Hi. My name is Bob. I’ll be your robber.
(Guest post by Greg Forster)
While we’re on the subject of “Overregulation Theory,” what if that’s a misnomer? What if we’re missing the point by drawing the lesson from Louisiana that “program design matters,” because the real problem isn’t design, it’s arbitrary threats by federal and state officials? The kind of thing you can’t stop with better program design?
I can’t seem to shake these possibly heretical thoughts, so I will submit them to my spiritual directors here on JPGB in hopes of recieving guidance.
I took a fresh look recently at one of the loci classicus for Overregulation Theory in Louisiana, Jason’s post “The Folly of Overregulating School Choice.” What struck me is how the “regulations” on the Louisiana program, while they are very bad regulations, are not so different from regulations on other school choice programs that have not failed this miserably. To participate in the voucher program, Louisiana schools give up control over admissions and price – but they do the same in Milwaukee and in other voucher programs. Why is Louisiana such a big loser when other programs operating under similar hindrances have been winners – moderate winners, to be sure, but still?
Then I noticed that in the AEI survey of Louisiana private school officials, the top reason for not participating in the program was not current regulations but “future regulations that might come with participation.” This was also the top concern about the program for school leaders whose schools were participating.
And then I took a fresh look at Lindsey Burke and Jonathan Butcher’s NRO article about Louisiana vouchers, and was reminded of a couple items that helped this all click for me:
- The federal government attempted to gain sweeping authority over private schools participating in the voucher by manipulating desegregation law.
- The state superintendent issued vague, arbitrary threats of interference with private schools based on his personal judgment of their performance.
I have not seen as much attention to that second point as I would have expected. Lindsey and Jonathan write:
Schools risk losing access to the Louisiana Scholarship Program if results on state tests “don’t meet expectations,” according to a letter from John White, Louisiana’s state superintendent of education. And, he adds, schools “are not permitted to accept new Scholarship students until their results align with program requirements.”
Now, I don’t think – but I’m open to hearing new information – that the Louisiana voucher program authorizes the state superintendent to swagger around making these kinds of intimidating statements to participating private schools. And that seems to me like a really big deal, much bigger than any aspect of program design as such.
It’s one thing to have a set of clear rules to follow. The rules may be stupid, but if you follow them, you’re safe. It’s quite another thing to be subject to vauge and arbitrary commands from a person in authority – commands that aren’t anchored in any clear set of rules, which could therefore be expected to change at any moment and be enforced based on whim. Or, more likely, malicious design.
As Al Copeland Nominee Charles Montesquieu explains, you cannot have freedom unless you have a well-grounded, reasonable expectation that you will continue to have freedom in the future, indefinitely. If it is even just somewhat possible that your freedom may be taken away tomorrow, you are not free today. You cannot plan your life as a free life; moreover, those who might become your rulers tomorrow can start nudging you to do things their way now. Why do you think some Republicans are selling their souls to Donald Trump?
Comparing the list of formal regulations in the Louisiana program with the federal attempt to gain sweeping power by climbing in the back window of desegregation law, and the vague and arbitrary threats from the state super, I know which would scare me more if I were running a private school.
Am I missing something? Does the state super have some stronger ground in the voucher law than I’m aware of for his threats? Or might these arbitrary intimidation tactics be something we should consider over and above “regulation” and “program design” as a cause of the Louisiana program’s failure?
I leave it to you, my spiritual directors, to guide me.
Jay P. Greene's Blog 
You’re probably right that the federal intervention and threats of arbitrary consequences had some sort of impact, especially in driving schools away from participation. However, is there a reason to think that the better schools would be more likely to stay away than the lower-performing schools? If anything, you’d think the lower-performing schools would be more scared of “not meeting expectations” than the better schools. Although maybe they were desperate enough to risk it and the better schools were not.
As for why the other programs with similar regulations didn’t show a negative impact… I think part of the reason is that they were studied further into the program. We’ve already seen that the private schools in LA are adjusting to the new regulatory climate, and the AFC’s study shows that they continue to improve through the fifth year. But Milwaukee voucher students just barely surpassed their public-sector peers, and there hasn’t been much growth in enrollment there. That’s basically what I expect LA’s similar regulatory environment to produce in the long run: filling empty seats and modest advantages on test scores over the district schools, not the sort of innovation and growth that we regularly see where the market is relatively free.
But the whole point of the arbitrary threats is to communicate that private schools are not going to be treated fairly. Yes, if the system were fair, better performing schools would have less reason to fear John White’s Hammer of Capricious Wrath than lower performing schools. But then it wouldn’t exactly be a Hammer of Capricious Wrath, would it?
Well established, higher performing schools have much stronger incentives to keep powerful people happy. John White was signaling “join this program and I will not be happy!” This has nothing to do with the merits.
As for the second point, you’re right that in Milwaukee we got only modest gains. But in Louisiana the program tanked! Do we really think the Milwaukee program was a disaster in its first year and then righted itself, made up all that lost ground?
Perhaps one factor is that the Milwaukee program was piloted small and grew very slowly.
To your first point, I don’t think White was intending to signal that he wouldn’t treat schools fairly or that he wouldn’t be happy if schools joined the program. He seems to be a supporter of the voucher program, so his signal was more like: “if you join, you’d better be good, otherwise I will make you hurt!” Then again, perhaps some schools figured, “if this is how our friends will treat us, imagine what will happen when the pendulum swings…”
Re: Milwaukee, do I think it was a disaster in the first year? I have no idea. Probably not, but we don’t have a good comparison.
With “supporters” like that, no need for enemies.
I suspect that private schools, especially quality ones, are very concerned about operational autonomy. They might be able to tolerate restrictions on who they can admit and how much they charge, but they generally insist on control over their curriculum and standards. The LA program was the first to require that schools switch to the state test which is aligned to state standards and curriculum. (IN is the only other state to require the state test but almost all private schools were already using the state test for a long time because of inter scholastic athletics rules.).
Other voucher programs have regularly faced court challenges and the uncertainty that brings. So I don’t think that could explain the abnormally low participatin rate among private schools. Of course, arbitrary judgment by the state superintendent would also impinge on operational autonomy, but I would need to check if that actually was an issue in LA.
My best guess is that the state test requirement was the thing that drove most quality private schools away. That should be a red line that choice advocates do not allow programs to cross. As ve written before, I favor making lots of compromises if you must to get programs adopted. But I’d rather have no program than one that required the state test.
Three of Wisconsin’s voucher programs (Milwaukee, Racine and statewide) take the state test. But I take your point that state context matters. That might mean the takeaway from my post is that program design matters (duh) but also state context; we should focus on programs where an environment of trust is possible.
The Wisconsin history is relevant.
In the weeks following the 1998 Wisconsin Supreme Court’s ruling to allow religious school participation, many schools were extremely wary of joining the Milwaukee Program. By far their biggest fear was regulation.
I recall one meeting where a participant held up a copy of the state statutes governing private schools. It was less than a page. Somehow private schools throughout Wisconsin had existed for decades with the most modest of government intervention. To this day that is the case for schools who choose not to participate. For them, the primary “governing” force was and remains the requirement of parental approval and choice.
State public school regulators confidently forecast that it was only a matter of time before schools in the Milwaukee (and now Wisconsin) choice program would be subject to a regulatory regimen not unlike that which governs public schools. This prediction largely has come to pass, reflecting a combination of bad publicity about a few choice schools and political capitulation by a prominent faction of the Wisconsin choice movement.
School choice opponents in the 1990s argued for an extensive regulatory apparatus. Their explicit goal was to create a disincentive for the strongest schools to join.
Today, less than two decades after the pivotal 1998 court decision, Wisconsin has an over-regulated program in which per pupil support ranges from 60 to 70 per cent of the financial backing available to public schools. With a modest exception for some middle class families in Milwaukee, the program is only available poor families.
So, as to the issue of “program design,” Wisconsin has been a leader in the worst sense of the word. One compromise after another has resulted in a program that does not fairly test the potential of school choice. In state after state too often this has been the prevailing dynamic governing the enactment of new programs.
Friday’s discussion of regulation at CATO will be interesting. For how many participants will the status quo be the default position? To what extent will the need for less regulation be advocated vigorously? Will participants explore how private schools survived and often flourished for decades without the bludgeon, er, accountability fostered by a public school regulatory model?
Louisiana has an almost Massachusetts rate of private school attendance for a number of different reasons. When I read the AEI report my reaction was the school leaders in Florida trust their legislature not to go off the deep end, but the folks in Louisiana already think their lawmakers went Thelma and Louise off the side of the cliff.
The bottom line- low-income kids attending low rated public schools in a state with some of the lowest NAEP scores in the country need access to successful and stable private schools WAAAAAY more than those schools need vouchers with a ton of red tape.
That’s funny because in fact the state DOE in Florida strangled A+ by inventing an application process calculated to minimize participation! Hence a “climate of trust” (see my response to Jay) is not enough; program design needs to remove the obvious conflict of interest created by having the blob regulate the program.
A decided advantage of the AZ tax credit program is that resulting scholarships let students attend private schools which continue to operate with little if any new regulation. I know of one school that is extremely successful working with children who have special learning needs, children who often have not been well served in highly regulated public schools. This school would collapse under the weight of traditional state regulation.
If I recall correctly the late and dearly missed Andrew Coulson was early to recognize that a tax credit scheme of school choice could help circumvent the specter of undue regulation. Perhaps this is what Matt refers to when he says Florida has not gone “off the deep end.”
Bottom line: highly regulated and under financed programs have zero chance to demonstrating and achieving the power of choice.