Ep. 159: The Monthly Debrief - January Looking to February 2020 - EdChoice

Ep. 159: The Monthly Debrief – January Looking to February 2020

February 12, 2020

In this Monthly Debrief podcast, EdChoice’s President and CEO Robert Enlow, Director of Policy Jason Bedrick and Director of State Relations Lauren Hodge discuss the latest school choice happenings in the states. They focus on the State of the Union address, school choice controversy in Tennessee and more.

Robert Enlow: Ladies, gentlemen. Welcome to the monthly podcast on what’s happening in states and school choice. This is your friends at EdChoice, the nation’s leading voice for a universal parental choice in education. For those of you who don’t follow us, normally you should subscribe to us on SoundCloud, Apple Podcasts and Stitcher, and certainly you should follow us on our social media site at @edchoice. If you want to sign up for email, you should also join us at www.edchoice.org and sign up. We would love to have you do that. All right, now, the boring intros out of the way. Let’s get to the fun State of the Union of school choice this month and with that, let’s start with the State of the Union. With me today is Jason Bedrick, our director of policy, and Lauren Hodge, our director of state relations. And so, let’s have at it. The State of the Union. School choice. What do you think?

Jason Bedrick: Well, clearly last night the president made school choice one of the defining parts of his agenda. He promoted these Education Freedom Scholarships, which are modeled after the tax-credit scholarship policies that already exist in 18 states. And just to demonstrate what these scholarships mean for individual families, the president brought a single mother and her child, when she was trying to get access to a better education and yet was stuck on a scholarship organization’s waitlist for a long time. The president surprised her with access to a scholarship that night, which as I understand, was actually personally financed by the U.S. Secretary of Education, Betsy DeVos, who has actually done this a number of times before—financing individual scholarships out of her own pocket. But I think just seeing the look on the face of this mother and her daughter, when they learned that they were going to have access to school of their choice, I mean, I can’t imagine a better advertisement for the power of choice to transform lives, than the look on their faces when they learned that her daughter was going to have access to a school that worked for her.

Robert Enlow: You know, that’s an interesting point and certainly the look on her face was amazing. This president isn’t the first president to put school choice in their speeches and it won’t be the last. So, we all know that school choice has been around long before Donald Trump was president and it will be around long after. There are certainly other presidents that have put the idea of school choice in their State of the Unions and we were excited for all of that. One of our challenges that EdChoice is we believe that the real action of school choices at the states. So, the young lady that came from Pennsylvania that has a program there, we really hope that program gets supported and funded at the right level and grows to where it should grow. But it’s really great to continue to have the conversation about school choice at the federal level. Lauren, what are your thoughts?

Lauren Hodge: I think that both of you have summarized all of the significant points. I think that every child is a wonderful opportunity. At EdChoice, we believe in a universal vision and that every child should have that access. So, I am heartened by the fact that this conversation is being elevated and continuing on at a larger level, but it is to these states, in the states that we work with and our local partners. It’s heartening to see this, but I’m excited that they should be pertaining that control and continuing to push their own agendas and really transform their states state by state.

Robert Enlow: You know, that’s the interesting part about this whole conversation about the proposal, the Education Freedom Scholarships, EdChoice’s position is that in its current form of the bill is OK, but we would rather see them work on military scholarships and continue to reauthorize a D.C. scholarship program, which they have, make sure they help kids on the Native American reservations, which of course is some of the areas that the federal government has direct control over. And so our view is as everyone on the call knows, is we want families to really have access to educational freedom and that the game is at the state level mostly. But we’ll see where this goes. So, it is the State of the Union conversation that we started with, but as we said, the real actions in the state. So, we’re going to go a little bit backwards here alphabetically, and let’s start with the state of South Carolina. What’s going on there, Lauren?

Lauren Hodge: So, thanks so much Robert. South Carolina. Always an interesting place to be. So, one of the things that I would highlight for our listeners this round is SB 556, Senate Bill 556, which is an education scholarship, how to program or ESA program. As it’s currently drafted, eligible students would include those children in poverty, those children who have special needs, children who are children of active-duty military parents or parents who were killed in action, and the children in the foster care as well as adoptive process. And so, as the bill is currently drafted, the students would receive a share of the state funding per pupil to go with them and to be used in really transformational ways that include not only tuition, but also educational therapies and tutoring so that that customization of that child’s education can be met For that child every step of the way.

So, it’s an exciting bill. It’s one that we talked a little bit about last year. It’s one that this year seems to have gotten some attention down in South Carolina. There’s been numerous subcommittee hearings. We listened to the conversation that’s being held out by the committee members around this. It’s very interesting to watch them talk through this and walk through this. We’ve heard some interesting back and forth about how do we do accountability in this type of program. How do we make sure the parents are charged Reese for testimony throughout the last couple of weeks, experts came in from Florida and from Arizona and so it seems to be something that South Carolina is truly taking outlook, and we will be tracking it closely.

Robert Enlow: You know, it’s always good to see movement in states. EdChoice, of course, not advocating any of these bills except to say that we’re there to provide information and knowledge about them. So, that’s part of the good, Lauren. Jason, what’s the good on your side? Is there some other good going on? Because we’re going to have a little bit of a Clint Eastwood theme going here.

Jason Bedrick: Yeah on the good side, I want to highlight two states in particular and I would again direct interested listeners to our website edchoice.org where our blog will have a much more detailed description of all of the bills we discuss here and more. But a number one, Arizona, there’s SB 1224, which just this week passed the Senate Education Committee by a vote of 6-3. And this it’s a relatively small bill. All it really does is address the situation that arose last year where it was discovered that some Navajo families were attending a school that was just a few miles over the Arizona border into New Mexico, even though it was within the tribal boundaries. And so for those who don’t know the Navajo nation boundaries, which preexists the state of Arizona…

Robert Enlow: Yeah, and the country of America.

Jason Bedrick: That’s right. Exactly. Cross over into Arizona, Utah, Colorado and New Mexico. So, here you had a family… Actually, there were several families that were living in Arizona and yet their children are going to a school that was just a couple of miles over the border and not even a couple—actually not even a mile over the border—into New Mexico. The previous Department of Education and administration allowed them to do this even though state law technically said that it had to be an Arizona school, this bill would actually allow these families. There was a temporary bill passed last year allowing it for one additional year. This bill makes that fixed permanent. The amazing thing, and I was at the hearing, I testified at the hearing. The amazing thing is that the opponents of school choice turned out in very large numbers to oppose the bill. Almost nobody who actually spoke on the bill actually address the merits of what the bill was doing.

This was really for them and one of them explicitly said, “This is a symbolic vote.” Basically, they had decided that they knew it was only a few families that were going to be affected, but they wanted to lay down a marker that they are against school choice period. They’re against the education savings account period, and they did not want these families to have to this school. The really frustrating thing is they weren’t taking into account the best interests of these families. All of these families, the school that they were otherwise assigned to had been persistently failing for decades. All of the schools in that district are read a D or F, whereas the state average is about 50-60% pass rate on the math, English language arts and science tests. In that district, it’s only between 10 and 20% that pass those exams and it’s not because of the money.

The statewide average is $10,000 per pupil. Up there in Window Rock, it was $16,000 per pupil. Teachers make about 10 grand more per teacher per year on average than the state average. They have smaller class sizes than the state average. So, all these things that you usually hear about, “Well, we need better paid teachers. We need more money, we need smaller classes.” Well, they have those things there and yet they’re still producing these very poor results. And yet they’re able to get a great education at this school called Hilltop Christian, which charges tuition of about $3,000 a year.

So, thank you to the Senate Education Committee for addressing the needs of these families and making sure that they are going to continue to get access to the school that works best for their kids. Another thing that we pointed out is they were frustrated. The other side kept arguing, “Well, Arizona tax dollars should not be leaving the state,” but Arizona tax dollars already do leave the state. In terms of education, when a public school hires a teacher that lives over the border, that money is leaving the state. When they buy textbooks that are produced somewhere else, when they buy whiteboards or when they buy other curriculum materials or for that matter when they’re doing online instruction, as many traditional public and public charter schools do, that’s often online instruction that’s based out of another state or in some cases even another country. And yet we’re not concerned about those dollars flowing out. The purpose of these tax dollars is to ensure that every child has access to a quality education that needs their individual needs. And so I’m encouraged that the lawmakers, at least on the committee, understood that.

Robert Enlow: Facts are important things to have. I appreciate that update on Arizona. It’s nice to go from one side of the country to the other side of the country.

Jason Bedrick: One more good thing is that the Florida Senate Education Committee, by a vote of 6-2, passed SB 1220, which is to expand eligibility for their Family Empowerment Scholarships. Right now, it is available to students from families earning up to 185% of the federal poverty line. That’s about $48,000 for a family of four. And it is going up to 300% of the federal poverty line, which is about $77,000 for a family of four. So, expanding that so many, many more Florida families will have access to these scholarships.

Robert Enlow: That’s great news. I appreciate that. Thinking about the things that could always go better or things that are happening that are not always positive for school choice, Ohio has been challenged with its controversy over expanding the eligibility for Ohio’s Educational Scholarship Program for students assigned to low-performing schools. And in fact, lawmakers passed an amendment to HB 9 to delay the enrollment period from February 1 to April 1 as these legislators debate this issue. Really what is an issue here is how you define a failing school. Some of those schools in suburbia have been defined as failing because they’re not really serving sub categories of children the way they should. So, that’s been a challenge there in the great state of Ohio. I know, Jason, you’re aware of what’s going on there.

Jason Bedrick: Yeah, so as of when we’re publishing this podcast, there is still a lot of debate. There’s a lot of negotiation is between the legislators, but our sources in the ground expect that the legislators are going to come to some sort of compromise that is likely to allow the families who are eligible this year under the existing guidelines to apply and that the guidelines would be changed next year or to shift from a failing schools model to an income-based model but continue to grandfather in anybody who was eligible and that had applied this year. We’re actually seeing that in a number of states. For example, in Kansas, there’s a bill right now that’s been filed that Mike McShane from EdChoice testified at last month, which would change their failing schools eligibility for their tax-credit scholarship to a low income eligibility. And we’ve seen this nationwide.

The idea of the failing schools model was that, well if you’ve got a school and it’s not really doing well, we want to provide those families with access to better options and that’s also going to encourage the school to improve. Sometimes though this creates sort of an adversarial relationship between a public school families and public school organizations and those who support school choice. It makes the debate about institutions as opposed to about what’s in the best interest of the child. So, for example, you could have a school that, on average, is doing very, very well yet for a particular child, it’s just not the right fit and that child is really struggling and not keeping up and doing very poorly in that environment and needs different environment where they can thrive.

Alternatively, I mean even these that are low performing, like the one I mentioned in Window Rock on the Navajo reservation, even that very low-performing school might be doing really well for particular students. There are some students who might actually be thriving in that environment. So, your access to a quality education to an education that works for you shouldn’t be determined by the average performance of the school that just happens to be nearby.

Robert Enlow: Yeah. Jason, let me add to that, because this is one of the big things in school choice right now in the parental freedom movement is: How do you determine what a good school looks like, what a quality school looks like? And the past what we’ve been saying is, “Hey, let’s look at the average test scores or test scores of average students and different types of students.” And really it’s based about test scores. And you know I’m fond of saying, as you know, you don’t walk across a river because the average depth is four feet. So, it’s really important for us to think a little bit more seriously about what does it mean when we say failing school? Is that the right terminology? What does failing mean? Is it merely about a test score? What about all these other attributes of school, school culture, safety, bullying, all these things that families do care about—particularly mothers care about? Are their kids being bullied? Are their kids safe at school?

These are things that makes failing school models, I think, problematic to school choice. So, there’s some things out there for us to think about as we listen to this podcast. What does a failing school mean? What’s going on in Ohio? School choice is having challenges there. It’s also having challenges in other states. Jason, talk about what’s happening in both Tennessee and in Virginia.

Jason Bedrick: Tennessee and Virginia, there are two States that have bills to repeal existing school choice programs. So in Tennessee there are two companion bills, SB 1787 and HB 1550 which would repeal the Tennessee Education Savings Account Pilot Program. And then in Virginia there is HB 521 which is a bill that would repeal Virginia’s tax-credit scholarship program for children from low-income families or with special needs. We don’t expect that the repeal bill in Tennessee is going to go anywhere. And for that matter, there’s also one in Arizona that’s a repeal bill that was filed for the tax-credit scholarship program. That’s probably not even going to get a hearing. So, we don’t expect these actually to go anywhere, the one in Arizona and Tennessee anyway. But in Virginia this one could have some legs. So we will be watching that very closely because the legislators who are in charge there right now have for a long time expressed the desire to get rid of the school choice program.

And so we will see. I am encouraged by the fact that there have been threats in other states recently, for example, in New Hampshire and in Illinois to repeal the tax-credit scholarship programs that they have there. And in each of those cases, when it came down to it, the families who were benefiting from the scholarships, they rallied, they came down to the state capitol. Then they made their voices heard and ultimately the state legislature down and did not pass the repeal. We have never had a school choice program that has been put into effect ever been repealed. So, I don’t expect that this year is going to see the first. But certainly we will keep our eyes on Virginia to see what happens there.

Robert Enlow: I think that’s right. As you’re looking at the numbers on the… if you go to www.edchoice.org, make sure you sign up for emails and look at the blog about what’s happening in the states. You can see that there are actually 27 bills in 15 States going on right now that we’re tracking. Some of those are pro-school choice bills and some of those are anti school choice bill. So the issue is getting a lot of play still around the country. Now Jason, as we think about wrapping up here, let’s wrap up with what happened… We started off with the State of the Union. Let’s end at the building down the street. That big old courthouse called the United States Supreme Court. What’s been going on there this last week?

Jason Bedrick: So of course the Espinoza case was heard before the U.S. Supreme court last month and I believe our VP of Legal Affairs Leslie Hiner is going to have a more in depth podcast where she discusses these issues. But, the short story is that in Montana they had a tax-credit scholarship program that was enacted by the legislature that would allow families to use scholarships at any type of school, any private school, whether it is secular or religious, but the state department of revenue on their own accord decided, “You know what? The way the legislature designed this, we think is unconstitutional, that it violates the state’s Blaine Amendment that says no public funds should go to a parochial school,” even though tax credits are not understood as public funds in nearly any other state or by the U.S. Supreme Court. That was challenged by the Institute for justice. They went up to the Montana State Supreme Court.

Interestingly, the state supreme court said, “Hey, Department of Revenue, you have no authority to do this, but while we’re looking at this bill, we think you’re right. It’s unconstitutional and we’re going to strike the whole thing down.” The Institute for Justice then appealed that decision to the U.S. Supreme Court arguing that essentially what the Montana Supreme Court did, interpreting it’s Blaine Amendment was a violation of the free exercise clause of the First Amendment. Because following the Trinity Lutheran decision in which the court said that if the government is providing a general benefit, you cannot exclude an individual or organization that is otherwise eligible solely on the basis of their religious identity. That this is in the words of the 6-3 majority, “odious to the constitution.” It is a form of discrimination that violates the free exercise clause.

So, the question before the U.S. Supreme court in this Espinoza case is whether what the Montana Supreme Court did in interpreting their Blaine Amendment violates the First Amendment of the U.S. constitution and, Dick Comber, who used to be with the Institute for Justice, they took him out of retirement in order to argue the case. And it seemed to go really well. There are, it seems, four very clear votes in favor of Espinoza. So, that would be Kavanaugh, Gorsuch, Alito and Thomas. In the opposition, it’s very clear that justices Ginsburg, Sotomayor and Kagan will be opposite Espinoza, and then there are two swing votes. Justice Breyer was asking a number of questions. He was trying, it seems, to look for some sort of limiting principle.

He seems to be a gettable vote but not clear how he’s going to ultimately rule on that. He was in the majority on the Trinity Lutheran decision, however he was in the minority on the Zelman decision, which upheld more than a decade ago—almost two decades ago now—which upheld the constitutionality of school vouchers. So, it’s not clear where Breyer will come out. And also Justice Roberts just kept his cards very close to his vest and he was asking tough questions of both sides. There are many who think he is going to be in favor of Espinoza. He did write the opinion in Trinity Lutheran. However, there was this note in Trinity Lutheran that said that it was basically contained to the facts of the case and did not address the question of religious use versus religious status or religious identity. So, that left some wiggle room.

In a school choice case like this where some argue that there is a constitutionally meaningful difference there that if you’re just talking like they were in Trinity Lutheran about playgrounds, that that is not a religious use, but that if it’s a religious school and they taught religious classes. That’s something different. There was a concurrence in the decision, but a dissent from the footnote, which is pretty unusual in the Trinity case, agreeing with everything except the footnote that was written by Justice Gorsuch where he really attacked this idea that there was a meaningful difference between religious identity and religious status. And he said something to the effect of, “If a Baptist man sits down for dinner and says a prayer before he eats, is this a Baptist man eating dinner or is it a man eating dinner in a Baptist way?” A distinction without a difference. And so he doesn’t think there’s a meaningfully, constitutionally meaningful difference there. Justice Kagan very much does believe there’s a meaningful difference. It remains to be seen where justice Roberts falls out on that question.

Robert Enlow: There you have it ladies and gentlemen. You get, from EdChoice, everything from concurrence to footnotes on discussions here on our monthly podcast about what’s going on in the states. There’s a lot more going on in the states all over the country. As I said, there are 15 States that we’re tracking right now, looking at 27 bills. As we look at and wrap this up, I was thinking about paraphrasing what we’ve been talking about today and I guess I’d say from the vaunted halls of Congress to the doors of the Supreme Court, from the shores of New Hampshire to the shores of Washington state, school choice is still a hot topic out there around the country. And so go to www.edchoice.org. Sign up for our emails. Get onto our podcasts and subscribe to us. Follow us on Twitter, @edchoice. Get more of these monthly podcasts just to sort of describing what’s happening in the States with the idea of parental freedom and education. Jason, thanks very much. Lauren, thank you, too, and we’ll see you next month.

Receive Educational Choice Updates Straight to Your Inbox.

Email Newsletter Signup

Follow Our Progress.

Receive Educational Choice Updates Straight to Your Inbox.

Email Newsletter Signup Engage

Privacy Policy