TEXAS VOUCHERS and PRETENSE OF PROGRESS
The good, bad, and ugly of Senate Bill 8, and how vouchers could work in Texas.
As a long-time proponent of school choice, I’ve never seen such interest and energy in vouchers by the Texas Legislature. It’s pretty exciting, and a direction that Texans has needed for decades. But in looking at the offerings, I must say I’m disappointed. Whether it is use of “education savings account” as a euphemism for “voucher” or the blatant attempt to encourage support for a voucher system by using unenforceable promises of new parental rights, the Legislature appears to be content to start a program that will destroy private schools and actual choice in curriculum by using government money to bribe parents. Here’s the hitch – controlled choices are not always better.
I’d like to say that I’m not mad, but only disappointed…but I’d be lying a little bit.
Since vouchers are all the rage, I’m first going to discuss vouchers, and then I’ll address parental rights, but before I do either, I’ll give you the TLDR version of an analysis of SB8, which is the most favored and anointed bill that is being pushed by our state’s leaders.
TL:DR VERSION:
With regard to parental rights, SB8 gives us unenforceable promises of control without any enforcement mechanism to ensure parental rights are protected. Additionally, SB8 is a word salad of ineffective new burdens on local districts that will have no substantial impact. SB8 is designed to allow legislators to declare victory without doing anything useful. SB8 actually takes us backwards by making parents more liable for attorney fees when suing school districts.[1]
With regard to vouchers, I’m sad to report that SB8 is not what any voucher supporter should accept. While it will give better choices to a number of kids who are chained to the public system today, the proposed approach is all wrong. This is not a decentralizing voucher program that frees education from the shackles of the TEA – it is a private school destroyer that favors government-approved schools to the detriment of all the private schools which are struggling to stay alive and will now have an even harder time in the face of what will be subsidized competition. And beware - this proposal sets up a system designed to be expanded and be even more deadly to educational independence, even its proponents don’t realize it.
Remember how conservatives said that Obamacare would kill private medicine? Our Nobel-prize winning president promised that we could keep our doctor if we wanted, but then his program destroyed the market for many of the insurance offerings because interference in the medical market predictably eliminated the disfavored high deductible options. SB8 is exactly like Obamacare, and as the voucher program grows, it will destroy the private school industry, just as Obamacare eviscerated many insurance options, but the effects will be much worse in education. Some folks will benefit to be sure, but the cost will be hundreds of small schools who are not certified and lose too many students to stay afloat in the new perverted market. There’s a way to do this right, but SB8 ain’t it.
And now the long version.
VOUCHERS, THE RIGHT WAY – The Texas Constitution says that the state has taken on the duty of ensuring that its students are educated. Though we have exceptions, the typical approach that Texas uses for education is to use property taxes to pay for a system where students are assigned to a school based on geographic lines. That system has become unwieldy and run by individuals who are insufficiently motivated to teach children in the subjects that most of us prefer. And then those of us who look at most other government services realize that there are better ways. For example, we don’t assign poor people to grocery stores based on where they live and then have the grocery stores give out packages of food. Even colleges today use vouchers; poor kids are not shuffled off to a single college for themselves and other poor kids who live near them.
The goal is to provide an excellent education, recognizing the wishes of parents in the approach of that education, using a system in which taxpayers pay for the delivery of that education in exchange for an efficient measure of accountability to deter fraud without interfering too much.
Happily, it’s really not that difficult, even if we design it to placate the objections of those who think that “public education” means only one set up and nothing else.
First, the accountability. If the state’s high-stake test is good enough accountability for the traditional schools, then it’s good enough to provide accountability for those receiving vouchers.[2]
Second, we establish an amount of money that the state will pay parents to take back the responsibility of educating their students, effectively acting as a vendor for the state. Since those of us seeking to implement the change to vouchers are forced to meet the burden of all objections in a political world, we can make the amount of the voucher something like $4k. Some of those kids will be going to school at the local district, but some won’t. When those kids don’t show up at the district, the district won’t get that child counted in its attendance, but it gets to keep the other $6k or so that the district is getting in taxes. Since 90% of all kids attend traditional public school, the district will have more money per student, and also gain space in their facilities.
Thus, parents would educate their children however they like, whether home school, private school, virtual school out of Tokyo, Montessori, or a stringent boarding school…whatever the parents want. THEN, at the end of the year, the students would have to take whatever stupid test that the status quo proponents use for the traditional public system (or whatever we can negotiate). The parent then gets a check as long as the test results come back with an acceptable grade. But if your student doesn’t pass, the parents get no money.
Some folks will say that $4,000 is not enough to go to a private school. Certainly it is not enough to attend many of the well-known and established private schools, but many of those schools offer scholarships to kids who have needs. We can’t start off with such a high number that the private sector will be overwhelmed.
The beauty of this is that the State of Texas has no strings on the schools. We don’t have to care about certification, or advanced teaching degrees, or busing, or sports, or whether it is home school, private school, Christian school, Muslim, or some sort of unschooling approach. It’s not relevant. One of the beauties of a public system that loves their high stakes test is that its apologists cannot complain about the accuracy of its own test or assert that their own favored accountability measure isn’t good enough. Nor can they complain that a person is getting educated in some nefarious unapproved curriculum if the students pass the test that they support.
I believe that this system would unleash education in ways that we cannot pretend to predict. There are brilliant kids all over this state whose lives could be changed if their parents were assisted with $4000 to spend on the education of their choice, instead of being forced to hide from bullies every day in a school that spends $12k annually just to teach them how oppressed they are. Today these kids are shackled to a system more dedicated to its own existence than it is to the development of young geniuses who live in the wrong zip code.
WHERE SB8 GETS IT WRONG.
Now you’ve read how a voucher system could work; let’s look at what the leading bill in the legislature does. SB8 dropped on the last day of filing, and is 53 pages and largely split into two parts: 1) a set of new rules concerning the rights of parents that are completely unenforceable; and 2) an “education savings account” [3] to describe a system by which one or more organizations can be certified to divvy up taxpayer dollars to be spent by recipients at preapproved providers to the tune of $8,000 annually.
The program will allow only people who are in public schools to participate, and allow funds to go to a private school only after the private school is admitted and certified in some required way. It will not allow anyone who is already in a private school to get funds, or any homeschooler. To get the money, a student will have to sign up for a public school for a year and then transfer in the next year, because the program specifically disallows anyone that is not already in a public school to sign up.
As proposed, SB8 is clearly written to establish a test program, as folks aren’t going to put up with a system that results in private schools with kids in them who are funded by state money while the parents of other kids have to pay for that education for their kids as well as the taxes that are used to pay for the vouchers. SB8 is setting up a two-year solution that will create a few witnesses to trot in front of a hearing and talk about success stories. Then people who are paying for their own tuition as well as high taxes to fund these vouchers will demand that the program is expanded and benefit their children, a reasonable request from those who are footing the bill.
The problem is that now the state and every government control freak will see what organizations are dependent on them, and be able to track who is getting what. Bureaucrats will opine that sending money to an organization that teaches in some disfavored way should not be allowed. There will be fights about whether an all-boys’ school should be able to get funds, or a zealous Muslim school, or a school that is overtly atheist, or a conservatively bent high school that correctly teaches how FDR made the depression worse. (Is the Texas State legislature going to stand for a school that disabuses people of the notion that a war is good for an economy?) Not to mention that there will be schools that are designed to teach science, and kids who want to go to that school and force it to teach non-science in order to pacify their carefully grown narcissism that their parents have encouraged. I would like to say that the arguments will never end, but they will – when those seeking independence in education are forced to flee the controlled voucher systems and go back to an educational environment that is free of state control, but now with fewer options because the smaller schools will struggle more to survive and many won’t.
I don’t have a problem with a limited program that doesn’t benefit everyone from the beginning as a means of figuring out a system that works, but as my friend Alexander said so long ago, “just as the twig is bent the tree's inclined.” Irrespective of whether SB8 says specifically in multiple places and ways that recipient organizations cannot be regulated (which it does), the program will have to change every two years as it expands, and there is zero reason to believe that the State of Texas won’t implement new regulations and new software that will be required to get the money. If SB8 is the beginning, every school will eventually be a public school subject to the vulgarities of the federal and state government.[4]
And even if you have a constitutional amendment that says private schools can’t be regulated, a proposal recently added to the mix, it won’t be regulation. Remember the 70s, when the feds said that every state had to reduce its speed limit to 55 mph? The states fought it, because the feds aren’t supposed to set speed limits. But the courts said, “No, no…the feds aren’t passing laws – they are merely setting conditions on getting federal dollars. That’s okay.” See Nevada v. Skinner, 884 F.2d 445 (9th Cir. 1989). So it won’t be a regulation or law that is destroying every small Christian school, it’ll be just a condition of being allowed to participate in the free money.
The better approach is as described above – the State of Texas grades its own state schools with a simple A-F grading system, mostly using a pass-fail test. If people want to stand by that test, then that test should be sufficient to determine whether a parent gets paid.
Now let’s review the Parents’ Rights part of SB8. Let me say this clearly:
THIS IS NOT A PARENTS’ RIGHTS BILL.
As I reviewed the entirety of SB8, it is clear that this bill is window dressing of parents’ rights, in hopes of selling vouchers. And I would be far less critical if SB8 actually gave parents some strong tools to enforce their right to direct the education provided to their own children. But this isn’t it.
In language reminiscent of the Soviet constitution, SB8 affirms that that parents have the right to direct the moral and religious teaching of their children…as provided by law. And what can parents do when a school district doesn’t follow the detailed instructions as outlined? They can whine to the do-nothing TEA Commissioner, just like they do now.
Here's the hint – the Commissioner doesn’t do anything he doesn’t want to do, and can already do everything that he wants, and SB8 doesn’t require the Commissioner to do anything beyond accepting the petty complaints from ordinary parents and then letting those complaints just drop into the circular file. SB8’s promises of parental rights are mere window-dressing pablum for legislators to pacify parent activists who want to believe that legislators are listening to constituents.
One activist I know has been told that the reference to SB8’s reference to the Family Code will allow parents to get past sovereign immunity. This is simply not true. “It is settled in Texas that for the Legislature to waive the State's sovereign immunity, a statute or resolution must contain a clear and unambiguous expression of the Legislature's waiver of immunity.” Town of Shady Shores v. Swanson, 590 S.W.3d 544, 546 (Tex. 2019). One example of such an expression is the waiver of immunity in the Texas Open Meetings Act: “An interested person, including a member of the news media, may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of this chapter by members of a governmental body.” Tex. Gov't Code § 551.142. There exists no such statement in SB8, and anyone who claims that SB8 waives sovereign immunity is lying or ignorant, or both.
SB8 pretends to add teeth to its command to give parents instructional materials, stating “A parent may request in writing from a school district superintendent information regarding a parental right under Title 1 or this title.” But what happens if the district doesn’t fork over the material? The parents can appeal to the district’s board of trustees. Hah! I can count on one hand the number of times in my 30 years of educational activism that complaining to a board of trustees or the commissioner of education has resulted in any significant positive result unless it was backed by threat of a lawsuit.
But that’s not all. Amazingly, SB8 adds wording to section 11.161 of the Education Code to make school districts more likely to win attorney fees from parents who sue based on allegations of frivolousness. So the bill that is touted as supporting parents’ rights actually changes the law to allow schools to threaten would-be parent challengers with big legal bills if the parent doesn’t win. The duplicitousness of a legislator proposing a bill for parents’ rights that includes new punishments for parents who challenge the system is evil. Evil.
But it’s actually worse than these obvious changes. One common complaint by administrators of public schools (charter and traditional) is the proclivity of the Texas Legislature is the ongoing heaping of new duties to no good cause, as though telling the school to “develop a plan for parental participation in the district to improve parent and teacher cooperation” is going to result in anything but frustration for administrators. This kind of thing makes legislators sound tough on bad public schools, but the reality is that the burden lands on everyone but the bad schools.
As a charter school board member, I will tell you that traditional school districts largely give only lip service to these instructions and pay no price, because everyone knows that traditional public schools are run by saints who never do anything wrong, but charter schools are threatened with loss of their charter unless they treat TEA commands as though Moses brought them down from the mountain.
SB8 does go after the illegal surveying that has become so prevalent in public schools across the fruited plain, but what happens if a teacher breaks the new rules? The district “shall take disciplinary action” against such an employee. And if the district looks the other way or decides that the action needed is a reassignment to a new classroom, the parents have no effective way of forcing the issue. Oh sure, parents can appeal to the TEA Commissioner, but that has to reach Houston ISD levels of incompetence before Morath will act.
So that’s SB8 in a nutshell. If you like people to pat you on your head and tell you that it’s time to protect parents’ rights and establish vouchers for the poor, and you really don’t care about the actual impact of the law, then SB8 is great. But recognize right now that most private schools will effectively cease to exist, and the state will control most curriculum in short order.
There are other proposals in the legislature that are under consideration,[5] some of them better or worse, but SB8 is being touted as the one that is approved by all the “right people”. But as far as I can see, none of these proposals sever the connection between the state’s greedy and judgmental little hands and the operations of the schools, and that connection will be the death of independent education in this state. Let’s pass on the voucher system of SB8 and rework the parental rights’ aspect to add enforcement mechanisms that aren’t controlled by political institutions.
And whatever you do, don’t get all starry-eyed about bad legislation just because it has a pretty title. We must demand good legislation that serves citizens in the long-term, and this ain’t it. Call your representative and senators, and let them know you’re onto the scam, and demand more.
SENATE EDUCATION COMMITTEE:
(To Email all of the members of the Senate Education Committee, click HERE)
Committee Clerk: Abby Johnston, 512-463-0355; abby.johnston@senate.texas.gov
Chair: Sen. Brandon Creighton (R); 512-463-0104; brandon.creighton@senate.texas.gov
VC: Sen. Donna Campbell (R); 512-463-0125; donna.campbell@senate.texas.gov
Sen. Paul Bettencourt (R); 512-463-0107; paul.bettencourt@senate.texas.gov
Sen. Brian Birdwell (R); 512-463-0122; brian.birdwell@senate.texas.gov
Sen. Pete Flores (R); 512-463-0124; peter.flores@senate.texas.gov
Sen. Phil King (R); 512-463-0110; phil.king@senate.texas.gov
Sen. Morgan LaMantia (D); 512-463-0127; morgan.lamantia@senate.texas.gov
Sen. José Menéndez (D); 512-463-0126; jose.menendez@senate.texas.gov
Sen. Mayes Middleton (R); 512-463-0111; mayes.middleton@senate.texas.gov
Sen. Tan Parker (R); 512-463-0112; tan.parker@senate.texas.gov
Sen. Angela Paxton (R); 512-463-0108; angela.paxton@senate.texas.gov
Sen. Drew Springer (R); 512-463-0130; drew.springer@senate.texas.gov
Sen. Royce West (D); 512-463-0123; royce.west@senate.texas.gov
[1] Whoever added this section to SB8 should be exposed as a shill for the lawyers who represent ISDs, and then fired. No proposed statute pretending to be written to give parental rights should make parents more liable to pay the district’s legal bills. A correct approach would clarify that school districts have no sovereign immunity to Rule 202 procedures and waive immunity for declaratory judgment claims.
[2] If I were writing the law, I’d allow any number of any commercially available well-known tests to qualify as a means of ensuring educational success and accountability to taxpayers, such as the Stanford 9 or California Achievement Test, but probably easier to answer the objections of the status quo apologists by using their own test.
[3] It seems like education-choice advocates have met too many people who have been taught to be against vouchers by status quo apologists, so now everyone is using “educational accounts” and other less precise phrases. But it’s a voucher, and I think the phrase “education savings account” is misdescriptive because most folks think a savings account is an account where the holder saves up money. There’s no “savings account” aspect to this.
[4] When Title IX was passed in 1972, its proponents promised that quotas would not be allowed or required. Shortly after its passage, activists started demanding quotas for girls’ sports that have been killing boys’ wrestling teams for decades. Only a naïve moron can look at history and think that schools won’t be regulated through tax dollars if the state is certifying providers.
[5] Besides SB 8/HB 5261 (Creighton/Frank), see SB 2354/HB 4339 (Bettencourt/Frank), HB 4340 (Frank), HB 5267 (Frank), SB 2483 (Paxton), SB 176/HB 4807 (Middleton/Harrison), HB 619 (Shaheen, this one is a pure tax credit and not horrible), and HB 2817 (Jetton).
Thanks for the great analysis, Warren. This is an issue which I’ve been very interested as my kids are in private school. The only bit I might disagree with in your proposal is the idea of not making the voucher money available to everybody from day one. Regardless, I think you’re spot on. Very disappointed that this is the front-runner legislation for dealing with this problem. I’m curious if you think that an unintended consequence of this legislation could be an increase in private school tuition costs? It’s certainly not the same situation, but the sudden availability of extra dollars in college lending seems to have had a hand in steep tuition increases with universities. Do you think that could be a problem with private schools or do you think the free market would prevent that?