Privatizing Education

Can The School Marketplace Deliver Freedom Of Choice, Efficiency, Equity, And Social Cohesion?

Henry Levin

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429977640
• Edition: 1
• Topic: Education
• Subtopic: Education General

Privatizing Educationis a collection of essays written by such luminaries as Martin Carnoy, Christopher Connell, Wendy Connors, Fred Doolittle, Pearl Rock Kane, Frank Kemerer, Christopher Lauricella, Arthur Levine, Ellen Magenheim, Patrick McEwan, Lee D. Mitgang, David Myers, Gary Natriello, Caroline Persell, Mark Schneider, Janelle Scott, Geoffrey Walford, and Amy Stuart Wells who examine the efforts of some educators, reformers, investors, and political groups to move education from the public to the private sector. This is occurring through tuition tax credits, voucher initiatives, and for-profit, educational management organizations. The volume grows out of a conference that took place at Columbia University's Teachers College which launched the National Center for the Study of Privatization in Education.

Implementation Issues

3
The Legal Status of Privatization and Vouchers in Education

FRANK R. KEMERER

Privatization of schooling generates a host of complex legal issues that are usually overlooked in the literature. What barriers might federal and state constitutional law pose for privatization efforts? Is the autonomy of private organizations compromised by participating in these programs? Do students and teachers retain the same federal rights in public schools operated by private entities that they have in traditional public schools? How does privatization affect the role of teachers' unions and collective bargaining? It is important to explore these matters because they ultimately will affect the form that privatization takes and, consequently, its outcome.

For purposes of this chapter, I divide privatization into two categories: The first focuses on letting private organizations operate public schools either by contracting with school districts (known as "contracting-out") or through the charter school process; the second focuses on providing parents with publicly funded vouchers and tax benefits so that they can enroll their children in private schools. The first category is substantially different from the second in that the schools theoretically remain public. Under the second, it is assumed that private schools remain private. As we will see, these assumptions may not always be true.

We begin by discussing emerging legal issues related to letting private organizations operate public schools. We next examine emerging legal issues involving voucher and tax benefit plans. Following the legal review, we then consider stakeholder interests and the types of research studies that should be undertaken to address them.

Privatization Within the Public Sector

Privatization is not new to public schooling. School districts routinely contract with private organizations to provide such services as bus transportation, meals, maintenance, and special education for severely disabled children. For a time in the 1970s, "performance contracting" with private companies for segments of the instructional program, particularly remedial education, was popular, though it proved largely unsuccessful.¹ In a few sparsely populated states like Maine and Vermont, small township school districts for years have financed the attendance of their high school students in out-of-district public or in private schools in lieu of building a high school. More recently the concept of contracting-out has encompassed operating an entire public school.² There are a number of legal concerns directly related to the latter. In this section, we will focus briefly on four: restrictive constitutional provisions; the status of the schools operated by private entities; selective admissions; and the role of unions and collective bargaining.

Restrictive Constitutional Provisions

In formulating school reform initiatives that accommodate private organizations, state legislatures cannot ignore the strictures of their own state constitutions. Although there are only a few court decisions to study so far, they are informative as to what the legal concerns are. For example, Michigan has a state constitutional provision requiring the legislature to establish a public school system and prohibiting it from funding private schools.³ A number of states have similar provisions.⁴ The Michigan charter school statute allows persons and entities, including private organizations, to operate public school academies on a nonprofit basis.⁵ Religious organizations are excluded, given the state constitution's antiestablishment-of-religion provision. The Michigan statute specifies that those granted charters are subject to state and federal law applicable to public school districts. In other words, the schools themselves are to be operated as public institutions. A lawsuit greeted passage of the charter legislation. Plaintiffs contended that the scheme violated the state constitution because the public school academies are not controlled by the state and because the charter school boards of directors are not publicly elected.

In 1997, the Michigan Supreme Court rejected the contentions and became the first state supreme court to uphold a charter school law, overruling two lower court decisions.⁶ As a case of first impression, it may influence the decisions of courts in other states that allow private organizations to operate charter schools. At issue, as the court saw it, was whether the charter schools, known in Michigan as "public school academies," are sufficiently under the control of the state to be considered public schools. The court found it sufficient that a public body retains oversight through the charter-granting and -monitoring process. Moreover, the justices noted that the legislature, after the lower court rulings, amended the charter school law to require that all academy teachers be state certified and to clarify that the academies are subject to the rulemaking authority of the State Board of Education, thereby significantly limiting the autonomy of the charter schools.

Note how legislative concern about complying with the state constitution produced these two measures. Whether either can be justified in terms of improving academy effectiveness is irrelevant. The amendments exist to satisfy constitutional requirements. As dissenting Justice Patricia Boyle noted, "Freedom from regulation is precisely that element of the charter school concept that brings it into potential conflict with the constitution."⁷

The legal argument made in the Michigan case often is characterized as an unconstitutional delegation of governmental authority. Unconstitutional-delegation law is a judicial construction of state constitutional provisions vesting government entities with the establishment and control of public schools. The doctrine restricts the ability of a legislature to turn its responsibilities over to private entities altogether or without sufficient accountability measures.⁸ Massachusetts has a constitutional provision prohibiting the use of public money for a school that "is not publicly owned and under the exclusive control, order and supervision of public officers or public agents authorized by the commonwealth or federal authority or both."⁹ The Supreme Judicial Court of Massachusetts, the state's highest court, ruled in 1996 that the takeover of the Chelsea public school system by Boston University did not violate this provision. The court observed that "there is nothing in the concept of a public agent that precludes a private university from performing as an agent of the public."¹⁰ Because the Chelsea School Committee exercises extensive supervisory control over the university's performance pursuant to the contract, the university acts as the agent of the school committee in educating the youth of the city. Consequently, there is no impermissible aid to a private entity and no unconstitutional delegation of the school committee's powers.

The situation is similar with regard to the Massachusetts charter school law. The statute allows the State Board of Education to grant a charter to a board of trustees to create what is called a "commonwealth charter school."¹¹ The trustees are public agents under the law, and the charter school is deemed a public school. However, there is no statutory restriction on allowing the board of trustees to contract with a private entity to run the school. Thus, the for-profit Edison Project is under contract to operate the Seven Hills Charter School in Worcester and the Boston Renaissance Public Charter School, one of the largest charter schools in the nation with over 1,200 students. There has been no reported litigation involving the practice.

There was, however, a challenge to the decision of a Pennsylvania school district to contract out one of its elementary schools to a private for-profit corporation. In a 4-2 decision in 1995, the Pennsylvania Supreme Court became the first supreme court to uphold the practice.¹² The Wilkinsburg school district, just outside Pittsburgh, concluded that the abysmal performance of students at its Turner Elementary School justified drastic reform. It contracted with Alternative Public Schools, Inc., to operate the school. The Wilkinsburg teachers' union bitterly opposed the move, eventually suing the district for violating state law. Although the school code at the time allowed contracting-out for various support services, there was no mention of contracting-out the entire educational program. The Pennsylvania Supreme Court agreed with the school district that the school code served as no bar to the district's contracting-out as a way of assuring that the district meets it obligation under the state constitution to provide "a thorough and efficient system of public education."¹³ The majority noted that even if the code could be construed to prohibit contracting-out, such a restriction might be unconstitutional as restricting the district's ability to operate an efficient system of schooling.¹⁴ What is important, the majority maintained, is the welfare of the student. In 1997, a Pennsylvania trial court ruled that the new state charter school law prohibits a private for-profit company from taking control of a public school and terminated the contract.¹⁵ It will be interesting to see if the prohibition on privatization in the new ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• List of Illustrations
• Acknowledgments
• Introduction
• Implementation Issues
• Preschools and Higher Education
• International Dimensions
• Charter Schools
• Perspectives of Stakeholders
• Evaluation Designs
• About the Editor and Contributors
• Index