans offer a more politically palatable alternative to private school vouchers.

Over the past decade, school choice involving private schools, especially religious schools, has become an increasingly contentious issue among politicians, policy experts, and educators.

Despite all the debate, however, evidence either side can point to in support of its arguments remains limited.

Few Programs in Place

The country's only statewide program was just approved in Florida last summer. Students at schools that earn failing grades from the state two years out of four are eligible for vouchers that can be used at public, private, and religious schools. So far, only two schools qualify, both of them in Pensacola.

Two longer-running publicly funded voucher programs, though enacted by state legislatures, serve single districts. Those programs, in Cleveland and Milwaukee, base eligibility on family income.

Perhaps the biggest question for state policymakers is whether appropriating public funds that can be used for tuition at religious schools will ultimately pass constitutional muster.

A federal district judge held last year that the Cleveland program's inclusion of religious schools was likely an unconstitutional establishment of religion under the First Amendment. The decision is on appeal. The Wisconsin Supreme Court upheld the Milwaukee program in a decision the U.S. Supreme Court declined to review in 1998.

Florida's program is also being fought in the courts. The plaintiffs in one case argue that the 1999 law violates the state constitution by using tax dollars to pay for private school tuition, as well as the U.S. Constitution's ban on establishing religion because of its inclusion of religious schools. A hearing before a state judge took place last week.

The small crop of enacted voucher programs and the legal challenges to them seem to be doing little to dampen the enthusiasm of choice proponents elsewhere.

In Michigan, for example, a proposal is headed for the November ballot that would allow vouchers for private and religious schools. The group promoting the voucher measure, Kids First! Yes!, announced last week it had collected more than the number of signatures necessary for a statewide vote.

Among the states where debate is expected to be the fiercest and most protracted this year are those whose governors are leading the charge for school choice.

For the second year in a row, New Mexico Gov. Gary E. Johnson is pushing a plan that would offer each public school student a $3,500 voucher that could be used for tuition at any private or religious school in the state.

New Mexico's legislature has adjourned, but a spokeswoman for the Republican governor said vouchers would likely be a big part of the discussion during a special legislative session on the budget this spring.

Following Florida

Meanwhile, at least seven states—California, Colorado, Georgia, New Mexico, Pennsylvania, Vermont, and Washington—have proposed legislation similar to Florida's voucher law, which put a new twist on the traditional arguments in favor of private school vouchers.

In addition to arguing that competition would force public schools to improve, voucher proponents have typically contended that programs such as those in Cleveland and Milwaukee will give poor families a measure of the freedom to choose their children's schools that is enjoyed by more affluent families.

With the Florida-style programs, the fairness argument has shifted from one linked to family poverty to one tied to school performance.

"Before Florida, vouchers had not been looked at as an accountability tool," Mr. Hirsch of the NCSL said. "Vouchers have become less a means of helping low-income kids achieve education choice and more of a sanction aimed at turning around failing schools."

Tax Plans Face Questions

Policy experts say the large number of tuition-tax-break proposals showing up in legislatures this year may reveal another route choice proponents are trying in an effort to build more political support.

Four states have tax-break programs in place for private school tuition: Arizona, Illinois, Iowa, and Minnesota.

In its 1983 decision in the case of Mueller v. Allen, the Supreme Court upheld Minnesota's tax deduction for private school expenses. But the constitutional status of tax breaks for the costs of religious schooling remains unclear.

"We have no clear guidance from the U.S. Supreme Court, and it's a mixed bag with the lower courts, so we're dealing with a situation of legal uncertainty," said Richard D. Komer, a lawyer with the Institute for Justice, based in Washington, which represents supporters of school choice in court.

However, he argued, the Supreme Court's refusal last fall to review an Arizona tax-credit case puts such policies on firmer ground. The high court declined to hear an appeal of an Arizona Supreme Court decision upholding that state's credit for donations to scholarship funds that offer aid for tuition at religious and other private schools. The state ruling cited the Mueller v. Allen decision.

Virginia's legislature is among those that have examined tax credits this year.

A proposal before lawmakers would have allowed parents of private school students to receive state income-tax credits, starting at $500 in 2001 and increasing to $2,500 over five years.

Facing staunch opposition from teachers and civil liberties groups, the legislation was recently set aside for study and debate next year, and a companion bill in the House died in committee.

But as in other states where voucher or tax-credit proposals have failed to pass this year, proponents in Virginia say they aren't giving up.

"This is just the beginning," said Robin DeJarnette, the government-relations director for the Virginia affiliate of the Family Foundation, a nonprofit organization that promotes conservative social policies in 39 states. "We actually have gained tremendous momentum [in the legislature] this year, and the grassroots support has been incredible."

Vol. 19, Issue 25, Pages 1,24

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