Privatizing Government Services in the Era of ALEC and the Great Recession – Part III: EDUCATION


ALEC’s model legislation promotes the interests of its corporate members,who act through an ALEC Task Force with a specific legislative focus.  Each task force has a public- and private-sector chair.  The public chair is usually a state legislator.  For example, the Public-Sector Chair of ALEC’s Education Task Force is Representative David Casas of Georgia, and the Private-Sector Chair is Mickey Revenaugh of Connections Academy. 34   Connections Academy describes itself as “a leading national provider of virtual public school curriculum,technology and school management services.” 35   In addition, “Sylvan Ventures (the venture capital arm of the for-profit Sylvan Learning Systems) started Connections Academy in 2001 … to benefit from increased school privatization and a movement away from real teachers and brick and mortar schools to virtual teachers and instruction.” 36 ALEC’s model legislation concerning education builds on existing legislation that promotes privatization of education and the public funding of charter and private schools.  The most important of these extant laws is No Child Left Behind (NCLB).  NCLB, which was signed into law in 2002, is the most recent reauthorization of the Elementary and Secondary Education Act of 1965 (ESEA) 37

[The] ESEA … encourages the creation of new charter schools with provisions facilitating conversion of traditional public schools into charter or other “alternative” schools.  The NCLB Act conditions Title I of ESEA funding on state implementation of strict accountability standards.  States are required to develop a definition of “adequate yearly progress” and monitor whether schools are achieving it.  If a school fails to make adequate yearly progress for five years, the responsible local education agency must “fundamentally restructure the school.”  Possible
restructuring arrangements include (1) reopening as a public charter school,(2) replacing all or most of the school staff, (3) entering into a contract with an organization, such as a private management company, to run the school, (4) turning operation of the school over to a state education agency, or (5) any other major restructuring.  Several of these options may involve turning over control of a school to a for-profit entity. 38

Many of ALEC’s model education laws correspond with recent changes and trends that are reshaping American education.  Each model law analyzed here sets out verbatim ALEC’s summary and the Center for Media and Democracy’s assessment.  It then assesses ALEC’s proposed model law and discusses recent events related to it.

A. The Public School Financial Transparency Act

ALEC Summary: “The Public School Financial Transparency Act would require each local education provider in the state to create and maintain a searchable expenditure and revenue Web site database that includes detailed data of revenues and expenditures.  It would also require each local education provider to maintain the data in a format that is easily accessible, searchable, and
downloadable.” 39

CMD Assessment: “This model legislation requires schools to create websites that would allow the public to easily search and download detailed data of school revenue and expenditures.  These public funds are already considered public information and most states already have searchable records, but this law requires each local school board to maintain a separate database to do this.”40

Assessment of Bill’s Operation: The bill proposes a solution to a problem that does not exist.  Unlike private companies, federal, state, and local government freedom of information and open meetings laws have long required providing access to a wide range of information. 41 This model law appears to duplicate those obligations.  It imposes detailed technical obligations about the form in which information must be provided.  Other ALEC bills which promote privatization of public education create no obligation on the part of private entities to provide the range of information public entities must disclose.

If enacted, schools would be required to shift funds in order to create departments dedicated to ensuring that it has complied with all requirements. This new obligation would necessitate taking funds from schools’ basic mission and would fall most heavily on poorer school districts.  The obvious question is whether this is a solution in search of a problem, that is, what is the level of demand for this information and is that need not met by existing practices?  The purpose of the law may be revealed in a footnote that suggests the point is to create controversy by suggesting that public schools are hiding information: “Still, it should be pointed out that a clear description of the purpose of an expenditure works to the benefit of the local education provider by forestalling
confusion that may lead to public relations difficulties.” 42  These demands to make information available to the public are interesting in the context of ALEC’s promotion of privatization.  Private entities are not required to provide the public information or access to meetings.  In other words, to the extent that ALEC succeeds in privatizing government services, the public will have less information and fewer ways to hold educational entities accountable.

B. Teacher Choice Compensation Act

ALEC Summary: “This act creates a program where by [sic] teachers may be eligible for performance-based salary stipends if they opt out of their permanent contract and meet measurable student performance goals based on a value-added test instrument developed by the state department of education.” 43

CMD Assessment: “This act creates a program where by [sic] teachers may be eligible for performance based salary stipends if they opt out of their permanent contract and meet measurable student performance goals.  The plans do not appear to have documented substantial benefits but are another way some may try to undermine tenure and teachers unions.” 44

Assessment of Bill’s Operation: Although this bill purports to provide performance-based salary stipends” in place of the pay provided under collective bargaining agreements or other contracts, it is difficult to see how this program would be attractive to teachers or would improve the quality of
education.  There is no guarantee that teachers receive any additional compensation, because stipends are available only if a “value-added test” demonstrates that specific skills and knowledge have been “transferred to students during the time they are in a teacher’s classroom.” 45  Teachers do not have full control over the transfer of skills and knowledge to students.

Such a reward system would give teachers an incentive to avoid schools with high needs children.  Students who have the greatest needs, such as those from impoverished or troubled homes, would put their teachers at the greatest risk of not receiving compensation based on these principles.  An empirical study of value-added teacher assessment by Preston C. Green, III, Bruce D. Baker, and
Joseph Oluwole found that “attempts to link teacher evaluations to student achievement may seem reasonable on their face [however], the primary approach for doing so, called value-added modeling (VAM), suffers from substantial technical problems that may result in an alarming number of good teachers being falsely identified as “ineffective” and eventually terminated 46

The bill does create an alternative way to get a stipend if “principles or other administrators with expertise to evaluate classroom performance” decide that the stipend is warranted.  However, a teacher would be taking a risk that tests do not support the stipend.  The bill says that teachers who opt for the stipend will receive comparable pay and benefits paid to “teachers of similar training, experience, and duties”; in other words, a teacher may retain pay and benefits
where there is union representation. 47  However, even though the opt-out teacher’s pay would be no worse than the regular teacher’s pay, an opt-out decision is “for the duration of employment with the district.” 48   A teacher who opts out cannot “resume permanent teacher status with that district.”

C. National Teacher Certification Fairness Act

ALEC Summary: “This act creates a level and open playing field between nationally recognized teacher certification programs.” 50

CMD Assessment: “This ‘model’ legislation attempts to equate a group that opposes teacher’s [sic] unions and supports reducing the authority of university-based schools of education in certifying teachers with the long-standing, nonpartisan ‘National Board for Professional Teaching Standards’ (NBPTS). It proposes replacing the words ‘National Council on Teaching Quality’ for every mention of the NBPTS in any statute, regulation or spending bill.  The NCTQ is reportedly
funded by individuals and organizations known to have ideologically ‘conservative’ ties and agendas.” 51

Assessment of the Bill’s Operation: This bill’s two operative sections state, in full:

SECTION 2. {Open Competition} Wherever possible in appropriate state statute, the following language change shall be made:
(A) Wherever statue, regulation, or spending bill mentions National Board for Professional Teaching Standards, insert, “or National Council on Teacher Quality.” 49

SECTION 3. {Testing Fee Support} If state testing fee support is provided to teachers seeking National Board for Professional Teaching Standards certification, the following language change shall be made:
(A) Wherever National Board for Professional Teaching Standard is mentioned, insert, “or National Council on Teaching Quality’s testing fees, whichever is less.” 52

The bill would replace the National Board for Professional Teaching Standards with the National Council on Teaching Quality (NCTQ), an organization that is not an education standard-setting organization.  The NBPT describes itself as “an independent, nonprofit, nonpartisan and nongovernmental organization … formed in 1987 to advance the quality of teaching and learning
by developing professional standards for accomplished teaching, creating a voluntary system to certify teachers who meet those standards and integrating certified teachers into educational reform efforts.” 53   The NCTQ, which was formed in 2000, is a critic of how teachers are educated and evaluated. 54  The NCTQ has developed strong allies, including the Gates Foundation 55 and Michelle Rhee, 56 the controversial former Chancellor of the District of Columbia School District.  Recently, it was given the task of evaluating the nation’s education schools for the 2012 U.S. News and World Report. 57

Substituting the NCTQ for the NBPT would give a strong critic of unions, teachers, and collective bargaining the power to limit the strength of all three. The NCTQ’s views on teachers and collective bargaining can be found in Invisible Ink in Collective Bargaining: Why Key Issues Are Not Addressed. 58  The NCTQ’s “Collective Bargaining Questions and the Union Role” asks:

1. Is a teacher who opts not to join the local union, nevertheless required to pay a fee to the union?
2. Is some time at faculty meetings required to be alloted [sic] to union matters?
3. Is leave available for a teacher to attend union associated activities (not counting leave given to elected union representatives)?
4. Who pays for a substitute when a teacher attends union functions (if that teacher is not an elected union representative)?
5. Does a teacher who is a union representative have fewer school related responsibilities than other teachers? 59

These are the sorts of issues that would be negotiated between a school’s administrators and the union that represents the teachers in that school district. They are also the types of issues that could fuel public anger towards teachers’ unions for wasting taxpayers’ resources.  This strategy—using information requests as a way to attack its targets—is seen in a number of other ALEC bills concerning teachers. 60

D. Individuals with Disabilities Education Act Resolution

This ALEC resolution does not include a summary.  The resolution offers multiple justifications for changing the law, including record keeping burdens,adversarial procedures, and cost. 61

CMD Assessment: “This resolution essentially supports using the Individuals with Disabilities Education Act (IDEA) to fund private school placement through vouchers for eligible students.  These special education vouchers can be used to push separate private schools that serve only students with particular disabilities, such as autism.  IDEA and its precursor legislation are
based on the premise that educating students with special needs with nondisabled students is better than educating students in segregated schools  Further, students enrolled in private schools leave the regulatory protections of IDEA behind them.  Some disability organizations are strongly
opposed to special education vouchers.” 62

Assessment of the Resolution: Florida, Georgia, Indiana, Ohio, and Utah have recently created the sorts of programs promoted by this resolution, 63  and those programs have been upheld as constitutional at the lower court level. 64  Several existing laws apply to schools—including charter schools—and students with disabilities:

Federal laws clearly contemplate that charter schools are public schools that will serve students with disabilities in a comparable manner as students with disabilities are served in more traditional public schools.  In fact, the Charter Schools Expansion Act, which provides grant monies to states and their charter schools,  defines a charter school as a “public school” that, among other requirements, “complies with … section 504 of the Rehabilitation Act of 1973, and part B of the
Individuals with Disabilities Education Act.”  Accordingly, Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Individuals with Disabilities Education Act (IDEA), together with Title II of the Americans with Disabilities Act (ADA), form a foundation that dictates special education responsibility in charter schools. 65

The Individuals with Disabilities Education Act (IDEA) “grants federal assistance to schools serving children with physical and mental disabilities” by creating “a powerful monetary incentive for school districts to ensure that theyare providing all children the opportunity to take advantage of a free public education.” 66   If enacted, ALEC’s proposed education legislation would build on existing legislation, such as NCLB, that promotes privatized education.

Promoting private school enrollment is a theme of several of ALEC’s bills and of resolutions such as this one.  In this resolution, ALEC contends that students with disabilities would receive a better education by giving them vouchers to attend private school. 67   However, in most cases, when parents or students accept a voucher to attend private school, they relinquish important rights under § 504 of the Rehabilitation Act of 1973 to a Free and Appropriate Public Education (FAPE), 29 U.S.C. § 794. 68   The United States Department of Education explains the rights for students with disabilities:

An appropriate education may comprise education in regular classes, education in regular classes with the use of related aids and services, or special education and related services in separate classrooms for all or portions of the school day.  Special education may include specially designed instruction in classrooms, at home, or in private or public institutions, and may be accompanied by related services such as speech therapy, occupational and physical therapy, psychological counseling, and medical diagnostic services necessary to the child’s education. 69

Among other things, the current law provides a number of procedural and substantive rights to students with disabilities, including procedural rights to a fair and impartial process and substantive rights to challenge decisions about a student’s educational needs.  Existing federal law already provides that students with disabilities may be placed in a private school when the student’s school
district cannot provide an appropriate program.  In that case, the school district is responsible for the cost of the placement, including tuition, room and board, and transportation.

However, if parents opt for their child to attend a private school when their school district makes a free and appropriate public education available, the school district is not required to pay for private education.  In other words, the existing law provides more than a voucher that can be taken to a private school.  It gives parents the right to accommodations and services, which must be
provided by the public school, even to the extent of paying for their child to attend a private school, but without relinquishing FAPE rights.  Students who leave the public schools lose rights, such as the rights to be “mainstreamed” and not segregated. 70   The proposed law would provide none of these rights and support.

E. Teacher Quality and Recognition Demonstration Act

ALEC Summary: “The need for quality teachers in improving student achievement is generally recognized as one of the most crucial elements of state reform efforts.  A primary concern in the quality of the performance of teachers is the forecast for an increasing need for more teachers.  This bill is directed towards creating a new structure of the current teaching system that will promote the retention and reward of good teachers and attract new talent to the profession.
This bill establishes Teacher Quality Demonstration projects, wherein local education agencies are exempt from education rules and regulations regarding teacher certification, tenure, recruitment, and compensation, and are granted funding for the purpose of creating new models of teacher hiring, professional growth and development, compensation and recruitment.” 71

CMD Assessment: “This bill authorizes taxpayer-funded teaching projects exempt from education rules and regulations regarding teacher certification, tenure, recruitment, and compensation.  This rolls the ‘reforms’ for teachers proposed by conservative groups all into one.  For districts in the demonstration project, nearly all certification and personnel requirements are removed.
Teachers select and mentor new teachers into positions.  This is similar to old and dated teacher qualifications before certification, tenure, regular assessment and other aspects of improvements in the profession came into play.”

Assessment of Bill’s Operation: This bill proceeds on multiple tracks to create teacher incentives through pay linked to teacher performance evaluations and titles, such as “master teacher.”  These pay and title changes displace pay and job protections provided by collective bargaining agreements with “salary flexibility and incentives, new career paths, performance-based appraisal and new models of professional development.” 73   The new titles would “include school leaders, directors of programs, master teachers, mentors and other instructional positions approved by the Commissioner.” 74   Pay would be “marketbased,” “flexible” and “based on the accomplishments
and performance of teachers,student academic achievement and evaluations from peers, senior
teachers and the principal.” 75  In other words, the bill assumes that changes based on competition and title changes are more powerful ways to promote the drafters’ goals than professional ethos. 72

The bill’s “performance-based” system replaces tenure with three-year contracts and uses evaluations from “peers both within and outside the school district” 76  for teacher hiring and advancement.  Its components of “professional development” include “instruction in methods of disciplining children,” as well as more traditional components of professional development: activities “directly related to the curriculum and content areas in which the teacher provides instruction,” that are tied to educational content and student performance standards, and instructional strategies and methods that have been proven to improve student achievement. 77   It would also “train and hire individuals that possess academic degrees in the fields they will be teacher [sic] and who
demonstrate expertise in the field in which they will be teaching.” 78

Much of this program is similar to programs advocated by Michelle Rhee, the former chancellor of the Washington, D.C. public school system, including eliminating teacher tenure, because, when “layoffs are based on seniority, our students lose great teachers.” 79   The philosophy of this bill is that tenure is a barrier to quality and that primary and secondary teaching is a skill that can be
learned on the job.  However, peer-reviewed research on the quality of Teach for America teachers calls that assumption into question.80

In addition, the bill would import a mentoring system whose operation is similar to that of guilds and crafts into the mid-twentieth century, with “master teachers” mentoring “newly hired teachers or teachers identified through evaluations to be in need of assistance.” 81   Many of these proposals, including mentoring, peer assistance and review, and professional development programs,are programs unions have supported and bargained for.  Meanwhile, the bill ignores the positive role that collective bargaining has played in shaping structures for mentoring and providing ongoing professional education and support for teachers.  The American Federation of Teachers () position points out:

Collaboration means administrators, teachers and parents working together toward goals on which they all agree and using methods they all accept.  Without the buy-in of teachers, student success is unlikely.  With teachers’ buy-in, student success is unstoppable.  Accountability should fix schools, not affix blame; it should take into account the conditions that are beyond the teacher’s or school’s control, and hold everyone responsible for doing their share.  We take our responsibility
seriously, and we ask others to do the same.

The current accountability system emphasizes teacher accountability and fails to hold any others accountable for student achievement.  The AFT calls for a 360 degree accountability system that
holds all stakeholders accountable, including, for example,teachers, students, parents, the higher education community, school boards, principals and administrators, elected officials,
superintendents, chief state school officers, mayors, and governors. 82

The AFT has also long promoted the collaborative development of meaningful educational standards, 83  as has the National Education Association:  In May 2008, a group of education stakeholders convened to examine the current research and thinking about the critical leadership roles that teachers play in contributing to successful school reform.  This initial group subsequently expanded its membership and mission to form the Teacher Leadership Exploratory Consortium, which represents a broad array of education organizations, state education agencies, teacher leaders, principal leaders and institutions of higher education ….  This expanded group embarked on the development of model standards for teacher leadership in August 2008, and now invites educators, the public and the policymaking community to review and comment on these
standards. 84

F. Resolution Supporting Private Scholarship Tax Credits

ALEC Summary: “This resolution declares the state legislative body’s support for the creation of a tax credit for individuals and businesses that make a contribution to a nonprofit scholarship or educational assistance organization.”85

CMD Assessment: “This resolution essentially supports corporate and individual subsidization of private schools, which can include for-profit or religious or other private entities, through tax credits. Such tax credits would reduce the amount of revenue for states to fund public schools and other public services. Thus, the tax credit would have the effect of using revenues that would otherwise be available to strengthen public schools to subsidize private education instead.”86

Assessment of Bill’s Operation: The resolution declares the value of creating a state tax credit for donations made to privately funded scholarships and educational assistance. It sets out educational goals, such as encouraging parental involvement; however, its focus is on support to private schools. For example, it declares that children are unique and likely to benefit from expanded educational opportunities, such as “attendance at a nonpublic school.”87 ALEC chose to say “nonpublic” rather than “private”; however, the bill clearly promotes donations to private schools.88 It asserts that “privately-funded scholarships are an excellent and popular means by which parents and guardians can exercise expanded educational opportunities for their children, especially children from low income families and the minority community” and tax credits “for contributions to nonprofit scholarship or educational assistance organizations will make more privately-funded scholarships available, and thereby expand the educational opportunities available to children of families that have limited financial resources and increase the academic achievements of children across the country.”89 However, those most likely to be able to take those tax credits would be higher income people. There is no requirement that the money be used to fund education for the poor or minorities. As a result, those taking tax credits for contributions to private schools would tend to be those who can already afford to send their children to private schools. In addition, using tax credits for those purposes would lower state revenues and exacerbate state budget problems. The result would be less money to provide high quality education, leading to a degradation of public education.

The libertarian Friedman Fund for Educational Choice provides information on each state’s school choice programs.90 In Pennsylvania and Florida, for example, corporations and individuals can donate an amount up to a certain threshold to Education Scholarship Programs and then directly subtract that contribution from the bottom line of their state tax return, up to certain limits.91
In Pennsylvania, the tax credit has been as high as $200,000.92

The Florida Tax Credit (FTC) Scholarship Program provides “credits against the insurance premium tax for contributions to eligible non-profit SFOs, credits against severance taxes on oil and gas production, self-accrued sales tax liabilities of direct pay permit holders, and alcoholic beverage taxes on beer, wine, and spirits.”93 It “enables corporations to redirect up to 100% of their corporate income or insurance premium tax liability annually in the form of contribution to an eligible SFO. The bill also allows a corporation to carry forward unused tax credits for up to five years.”94 Seventy-nine percent of the participating private schools are religious.95

Tax credit programs reduce public revenues and, in effect, allow corporations and wealthy individuals to direct their “tax” dollars to programs of their own choosing. That is, the effect of donations to programs that are given a tax credit is to reimburse the donor for contributions up to the limit of the tax credit and lower tax receipts by the amount of the contribution. In contrast, donations to a charity receive only a deduction up to 35% of the value of the donation, depending on the donor’s tax bracket. The proposed tax credit allows school-choice supporters to write off far more than the 35% limit for deductions.In other words, credits mean less tax revenue available for all purposes, including public education. Rather than improving school quality, this tax credit degrades the quality of schools. Other ALEC bills, such as the Family Education Savings Account, create financial incentives through tax subsidies for people to support private for-profit and religious schools.96

G. Charter Schools Act

ALEC Summary: “This legislation allows groups of citizens to seek charters from the state to create and operate innovative, outcome-based schools.These schools would be exempt from state laws and regulations that apply to public schools. Schools are funded on a per-pupil rate, the same as public schools. Currently, Minnesota operates the most well-known program.”97

CMD Assessment: “This ‘model’ legislation would allow for charters from the state to create and operate schools outside of traditional public schools.  These schools would be exempt from state laws and regulations that apply to public schools. These schools would be funded on a per-pupil rate, the same as public schools, even if they lack the facilities and other services that traditional
public schools provide. This is an early charter school proposal that allows states
to be a chartering entity directly.”98

Assessment of Bill’s Operation: The bill allows a “sponsor” to create “an outcome-based school” that would receive the same funding as public schools but would be subject to no accountability or oversight.99 The purposes stated for the bill include: improving learning; encouraging different and innovative methods of teaching; measuring learning outcomes; creating different and innovative forms of measuring outcomes; establishing new forms of accountability; and creating new professional opportunities for “teachers and other educators.100 Charter schools would be “exempt from all laws concerning schools, unless the charter school chooses “to comply with one or more
provisions of such statutes or rules” or “as provided in this section.”101 The individuals setting up a charter school may decide its location, without limits except zoning requirements.

Most of the bill speaks in generalities, so it is impossible to understand exactly how it might operate. For example, it asserts that it would use “different and innovative” measurements of outcomes and accountability, but, does not explain what these terms mean. The question this bill raises is whether it is appropriate to allow schools to opt out of compliance with laws designed to
ensure quality and accountability.

To date, the case has not been made that charter school performance is superior to non-charter public schools. A January 13, 2012 Science article concluded that “most studies of charter schools’ impact on student achievement use unsophisticated methods that tell us little about causal effects.”102 The authors describe the many challenges that face researchers seeking to produce rigorous analyses of what produces quality education.  One of the few rigorous analyses of Ohio charter schools found that “Ohio charters that were originally authorized by nonprofit organizations are, on average, producing achievement gains (both in math and reading) that lag behind the gains of students in other charter schools.”103 The study authors observed:  “Ohioans have good reason to be concerned about the fact that the state’s retirement from the authorizing business had the effect of turning over large numbers of charters to nonprofit authorizers, which have the poorest achievement record among those examined here.”104

H. Education Enterprise Zone Act 1995

ALEC Summary: “This legislation creates and provides for parental choice of schools within an educational enterprise zone (EEZ). All public and private schools within a designated zone. [sic] Any elementary or secondary student who is eligible for participation in a free lunch program may attend any school within the zone, provided the school has space and the student meets admission requirements. “The legislation further provides that if the student attends a private school, the state shall issue to the parent a voucher valued in an amount equal to the average amount of per pupil funding allocated to that school system, or the full amount of the private school’s tuition and fees, whichever is less.”105

CMD Assessment: “This ‘model’ legislation creates so-called ‘educational enterprise zones’ to subsidize private schools. Students eligible for free lunch programs could attend any school within the zone. If the student attends a private school, the state would issue a voucher of equal value to the average amount of per-pupil funding allocated to that school system. This is effectively the creation of a voucher program for low income students. In Wisconsin, school vouchers were introduced in the early 1990s in Milwaukee. In 2011, Governor Walker proposed lifting income eligibility caps and expanding the program across the state, allowing for the privatization of primary and secondary education across the state. This tactic creates a program rationalized based on an
emergency or special circumstance and then normalizes it. In Wisconsin, Walker’s allies have asserted that 94% of school voucher students graduated from high school in four years, but that reflects only the rate for students who remained in the program for four years: in reality, only 318 of 801 students who began the program stayed with it, according to state Rep. Sandy Pope-Roberts.
Much of the data in support of the Milwaukee voucher program is from a study by the “School Choice Demonstration Project” (SCDP), which has been criticized by the National Education Policy Center in a report by Clive Belfield.  He notes that the SCDP ‘study’ was not peer-reviewed and cites no sources other than those associated with the SCDP (failing regular standards for credible
studies). He notes that the SCDP report does not really address student achievement except to assert that voucher programs are ‘not harmful,’ even though other scientific analysis shows that voucher student scores lag behind the scores of students in public schools, according to the Wisconsin Department of Public Instruction. As noted in the June 8, 2011, Cap Times article, ‘Voucher schools to expand amid questions about their performance,’ by Susan Troller, these facts support State Superintendent Tony Evers’ position that the state should not be expanding taxpayer subsidies for programs that have not proven to be particularly effective while cutting public education.”106

Assessment of Bill’s Operation: This bill creates a fragmented, disconnected stovepipe form of education, that is, it permits, and even promotes, non-diverse education. One of the virtues of public education is meeting and interacting with people outside one’s personal community. The bill would undermine a common education system, while creating a conduit to shift unlimited public funds to private schools. The result would be to cripple the public school system.

The bill requires that all public schools participate in this program, while private schools need not participate.107 The bill states: “Private schools shall be accorded maximum flexibility to educate their students and shall be free from unnecessary, burdensome, or onerous regulation.”108 Private schools can only be regulated by already existing regulations or by those approved by a three-fourths vote of the legislature. An exception is carved out for health, safety, or land use regulations.109  The bill allows law suits to challenge regulations, but reverses the norm that
burdens of proof are placed on the party that initiates a challenge. This bill places the burden of proof on the party defending the regulation. The defending party must prove that a regulation “(A) is essential to assure the health, safety, or education of students; (B) does not unduly burden private schools or the parents of students therein; and (C) will not harass, impede, injure, or suppress private schools.”110

The bill has no income limits for those entitled to use public funds to pay private school tuition. That payment obligation could drain public education funds while subsidizing wealthy residents who could afford to pay for private schools. The bill says nothing about funding religious schools and any potential conflicts that might create with separation of church and state.

An example of the sort of entrepreneurial enterprise that may be the future envisioned by ALEC is White Hat Management.111 According to its website, the Akron, Ohio-based company operates fifty-three schools in Arizona, Colorado, Florida, Michigan, Ohio, and Pennsylvania with “nearly 1,700 full and part-time people” serving nearly 38,000. The “Ventures” it offers are (1) DELA: Tuition-free, K-12, home-based distance-learning charter public schools in Ohio, Colorado, and Pennsylvania; (2) Hope Academies: Tuition-free, K-8, community-based charter public schools serving students ages 5 to 15 across Ohio; and (3) LifeSkills Centers: Alternative education charter schools serving students between the ages of 16 and 22 who have dropped out, or are at-risk for
dropping out, from a traditional high school program. Centers are in Ohio, Arizona, Colorado, Michigan, and Florida.112

During the last few years, White Hat has been embroiled in litigation brought by its franchisees and the Ohio Department of Education concerning the management of the schools, its financial practices, and its public obligations as a state actor.113 According to a ProPublica report,  “Government data suggest that schools with for-profit managers have somewhat worse academic results than charters without management companies, and a number of boards have clashed
with managers over a lack of transparency in how they are using public funds.  Only 2 percent of White Hat’s students have made the progress expected under federal education law.”114

A May 2010 Policy Matters Ohio study of another charter company, Imagine Schools, Inc., found: “All 10 Imagine schools open in Ohio during the 2008-09 school year missed adequate yearly progress goals, required under federal education law. Furthermore, none of the for-profit’s Ohio schools has been designated above Academic Watch (the equivalent of a ‘D’) since the 2005-
06 school year.… [F]ive of the six rated Imagine schools received an ‘F’ for the 2008-09 school year, while the sixth got a ‘D.’115

According to the Ohio Education Association and the National Alliance for Public Charter Schools, in the 2009-10 school year, there were 321 charter schools in Ohio for a total enrollment of more than 90,000 students. The charter schools received $680 million in state aid. For the year ending in 2009, 56 percent of for-profit charter schools were classified in the lowest performance tier—academic emergency or academic watch. Sixty-five percent of White Hat charter schools were in academic emergency or academic watch. The figures for “all public schools” are far superior. Of all public schools, 60.5 percent met annual yearly performance requirements. If charter schools, which are public schools, were excluded from public school figures, public school performance would be even higher.116

The January 2012 report of the National Education Policy Center found:

• Of the schools managed by for-profit EMOs [Education Management Organizations] that have AYP [Adequate Yearly Progress] data, 48.2% made AYP and 51.8% did not.

• Small EMOs had a higher proportion of schools making AYP (62.5%) than did either medium-sized EMOs (58.1%), or large EMOs (43.1%). All of these passing rates have decreased since 2009-2010.

• While only 27.4% of the virtual schools operated by for-profit EMOs met AYP, 51.8% of the brick-and-mortar schools met AYP. The 46 district schools managed by EMOs had slightly lower performance ratings (40.5% met AYP) relative to the charter schools operated by EMOs (51.4% met AYP).117

The disparity in quality is even worse than those figures show. Only 15.6 percent of Ohio for-profit charter schools met report-card standards. White Hat met only 11.7 percent of standards, and its Life Skills Centers met only 7.1 percent of report-card standards: “Traditional public districts post an overall graduation rate of 90.1 percent. The graduation rate for Ohio’s largest urban districts is 70.1 percent. For charter schools, the graduation rate falls to 26.4 percent.”118 These abysmal charter school results are achieved, despite spending far more per student than in traditional public schools. “Traditional public districts annually expend $11,371 per graduating student. That amount increases to $18,977 for Ohio’s big eight urban districts. For charter schools, the cost per graduate is $29,175. For charter schools designated as dropout prevention and recovery, the cost soars to $46,383. Dropout prevention charter schools located in the state’s eight largest urban areas expend $69,397 per graduate.”119 A ProPublica report found: “Of the 51 schools White Hat managed in 2010, only one met a key standard established by the No Child Left Behind law—called
‘Adequate Yearly Progress.’ According to the report, that is by far the worst performance of any large for-profit management company.”120

In short, while the Education Enterprise Zone Act 1995 and other proposed ALEC legislation discussed in this section would support education enterprises, the data do not show that those bills would meet goals such as improving education quality or ensuring that taxpayers’ dollars would be spent efficiently or wisely.



34. Education Task Force, ALEC, (last visited Jan. 7, 2012).  See also Lee Fang, Selling Schools Out: The Scam of Virtual Education, N
ATION, Dec. 5, 2011, at 11, available at

 35. Allison Bazin & Sandy Burke, Mickey Revenaugh–Connections Academy Executive–
Named Chair of Board of Directors of iNACOL, CONNECTIONS ACAD. (Nov. 16, 2009),

36. Mary Bottari, ALEC Bills in Wisconsin, PRWatch, CENTER FOR MEDIA & DEMOCRACY
(July 14, 2011, 8:07 AM),

37. Press Release, U.S. Dep’t of Educ., Obama Administration’s Education Reform Plan
Emphasizes Flexibility, Resources and Accountability for Results (Mar. 15, 2010),

38. Mark D. Evans, Comment, An End to Federal Funding of For-Profit Charter Schools?, 79
U. COLO. L. REV. 617, 629-30 (2008) (citations omitted).  For more information on No Child Left

39. Public School Financial Transparency Act Exposed, CENTER FOR MEDIA & DEMOCRACY,
_Exposed.pdf (last visited Apr. 23, 2012).  The bill was approved by the Education Task Force on
July 16, 2009 and by ALEC’s Board of Directors on August 27, 2009.  Id.  The State of Colorado
has enacted a “‘Public School Financial Transparency Act’, which directs local education providers
to post financial information on-line, in a downloadable format, for free public access.”  Public
School Financial Transparency Act, COLO. DEP’T OF EDUC.,
cdefinance/sfFinancialTransparency.htm (last visited Apr. 23, 2012).  This law may be found at

40. See Public School Financial Transparency Act Exposed, supra note 39.

41. Nearly every state has enacted “sunshine laws,” such as freedom of information and open
meetings acts.  See State Freedom of Information Laws, Nat’l Freedom of Info. Coalition, (last visited Apr. 23, 2012); Now: Veil of
Secrecy (PBS television broadcast Dec. 12, 2003),

42. Public School Financial Transparency Act Exposed, supra note 39, at n.6.

43. Teacher Choice Compensation Act Exposed, CENTER FOR MEDIA & DEMOCRACY, (last
visited Mar. 5, 2012).

44. Id.

45. Id. § 7(a).

46. Preston C. Green et al., The Legal and Policy Implications of Value-Added Teacher Assessment Policies, 2012 BYU  EDUC. & L.J. 1, 2.

47. Teacher Choice Compensation Act Exposed, supra note 43, § 5.

48. Id. § 4.

49. Id. § 4(a).

50. National Teacher Certification Fairness Act Exposed, CENTER FOR MEDIA & DEMOCRACY,
pdf (last visited Apr. 23, 2012).

51. Id.

52. Id.

53. About Us, NAT’L BOARD FOR PROF. TEACHING STANDARDS, (last visited Mar. 5, 2012).

(last visited Mar. 5, 2012).

55. See, e.g., Allie Grasgreen, Reviewing (or Trashing?) Student Teaching, INSIDE HIGHER ED
(July 21, 2011, 3:00 AM),
weak; About NCTQ, supra note 54; Our Funders, (last
visited June 11, 2012); Press Resources, NAT’L BOARD FOR PROF. TEACHING STANDARDS, (last visited Mar. 5, 2012).

56. Michelle A. Rhee, Founder and CEO of StudentsFirst, STUDENTSFIRST, (last visited Mar. 5, 2012).

57. See Grasgreen, supra note 55.

58. Emily Cohen et al., Invisible Ink in Collective Bargaining: Why Key Issues Are Not

59. Id. at 23-24.

60. Other bills discussed in this article in which information obligations are created as a strategy to undermine unions are the Union Financial Responsibility Act, the School Collective Bargaining Agreement Sunshine Act, and the Teachers Right to Know Act.  See Union Financial Responsibility Act Exposed, CENTER FOR MEDIA & DEMOCRACY, (last visited Mar. 5, 2012); School Collective Bargaining Agreement Sunshine Act Exposed, CENTER FOR MEDIA & DEMOCRACY, (last visited Mar. 5, 2012); Teacher’s Right to Know Exposed, CENTER FOR MEDIA & DEMOCRACY, (last visited Mar. 5, 2012).

61. See Individuals with Disabilities Act Resolution Exposed, CENTER FOR MEDIA & DEMOCRACY,
Resolution_Exposed.pdf (last visited Mar. 5, 2012).

62. Id.

63. Maria Bucchino, School Vouchers for Students with Disabilities on the Rise,
EXAMINER.COM (Jan. 28, 2012),

64. Charles Wilson, Indiana School Voucher Law Upheld, Ruled Constitutional, HUFFINGTON
POST (Jan. 13, 2012),

65. Julie F. Mead, Determining Charter Schools’ Responsibilities for Children with Disabilities: A Guide Through the Legal Labyrinth, 11 B.U. PUB. INT. L.J. 167, 168-69 (2002).

66. Evans, supra note 38, at 617-18, 631-36.

67. See Preston C. Green III & Peter L. Moran, The State Constitutionality of Voucher Programs: Religion Is Not the Sole Determinant, 2010 BYU  EDUC. & L.J. 275, 275 (discussing
legal issues concerning the use of vouchers); Anne Ryman, School Choice Program Gets Win,
ARIZ. REPUBLIC, Jan. 27, 2012, at A1 (noting that in January 2012, an Arizona Maricopa County
Superior Court upheld the constitutionality of a state education voucher law that created Arizona
Empowerment Scholarship Accounts).

68. Nirvi Shah, Arizona Vouchers for Students with Disabilities Ruled Constitutional, EDUC.WEEK BLOG (Jan. 27, 2012, 9:34 AM),
arizona_vouchers_for_students.html (last visited Feb. 28, 2012).   The 2011 Arizona Empowerment
Accounts law forbade state control over nonpublic school education:

15-2404. State control over nonpublic schools; prohibition; application

A.  This chapter does not permit any government agency to exercise control or supervision over any nonpublic school or home school.

B.  A qualified school that accepts a payment from a parent pursuant to this chapter is not an agent of the state or federal government.

C.  A qualified school shall not be required to alter its creed, practices, admissions policy or curriculum in order to accept students whose parents pay tuition or fees from an empowerment scholarship account pursuant to this chapter in order to participate as a qualified school. S.B. 1553, 50th Leg., 1st Reg. Sess. (Ariz. 2011), available at FormatDocument.asp?inDoc=/legtext/50leg/1R/laws/0075.htm&Session_ID=102.

69. Office for Civil Rights, U.S. Dep’t of Educ., Free Appropriate Public Education for Students with Disabilities: Requirements Under Section 504 of the Rehabilitation Act of 1973 (Aug. 2010), available at

70. Office of Civil Rights, U.S. Dep’t of Educ., Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities,available at (last visited Mar. 5, 2012).  For
an overview of laws and studies, see NAT’L COUNCIL ON DISABILITY, SCHOOL VOUCHERS AND

71. Teacher Quality and Recognition Demonstration Act, CENTER FOR MEDIA & DEMOCRACY,
_Exposed.pdf (last visited June 15, 2012).

72. Id.

73. Id. § 2.

74. Id. § 4(c)(1)(A).

75. Id. § 4(c)(2).

76. Id. § 4(c)(3)(A).

77. Id. § 4(c)(4).

78. Id. § 4(c)(6)(A).

79. Save Great Teachers, STUDENTSFIRST, (last visited Mar.
5, 2012).

80. See, e.g., Ildiko Laczko-Kerr & David C. Berliner, The Effectiveness of “Teach for America” and Other Under-Certified Teachers on Student Academic Achievement:  A Case of Harmful Public Policy, EDUC. POL’Y ANALYSIS ARCHIVES (Sept. 2002),; Linda Darling-Hammond et al., Does Teacher
Preparation Matter? Evidence About Teacher Certification, Teach for America, and Teacher
Effectiveness, EDUC. POL’Y ANALYSIS ARCHIVES (Oct. 2005),; Valerie Strauss, Teach for America ‘Research’
Questioned, WASH. POST (Dec. 13, 2011, 12:20 PM ET),

81. See Teacher Quality and Recognition Demonstration Act, supra note 71.

82. Shift in Culture, AM. FED’N OF TCHRS., AFL-CIO, (last visited Mar. 5, 2012).  The National Education
Association has taken a similar position.  See generally NAT’L EDUC. ASS’N, (last visited Mar. 5, 2012).

83. A Call for Common Standards, AM. FED’N OF TCHRS., AFL-CIO,
standards/nationalstandards/ (last visited Mar. 5, 2012).

84. Teacher Leadership Exploratory Consortium, Educator Comments Needed on Teacher
Leader Standards, (last visited Mar. 5, 2012).

85. Resolution Supporting Private Scholarship Tax Credits Exposed, CENTER FOR MEDIA &
Scholarship_Tax_Credits_Exposed.pdf (last visited Mar. 5, 2012).

86. Id.

87. Id.

88. Id.

89. Id.

90. School Choice Programs, FRIEDMAN FOUND. FOR EDUC. CHOICE, (last visited Mar. 5, 2012).

91. Pennsylvania—Educational Improvement Tax Credit Program, FRIEDMAN FOUND. FOR
EDUC. CHOICE, (last visited Apr. 18, 2012); School Choice in Florida, FRIEDMAN
FOUND.FOR EDUC. CHOICE, (last visited Apr. 18, 2012).

92. Pennsylvania EITC Program—Educational Improvement Tax Credit, NAT’L CONSORTIUM
OF STATE & LOCAL EDUC. FOUNDS. (July 21, 2011),

93. Florida Tax Credit Scholarship Program, FLA. SCH. CHOICE 1 (Aug. 2011), available at  SFO is a scholarship
funding organization.  Id.

94. Id.

95. Id. at 2.

96. Family Education Savings Account Exposed, CENTER FOR MEDIA & DEMOCRACY,
ed.pdf (last visited Mar. 5, 2012).

97. Charter Schools Act Exposed, CENTER FOR MEDIA & DEMOCRACY, (last visited Mar. 5,

98. Id.

99. Id.

100. Id. § 2(A)-(F).

101. Id. § 7.

102. Julian R. Betts & Richard C. Atkinson, Better Research Needed on the Impact of Charter
Schools, 335 SCI. 171, 171 (2012).

103. Ron Zimmer et al., Charter School Authorizers and Student Achievement 24 (Nat’l Charter
Sch. Research Project Working Paper No. 2010-2, 2010), available at

104. Id.

105. Education Enterprise Zone Act Exposed,  CENTER FOR MEDIA & DEMOCRACY, (last
visited Mar. 5, 2012).

106. Id.

107. Id. § 3.

108. Id. § 8.

109. Id.

110. Id.

111. About White Hat, WHITE HAT MGMT., (last

112. About White Hat, supra note 111.

113. See Sharona Coutts, Charter Schools Outsource Education to Management Firms, with
Mixed Results, PROPUBLICA (Apr. 6, 2011, 10:08 AM),; Rebecca
Catalanello, Ohio Lawsuit Alleges White Hat Charter School Company Failed Schools, TAMPA
BAY TIMES (June 28, 2010, 3:37 PM) (including a link to the 229-page complaint in one of the lawsuits),

114. Coutts, supra note 113.

SCHOOLS, INC. 7 (2010),

116. Performance: Schools Making AYP, 2008-2009 Ohio, NAT’L ALLIANCE FOR PUB. CHARTER
state/OH/year/2009 (last visited Mar. 5, 2012); A Brief Update on Charter Schools, OHIO EDUC.
ASS’N, (last visited Mar. 5, 2012).

NONPROFIT EDUCATION MANAGEMENT ORGANIZATIONS: THIRTEENTH ANNUAL REPORT–2010-2011 at v (2012),  See also Stephanie Simon, The ABCs of Online Schools, WALL ST. J. ONLINE (Nov. 12, 2011),; Stephanie
Banchero & Stephanie Simon, My Teacher Is an App: More Kids than Ever Before Are Attending
School from Their Living Rooms, Bedrooms and Kitchens. The Result: A Radical Rethinking of
How Education Works, WALL ST. J. ONLINE (Nov. 12, 2011),

118. A Brief Update on Charter Schools, supra note 116.

119. Id.

120. Coutts, supra note 113.  The list of failing Ohio public schools identified by StateImpact
Ohio included far more charter schools than traditional public schools; however, the list did not
include the number of students in those schools.  See Molly Bloom, For the First Time, Ohio
Public Schools Face Closure for Poor Performance, STATEIMPACT OHIO (Aug. 4, 2011, 7:43 AM),   See generally Piet van Lier, The State Budget’s Impact on Ohio Charter and
Voucher Policy,  POL’Y MATTERS OHIO (Aug. 2011),; Bloom, supra; Press Release,  Pol’y
Matters Ohio, For-Profit Management Company Skirts Ohio’s Charter School Closure Law—Documents Show Closed Toledo School Re-opened with New Name, Same Staff (Feb. 15,
2011), available at

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