November 15, 2017

The U.S. Secretary of Education, Betsy DeVos, is attempting to redefine the meaning and role of public education from what it has been for more than two centuries. She wants to privatize public education and call it “public.” She talks about getting rid of the labels—public, charter, private, parochial, vouchers—and redefine it as, education for the nation’s children being provided by someone, anyone. In this scenario, everyone would receive a government payment to redeem at any education establishment whether an established or startup private school, a charter, a traditional public school or at the feet of a beloved Uncle Hank who may have a degree from Hooterville Community Tech.

Wiping away labels is a clever way of winning the battle to privatize public education without firing a shot. No labels, few or no standards, and each student having a lunchbox full of cash for buying “education” or something else, if education is not a priority.

Secretary DeVos is performing at a strategic time for the advancement of the school choice/privatization movement. As a private citizen she, along with scores of others, has invested millions and millions of personal wealth in the movement. Now DeVos is on the national stage with a bully pulpit promoting the anti-public education agenda. Three decades ago a person of Betsy DeVos’ ilk could not have been confirmed as Secretary of Education. The privatization message would not have resonated, but the constant drumbeat has taken its toll against a favorable perception of the traditional school system.

In a speech at Veterans Memorial Hall in Columbus on November 25, 1991, President GHW Bush advocated that Ohio give a voucher to every student. At that time there was little support for that concept, but Ohio Governor Voinovich gave life to the proposal by goading the legislature into enacting the Cleveland voucher legislation. With the help of Akron Industrialist David Brennan and a bevy of parochial school providers, the voucher system was launched in Cleveland. And then came more voucher programs and the charter industry.

Ohio is well on the way to DeVos’ dream of giving students cash to buy education in the market place or wherever.

In context of the title of these remarks and what has already been said, further remarks could either go in the direction of pleading for meaningful involvement of the general public in traditional schools or in the direction of asking for help in defeating DeVos’ attempt to privatize public education. Of course, DeVos is now merely the face of the privatization campaign to further privatize the common school system. The emphasis of the remaining remarks will go in both directions.

To frame this discussion, we need to review the purpose of public education and the state responsibility for it. The founders of our republic seemed to have had a great appreciation for democracy. Jefferson said, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.” Further he said, “I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them but to inform their discretion.” John Adams expressed how education should be provided: “The whole people must take upon themselves the education of the whole people and be willing to bear the expenses of it. There should not be a district of one mile square, without a school in it, not founded by a charitable individual, but maintained at the public expense of the people themselves.”

The Land Ordinance of 1785 set aside the 16^th section of each township for the support of schools. The Northwest Ordinance of 1787 stated: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

Each state has one or more constitutional provisions requiring the state to establish and maintain a system of common schools. States were required to have a constitutional provision for public education to join the Union.

Ohio’s 1802 Constitution had two provisions that related to public education. The 1851 Constitution requires the state to secure a thorough and efficient system of common schools. The 1912 Constitutional provision for education requires the state to make provision by law for the organization, administration and control of the public school system. The 1953 amendment to the Constitution requires a State Board of Education and Superintendent of Public Instruction employed by the Board.

The common school system is the responsibility of the state and the task of delivering educational programs and services is the responsibility of elected boards of education as representatives of the school community.  The only exceptions to this pattern is the Cleveland Municipal District in which the mayor appoints the board, and the Youngstown and Lorain school districts which are controlled by a CEO employed by an appointed Academic Distress Commission, pursuant to the “Youngstown Plan” legislation.

The Ohio Constitution requires the state to secure and fund the public common school system. Vouchers, charters and other privatization gimmicks are not part of the system. The common school system is a term of art. Vouchers and charters are privately-operated with no elected board of education. They are not community-oriented, have no property tax base or geographic boundaries and are not held to the same rules and standards applied to the common school. Hence, these choice gimmicks are not a part of the system required by the Ohio Constitution.

From the beginning of the common school in Ohio, governors, legislatures, local and state education leaders have collaborated to improve the common school system.

State elected officials, state education leaders and local education officials have established school survey commissions, state legislative and executive research committees and professional associations to improve educational opportunities via the common school system. The common school system was the focal point of all those study and research efforts. Secretary DeVos constantly chirps that the emphasis should be on the students, not the system. The system is critically important to ensure the education of all the children of all the people.

In the 1980s some state and federal officials began to question whether the common school system (as they would say the “government” system or the “government” monopoly) was the appropriate vehicle for education. President Reagan’s Commission on Education Excellence produced a flawed report–the 1983 Nation at Risk—that suggested the public school system was beyond repair.

When Reagan received the report he thanked the Commission for recommending, among other things, vouchers; however, the report did not even mention vouchers. Reagan seemed to buy into Milton Friedman’s voucher idea that he espoused as early as the 1950s.

Even though a late 1980s U.S. Department of Energy research report (Sandia) repudiated much the Nation at Risk report, President G.H.W. Bush used the Nation at Risk report to push the voucher agenda. The attack on public education was in full swing by the 1990s.

The federal government, historically, has provided supplemental funds and programs such as vocational education, National Defense Education Act (NDEA) funding for math and science, special education rules and funds and disadvantaged pupil program funds. Federal funds for vocational education began in the early 1900s.

By the turn of the 21^st Century, vouchers and charter schools were being implemented across the nation as an alternative to the common school. The federal No Child Left Behind (NCLB) legislation fueled the movement to the detriment of the common school. NCLB changed the federal role in education from providing supplemental support, to intrusion in every classroom in America. This federal policy essentially usurped the constitutions of the states. States bowed to the federal policy and local school district officials complied even though the federal policies, as enacted by states, were often harmful to students and distressing to local school personnel. The NCLB legislation incentivized the testing and technology industries. It also created the environment for the expansion of charter schools. Corporate America and entrepreneurs were attracted to the education industry in droves. Hence the charter industry was on a roll.

I have said for several years that NCLB legislation and the federal and state emphasis on charters and other forms of choice undermine the constitutions of every state. A forthcoming Cornell Law Review article by University of South Carolina Law Professor Derek Black identifies two limitations that state constitutional rights to education place on choice policy: 1) states cannot preference private choice over public education, and 2) the practical effect of choice cannot impede educational opportunities in public schools. The abstract of Black’s article follows.

Rapidly expanding charter and voucher programs are establishing a new education paradigm in which access to traditional public schools is no longer guaranteed. In some areas, charter and voucher programs are on a trajectory to phase out traditional public schools altogether. This Article argues that this trend and its effects violate the constitutional right to public education embedded in all fifty state constitutions.

Importantly, this Article departs from past constitutional arguments against charter and voucher programs. Past arguments have attempted to prohibit such programs entirely and have assumed, with little evidentiary support, that they endanger statewide education systems. Unsurprisingly, litigation and scholarship based on a flawed premise have thus far failed to slow the growth of charter and voucher programs. Without a reframed theory, several recently filed lawsuits are likely to suffer the same fate.

This Article does not challenge the general constitutionality of choice programs. Instead, the Article identifies two limitations that state constitutional rights to education place on choice policy. The first limitation is that states cannot preference private choice programs over public education. This conclusion flows from the fact that most state constitutions mandate public education as a first-order right for their citizens. Thus, while states may establish choice programs, they cannot systematically advantage choice programs over public education. This Article demonstrates that some states have crossed this line.

The second limitation that state constitutions place on choice programs is that their practical effect cannot impede educational opportunities in public schools. Education clauses in state constitutions obligate the state to provide adequate and equitable public schools. Any state policy that deprives students of access to those opportunities is therefore unconstitutional. Often-overlooked district level data reveals that choice programs are reducing public education funding, stratifying opportunity, and intensifying segregation in large urban centers. Each of these effects represents a distinct constitutional violation.

Charters, vouchers, tuition tax credits, education savings plans and other privatization gimmicks have, at least, these harmful effects:

• Reduction of funding and thus educational opportunities in the traditional public system
• Segregation of students
• Inefficiencies inherent in operating multiple systems
• Less educational opportunities for a major portion of students in alternative school programming
• Diversion of funds from classrooms to for-profit companies
• Fraud, corruption and generally low performance inherent in the charter industry
• Undermining of constitutional provisions for education
• Etc.

So, what is the solution, the recipe, for restoring the education landscape to the constitutional provisions?

First and foremost we, as a public education community, must determine if we want to change the trajectory of privatization. From my very small corner of the world, I don’t sense any widespread concern. The resistance to the privatization schemes from the public education community is, with few exceptions, scant and weak. The fraud and corruption, the monetization of education, the illegal confiscation of local tax funds for charters, the horrific ECOT scandal, the pronouncements by corporate leaders that boards of education are a relic of the past, etc., seem to concern only a few in the public school community.

But for those who are concerned, the recipe for returning the education landscape to the constitutional framework, the following recommendations as proffered. 

1. Local school leaders must assume their fiduciary responsibility to all taxpayers and students. Each student should expect public school leaders to provide the best set of educational opportunities possible. Students who are enrolled in ECOT, for example, should be coaxed back to the public system.

A new organization—Real Choice Ohio (RCO)—is up and running to help districts recover students from the charter industry. Some local school leaders have been heard to say they don’t want some of the students to come back from charters. But guess what? Charter kids can and do come back to districts whether they are invited or not. Hence, it is incumbent on school leaders to tailor programs and services to meet the needs of the disenfranchised students.

2. Local education leaders must shed timidity and resist the state policies and practices that harm school children. The public school community has a responsibility to challenge all state officials, including state public education officials who hand down edicts and policies that negatively affect the education of children.

Collectively boards of education represent the same citizens as the governor. Boards tend to have more credibility and influence with communities than state officials; and thus should act accordingly. Please never underestimate the power of your local board office in state education policy issues.

3. Mobilize local citizens to lobby on behalf of improved state and federal educational policies. There should be a public education advocacy commission/committee in every school district. This will likely not happen unless school leaders provide the leadership.

One Ohio school district has a public education advocacy coalition of 900 members.

4. Put public education advocacy strategies on every board agenda. We are in a battle to preserve public education. We need to engage our school patrons in this battle. Give the media information regarding the privatization movement.
5. Pass board resolutions which state the board’s position on various state policy issues and engage the media in the process.

For the past several years, the school choice tail has been wagging the dog. 90 percent of American children attend traditional public schools. However, those who represent the other 10 percent have a stranglehold on federal and state education policy. Traditional schools have suffered as a result.

Public school leaders and advocates have begun to reinsert themselves into the education policy arena. Now is the time to stand strong for real public education.

~William L. Phillis, Executive Director – Ohio Coalition for Equity & Adequacy of School Funding, gave this presentation at the OSBA Capital Conference on November 14, 2017.