Public schools face increasing scrutiny while private vopucher schools are allowed to operate with almost no oversight. Why the double standard?

By Erik Gunn

In the summer of 1998, Wisconsin legislators told Milwaukee private schools they could spend taxpayer dollars and ignore federal and state laws.

They didn't do so outright, but that was the fundamental message behind the state legislature's move to gut a state administrative rule governing Milwaukee's school voucher program.

Religious schools had balked at signing an agreement to obey a series of federal and state civil rights and equal access laws and regulations required of all public schools - laws and regulations that secular schools participating in the voucher program for the previous seven years had readily agreed to. At the religious schools' urging, the Republican-controlled state legislative committee overseeing the administrative rules forced the state Department of Public Instruction to drop the requirement.

The outcome, framed by voucher supporters as liberating participating private schools from the heavy hand of government, cuts to the heart of the central contradiction surrounding the city's nine-year experiment with taxpayer-funded, private school vouchers for low-income students:

The point of school choice is ostensibly to level the playing field between the poor and the wealthy while using the cudgel of competition to prod public schools to improve their performance. With choice, its supporters argue, low-income families get the same sort of access to presumably superior private education that the wealthy enjoy.

In fact, however, the result has been a highly uneven playing field. Both public schools and private voucher schools receive taxpayers' dollars, yet the private schools get to play by different rules and avoid public accountability. Public schools labor under ever greater standards of accountability, yet private schools are able to sidestep such requirements. To cite just one example, while public schools' test scores are regularly broadcast, becoming the fodder of extensive public discussion, private voucher schools don't have to release any information on academic performance - and aren't even required to give statewide standardized tests required of public school students.

"There isn't significant accountability built into the requirements for voucher schools," says William Lynch, an attorney who represented the Milwaukee branch of the NAACP in its unsuccessful efforts to stop the voucher program. "There's certainly nowhere near the level of accountability that is expected from other publicly funded, tax-supported public schools.

"The lack of accountability interferes greatly with the public's ability to evaluate whether or not continuing this new recent entitlement program for religious and other private schools is good public policy," Lynch adds. "It also means consumers of education have a hard time evaluating schools in order to determine what choices to make. And there's no democratic process to which citizens can go to complain about lack of information or about operation of the voucher schools. It's a program that's state funded by state mandate without any locally elected citizens who are responsive to parents."

Voucher proponents apear untroubled by this disparity. The marketplace, they contend, is a sufficient measure of a private school's performance. Schools that hew to the higher standards parents seek for their children's education will draw growing numbers of students; those that don't live up to expectations will find themselves by the wayside as parents vote with their feet.

But Lynch dismisses this notion that "education is like a hamburger and if you don't like the hamburgers at one restaurant you go somewhere else." He notes that if there are voucher schools that might be wasting taxpayers' money and misleading parents, "We all have an interest in that. One should not tolerate ripping off education consumers and leaving to them only the option of going elsewhere."

MINIMAL STANDARDS

Milwaukee's low-income voucher program, the oldest in the nation, began in 1991, enabled by legislation drafted by State Rep. Polly Williams, a Milwaukee Democrat. Under the program, low-income residents of the Milwaukee school district may attend private schools at taxpayer expense. This year, roughly 8,000 students and 100 private schools, most of them religious, are taking part in the voucher program. Cleveland has a similar voucher program, while this fall Florida began a statewide voucher intiative.

Initially, Milwaukee's voucher program was limited to non-sectarian schools, and courts ruled that the experimental program did not violate the state's constitution. Religious schools were to be added in the 1995-96 school year, but their inclusion was initially blocked by lower courts, which ruled that the change benefited religious institutions in violation of the US and the Wisconsin constitutions. The state Supreme Court overturned those rulings in June 1998, concluding that since vouchers weren't limited to sectarian schools, they didn't constitute unconstitutional aid to religious institutions. The court essentially concluded that the vouchers were a benefit conferred on individual parents, who were free to choose to use them in participating sectarian or non-sectarian schools.

From the beginning, regulation of the voucher schools has been minimal. To continue participating in the voucher program, private schools have to meet one of four standards:

• At least 70% of voucher students must advance one grade level.

• Voucher students at the school must, on average, have at least a 90% or better attendance rate.

• A school must certify that at least 80% of its voucher students demonstrate "significant academic progress" - although the state does not define how that progress should be measured.

• At least 70% of families of voucher students must meet the school's own criteria for parental involvement. These standards are so minimal that, as one Wisconsin Department of Public Instruction official put it in an interview last year, every school "gets back in" to the program.

ACADEMIC ACCOUNTABILITY

For the first five years of the program, University of Wisconsin Professor John Witte conducted regular surveys to measure the impact of vouchers on the academic performance of participating students. At best, Witte's surveys found a few, modest signs of improved student performance. When their results were compared with those of Milwaukee Public School students, however, Witte's research team found little difference. Indeed, public school students got a slight edge in reading. Choice students stood out only in the higher degree of positive attitude their parents had toward the experience, compared with average public school parents in Milwaukee.

Witte's findings have been challenged by voucher advocates Paul Peterson of Harvard University and Jay Greene of the University of Houston. Unlike Witte, who compared voucher students with MPS students in general, Peterson and Greene used as their control group students who had attempted to enter the voucher program but were rejected because the private schools they chose were full. Peterson and Greene concluded that voucher students pulled sharply ahead in their third and fourth years, after they'd had a chance to become acclimated to the different environment of private schools. Witte, in turn, has criticized their findings, arguing that they lack statistical rigor and that the control group Peterson and Greene used was unavoidably skewed toward the poorest academic performers.

The Witte-Peterson debate is all but moot today, however. In 1995, as part of an extensive expansion of the voucher program allowing more students and religious schools to participate, the Wisconsin legislature also cut off funding for any further evaluation of the program. The exception is a state Legislative Audit Bureau report, due out early next year. That report, however, will not examine test scores; it will ask the schools only whether they give standardized tests and which ones.

The refusal of Wisconsin's legislature to authorize additional evaluations of the voucher program, by Witte or anyone else, contrasts strikingly with the ever-greater attention paid to the public school system's performance.

All Wisconsin public school students, for example, are tested in fourth, 8th, and 10th grades, with results going to the Department of Public Instruction (DPI) as well as to individual schools. Private schools can arrange to take the same tests that public students take, but there's no requirement for them to do so. (Charter schools, on the other hand, are required to live up to the same testing standards as public schools.)

Testing is also a key mechanism for enforcing another new state law governing public schools: the end of social promotion. Wisconsin legislators last year outlawed social promotion of students who didn't otherwise qualify to advance a grade. (The law as originally passed relied on a single standardized test to qualify students for promotion; changes in the pending Wisconsin state budget would broaden the promotional criteria.)

But no such requirement affects voucher schools, nor could it in the absence of publicly disclosed test scores.

Gary Cook, who directs the DPI's Office of Educational Accountability and oversees the statewide tests for public schools, says the point of making accountability measures publicly available is not just for the individual parents whose children attend the public schools.

"Education is primarily a parent's responsibility - they're the ones who really are the key," he said in an interview with Rethinking Schools. "But the state has a vested interest in ensuring that its populace is educated. The state isn't just me - it's all of us. Thomas Jefferson was right - if you want to destroy a democracy, first you get rid of your educational system."

FINANCIAL, RACIAL ACCOUNTABILITY

Voucher schools are accountable to the state in one way: financially. The DPI requires private voucher schools to document the actual cost of educating each student, which is then used to help determine their exact voucher amount. They also must demonstrate that they are verifying families' incomes to make sure they don't exceed the qualifying threshold: 175% of the federal poverty level. (Most of the schools rely on parents' income tax returns.)

Even in financial areas, however, the private voucher schools provide limited information. In public schools, the salary of every teacher, administrator, secretary, and even janitor is a matter of public record. No such information is required of voucher schools.

And financial oversight didn't prevent several struggling schools from folding in the 1995-96 school year, when the voucher program expanded rapidly. That experience prompted voucher advocate Williams to introduce legislation that would expand state oversight of the private schools, but her legislation failed.

Public schools regularly report in detail their racial composition. Private schools participating in the voucher program have largely declined to do so. In a survey, by Rethinking Schools research associate Lawrence Hoffman, of the 86 individual schools that participated last year, 16 provided complete data on their schools' ethnic and gender makeup; five incomplete data; and 62 either failed or refused to respond. (See article page 22.)

Wisconsin's non-partisan Legislative Audit Bureau is conducting a review of the voucher program, with a deadline of Jan. 31, 2000. That survey will reportedly be collecting data on the ethnic mix of participants, but the agency has not released its survey form and its data is not subject to open records review until the audit has been completed.

ANTI-DISCRIMINATION ACCOUNTABILITY

When Dane County Circuit Judge Paul Higginbotham ruled initially in 1990 that Milwaukee's voucher program did not violate the state's Constitution, he noted that participating schools, as recipients of taxpayer funds, were required to obey federal and state laws barring discrimination in schools - the same laws that are routinely applied to public schools and that public schools are from time to time sued for violating. Higginbotham said schools didn't have to adhere to the federal statute requiring public school systems to provide disabled children with a free and appropriate education, but ruled that they could not deny admission to qualified handicapped students.

The only measures specifically mentioned in the voucher legislation are that the voucher schools are not to discriminate on the grounds of race, religion, and national origin. In keeping with Higginbotham's ruling, each year the DPI required participating schools each year to sign an agreement stating they would adhere to the following:

• The state pupil nondiscrimination law. This law bars discrimination in any public school activity or services because of sex, race, religion, national origin, ancestry, creed, pregnancy, marital or parental status, sexual orientation, or physical, mental, emotional or learning disability.

• Title IX of the federal Civil Rights law, prohibiting discrimination on the basis of sex in education programs.

• The federal Age Discrimination Act of 1975 and the Rehabilitation Act of 1973, which bars discrimination on the basis of handicap.

• The federal Family Education Rights and Privacy Act, which regulates access to and release of students' education records.

• The federal Drug-Free School and Communities Act, requiring schools to certify they are drug free.

• State and federal constitutional guarantees of freedom of religion, expression, association, against unreasonable search and seizure, equal protection, and due process.

Secular schools routinely signed the pledge to abide by those regulations. When religious schools entered the program in the summer of 1998, however, they demurred. Initially, the state DPI also suggested that a half-dozen single-sex schools, all of them religious, would not be eligible to participate in the voucher program.

Under pressure from the state legislature's Joint Committee for Review of Administrative Rules, the DPI dropped its objection to single-sex schools and also withdrew the requirement that religious schools sign an agreement to obey the civil rights regulations.

Religious school leaders asserted that they respected the spirit of the rules but were not legally bound by them. They defended their resistance on the grounds that having to comply with such regulations would drain resources away from their educational mission. Separately, some voucher advocates have suggested that Higginbotham's original assertion that private schools were subject to the regulations no longer applies.

VIOLATIONS OF THE LAW?

While opinions may differ over whether such laws were intended to apply to participating private schools, there is no such ambiguity where two other requirements are concerned. The law creating the voucher experiment specifically requires participating schools to admit voucher students randomly. And the provisions expanding the program to include religious schools included explicit language allowing voucher students to "opt out" of participating in religious activities. In allowing religious schools to be included in the program, the state Supreme Court specifically cited both the random admission and opt-out provisions as evidence that the program would be religiously neutral and therefore constitutional.

To date, no voucher students or their parents have complained of violations of the opt-out provision, and both advocates and critics of the voucher program have said that's not necessarily surprising. To some extent, it may stand to reason that parents choosing a particular religious school would factor in religious activities in their selection and therefore not be interested in opting out. Religious school officials in particular have cited that very reasoning to explain why to date no one has sought to exercise the provision.

But a new study by the People for the American Way Foundation raises questions about whether the opt-out provision is even nominally being followed. And it also suggests that religious schools in particular have been somewhat less than random in their selection process.

Last winter the foundation and the NAACP's Milwaukee chapter complained in a letter to Wisconsin State Supt. John Benson that 35 schools appeared to violate the random selection law. Some failed to submit a random selection plan; others, including several Catholic schools, improperly gave preference to parish members or sought to exempt them from the random selection process. The organizations asked the state to withhold funds from offending schools until they corrected the situation, but instead the state sent all voucher schools a letter reiterating the random-selection requirement and proffering a model random-selection policy. In boldface type, the letter said:

A choice school, in accepting students into the choice program, may not use as a criterion any information about an applicant · such as the applicant's race, ethnic background, religion, previous test scores, grades, membership in the parish, relation to school or church staff, agreement to the school's policies or having a conference with the school.

PFAW and the NAACP followed up with an investigation and found that many of the voucher schools had brief open enrollment periods or scheduled them well before the beginning of the new school year, or both. For instance, five schools limited open enrollment to a single week, in March, April, or May, while others had longer open enrollment periods but put them in January, February, or March. The timing of those open enrollment periods "suggests the schools may not be engaging in random selection but rather are targeting a select group of students (such as parishioners) likely to know about these early or limited enrollment periods," the organizations wrote in a follow-up letter to the DPI.

The organizations went further in their investigation, borrowing techniques from the fight against housing discrimination. Contracting with the Milwaukee Fair Housing Council, the organization arranged for testers posing as parents interested in the voucher program to call various private schools seeking information.

Several schools told testers their students would have to undergo the schools' standard admission exams first, in some cases filling out applications that asked a student's religion. A Montessori school sent the tester a brochure that included a statement that prior Montessori experience was required for children enrolled at the age of four or older. One Catholic school required applicants' parents to sign a form stating: "By choosing St. Sebastian School we recognize that it is a Catholic school; therefore education and formation in the Catholic faith is central to the curriculum."

A Lutheran school principal told one tester that religious teachings were integral to the whole curriculum. In her report, the tester wrote that the principal, Richard Gottschalk, "told me that as part of parental Choice there is an 'opt-out' option and added that if parents are going to opt out of the religious aspects, then he wants them to opt out of the school."

"If you won't want your children to take part in the religion, our school's not for you," the principal told the tester.

Reporting their findings to the DPI in August, the organizations' lawyers wrote that "it is now clear that voucher schools are in practice violating the law" and indicated that they would consider their own lawsuit if the agency doesn't act. DPI announced in a September letter to the complaining organizations and to the schools that it would investigate the complaint.

A DOUBLE STANDARD

To state Rep. Christine Sinicki, a former Milwaukee Public Schools board member, the disparity between the requirements that govern the public schools and those that private voucher schools face - and sometimes flout - adds up to a gaping double standard.

Sinicki has been drafting legislation that she says would "put the same standards, criteria, and accountability on Choice schools that are placed upon the public schools."

"The Choice promoters talk about Choice leveling the playing field," Sinicki told Rethinking Schools. "But Choice schools are still picking and choosing what children they want." The PFAW/NAACP complaint "proves that."

Sinicki's bill, still in the drafting stages, would subject voucher schools to the same admissions and open records rules public schools must follow. "State tests that are mandated to public schools would be administered to private schools," Sinicki says.

"My argument is that as long as these schools are receiving public funds they should be considered public schools and fall under the same criteria that public schools fall under," she adds. Meanwhile, she notes, legislators "are not backing off on [imposing requirements on] public schools one bit."

Sinicki says her own constituents - including parents of private and parochial school students - are skeptical of choice. Religious school parents in particular, she says, "don't want taxpayer money going to private schools [because] they don't want state interference in their schools."

Some recent national surveys indicate greater public interest in private school choice - boosted, in part, by presidential hopeful George W. Bush, who has made support for choice a centerpiece of his campaign's education platform and has taken on former Milwaukee school superintendent and voucher advocate Howard Fuller as an advisor.

But a wide range of surveys shows that the public desires the sort of scrutiny of private schools that Sinicki proposes in return for public funds. In a September 1998 Gallup poll, which found 44% of people in favor of private school choice, 75% agreed that that "private or church-related schools that accept government tuition payments should be accountable to the state in the way public schools are accountable."

While the public supports making voucher schools accountable to the public, Sinicki's legislation to do that faces an uphill battle.

"When I drafted the legislation I was very honest with myself and people I talked to: I don't think this has a chance of passing," she said. "But it's a way to keep this issue at the forefront."

Erik Gunn is a journalist based in the Milwaukee area.

Fall 1999