School Choice & Charters Q&A

Voucher Programs Gain Strength With Help From the Courts, An Expert Says

By Mark Lieberman — December 22, 2022 8 min read
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The movement to publicly fund tuition for students to attend private schools has gained momentum on the heels of a handful of recent court decisions—raising concerns for some advocates who fear consequences for public schools.

The West Virginia Supreme Court voted 3-2 in October to reject a lawsuit challenging the state’s school choice program, which provides education savings accounts for K-12 students who wish to attend private schools. A similar law went into effect in Arizona this summer after opponents failed to garner enough signatures to place a challenge on the ballot.

In Tennessee, a panel of judges last month upheld another such program, saying there wasn’t sufficient evidence that offering vouchers hurts students and public schools. Buoyed by recent electoral victories, GOP lawmakers in Iowa, Kansas, Oklahoma, and Texas have vowed in recent weeks to pass new school choice policies next year.

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Supporters of school vouchers rally in Austin, Texas, on Jan. 24, in hopes of persuading state lawmakers to approve a voucher program that would provide public money to families to help pay tuition at private and religious schools.
Supporters of school vouchers rally in Austin, Texas, on Jan. 24, in hopes of persuading state lawmakers to approve a voucher program that would provide public money to families to help pay tuition at private and religious schools.
Associated Press

Criticisms of public schools that stemmed largely from the pandemic contributed to a burst of school choice programs in the last couple years. Some states extend school choice funding to narrow categories of students, while others have universal programs.

But voucher programs have faced their fair share of recent setbacks and criticism as well. The Supreme Court of Kentucky this week struck down a law that established tax credits for residents who donate to private schools. In Ohio, a federal judge last week rejected a challenge from school choice advocates and ruled that 130 school districts can continue their case arguing that the state’s voucher program is unconstitutional. And in Michigan, voters in November overwhelmingly rejected a ballot measure, backed by former U.S. Secretary of Education Betsy DeVos, that would have created scholarship accounts for students to attend private schools on the state’s dime.

Critics of the school choice movement argue that diverting public resources to private institutions puts public school students’ needs at a disadvantage, and places struggling students in a system that doesn’t have a track record of strong academic outcomes. Supporters argue families should be able to send their children to the school that works best for them, regardless of the cost.

Education Week earlier this month interviewed Joshua Weishart, a professor at the West Virginia University College of Law who studies school choice and has been a vocal critic of voucher programs, about how the recent court decisions in his state and elsewhere could affect public schools.

The following interview has been edited for length and clarity.

Can you summarize the West Virginia decision? What exactly did the court say?

What we’re learning from these recent constitutional challenges in West Virginia and elsewhere is that courts are loath to accept this argument that a legislature can never fund a voucher program. The [state] constitutions confer a lot of power over education. Unless there’s specific language that would preclude funding vouchers, then courts are going to say they pass muster.

The most charitable view from their position is they don’t want to violate separation of powers—what they see as a policy decision made by the legislature on the pros and cons of vouchers. The reality, of course, is that these are elected state court judges [in West Virginia and roughly 20 other states]. They’re keenly aware that vouchers are contested political issues and they don’t want to find themselves on the wrong side politically. Even when state constitutions contain very specific language that would preclude vouchers from being funded from certain sources, courts have approved legislative workarounds. That’s why we’re seeing tax credits, scholarships, savings accounts that accomplish the same thing as vouchers.

You tweeted that you’ve “never been more concerned about the future of public education in West Virginia” than after the state supreme court decision in October. Why did this decision concern you so greatly?

In that case, the state was forced to concede that this voucher program is going to divert funding from chronically underfunded public schools to private schools—$100 million or more when the program becomes universal. The court still refused to find a constitutional violation, insisting that the plaintiffs have to show precisely how the diversion of millions of dollars from public schools to private schools is going to harm the quality of public education.

What makes that sort of a demoralizing outcome is we know money matters, especially for disadvantaged students. We have our fair share in West Virginia. Requiring that additional evidentiary burden strikes us as egregiously unfair. It allows the voucher program to come into existence and then requires future plaintiffs to wait potentially years for them to amass very specific evidence in which, at that point, the court’s going to be even more disinclined [to rule against vouchers].

It becomes a Catch-22, because if you delay these challenges until after a voucher program becomes operational, you can’t put that genie back in the bottle. If you launch into a challenge before the program becomes operational, they’re probably dead on arrival in courts. Future challenges are going to have no choice butto pursue these cases after voucher programs come into operation. That’s what makes it so ominous.

In what ways will public schools feel the effects of decisions like these?

We know what it’s going to do, it’s going to reduce public education funding, and that’s going to exacerbate existing inequities and inadequacies, which we know that public schools are struggling with, particularly now. We’ll see other states go in this direction. You already have systems of public education that are not fully and fairly funded. This is just going to make things worse.

How will the U.S. Supreme Court’s decision earlier this year in the Carson v. Makin case affect the school choice movement?

We used to be able to rely on state constitutional provisions that prevented the flow of public money to religious institutions. Now the U.S. Supreme Court has said, if you’re going to open it up to all private schools, then you can’t discriminate against the religious schools, notwithstanding a state constitution or the U.S. constitution.

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Image of the Supreme Court.

That pretty much eliminates any challenge that you could have, even under state constitutions. The U.S. Constitution is the supreme law of the land. If a state constitutional provision conflicts with that, the U.S. Supreme Court’s decision is going to be effectively the law. It eliminates a challenge based upon even specific provisions that would include funding religious schools.

Has there been any advocacy around amending state constitutions to protect public schools from losing funds to private institutions—similar to how some states added abortion rights protections to their constitutions this year?

I haven’t seen any movement to resist voucher programs by ratifying a constitutional amendment. What I’ve seen is just the opposite. In West Virginia, lawmakers put on a ballot provision that would effectively give them ultimate decision-making authority over the state board [of education] and the state department of education. Whatever regulations they would promulgate, the legislature would have a veto. Voters saw that for what it was and rejected that power grab.

In Ohio, too, lawmakers are trying to take power from state departments of education and state boards. Those institutions are supposed to be insulated from politics so they can make their judgments based on what’s best for children.

I haven’t seen any movement in the opposite direction. That’s what’s probably needed—a political social movement to insist these constitutions be changed. It would be easier to change state constitutions than the U.S. Constitution.

We shouldn’t have to resort to amending the constitution. We should be able to rely on the authority that’s supposedly given to education in most state constitutions. But unfortunately, the prospects there look very bleak.

What issues does the proliferation of voucher programs raise?

There’s a theory that if you have public schools compete with private schools, that makes the public schools better. Even if you accepted that, and that’s a big if, I think that it carries certain state-created dangers. One of them is that we lose this focus on the state constitutional duty to educate democratically, through public schooling that’s open to all, inclusive, geared toward the common good, and [that] houses democratic experiences in the classroom. That’s a big loss. We do need to talk more about the kind of education we’re interested in supporting and prioritizing, and not just choice for its own sake.

Why do you think the voucher movement has persisted despite being relatively unpopular among a broad swath of the electorate and even many elected officials?

I think it’s an easy story in certain red states that the politically powerful want them. They want the government to subsidize their children’s private education. They control the levers of power to prevent the voters from deciding these things directly.

I think it’s a little more complicated in blue states and purple states. There you have racial dynamics as well. And this flirtation with choice—it’s so seductive. Even if you tell them and show them and prove to them that it’s not going to improve outcomes, it doesn’t matter. They want it because someone else has it.

Of course we have the narrative that prevails in this country that our public schools are dismal failures, and that prevailing narrative causes people to distrust and lose faith in public schools and consider other options.

What’s next for the voucher movement?

Once these vouchers get up and running, what it’s going to cause is higher taxes to make up for the losses, and this is going to cause county school districts to put levies on the ballot. Even if the voters decide to tax themselves more, those economies of scale in these rural counties are going to exhaust any kind of surplus from any increased property taxes.

What that’s going to cause, I think, is more school consolidation, particularly in rural counties. We don’t need more of that in West Virginia, where you have students riding buses for an hour or more in these counties. That is going to be an unintended consequence of more focus on choice.


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