Author Archive | Stephen D. Sugarman

Churches and charter schools

Sugarman: "contrary to today’s conventional wisdom, allowing religious schools to become charter schools is not clearly a violation of the 'establishment clause.' "

Sugarman: “contrary to today’s conventional wisdom, allowing religious schools to become charter schools is not clearly a violation of the ‘establishment clause.’ “

The connection between charter schools and religion continues to generate the occasional headline, with the most recent coming last week when the New York Times carried a Texas Tribune story about Texas charter schools leasing space from churches. Some of those interviewed objected to the entanglement of the schools with the churches and the “benefits” that churches were gaining from these arrangements.

I think these concerns are misguided, given the state of charter facilities funding and the facts on the ground about most of these relationships. At the same time, I think the legal door is open in some states for the possibility of faith-based charter schools, which would be a step forward for school choice and education reform. Let me explain.

1. The Present

At the moment, in all states that permit charter schools as part of their public school system, charter schools may not be religious schools. Put simply, this means that religion may be no more a part of these schools than it is in other (traditional) public schools. School prayer is prohibited. Students and teachers may not be selected on the basis of their or their family’s religious beliefs. The curriculum must be secular.

Finding a suitable place to locate charter schools is a widespread problem. Those who run charter schools have to pay for their facilities from the same funds that also pay for all the academic and other financial obligations, whereas public school facilities are financed separately, usually through general obligation bonds, paid by property owners in the school district until the facility is fully paid for. Many charter schools are in leased premises, unlike traditional public schools. This generally puts charter schools at a substantial financial disadvantage compared to their other public school counterparts.

In some places, as here in California, the local school district is supposed to offer suitable facilities to charter school operators, but in practice that often is a hollow requirement as the place or places offered are locations that are actually quite unsuitable. Sometimes school district leaders have nothing better to offer; other times, it seems they deliberately offer what they know will be rejected because they are hostile to charter schools taking away “their” pupils. Many instances of protracted litigation have occurred before charter schools have been able to secure facility agreements from school districts.

As a result, it is natural that charter school operators frequently turn to churches as potential landlords. Continue Reading →

Designing tax credit scholarship programs

sketchingI have written an article about tax credit scholarship plans that will be published in the Journal of Law and Education (Volume 43, Issue 1, Jan. 2014). You can read it here.

The article describes these school choice scholarship plans, which have now been enacted in 12 states. Put simply, funded by state tax credits, these plans enable low- and modest-income families to send their children to private schools in grades K-12. The main purpose of the article is to discuss design parameters that those creating such plans must consider. I address the important issues and show how states have come up with a variety of answers to these questions. I also make some brief legal and economic comparisons between tax credit school scholarship plans and voucher plans, and I discuss Sen. Marco Rubio’s recently proposed federal tax credit school scholarship plan.

The key design questions for these plans (which I consider) are:

1.   What families are eligible for the scholarships (as measured by income and up to what level, and by whether their children are already in private schools)?

2.   How large must or may the scholarships be (and how large are they likely to be if there is discretion)? What do such limits mean for the obligation of the family whose child wins a scholarship to pay tuition in part out of its own pocket?

3.   To what extent are schools that accept scholarship students to be regulated and by whom (in terms of testing regimes, teacher qualifications, and control over admissions)? Continue Reading →

Too soon to gauge sweep of Indiana school voucher ruling



In 2002, in the Zelman case, the U.S. Supreme Court upheld the Cleveland school voucher program against a claim that the plan violates the “establishment clause” of the First Amendment to our national constitution. Simply put, the closely divided court concluded the Cleveland plan is part of a broader school choice scheme that in a number of ways gives families opportunities to select the schooling they believe is right for their children. That was understood to be the purpose and effect of the legislation and the fact that most of the vouchers were used at religious schools was beside the point. This decision shows a carefully constructed school voucher plan can survive a federal constitutional challenge.

Yet, voucher plans are still potentially illegal under state constitutional provisions that may be read by state courts to be more restrictive than the national constitution. States have very different provisions in their constitutions that voucher opponents cite in hopes of getting their state supreme courts to invalidate voucher plans. It is not possible to say what is the nationwide law on this issue because each state has its own separate constitution and because state supreme courts have in the past interpreted similar (or even identical) provisions of state constitutions in different ways.

This means that in every state where a school voucher plan is adopted there is likely to be a legal fight over its validity – as teachers’ unions, “separationists” who oppose anything they see as government aiding religion, and others who don’t like the voucher idea will go to court to try to win what they lost in the state legislature.

In March 2013, the Indiana Supreme Court, in the case of Meredith v. Pence, unanimously upheld the Indiana statewide school voucher plan against legal attacks in which opponents of the plan cited three different provisions of the Indiana state constitution. This was a big legal victory for supporters of the Indiana voucher plan, which at the time of the decision was serving about 9,000 students. Continue Reading →

A closer look at Marco Rubio’s proposal for federal tax credit scholarships

Eleven states currently offer tax credits to specified taxpayers who make contributions to tax-exempt non-profit organizations that in turn use those contributions to fund scholarships for qualifying, financially-needy, elementary and/or secondary school students attending private schools. This fairly recent development is currently empowering perhaps 150,000 lower-income families, who generally are unable to afford private schools, to make this sort of school choice for their children. To be clear, these plans provide benefits for taxpayers who make contributions that help other people’s children attend private schools.

Sen. Rubio

Sen. Rubio

Sen. Marco Rubio, R-Fla., has just introduced a bill that would expand this tax credit scholarship initiative nationwide. To understand the good (and dubious) features of Senator Rubio’s proposal, it is important to appreciate the state law background against which it is set.

Florida has the financially largest of these 11 state tax credit programs, with about 50,000 children currently participating. It restricts the scholarships to children from truly low-income households; the child must be eligible for a free- or reduced-price school lunch – currently just over $40,000 a year for a family of four. Other states are more generous, with Oklahoma reaching well into the middle class since there a family of four can still qualify with $120,000 in annual income. Senator Rubio’s plan, while not as tightly restricted as Florida’s, focuses the scholarships on families with income no more than 250 percent of the poverty level, which is a bit over $50,000 today. The main thing to emphasize here is the senator clearly seeks by his bill to empower the least well-off Americans who are currently least able to exercise school choice – a choice that more well-to-do families make by either moving to a better public school district or paying for private schools on their own.

Several state plans give tax credits to both individual and corporate donors (and for corporate donors the plans sometimes allow credits against a variety of state taxes).  Senator Rubio’s bill does the same – allowing married couples and single taxpayers both to obtain a federal income tax credit for an annual contribution of up to $4,500, and allowing corporations an annual corporate income tax credit of up to $100,000. Florida by contrast only allows corporate tax credits and Arizona (which was the first state to adopt this program) initially granted only individual tax credits. Senator Rubio’s proposed tax credit limit for couples and individuals is about twice that now allowed in Arizona. Some states have no cap on donations, and indeed in Florida a few very large corporate donors contribute millions each year to the plan.

Senator Rubio’s proposed tax credit is a 100 percent credit, as is true in both Florida and Arizona, for example. This means that for every qualifying dollar contributed, federal income taxes would be reduced by a dollar. This essentially makes contributions costless to the donors. They, in effect, are able to re-direct their tax dollars to this specific cause – helping needy families send their children to private schools. It is worth nothing, however, that some states grant only a partial tax credit, such as the 65 percent credit allowed in Iowa and the 50 percent credit allowed in Indiana. In those latter states, donors must put up some of their own money.

Most states that adopted these plans imposed a maximum overall limit on the amount of tax credits that may be claimed each year in support of the program. These maxima vary enormously and even so are often not reached. Senator Rubio’s plan has no such limit. It probably would be complicated and costly, but clearly not impossible, for the IRS to administer an overall ceiling in a way that allowed would-be donors to know whether their contribution was within the national maximum and hence truly eligible for the credit.

One important difference between many state plans and Senator Rubio’s proposal is there is no limit on the amount of the scholarship that may be awarded. Florida, for example, caps scholarships at $4,335 at present; in Georgia the limit is just over $9,000. Hence, as appears to be the case in states like Iowa and Indiana, it would be legally possible under the senator’s plan for a child to win a full scholarship to a very high cost, elite private school and hence indirectly obtain government financial aid well beyond what is now being spent on public schools. This is perhaps unwise. Note, however, that nothing in Senator Rubio’s bill would require scholarship granting organizations to award full scholarships or high-value scholarships. In many states at present, the average scholarship is less than $2,000 a year. Since it would be rare to find a school with tuition that low, either the families must find some way to come up with the difference, or the schools must use their own financial aid plans to make up some or all of the gap.

The most striking difference between most state plans and Senator Rubio’s is children already enrolled in private schools would be eligible for scholarships. Continue Reading →

The daunting details of Romney’s school choice plan

Gov. Romney gave a speech last month to a Hispanic audience calling for more school choice for parents. He promised, if elected president, to provide all children from low-income families and all special needs children with choice in a broad range of public and (where legal) private schools. This is a promise that should very much please school choice supporters.

The likelihood of Congress actually passing such a plan may be small, but a president can provide leadership (although this could turn out to be like many of President Reagan’s pro-family promises during his campaigns that failed to yield actual policy changes).

While Romney’s broad rhetoric was attractive, what was distressing about his talk is the uncertainty as to just how his promise could be delivered. As I will explain, I fear the Romney team has not sufficiently thought through the details.

For public school choices that families would make, things are clear enough. Today, federal funding for low-income and special needs students is distributed in a very complicated way. Romney’s plan would simplify things by converting that funding into specific amounts per eligible pupil and, more importantly, that per pupil funding would follow the child to the school he or she actually attended, whether traditional, charter, magnet, out-of-district, or whatever – thereby providing the child’s school with extra money to help pay for extra services the children from low-income families may need in order to achieve at grade level. This is how federal aid to education should be working already and is overdue.

But for those families choosing private schools, the proposal is much murkier. Federal aid to education is a small share of overall school funding, and so a low-income child’s per pupil share of federal aid (say, $2,000 a year) would, in most cases, be far too little to pay the tuition at either a religious or secular private school. Put differently, we are talking about a sum that would be far less than the $7,500 per pupil now provided by the federal government (by way of vouchers) to low-income families in the District of Columbia who send their children to private schools participating in the voucher plan (a successful program that Romney supports continuing). Continue Reading →

Low-income parents vs. teachers unions on teacher layoff policies

Editor’s note: High-poverty schools and low-income families are hurt the most by last-in-first-out layoff policies for teachers. In Los Angeles, groups representing low-income parents filed suit against the practice – and so far, they’re winning. Berkeley law professor and redefinED host Stephen D. Sugarman writes in this post that low-income parents have the right to equitable treatment for their children.

Unions typically bargain for terms that protect current members and, if need be, give priority to members with more seniority than those with less. In hard times when an employer is downsizing, this “last in, first out” policy best serves the needs of longer-term union members who are most experienced and perhaps most economically dependent on holding onto a job they have done for some time. It also provides a routine practice that lies in contrast to what might be an employer’s desire to lay off those who are, say, the most expensive, the least productive, the most troublesome, or the most active union members.

This “last in, first out” plan is typical in union contacts with public school districts. What it means when teachers have to be laid off is that the least experienced in the district are the first to be let go. These teachers are generally the most recently trained and the least expensive. It is also typically the case that they are disproportionately employed in schools that have had the hardest time attracting and retaining effective teachers, schools that almost invariably contain a disproportionate share of children from low-income families and children of color. These are often under-performing schools as well, although in some cases they might have recently put into effect a promising school improvement regime with the cooperation of the in-place local teaching team.

Does this mean that, in times of economic downturn and curtailed school district budgets, high-needs schools end up with very few teachers and terrible student/teacher ratios? No. Union contracts and federal law require that student teacher ratios remain fairly comparable across the schools in a district. Instead, slightly more experienced teachers from within the district are meant to be shifted over to these teacher-short schools, either via transfer or after themselves being laid off and then re-hired. In theory, this could actually provide high need schools with more experienced teachers than they had before, and that could possibly be desirable for their students on the theory (generally supported by research) that brand-new teachers are generally less effective that those with three or more years of experience.

But on the ground, it often works out quite differently. Continue Reading →

From charters to vouchers — the next evolution for liberal Democrats

About two million American children now attend more than 5,000 charter schools nationwide. Although it is likely to take some time for charter schools to be the educators of even 10 percent of our children, they are heading in that direction and appear to have become an entrenched feature of our public education system with charter schools now operating in more than 40 states and the District of Columbia.

Attractive charter school regimes have these fundamental features:

  1. Charter schools receive enough money to offer a good quality program. (In fact, many charter schools are now unfairly financially starved — especially if they have to pay for their school buildings from a funding package that envisions payment only for current operating expenses.)
  2. Charter schools may not select among applicants, but rather must admit all who apply, accepting their pupils by lottery if there are too many applicants for the available slots.
  3. Charter schools may not charge families tuition (which would price out low-income families), but must rather live on the per-pupil allocation they receive from government plus any additional moneys they, like other public schools, are able to obtain from charitable or foundation fund raising.
  4. Applicants can obtain a charter fairly easily, so long as they present a plan that is sensible, both educationally and financially. (Unfortunately, many charter-hostile local school districts reject deserving charter applicants, so appeal processes are vital.
  5. Charter school operators are given great autonomy in setting the mission, pedagogy, teacher hiring policies, and curriculum of their schools, even if their pupils are required to take the standardized tests required of traditional public school pupils, with the school-wide scores disclosed as in other public schools. (In some states excessive regulation makes the charter school law largely a sham.)

This embrace of public school choice seems widely supported across the political spectrum. Indeed, beginning with President Clinton, three successive administrations have strongly supported charter schools, and charter schools are one of the linchpins for President Obama’s education reform efforts. A significant number of liberals have recognized the importance of providing lower income families with access to desirable schools beyond the traditional public schools. Moreover, along with charter schools has come the widespread adoption of broader public school choice plans that in many communities now permit families to select from among several regular public schools as well as charter schools. Before this embrace of school choice within the public sector, families who were not financially able to pay for private schools exercised choice primarily by moving to where they thought the schools best suited their children, an option frequently unavailable to low-income families.

It’s time for the next evolution in our liberal thinking. The many liberal Democrats who support public school choice including charter schools should cease their opposition to progressive school voucher and tax credit scholarship plans targeted on the poor. Progressive plans precisely resemble the quality charter school programs described above and also provide access to more school choices for low-income families. Opposing these plans deliberately disrespects the values of those low-income families with strong desires for their children to attend faith-based schools, the one type of school that charter schools cannot be. Moreover, usually these faith-based schools have been fixtures with deep roots serving low-income communities for decades. Yet the changing economics are rapidly diminishing this ability to serve the poor and failing to act has already significantly reduced the numbers of these schools.

My wife and I have a number of friends who are liberal  Democrats like us and who pay or have paid to send their children to religious  schools. Many of our national leaders, including presidents, pay or have paid to send their children to faith-based schools. Although some low-income families struggle mightily and manage to do the same or who luckily receive financial aid to make this possible for their children, households of modest means are generally and increasingly priced out of this option. Progressive private school choice plans could change that.

Clearly these private school choice plans that include faith-based school options are constitutional, as the U.S. Supreme Court has now upheld both the Cleveland school voucher plan and the Arizona tax-credit scholarship program.  This is legally a “free exercise” issue, not an “establishment of religion” issue that so many liberals seem to miscast it as. To be sure, there may still be some state constitutional barriers to certain types of private school choice plans that include faith-based schools as an option, but there are no such barriers in many states.

I find this hostility towards religion in the school choice setting closely analogous to the position of those who say they respect a woman’s right to choose to have an abortion, but who then oppose the payment for abortion services by Medicaid.  After all, just as Roe v. Wade decided that women have a constitutional right to choose and abortion, Pierce v. Society of Sisters decided that families have a constitutional right to choose a faith-based school. But for the poor without public financial support, both of these rights can become a mirage. Something is wrong here.  Liberals clearly favor public funding of abortions if low-income women choose to have them. Why don’t more of them support public funding of faith-based education if low-income families wish their children to have that?  Most other wealthy nations do this.

Maybe there is room here for a deal. If liberals will reevaluate their stance on educational choice programs that empower low-income families to take responsibility and authority for their children, maybe religious opponents of the public funding of abortions will reevaluate theirs.

Too many liberals are on the wrong side of the school choice debate

We liberals see our public schools as the centerpiece of America’s “melting pot” society. Religiously divisive societies like Northern Ireland and Lebanon worry us. Teachers unions are generally applauded as providing needed job protection for committed professionals who are helping to shape the lives of our children. These beliefs combine to cause all too many liberals automatically to oppose school choice plans that would enable more low-income families to choose religious or other private schools for their children. That’s too bad, and it need not be that way.

Liberals certainly think that our society should pay special attention to the needs of low-income families, often non-white families. And it is clear to everyone that all too many of the children from these families are now poorly served by conventional public schools. To remedy this problem, liberals typically put their faith in the internal reform of public education. In the meantime, however, liberals with means seem content for other people’s children to remain stuck in public schools that they would never tolerate for their own children.

Lots of low-income families also are committed to public education, and if their local schools are bad, their focus is on making them better. But other low-income families would like to choose something else for their children. Surely liberals are predisposed to respect the judgments of all families, rich or poor, as to what they believe is in the best interest of their children.

Encouragingly, in large parts of America, school choice has now become a central feature of public education. Charter schools, magnet schools, inter-district transfer programs, and the like all enroll children on the basis of family choice. A number of school districts have even converted their entire enrollment system into a family choice plan that no longer bases assignment on the location of the family’s residence. Well-to-do families have traditionally been able to “choose” their children’s public schools by deciding where to live — especially in upper-income suburban enclaves which offer good public education to which low-income families are realistically denied access. The newer sorts of public school choice arrangements provide wider opportunities to low-income families, and liberals like President Obama support them.

Charter schools may threaten teachers unions, and they are often managed by entrepreneurs, sometimes even profit-making organizations. But they are still public schools — open to all (by lottery, if applications exceed seats available), free of charge, and free from religion.

This is exactly the problem, however, for low-income families who want faith-based schools for their children. School choice programs, such as Milwaukee’s voucher program and Florida’s tax credit scholarship program, target these families. Through them, tens of thousands of families now can opt for something they could not otherwise afford. Most other wealthy nations also subsidize that sort of choice. Yet, American liberals are the most outspoken opponents of such plans.

This stance is inconsistent with fundamental liberal beliefs. Liberals are all for “choice” when it comes to abortion and want the government to pay for abortions sought by poor women. Why can’t more liberals see the desirability of fully extending choice to low-income families when it comes to education?

Some liberals persist in arguing that “common” public schools are necessary because they are society’s way of transmitting democracy and tolerance to everyone. This is a romanticized picture of what actually happens in public schools. Moreover, America’s private schools don’t teach intolerance. To the contrary, research shows that their students become as or more tolerant than their public school-going counterparts. Indeed, it is the closing off of private schools to those who cannot afford them that interferes with parents’ fundamental exercise of their free-speech rights when they are unable to select the educational values their children are taught.

Contrast America’s system of higher education. The federal government provides “Pell Grants” to low-income students regardless of whether they attend public or private colleges. The great private universities all provide additional tuition assistance to low-income applicants and many of the best admit on a needs-blind basis. It is left to students and their parents to decide whether or not they wish to attend a faith-affiliated college.

Liberals who personally care about religion and who send their children to religious schools often seem indifferent to the religious beliefs of parents who are too poor to make the same choice for their children. Giving vouchers or tax credit-funded scholarships to children from low-income families should be a “free exercise” issue with civil liberties organizations. Instead, these programs are miscast as an “establishment” of religion. But the right kind of school choice plan no more breaches the “wall of separation” between church and state than does the current income tax deductibility of contributions to religious organizations.

Of course, school choice by itself is not a “silver bullet” that will magically cure all our educational woes. But school choice plans can help low-income families obtain something they want for their children that even the most liberal charter school plan cannot provide — religious education. My wife and I are not religious and we never sent (or wanted to send) our daughter to a religious school. But we could have afforded it if it had been our family preference. I consider myself a liberal, and I find it anything but liberal to automatically oppose choice plans that could empower low-income families to select for their children from among the options I had for mine.