The Beginning of the End for Blaine?

June 27, 2017


(Guest Post by Jason Bedrick)

Yesterday, the U.S. Supreme Court ruled in Trinity Lutheran that the U.S. Constitution prohibits the government from excluding otherwise eligible religious organizations from benefitting from publicly funded programs merely because they are a religious organization. (I discussed the implications here.) However, Footnote 3 said:

This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.

So, does the case have broader implications beyond playgrounds? Interestingly, Chief Justice Roberts “delivered the opinion of the Court, except as to footnote 3,” and two additional justices, Gorsuch and Thomas, concurred in the opinion but not in the footnote, explaining:

Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion. Such a reading would be unreasonable for our cases are “governed by general principles, rather than ad hoc improvisations.” […] And the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.

Today, SCOTUS has indicated that its ruling in Trinity indeed does have implications beyond the playground. The Court has vacated the Colorado Supreme Court’s decision that struck down the Douglas County voucher program based on the state’s Blaine Amendment, and ordered the Colorado Supreme Court to reconsider the case “in light of [the] Trinity Lutheran” decision.

If Trinity Lutheran indeed does apply to school vouchers (Footnote 3 notwithstanding), then it could spell the beginning of the end for the odious Blaine Amendments.

Two Court Cases Plus Two Voucher Studies Equals Four School Choice Wins

June 26, 2017


(Guest Post by Jason Bedrick)

There’s so much good news for school choice today, it’s hard to know where to begin.

A Legal Victory in the Peach State

I woke up this morning to the news that the Georgia Supreme Court had unanimously ruled that private donations to private nonprofit scholarship organizations that help children attend private schools are (shocker!) private funds, even if the donors receive a tax credit:

We also reject the assertion that plaintiffs have standing because these tax credits actually amount to unconstitutional expenditures of tax revenues or public funds. The statutes that govern the Program demonstrate that only private funds, and not public revenue, are used.

I discuss the case and its implications in greater detail here.

SCOTUS Strikes Down Discrimination Against Religion — But Saves Blaine for Another Day

A couple hours later, the U.S. Supreme Court ruled 7-2 in Trinity Lutheran v. Missouri that it is unconstitutional to exclude religious organizations from benefiting from secular aid programs that are otherwise neutral with respect to religion. As Neal McCluskey explains, the court didn’t go as far as many school choice advocates would have liked, but it is unambiguously a step in the right direction. Writing for the majority, Justice Roberts wrote:

It is true the Department has not criminalized the wayTrinity Lutheran worships or told the Church that it cannot subscribe to a certain view of the Gospel. But, as the Department itself acknowledges, the Free Exercise Clause protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” […] As the Court put it more than 50 years ago, “[i]t is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.” […]

Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character. The “imposition of such a condition upon even a gratuitous benefit inevitably deter[s] or discourage[s] the exercise of First Amendment rights.” […] The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant. [citations omitted]

The Court made sure to note that it was not overturning Locke v. Davey, in which the Court held that it did not violate the Free Exercise Clause for the state of Washington to deny funding to a student who was attending a post-secondary religious school to pursue a “devotional theology degree.” Although the “selective funding program” generally allowed students to attend both religious or secular colleges, the funds couldn’t be used to pursue a purely religious education for the purposes of becoming a religious minister. In Trinity, SCOTUS clarified that “Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry.”

Left open is the question of whether the state can prohibit families from using school vouchers at religious schools. If the voucher program is intended to give parents more choices among schools that teach reading, math, science, etc., then seemingly it shouldn’t matter whether school that teach those subjects have a religious affiliation. Indeed, Justices Gorsuch and Thomas clearly indicated they wished the majority had gone further (“the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else”), while Justice Breyer likened the playground resurfacing program at issue in the case to churches benefiting from police or fire protection, but saw no need to address the question of private school tuition. Tomorrow SCOTUS will announce whether it will consider the Douglas County, Colorado voucher case, which would give it the opportunity to answer that question.

Louisiana and Indiana Voucher Studies: Neutral to Positive Outcomes After a Few Years

I’ve already run long and I know that others will be writing about them soon, so I won’t dive deep into the Louisiana and Indiana voucher studies today. In short, they each find that the negative impacts on test scores that voucher students experience in the first couple years of participating in a voucher program disappear by the third year. Indeed, Indiana finds some positive effects in years three and four.

Given that states spend significantly less per pupil on voucher students than at district schools, performing as well or better after just a few years in the program should be exciting news for choice supporters. However, I confess that I am uneasy. Both Indiana and Louisiana mandate that private schools administer the state test to voucher students and I am concerned about how that mandate might warp how schools educate children — a concern I have about both district and private schools. Test scores measure only a small slice of the value that parents want schools to provide their children, and as Jay pointed out yet again yesterday, there’s a disconnect between educational measures and life outcomes. It’s great if school choice improves test scores, but the ability to choose shouldn’t be predicated on raising test scores — especially if doing so creates perverse incentives that distort education.

In summary: Three cheers for the court victories and one cheer for the voucher studies.



Does School Choice Expand the State?

June 26, 2017


(Guest post by Greg Forster)

OCPA’s Perspective carries my response to folks in Oklahoma who have tried to peel off small-government types (thick on the ground in that state) from the school choice coalition by arguing that choice expands the state:

Now, it is true that ESAs are an “entitlement” in the way that term is normally used in the context of public policy. Like Social Security and food stamps, they create a benefit to which all people in the relevant class (retirees for Social Security, the poor for food stamps, parents for school choice) are entitled under the law.

The key difference is that Social Security, food stamps, and other typical entitlement programs represent the expansion of government into a leading role in areas previously dominated by private savings, employer-paid pensions, church and community organizations, and other non-governmental solutions…

School choice, by contrast, reverses the endless expansion of government by moving us away from a government monopoly…Compared to the government school monopoly, school choice liberates individual initiative, economic interdependence, and spiritual community. It allows parents to take control of their children’s education, becoming stewards over their own lives, instead of treating them like perpetual wards of government—as if they were cattle in the government’s pen. It supports educational entrepreneurs who create new school systems designed to serve the customer base created by school choice. And it allows schools to have a holistic vision of what it means to be an educated person—one that doesn’t yank the leash and stick a gag in teachers’ mouths when students ask big spiritual questions about the meaning and purpose of human life.

Oh, and it also contains this moment:

The email exchange was later made public by subpoena, to Hofmeister’s embarrassment. (Why anyone involved in government uses email or texting is beyond me.)

Come for the well-deserved embarrassment of a politician caught in shenanigans, stay for the political philosophy of the modern state!

The Disconnect Between Educational Measures and Life Outcomes

June 25, 2017

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I’ve written several times before about the disconnect between changing test scores and changing life outcomes.  In general, even when we can rigorously identify changes in math and reading test results caused by schools or programs, we have weak and inconsistent evidence that this produces commensurate changes in later life outcomes.  Keeping in mind that test-based accountability mostly focuses on the level of test scores, not changes, and virtually never relies upon a rigorous identification of how test scores are caused by schools and programs, we have no way of knowing that that the kinds of schools, programs, and practices that we are pushing in education will actually help kids later in life.  We might actually be hurting them and are certainly foreclosing potential opportunities based on our false confidence that we (policymakers, researchers, and pundits) are better at judging quality than are families.

Rather than contemplate the implications of our ignorance, people in our field are inclined to press ahead.  Yes, our measures are imperfect, they’ll admit, but we have to do the best we can with what we have.  Or they will say we just have to try harder to develop better measures of knowledge acquisition or expand our measures to include non-cognitive skills that provide a more complete picture of the recipe for success.

But what if there is simply no recipe for success?  Or more precisely, what if the recipe for success is highly context-dependent so that distant policymakers, researchers, and pundits are unable to prescribe what programs and schools should be cooking?  Maybe only parents, communities, and local educators are well-enough positioned to make reasonable (if imperfect) judgments about what each child needs.

If you were holding out hope that the expansion of educational measures to include non-cognitive skills would give policymakers, researchers, and pundits a stronger ability to prescribe how and where students should be educated, I have some bad news for you.  The disconnect between educational measures and later life outcomes is at least as severe in non-cognitive measures as it is in test scores.  Let’s leave aside the fact that most non-cognitive measures are too easily gameable to be used for any accountability purposes.  Even if only for research purposes, there does not appear to be a straightforward and consistent connection between non-cognitive measures and later life outcomes.

A new study led by Nicholas W. Papageorge at Johns Hopkins University and IZA examines the connection in Great Britain between teacher reports about behavior when students are 11 and later life outcomes for those students.  Because non-cognitive measures are in their infancy, we aren’t entirely sure how to slice and dice the measures and do not have a clear system for labeling the related concepts we are measuring.  In this study, if we simply lumped all of the teacher reports of misbehavior together we would find that students who misbehave more tend to do worse later in life.

But if we split misbehavior into two categories — one that captures misbehavior directed toward others (externalizing) and another that captures whether students are misbehaving because they are withdrawn (internalizing) — the picture gets more complicated.  Students who score poorly on measures of internalizing misbehavior still seem to fare poorly later in life.  But for students who score lower on the externalizing misbehavior, how they fare later depends on their social class.  If students are from more advantaged backgrounds, externalizing is actually associated with higher earnings, while for more disadvantaged students externalizing seems to have no effect on earnings.

This null to positive effect on earnings for a certain type of misbehavior occurs despite that fact that externalizing is associated with lower levels of educational attainment.  That is, students who misbehave toward others don’t go as far in school, but they earn more in the workplace if they come from more advantaged backgrounds despite that negative effect on educational attainment.

Yet gain, we see that what we think is “good” performance on a a near-term educational measure is highly dependent on context and is not connected to later outcomes in a straightforward way.  Policymakers, researchers, and pundits are inclined to say that scoring higher on a measure of behavior is better, but that is not necessarily the case.  It depends on the type of behavior and who the student is.

In addition, things we do to increase educational attainment may come at the expense of later earnings.  Increasing compliance with school authorities may help students go further in school, but may stifle the initiative and ambition necessary to make larger contributions to the economy later.  Policymakers, researchers, and pundits cannot simply identify a set of educational measures (test scores, non-cog measures, or educational attainment) and judge from afar which programs and schools are going to help students succeed later in life.  You can’t just maximize these measures and expect uniformly good results.

None of this should be surprising to parents engaged in the complicated task of raising their children.  We often want our children to possess certain qualities — but not too much of those qualities.  We want our children to be obedient, but not too obedient.  We want them to be ambitious, but not too ambitious.  We want them to value abstract knowledge, but not too much abstract knowledge.  We want them to value being in school, but not stay in school forever.  And we know that the approaches we take to produce these balanced outcomes vary for each child, even within our own family let alone across all families.

As it turns out, educating children is simply an extension of raising children to be the kinds of adults we hope they can be, requiring all of the same nuance, balance, and judgment.  Solutions imposed by distant policymakers, researchers, and pundits are no more likely to be effective in educating our children than they would be in raising them.  Yes, parents, communities, and local educators will make mistakes in raising children as well as educating them.  But they are better positioned to understand the context and achieve the appropriate balance for each child than are distant policymakers and experts, even if they are well-intentioned and highly knowledgeable.

Look Who’s Back

June 18, 2017

The German movie, Er ist wieder da (available on Netflix as Look Who’s Back), is no ordinary political comedy.  On one level it’s quite disturbing and not a comedy at all, while at the some time it is a brilliant and hilarious satire.  The premise is that Hitler is somehow not dead and finds himself in modern Berlin.  He’s taken in by a desperate free-lance film-maker who introduces him to a set of conniving TV executives seeking ratings with what they think is a comedy act.  But he’s no comedian.  He’s really Hitler, adapting to our times and re-building political support.

There are many successful movies featuring Hitler, including The Producers, The Great Dictator, and (one of my all time favorites) Inglourious Basterds, but they generally portray Hitler as a buffoon.  In this film Hitler is occasionally buffoonish, but he is also a keen observer of people and politics.  He immediately detects that Germany’s current nationalist party, the NDP, would be an inadequate vehicle for his return to power.   He even storms their headquarters and denounces them as a pack of losers, which they obviously are.  Instead, he sees potential for the rise of authoritarianism in the Green Party.  That’s both astute and hilarious.

The film also mixes scripted scenes with improvised ones in which Hitler encounters real people on the streets of Germany.  He’s shown (for the most part) being warmly received, with people taking selfies and laughing.  Perhaps they also think he is a comedian and are going along with the joke.  But others give him Nazi salutes and describe their complaints about immigrants.  He listens as a very sympathetic and effective politician.

At one point a “man on the street” share his vision of democracy with Hitler.  He says that we need a democracy that is willing to put its foot down more: “That’s how we do it! Point, finished! No discussion!”  Hitler replies, “You’re absolutely right, and that is exactly my kind of democracy!”  Again, both astute and hilarious.

There are many ways a movie like this could go wrong and at times it does go off the rails, but not very often.  The film could become a heavy-handed parable about today’s nationalist politicians.  It avoids that by emphasizing how today’s nationalists lack the skill and energy that Hitler possessed.  At the same time, the film does not attribute to Hitler magical powers to hypnotize us into backing authoritarianism.  It shows us as either wanting authoritarianism or being too easily distracted by frivolous things to bother to stop it.  Hitler is just capable of exploiting that opportunity.

The film’s mixture of real and fictional, comedy and serious commentary, are disorienting.  At one point a TV executive warns what she thinks is comedian Hitler not to do jokes about Jews because they aren’t funny.  Hitler agrees that there is nothing funny about Jews.  That is simultaneously serious commentary and a hilarious joke.

Look Who’s Back at times feels like Borat but it is more like the brilliant 1976 Oscar-winning movie, Network.  It’s a satire that is often more serious than funny and more disturbingly accurately than most dramas.  If you haven’t seen Network you really should.  It’s as if the script writer, Paddy Chayefsky, had a time machine and could see how TV news would turn into its current manifestations of 24 Hour News channels and Twitter.  Let’s hope Look Who’s Back is not similarly prescient.

Nevada Tries to Wish Away the Strain

June 5, 2017

(Guest Post by Matthew Ladner)

The Nevada legislative session appears headed to a disappointing end on the school choice front. Governor Sandoval backed away from his threat to veto the budget without funding for the ESA program, and a deal to increase the state’s modest tax credit program passed the Nevada Senate last night. Worse still, despite the wee-tiny Silver State charter sector a bill which appears replete with regulatory measures for charters are headed to Governor Sandoval’s desk. What do you do when you are the state with a catastrophic district overcrowding problem and the charter school tortoise of the region? More bureaucracy to the rescue!


In combination these actions signal an unwillingness to address Nevada’s K-12 challenges seriously. The overcrowding problem isn’t going away. The Review Journal reports that a majority of Clark County schools are over 100% capacity and they included this handy illustration:


Does this look like a state that should be only cautiously dabble with private parental choice? Should Nevada be rolling out the red carpet for charter school operators, or subjecting them to state-sponsored harassment? Can the new NFL football stadium being built for a billionaire be used for classroom space? From the Review Journal:

Of data for 344 schools, 230 are over capacity, according to the report. Among those schools, 68 are operating at 125 to 150 percent capacity and 35 are operating at 150 to 175 percent. Two are taking more than double their load, at over 200 percent.

Growing class sizes have been the result of both a budding population — particularly in the high-growth area of Henderson — and multimillion-dollar budget shortfalls.

Budget constraints in 2015-2016 increased class sizes in grades 4-12 by 0.5 students, saving $9.1 million, according to the district. Cuts in 2016-17 added one student in elementary classes and 1.5 students in secondary grades, saving $21.5 million.

That translates to a tight squeeze for teachers and students.

“I think (my son) has suffered, I’m sure he has,” said Rebecca Colbert, a Beatty Elementary parent who said her fifth-grade son is in a class of 39 students. “I know the teacher has. She’s been doing double work.”

8,000 students had filed applications to opt-in to the ESA program. This alone would not have solved Nevada’s overcrowding problems, but it certainly would have helped. The 2015 problems that prompted the NVESA program are larger in 2017 and will continue to worsen. The strain believes in Nevada, even if Nevada tries not to believe in the strain.

The NVESA program continues to exist in an unfunded state, awaiting the possibility of more enlightened leadership who are willing to take the steps necessary to get serious about Nevada’s K-12 problems.

“Not Just Taking Their Money”

June 1, 2017

(Guest Post by Matthew Ladner)

RedefinED profiles an interesting snippet from current Florida K-12 politics. There is quite the controversy over an omnibus ed bill that districts want vetoed. Districts don’t want charters, but they need them:

The same district leaders who complain about the Legislature and call for a veto also say they need charter schools to accommodate population growth, as funds are scarce to build new schools. This is especially true in the southernmost part of the county, where approved developments that were dormant during the recession are now springing to life.

Some also recognize that charter schools can give a second chance to students who fall through the cracks in the district system. Board member Susan Valdes, speaking at the May 16 board meeting, described two such students, one who lost a parent to military combat and the other who had been ill.

“If the governor signs the bill,” Valdes said, addressing administrators in the auditorium, “hey, life lesson that we should learn about really, truly taking care of our children — not just taking their money.”

This is all going to get more challenging as Florida’s youth and elderly populations continue to expand. The current bill that stands at the center of the controversy includes a series of small but important steps in the needed direction. The yearned for veto will do nothing to address the reality that the Florida public school system must adapt to changing circumstances. Moreover “just taking their money” was an entirely reprehensible waste of human potential even during the easiest of times, which these are surely not. Just remember where you heard it first folks.