EdWeek Series Beyond Rhetoric: Voucher supporters roll the eyes

My mom likes to tell a story about a parent-teacher conference that she had with my 5th grade teacher Mr. Studley. During this conference the teacher mentioned that I had asked a question during class. Mr. Studley responded that he wasn’t sure of what the answer to my question was. I responded to him, “That’s okay Mr. Studley, since you don’t know the answer to my question I will ask my mom, she knows everything anyways.” Moral of the story: I ask people, like my mom, more knowledgeable than me to clarify questions on the margins of my knowledge.2014-03-17 11.10.57
Well, my impression from the case Doe v. Kamehameha Schools was that private schools have the ability to discriminate based on race. There was a response in the “choice” media that this contention in Edweek was wrong due to the case Runyon v. McCrary. So, I asked three prominent attorneys (more knowledgable) about whether private schools can discriminate based on race (we already know they can based on religion and other factors if they so choose). Two are prominent attorneys from civil rights organizations and the third is a law professor. First, I will include the Edweek discussion about vouchers below, then I will turn to the attorneys opinions on whether private school can discriminate based on race.
I am currently writing for the EdWeek column K-12 Schools Beyond the Rhetoric with Jack Schneider. We are covering a bevy of important topics in education policy such as Teach For America, Charters, Vouchers, High-stakes testing, and Standards. I first excerpted some of our conversation about charters schools in the post Is the Impact of Charters Schools on Achievement a Big Lie? and then discussed high-stakes testing in the post EdWeek Series Beyond Rhetoric: If Not a Bunch of Tests… Then What Instead? and discussed Teach For America in the post EdWeek Series Beyond Rhetoric: @TeachForAmerica You are my Obsession.Screen Shot 2014-05-16 at 10.13.58 AM
Today, I want to introduce excerpts from our conversation about vouchers. EdWeek has placed our conversation behind a paywall. So below I will include only my own language. I don’t believe I have the right to include Jack’s questions/probes, so you will have to guess what Jack asked me between questions or subscribe to EdWeek. Sorry. In the Edweek Beyond the Rhetoric post Vouchers and Equity on 10/14/14, we kicked off the week’s conversation about school choice by discussing the resurgence of voucher plans.


Heilig: In past discussions in this column, I’ve talked about how testing and underqualified teachers were examples of what we used to call discrimination, but now have been spun in the public discourse as civil rights efforts.

Vouchers are no different. After Brown v. Board, whites in the South began to claim that “quality” issues in the public schools necessitated vouchers from the state to send their students to private schools. In reality, the “segregation academies” that received white students were focused on empowering white parents to choose to avoid integration. Since the segregation academies were private schools, they were outside of the reach of the Brown ruling.

educationweek-facebook-defaultWhile vouchers are not explicitly a discriminatory vehicle, current case law suggests that private schools are able to discriminate however they desire based on race, ethnicity, religion, etc. Also, private schools are not accountable to the state for the public monies they receive—a particularly troubling fact when coupled with research demonstrating uneven provision of quality education among private schools. Finally, for parochial-based private schools, the traditional separation of church and state comes into play, even if public money has been laundered through a foundation or some other state-determined neo-voucher mechanism.


Heilig: I have never been convinced by the tug-at-the-heart-strings argument about poor kids and vouchers.

First we have to remember that the “only for the poor” angle is just a short term ruse. As we saw in Florida this year, vouchers were expanded from “only for the poor” to families of higher income levels.

So if vouchers won’t be limited to the poor, what should we expect from expanding vouchers? A number of studies have demonstrated Chile’s universal choice market has actually enhanced segregation at the expense of poor students. And as one might expect, this has negatively impacted the poor. In response, Chile is currently debating a variety changes to their system similar to what you are suggesting—a cap and quotas.

But I doubt our courts would permit a regulated voucher system, allowing the government to control what private schools charge for tuition and who they must admit. So, since these controls wouldn’t be on the table, students with capital (such as high test scores, dollars above the cap, transportation, etc.) would always be “winners” in the market. In short, vouchers have the potential to promote even more segregation and inequality than we see today.


So a “choice” cheerleader website stated the following (There is no link here on purpose):
[Schneider] fails to correct Heilig’s misstatement that “current case law suggests that private schools are able to discriminate based on race.” (They cannot; see Runyon v. McCrary). Worse still, both agree vouchers have a “sordid” racial history, without any recognition of the very real racist history of public education in America.
First, thanks Patrick Gibbons for the White guy’s admonishment about how racism has functioned in America. Here is what I think about that:
Is Gibbons right? Does my statement “need improvement”? I asked the lawyers more knowledgeable than me. Here are the responses from the three prominent attorneys who are anonymous at this time.
So what about that case from Hawaii where ancestry was used as a factor in admissions? Can private school discriminate based on “race”?
Yes, we did talk about private schools and racial discrimination a few years ago. There was a case in Hawai’i, which was decided by the Ninth Circuit in 2006, Doe v. Kamehameha Schools. The plaintiffs asserted that the school’s policy of giving preferences to students of Native Hawaiian ancestry violated 42 U.S.C. s. 1981, a federal statute which prohibits racial discrimination in the contracting. I have attached the case in this email. The court used the burden-shifting approach from Title VII cases to find that there were legitimate justifications for the policy… The Ninth Circuit was careful to point out that other courts used Title VII analysis for Section 1981 cases. One wonders what the Supreme Court would do if it ever had the chance to rule on an affirmative action Section 1981 case.
Please God don’t let SCOTUS get a Section 1981 case with the current court. Another response:
That is not the only question because they would be receiving public funding. They become a hybrid to which anti-discrimination rules apply. They would not be pure private schools. To allow such an exception would essentially permit the circumvention in Brown.
And finally, and interesting perspective from the third attorney on disparate impact,
I saw that others responded so I did not answer but I thought I would quickly clarify a couple of points based on my understanding of the law.  [My colleague] is partly right although not all private schools receive federal funds so Title VI (which prohibits disparate impact violations) does not always (and probably more often does not) impact private schools. This is important because the Runyan case was essentially folded into the Civil Rights Act of 1991, but that has been interpreted to only outlaw INTENTIONAL discrimination (not disparate impact discrimination) in the making of contracts based on race. So there is more wiggle room for private schools to discriminate.  Can they hold up a sign that says:  No Brown or Black Kids allowed?  No. Can they hold up a sign that says Must have score in top 15% of ITBS to enroll?  Maybe.  Some private schools have prohibited the speaking of Spanish at all times in schools, as another example.  That would not fly in a public school. The checking of students “civil rights” at the private school doorsteps is a currently a big concern for the civil rights [community].
In a strange, but familiar way, the argument that it is okay for “reforms” to have a discriminatory impact on people of color is the thesis of the arguments supporting voting restrictions. It’s okay to enact “poll taxes” and other restrictive voting policies because they are not intentionally racist as the policies are not overtly race-based (as has been the case in the past). But we clearly know this is a thinly veiled argument, and those that support voting restrictions know that these policies have a disparate impact on communities of color accidentally on purpose. School choice can also have a disparate impact too if schools do the choosing— private, charters etc.

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  • Monty J. Thornburg, PhD

    Sources dated: But I hope useful.
    Vouchers, choice and Milton Friedman’s “Capitalism and Freedom” (1962), and ‘Free to Choose” (1980) motivated me as a Master’s degree student in the College Urban and Public Affairs, UNO, to explore: “Education Vouchers: The issue of family choice in American Education” completed in 1986. I see that Friedman’s books were part of the discussion in Education Week’s interview. Two books that influenced my research were: (1) Coons and Sugarman’s (1970) Education by choice: The case for family control” and (2) Mecklenburger and Hostrop (Eds) (1970-1972) “Education vouchers: From theory to Alum Rock” that discussed many voucher models and the experiment in the Alum Rock school district near San Jose, CA. The models presented were: 1. Unregulated Market Model, (Friedman) 2. The “Unregulated Compensatory Model” (more $ for the poor), 3. The Compulsory Private Scholarship Model (used in the South to avoid de-segregation after Brown v. Board of Education, – See: La Noue (1972) Educational vouchers; Concepts and Controversies” 4. The Effort Model (depends on cost of private school), 5. The “Egalitarian” Model (no school allowed to charge more than a voucher, 6. The Achievement Model (voucher model based on progress of the child- testing!) 7. The Regulated Compensatory Model (schools can earn extra money by accepting poor children) and, 8. Vouchers confined to Public Schools Model. Most of these “Models” were addressed in the interview. By listing them and their origins I’m hoping to add information to the discussion. Best to you Dr. Vasquez-Heilig and thanks for “Carrying On” –


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