Dismantling Public Accountability & Transparency in the Name of Accountability & Transparency?

Posted on February 2, 2013



This post comes about as a follow up to a previous post where I critiqued the rationale of the Students First policy agenda.  It should be noted that the Students First policy agenda is anything but unique. Like DFER, SFER, ALEC or any policy advocacy organization, the SF policy agenda is little more than an aggregation of largely non-original, template policy prescriptions.

Now, I’m not one who goes all in for the lingo of “corporate reform” or one who perceives “privatization” or “market” mechanisms to be inherently evil and contrary to the public good. However, I am someone who believes we should consider carefully the multitude of tradeoffs involved in shifting between publicness and privateness in the governance and provision of schooling.

What I have found most intriguing over time is that the central messaging of these reformy template policy prescriptions is that they will necessarily improve accountability and transparency of education systems, and that they will do so largely by improving the responsiveness of those intractable systems through altered governance and finance, including but not limited to “market” based choice mechanisms.

The standard list of strategies that are supposedly designed to increase accountability and transparency of our education system include, among other things:

  1. Expansion of charter schools, coupled with multiple charter authorizers (including private entities) and minimized charter regulation
  2. Adoption of tuition tax credit programs providing individuals and corporations the option to forgo paying a portion of taxes by contributing that amount to a privately governed entity (or entities) that manages tuition scholarships to privately governed/managed schools.
  3. Parent trigger policies that permit a simple majority of parents of children currently attending any school within a district to mandate that the local board of education displace the entire staff of the school and potentially turn over governance and management of school’s operations (and physical/capital assets?) to a private management company to be operated as a charter school.

It is argued that current large bureaucratic public education systems are simply intractable, non-responsive and can’t be improved – That they are simply not accountable to anyone because they are run by corrupt self-interested public officials elected by less than 2% of eligible voters (turnout for board elections) and that they have no incentive to be responsive because they are guaranteed a constantly growing pot of revenue regardless of performance/quality/responsiveness.

Whatever problems do exist with the design of our public bureaucracies, I would argue that we should exercise extreme caution in accepting uncritically the belief that we could not possibly do worse, and that large scale privatization and contracting of private entities to provide the public good is necessarily a better and more responsive, more efficient, transparent and accountable option.

Let’s take a walk-through of some of the key aspects of current preferred reforms by comparison to traditional public governance of our education systems.

Privately Governed/Managed Charter Schools vs. Local Education Agencies

Let’s begin with the push for less regulated, expansion of charter schooling with particular emphasis on expansion of privately governed and managed charter schools, and perhaps even charter schools authorized by independent private authorizers (granted authority to operate by a private entity given that authority by the state).  To be absolutely clear, no-matter how many reformy pundits proclaim from their soapbox that Charter Schools are PUBLIC Schools… it just isn’t that simple.  In many critically important ways, under many critically important conditions Charter Schools SIMPLY ARE NOT PUBLIC in every important traditional or legal sense!  See this post for further elaboration!

Note – this varies widely from state to state, depending on whether state charter statutes specifically spell out requirements of privately governed charter schools. 

Let’s explore how/why this might be important when it comes to evaluating whether and how expanded, less regulated chartering either increases or decreases public accountability.

Table 1. Chartering vs. Traditional District Schooling

Dimension Local Education Agency Privately Governed Charter (Non-State Actor)
Governance Governed by public officials (with all rights & immunities)Elected or appointedNecessarily subject to open public records & open meetings lawsNecessarily required to comply with public bidding requirementsNecessarily required to disclose publicly employee contracts Governed by appointed (self-appointed) board of private citizensMay not be subject to open records or meetings lawsMay not be required to engage in public contract/bidding requirementsPrivate appointed board may hire private management firm
Finance Required to disclose finances (reported relatively consistently in most state data systems, including detailed AFRs (annual financial reports) & public posting of budgets) Usually required to report expenditure of public funding. State data systems spotty and inconsistent on charter school revenue/spending data (may be required to disclose IRS filings [form 990])
Disclosure Public officials subject to open meetings laws.All documents/employee contracts/financial documents & communications between officials subject to open records laws. Board members & managers may not be subject to open meetings. Many documents/contracts with private manager, etc. considered private/proprietary.
Employees Public employees with key constitutional and statutory protections Private employees, forgoing certain rights to bring legal challenges against their employer
Students Retain rights to not have their government (school) infringe on various constitutional and statutory rights, and to uphold key statutory obligations. Students may forgo numerous rights under privately governed discipline codes.

These differences are not trivial, yet few are discussing them as critical factors for shaping future education policy. Rather, day after day, week after week, we are subjected to more and more vacuous punditry by self-proclaimed “expert” pundits displaying an astounding ignorance of education law and callous disregard for our system of government and the U.S. Constitution.

For example, it would appear that charter schools that are not “state actors” (which may include most that are governed by boards of private citizens and especially those managed by private companies/EMOs or CMOs) may require students to abide by disciplinary/conduct codes which involve compelling those students to recite belief statements about the school (mottos, pledges, loyalty oaths), obligatory participation in indoctrination activities and imposition of financial penalties for disciplinary infractions, none of which would be permissible in traditional public schools. Government entities – state actors – may not compel speech and especially may not compel statements of belief.

So then, what is a family to do when no traditional public schools are available to them (as is practically the case in many areas of New Orleans and increasingly the case in other higher charter market share cities)? Should parents have to choose which rights to forgo? [picking the school with the financial penalties over the one requiring daily recitation of a loyalty oath?]

Can (as some belligerent civic illiterate,  pundits believe) entire urban school systems be replaced with charter schools – or the traditional public schools adopt the lessons of “chartering” which involve infringement of constitutional rights? Is it reasonable to assume that the entire student population of a city would be placed in a position of necessarily forgoing their rights to free expression, free exercise?

I hear those reformy pundits cry… “but who cares about a little constitutional protection here and there if we can squeeze out an extra point or two on state assessments [via selective attrition of low performing peers]? They’ll be better for it in the long run!”

Yeah… sure… that’s all well and good for someone else’s kids. I for one believe the constitution continues to have a purpose and that constitutional rights should be equally available to all people’s children. I believe that constitutional protections are a key element of an accountable education system available to all – not just some.

This is a big freakin’ deal. An important policy trade-off to consider, if you will. This is a critically important tradeoff to consider when adopting policies that expand non-state-actor charter schooling, even if some marginal academic gain can be achieved.

Indeed, under our current public schooling system constitutional battles over free exercise, free speech, discrimination, etc. persist (as any good pro-school-choice libertarian will frequently argue – I, being a former card carrying member in my NH days!). It’s a never ending tension between the preferences of the majority vs. the rights and interests of the minority. Such arguments are often used as the basis for saying that all students/families should simply have the right/option to choose where to attend school – where they can each be their own majority.  The value of our current public (gov’m’nt) system is that the minority does have the right to challenge their mistreatment and that collective participation in the public system forces public debate over these issues (even if/when they end up being handled poorly). It ain’t perfect, but I’m not willing to replace it with a system that requires large numbers of children to forgo these rights in order to participate in schooling.

Poor and minority children should not be disproportionately required to forgo constitutional protections (and a variety of statutory protections) to gain access to those few additional test score points. Further, no-one is telling them that they even have rights to begin with – especially those pitching the charter expansion policies (constantly spewing the rhetoric of the “publicness” of charter schooling).

Charter Schooling & The Market for Lemons

In theory, the accountability and efficiency advantage of charter schooling is driven by the market for choice of one school over another. Increasingly, state education agencies have moved from being impartial technical assistance agencies and accountability reporting agencies to strongly promoting the charter sector. This advocacy behavior corrupts the state agency role and creates what economists refer to as an “asymmetry of information” – in the extreme case a “market for lemons.”

Markets fail when the consumer is misled to believe that the product they are being sold is a miracle product (without counterbalancing information available to the “customer”). Asymmetry of information occurs where the seller has more information on the quality of the product than the buyer and is able to extract from the buyer a higher price than is warranted given the product’s true quality. In this case, we are talking about the parents’ choice to apply their child’s gov’t subsidized education credit, per se, at a charter versus the traditional public school.  They’ve got one credit to spend for each child and the SEA endorsed spin these days is that that credit is nearly always best spent in a charter school (even when it clearly is not).

Taken to the extremes, State Education Agency and public media flaunting of chartery miracles has created a distorted market for those charters that are least proven on the market (perhaps in some cases, lemons), with those charters that are most proven already over-subscribed and not needing to compete openly. So, those most available on the market are those whose actual performance/quality is far lower than that which is capturing the headlines and receiving accolades from state officials. [not quite a true market for lemons since the price – education “credit” is fixed … though perhaps I can expand on this at a later point].

It is the absurd punditry, intentional obfuscation and complete disregard for legitimate data/analysis on charter schooling that have perhaps soured my taste for the movement more than anything else (bearing in mind that I was a founding member of the AERA special interest group on Charter School research and, at the time, was largely an advocate myself).

Tuition Tax Credits & Vouchers vs. Conventional LEA Governance

Next up, let’s talk about tuition tax credits and vouchers. Now, I would argue that in many ways, tuition tax credits and vouchers which provide the option for children to attend schools that are well understood to be private, that not state actors are at least more honest with respect to student and employee rights.

It is understood (or should be more clearly understood) that when choosing a private school or choosing to be employed by a private employer that one’s rights may differ. On very few occasions have I actually heard the rather absurd argument that private schools receiving students on publicly financed scholarships are “public” (yes, they did, without understanding the implications, make this claim in Louisiana when their voucher model was overturned by the state courts).

Now, let’s parse the governance and accountability differences between traditional public LEAs, Vouchers and Tuition Tax Credits.

Table 2. Vouchers & Tuition Tax Credits vs. Traditional District Schooling

Element LEA Voucher Tuition Tax Credit
Revenue Raising Raises local tax revenue (subject to local voter approval) & receives state aid (through legislation/formula adopted by state elected officials) Permits/requires the transfer of a set per pupil amount of funding from state and/or state/local sources to pay for private school tuition of students Permits corporations to pay funds to a privately governed, state approved/created/appointed entity (school tuition organization) in lieu of paying taxes.
Governance

(records/

meetings)

Required to disclose minutes of meetings and related documents pertaining to budget, financial report and any/all contractual agreements. Assuming voucher program governed by local or state board/public officials, related requirements apply. Entity governed by appointed private citizens, not public officials.  (thus, may not be required to disclose records, open meetings)
Disclosure Required to report/disclose annual budget (for approval by either/both local elected officials and/or local voters)Required to report/disclose annual financial report (usually with independent external audits) Financial disclosure of funds expended (from public agency) on vouchers subject to all public expenditure laws [that is, total allocated to vouchers from budget]Voucher receiving schools not likely required to provide detailed disclosure (non-religious non-profit pvts file with IRS, religious privates not required) May/may not be subject to disclosure requirements of public officials.If non-religious, organized as non-profit, may be required to report limited finances to IRS.
Use of Funds Expended directly by publicly governed entities (public officials) Comingled with all other operating funds of private school entity Comingled with all other operating funds of private school entity
Governance of Schools Publicly governed Private once $ reaches school Private once $ collected to tuition organization
Student/

Employee Rights

Public Private, not state actor Private, not state actor
Taxpayer/

Public Rights

Right to political participation (electing officials, etc.)Right to bring limited legal challenges regarding use of funds

Right to request disclosure

Right to bring limited legal challenges regarding use of funds Limited state legislative options (can try to vote in new legislators)[taxpayers lose right to challenge objectionable use of funds because the funds are not considered tax dollars]

The simple part here is that under either the tuition tax credit or voucher program, the schools that children attend are clearly private. It is (or at least should be) understood that students and employees forgo certain rights. As such, it would be plainly illogical to use such a model as the model for an entire city or state, meaning that children would not even have the option of attending a school where they are protected from discrimination and other forms oppression. [notably, while children/families may be oppressed and/or discriminated against by the ruling “majority” in a public school setting, they have a constitutional right to challenge their mistreatment – a right that ceases to exist where only private providers are available].

Other more nuanced delineations here are between the voucher and the tuition tax credit model. The more popular TTC approach is far more convoluted, and in being so, creates additional layers of opaque to non-existent accountability, ultimately negating altogether taxpayer legal rights.

Under a voucher model, like the Cleveland voucher model, taxpayers do have the right to challenge that their tax dollars are being allocated to religious education. Indeed, when such a challenge was brought, the U.S. Supreme Court decided that the voucher mechanism in place was sufficiently neutral (reliant on parental choice) that it did not violate the establishment clause of the U.S. Constitution. But, taxpayers at least had the right to bring this challenge even if they did lose.

What I find most objectionable (in terms of public accountability) about the TTC approach is that when a similar challenge was brought against the Arizona tuition tax credit model, the U.S. Supreme Court determined that the dollars being expended effectively weren’t the taxpayers’ dollars and thus the taxpayer had no right to bring a legal challenge to the policy (no taxpayer “standing”). Quite simply no taxpayer standing means NO taxpayer legal accountability. No taxpayer legal recourse. Arguing that TTC models increase public accountability is absurd.

Further, that these systems rely on creating non-public, non-publicly accountable entities to manage these funds diverted from the public coffers further reduces public accountability.

Parent Trigger vs. Conventional Local Education Agency Governance

Parent trigger is quite possibly the most ludicrous corruption of public governance and accountability on the education reformy education policy table.  Put simply, parent trigger is the most ill-conceived subversion of governance I’ve seen out there in the reformy playbook. Let’s give it a walk-through.

Table 3. Parent Trigger vs. Traditional District Schooling Governance

Element Traditional LEA Parent Trigger
Primary Control Elected or appointed board of public officials:Public disclosure requirements as addressed above Permits simple majority of parents of children currently attending any school within an LEA to require that the LEA change the management/operations of that school, to include transfer of governance to a private entity
Financial Governance Public officials govern annual budget and accumulated assets of LEA in accordance with public budgeting and finance statutesExpenditure of funds and/or transfer of assets subject to public approval & required public disclosure Small minority of district voter population may obligate district to allocate funds to/contract with private provider/charter manager against preferences of elected officials
Public control/accountability “Public approval” applies to all eligible voters whose primary residence lies within the geographic boundaries of the LEA (whose tax dollars support the annual operations and contributed to purchase and/or maintenance of assets)Board elections held on regular cyclesBudget approval may also require public vote and held on regular election cycleSpecific requirements apply for incurring municipal bond debt for capital investment Provides no recourse for property owners/taxpayers who have no children currently attending the schoolProvides no recourse for parents of children who would be attending the school in future years, until the point at which they would attendMay or may not occur on defined timeline – specific election cycle
Student/teacher rights Student and teacher constitutional and statutory rights as addressed above Students and employees forgo constitutional/statutory rights if converted to privately governed/managed school

 

The most substantive reductions of public accountability, transparency and governance occur when the simple majority of parents of children in one school decide that there school must be converted to a privately managed charter school, which may in turn adopt policies that deprive both children and employees of constitutional and statutory rights. Indeed, the district would likely be required to find a school for the displaced minority of students who don’t wish to forgo these rights. But the simple majority of parents in that school at that point in time should not be granted the authority to displace a minority of students in their school. Further, a simple majority of parents in a school in a district should not be granted the authority to dictate local board funding or contracting policies without input of the broader eligible voter population.

Among other things, Parent Trigger policies assume that the public at large who reside and own property within a school district have no stake in the accountability of that school system. School closures, school quality, school location, etc. affect the value of residential properties by affecting quality of neighborhood life. Quite likely (an open empirical question) conversion to exclusive and/or specifically themed charter schools creates unique effects on property values and neighborhood quality of life, and not necessarily always positive effects.

Finally, schools/school buildings and property are public assets having a lifespan far exceeding that brief moment in time when that trigger pulling simple majority has children attending the school and the public that has invested in those schools over time should thus have some say in their operation, maintenance and management.

The idea that this particular subversion of traditional governance somehow heightens public accountability is simply ridiculous.

Closing Thoughts

Love it or hate it, we’ve got a pretty well defined, reasonably functional system of public governance in this country, with the overarching rule of the land being our U.S. Constitution. I’m not trying to oversell here. I’m not saying it’s perfect, always responsive to all and never intractable, opaque or corrupt. But I am saying that we could certainly do worse and many proposals on the table are likely to do just that.

Importantly, state laws might be written to close many of the gaping holes in student and employee rights identified above, public disclosure requirements and clarify the delineation between publicness and privateness. But the current trend is not necessarily in that direction!

Our current system defines the roles and responsibilities of public officials, holding them to public accountability standards vetted by our federal and state judicial branches for over two centuries. Yeah, I know, many of these reformy pundits would also simply do away with that meddling judicial branch. I for one, think that our courts continue to play a critical role in protecting rights.

Modern education reform efforts, in the name of supposed increased accountability and transparency largely seek to subvert our system of government as we know it and in many cases seek to strip large shares of poor and minority children and the employees in schools of poor and minority children of constitutional protections. And we’re all supposed to be okay with that?

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