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Choice and Accountability: Using School Choice to Overcome Failing Academic Performance

by Scott Jensen

Executive Summary

Over the last decade, education reformers have advocated for greater school choice and more academic accountability. Naturally, some state legislators and Governors have decided to marry these two reforms by offering proposals to tie school choice options to academic performance. These leaders have offered legislation to allow children in poorly performing public schools or school districts to transfer to the public or private school of their choice. Similarly, some state leaders have suggested providing this option to students whose personal academic performance is seriously lagging. These school choice proposals, focused on failing schools, failing school districts and failing students, all have distinct advantages and disadvantages.

Some of these disadvantages can be mitigated through policies designed to simplify eligibility requirements, stabilize eligibility status, keep families together and promote systemic reform of the public schools.

Existing School Choice Programs Triggered by Failing Academic Performance

Most efforts to expand the educational choices available to America's elementary and secondary students are driven by a concern that some public schools are failing to provide their students with the education they need to succeed. For example, the nation's two best known oucher programs, in Milwaukee (started in 1990) and Cleveland (enacted in 1995), were created in response to concerns by parents, community advocates and business leaders that these school districts were failing miserably. Yet neither program explicitly linked student eligibility for vouchers to the academic performance of the school district, the school or the student. The first school choice program to link student eligibility for a scholarship to attend the public or private school of their choice with academic performance was Florida's A+ Opportunity Scholarship Program, enacted in 1999. More recently, Ohio has adopted a "failing schools scholarship" program called EdChoice Ohio that allows students attending schools on the state's academic watch list for the last three years to receive a scholarship to attend the public or private school of their choice. Policymakers' growing interest in measuring academic performance of students, schools and school districts has created a sharp increase in the number of legislators and Governors seriously considering tying school choice opportunities to measured academic performance. Their logic is compelling: if a student or their school is not making academic progress then the student should be able to transfer the public's investment in their education to a school that will help them succeed.

Florida's A+ Opportunity Scholarship Program

When Jeb Bush became Florida's Governor, he successfully pushed for the adoption of a sweeping set of education reforms including the nation's first failing schools scholarship program.

The A+ Opportunity Scholarship program provided vouchers for students to attend a private or public school of their choice if their assigned public school received an "F" grade from the state at least twice in the previous four years. In 1999, the program's first year, only two schools made the list. In the 2004-05 school year, 20 schools were judged to be failing and more than 700 students in these schools chose to take advantage of the scholarship opportunity to attend a private school, while many others chose to attend better-performing public schools. The scholarships equaled the amount the assigned school would have spent educating the child or the tuition and fees at the private school whichever was less. Students remained eligible for the scholarships for the grades served by the initially assigned failing school and continued to receive the scholarship in later grades if the next assigned public school still rated a grade below "C" in the state's rankings.

Three major studies have suggested that despite the relatively small number of students who received these scholarships, the A+ Opportunity Scholarship program produced significant academic improvements for both the students receiving scholarships and the students remaining in the failing schools.

• A 2004 Manhattan Institute study found that failing public schools where students were eligible to receive a scholarship to attend a better school showed large academic improvements that outpaced other Florida schools by a full 15 points.
  
  
• A 2004 Cornell University study confirmed that failing schools where students were eligible to receive a scholarship to attend a better school made greater than average gains relative to other Florida schools.
  
  
• A 2005 Harvard University study also determined that students in failing schools under the A+ program made superior test-score gains.

Sadly, in 2006 the Florida Supreme Court ruled the program violated that state's constitution despite the program's success in improving academic performance for both scholarship students and those students remaining in poorly performing public schools. (The Florida Supreme Court concluded that the A+ Opportunity Scholarship program violated the uniformity provision of the Florida Constitution's education article, even though supreme courts in Wisconsin and Ohio had previously found similar programs in those states were in compliance with similar education provisions in their state constitutions.)

Ohio's Educational Choice Scholarship Program

In 2006, students attending failing schools in Ohio became eligible to receive a scholarship to attend a better school through the enactment of the Educational Choice Scholarship Program. The program provides for up to 14,000 students to receive scholarships of as much as $4,250 to attend a private elementary school and $5,000 to attend a private high school. The scholarship amount may not exceed the private school's tuition and fees. The student remains eligible to receive the scholarship for the grades served by the assigned public school judged to be failing.

In the program's first year, more than 2500 students from dozens of failing public schools applied to take advantage of the new scholarships to attend a private school. Even before the first application for an EdChoice Scholarship was received, the Ohio Legislature amended the law to raise the academic achievement expected of public schools so that a larger group of public schools made the failing schools list and more students were eligible to receive scholarships. The change was made because the initial academic standard deemed far fewer schools to be failing than had been expected. The program is too new for research on its success to have been conducted.

Failing Schools Legislation

In recent years as states and the federal government have adopted laws and regulations for measuring the success of individual schools, a growing number of chief executives and legislators have introduced legislation that would provide students in demonstrably failing schools with the option of attending a better public or private school using public funds. In the 2005-06 legislative session, at least 10 states and the federal government saw proposals offering scholarships or tax credits to help children in failing public schools attend the private school of their choice. These proposals contain a number of advantages and disadvantages that legislators will want to carefully consider when determining whether they want to introduce such legislation in their state.

Advantages

• Politically Attractive Ultimately, many legislators feel personally or constitutionally responsible for ensuring that the billions of dollars they raise to provide their state's children with a sound education must produce results. When a child's assigned public school has failed to provide them with a good education for years, it is reasonable for legislators to look to other public or private schools to provide that education. As stewards of the public's money, legislators who might normally be reluctant to offer a bold reform like private school choice are less concerned when the child's assigned public school has already demonstrated its failure to educate the child.
  
  
• Easily Defined Since many states and the federal government have recently adopted methods for measuring the educational success of individual schools, it is not hard to define an unacceptable level of achievement. States can use the No Child Left Behind legislation or their existing state standards to define which schools are failing to meet their students' needs and thereby establish student eligibility for a scholarship to attend a different school.
  
  
• Opposition Hampered Traditionally, the education establishment has maintained that most public schools perform well and that any deficiencies can be corrected with additional public funds. These arguments are harder for the education establishment to offer when the evidence shows that some well-funded public schools have failed for years to provide their students with a good education.
  
  Furthermore, some of the leadership and teachers at high performing public schools may be reluctant to come to the defense of failing public schools. Some will choose to mute their opposition as long as the legislation is unlikely to affect them.
  
  
• Strong Message A school choice proposal that provides scholarships to children in failing schools benefits from the favorable contrast between the failing school and the potential public and private alternatives available for these students. When the public and its elected representatives have a choice between funding a poorly performing public school or funding a parent who is then free to choose a better performing public or private school, they will often make the same choice the child's parent would make.
  
  
• Systemic Reform The possibility that poor performance might result in a loss of students and educational aids will provide an incentive for all schools to stay off the "failing schools" list. In fact, several studies have confirmed the widespread beneficial impact of the reform on the entire system even when the number of schools listed is small and the number of students eligible to transfer is modest.

Disadvantages

• Odd Results As states have begun measuring the performance of individual schools, the measurements have occasionally produced results at odds with public expectations. This could suggest flaws in the method of measurement or inaccuracies in the public impression of a school's performance. Either way, the "odd results" could undermine public and legislative support for bold reforms based upon them.
  
  
• Potential Manipulation As we have already seen with the ratings for schools under the No Child Left Behind legislation, the measurements which determine whether a school is failing are subject to manipulation by both state and local bureaucrats with an interest in preventing students from leaving their assigned schools.
  
  
• Fragmented Schooling Decades of educational research shows that when students frequently change schools their learning suffers. When a student's continuing eligibility for a scholarship is based upon the academic status of a public school they no longer attend, a change in that status could interrupt the child's education at their chosen school and force their return to their originally assigned school. If the originally assigned public school were to move onto and off of a failing schools list again and again, a child's eligibility and their place of learning could be subject to each of these academic twists and turns. Even more likely is the possibility that a student's elementary school, middle school and high school could all be rated differently. In this case, a student might be eligible to attend a private school of their choice in elementary school and high school because their originally assigned public schools were judged failing. However, the student might not be able to continue their education at their chosen school during junior high because that assigned public school was not judged to be failing.
  
  
• Fragmented Families When a student's eligibility for a scholarship is determined by the academic performance of their assigned public school it is quite possible that some members of the same family attending the same schools might not have the same eligibility status. For example, if a public school were judged to be failing, a family's oldest child could then become eligible for a scholarship to attend a private school. But if the assigned school improves its performance by the time the second child is old enough to attend, this second child might not be eligible for a scholarship and the family would have two children attending different schools and not by their choice.
  
  
• Fragmented Markets If only some of the schools in a city are judged to be failing and the schools are not concentrated geographically, it can become difficult and expensive to educate parents about whether their child is eligible for a scholarship. It can also become hard for some private schools to participate since they cannot easily market their services to a fragmented market and because the eligible students may live some distance away from their school.
  
  
• Market Uncertainty If the eligibility of students is determined by the academic performance of their assigned schools, then the number and location of eligible students could change annually. This uncertainty will make it hard for a vibrant market to develop. Private providers will be reluctant to invest in new schools or improve existing ones if they have no way of predicting how many students will be eligible to attend their school and for how long.

Possible Legislative Improvements

There are a number of provisions legislators could adopt to mitigate the disadvantages described above:

• Permanent Eligibility for Students A simple way to insure that an individual student's educational choices are not subject to the ups and downs of their assigned school's academic performance is to make a student's eligibility status permanent. This will also eliminate any problems caused by differences in the eligibility status of their assigned elementary, middle and secondary schools.
  
  Once a child is deemed to be eligible for a scholarship because their present school is failing they should be able to use the scholarship for the rest of their schooling.
  
  
• Sibling Exception To prevent families from being forced to send their children to different schools because of the changing academic status of their assigned school, the legislation could provide that if one child in a family is eligible to receive a scholarship because their assigned school is failing, then the rest of children in the family would also be eligible for a scholarship when they enter school.
  
  
• Put More Schools on the List To prevent the confusion that can occur with a highly fragmented market, legislators could choose to make it less likely by placing more schools on the list of failing schools. This could be done by 1) raising the academic standards so more schools made the list as Ohio did; or 2) placing a whole school district on the list if a certain percentage of their schools or student population makes the failing schools list.
  
  
• Prevent Manipulation Legislators could attempt to prevent manipulation of a school's status on the failing schools list through legislative oversight of the process by setting standards based upon several criteria, or by choosing performance measures that are not produced by state or local officials.
  
  
• Give Priority Status Within Broader Eligibility To lessen market fragmentation and uncertainty, and to reduce the incentives for eligibility manipulation, legislators could decide to make a broader set of students eligible for the program but require that students from failing schools be given a preference in the distribution of scholarships. For example, all low-income students within a city could be made eligible to receive scholarships but those who were attending failing schools could be placed first in line. This model is used in the Opportunity Scholarship Program in the District of Columbia.

Failing School Districts Legislation

Recognizing some of the disadvantages of school choice legislation tied to the academic performance of an assigned school, several states have considered tying student eligibility for school choice to the academic performance of the entire school district. Sometimes legislators will name the eligible districts in the legislation based upon their subjective or objective judgments about the districts' historical performance. Other times, legislators will establish certain academic standards so that the list changes with the academic performance of school districts over time.

Advantages

Eligibility Easily Understood Establishing a larger, better known territory for determining eligibility makes it easier for private schools and parents to understand who is eligible for a scholarship to attend a better school. For example, when all of the students in a school district are eligible to receive a scholarship, the media can easily communicate who is eligible and the private schools can use these media to market their services.

• A Better Functioning Market A larger and unified territory creates a larger marketplace with more suppliers and customers in a concentrated area. This provides parents with greater options and schools with more competition. For example, in the Milwaukee Parental Choice Program the parents of 22,500 students can choose from more than 120 private schools in their search to find the right school for their child. In fact, in a five-year period more than $130 million has been invested in new private school construction in some of the poorest
  neighborhoods in Milwaukee.
  
  
• Politically Attractive So far, scholarship programs based upon the academic performance of whole school districts have been limited to large failing urban systems. As a result, legislators from other districts unlikely to ever make the list may face lessened opposition from the education establishment in their districts, and they may find more of their constituents support the policy because they are tired of paying for the failing academic performance in another part of the state.

Disadvantages

• Lumpy Eligibility If the legislation makes all of the students in an entire school district eligible based upon the academic performance of the district, it is possible that large numbers of students could simultaneously move onto or off of the eligibility list for scholarships. These large lumpy shifts in eligibility could create significant market disruptions. For example, if 100,000 students become eligible for scholarships because their large metropolitan school district is failing academically, the private school market may not be able to quickly accommodate all of the students seeking to attend their schools. Conversely, if a large public school district improved its academic performance, 100,000 students could lose their scholarships all at once. Either of these lumpy shifts in eligibility might be hard for the market to quickly accommodate, and the potential uncertainty will discourage the investments needed to create this capacity.
  
  
• Reduced Incentives For Improvement In contrast to determining eligibility based upon measured academic performance, legislation that permanently names the students of a particular school district as eligible for scholarships will reduce some of the incentive for the school district to improve since improvement will not eliminate the scholarship opportunity. This would dampen the systemic impact of the scholarship program.
  
  
• Increased Incentives for Manipulation If the eligibility of all the students in adistrict for scholarships is determined by the performance of a district against a set of academic standards, the incentive for state and local officials to try to manipulate this determination is much greater as the stakes are much higher than if only certain students and schools were eligible.
  
  
• Residence-Based Eligibility Though the larger territory for eligibility will reduce some of the fragmentation and uncertainty caused by linking eligibility with academic performance at the school level, the eligibility for a scholarship is still based on a child's residence rather than their needs.

Possible Legislative Improvements

• Permanently Name Districts Rather than use annual evaluations of districts against a set of academic standards to determine eligibility, legislators could choose to permanently name certain poorly performing school districts to the eligibility list. This would provide greater certainty for parents and private schools. It would encourage greater investment in the development of new private schools and the improvement of existing ones. It would still maintain some financial incentive for improvement in the public school district since the district will want to minimize the loss of students to other schools.
  
  
• Separate Entrance and Exit Standards If legislators wanted to tie eligibility to the academic performance of a school district they could set separate standards for district eligibility to enter and exit the program. For example, the students in an entire school district could be made eligible for scholarships if more than half of the district's student population attended schools that were judged to be failing. The district could be allowed to leave the program when less than 10% of its students were attending failing schools for a three-year period. These separate standards for districts to enter and exit the program would create a powerful incentive for improvement while reducing the risk of major market disruptions.
  
  
• Make Students Permanently Eligible Whatever standard is used for determiningwhich districts will be in the program, once a student is eligible they should remain eligible for a scholarship for the entire length of their schooling to prevent harmful disruptions in their education.

Failing Students Legislation

Recently, two states that have long been leaders in providing school choice have seriously considered legislation that would provide scholarships to students who have been failing academically in their assigned schools. Governor Jeb Bush of Florida proposed a Reading Compact that would provide scholarships to better schools for students who had failed the state's reading test three years in a row. His powerful rationale was that reading was the most important skill for academic success and that if the child's assigned school had failed to teach them to read after three years it was time to let the child try a different school. The Governor's plan was adopted by the House but not by the Senate. In Arizona, both houses of the legislature passed bills providing scholarships to students who failed the state's AIMS test but the proposals did not become law.

Advantages

• Many Definitions are Available In the last few years, most states and the federal government have required that students regularly take tests that measure their academic progress so it is not hard for states to devise an objective method of defining a "failing student." These students could then be provided with a scholarship to attend the public or private school of their choice in hopes of improving their academic performance.
  
  
• Need-Based Scholarships Unlike the failing schools or failing districts legislation, failing student scholarships are determined based upon the child's academic needs rather than their residence. The scholarships are thereby given to the students most in need of better schooling.
  
  
• Politically Attractive States have invested millions of dollars in testing their students yet few reforms have been directly targeted at failing students. When disappointing test scores are analyzed, they are usually viewed in the aggregate and the reforms proposed are usually aimed at the institutions. In the case of failing student scholarships, the tests are used to identify the students most in need of help and to get them into better schools. Though they will try, it is more difficult for the education establishment to oppose legislation giving a student who can't read after three years in their assigned school an opportunity to attend a school that offers them a better chance at success. The student's existing school had its chance and failed.

Disadvantages

• Creates Perverse Incentives to Fail A student who wanted to attend the public or private school of their choice could have a perverse incentive to intentionally fail the requisite tests in order to qualify for a scholarship.
  
  
• Difficult to Select Right Eligibility Standard Though states now routinely measure the academic performance of students in a variety of ways it is not easy to select the right standard for deeming a student failing and in need of academic assistance. For example, some Florida legislators thought Governor Bush's proposal for scholarship assistance after three years of failing to read at grade level was too long, others felt shortening the time period would increase the perverse incentive students might have to intentionally fail the examination. Still other legislators thought the state should use a broader measure of student performance than just the state's reading test.
  
  
• Atomized Eligibility Because eligibility is determined at the student level it is possible that in some communities only a few students would receive a scholarship. Conceptually, this would create a highly fragmented market for private schools to serve yet the proposal would draw statewide opposition from the education establishment. (In practice, however, an analysis of Governor Bush's Reading Compact proposal showed that only a small portion of qualifying students were dispersed and that the vast majority were concentrated in poorly
  performing schools.)
  
  
• Achievement Disincentive If a student's continuing eligibility for a scholarship is dependent upon their continuing poor academic performance it will create a disincentive for students to improve.
  
  
• Potential for List Manipulation As we have seen with No Child Left Behind and some state measurements of academic performance, the education establishment may have an incentive to manipulate the results by excusing some students from the tests or by establishing "flexible" standards for measuring student performance.

Possible Legislative Improvements

• Multiple Performance Measures By creating multiple measurements of academic performance for determining which students are eligible for a "failing students" scholarship, legislators could reduce the ability and incentive for students to intentionally fail as a means of qualifying for a scholarship to a better school.
  
  
• Permanent Eligibility To make sure that students are not punished for improving their academic performance while attending the school of their choice on a scholarship, eligibility for the scholarship should be made permanent once the student qualifies.
  
  
• Broaden Eligibility Legislators could consider making an entire school district or community eligible for scholarships once a certain percentage of students are deemed to be failing. This step would increase the systemic impact of the program and make it easier for private schools to market the program and their services.
  
  
• Interesting Twist Legislators in one state have considered an interesting twist on the notion of failing student scholarships. They have considered creating a scholarship program for students who have dropped out of their assigned school. The scholarships would be given to dropouts under the age of 21 who return to school by enrolling in the public or private school of their choice. This policy would be designed to appeal to dropouts who have figured out how difficult it is to find work without a high school degree and how hard it can be to earn a General Equivalency Diploma or GED.

Final Complications

All three of the education reforms considered in this paper are likely to encounter additional complications during legislative consideration.

• During legislative consideration it may be politically necessary or morally appropriate for proponents to consider additional eligibility criteria beyond academic performance. Each additional eligibility requirement will likely complicate the program's administration, fragment the market further and increase instability in the eligibility pool.
  
  
• Programs that determine eligibility solely on academic performance mean that all income levels are eligible for a voucher. This policy has significant political ramifications. The education establishment will surely argue that the program is intended to help wealthy families pay for private education even if the vast majority of the eligible students are from lower and middle class families.
  
  Legislators may wish to provide a scholarship preference for children from low income families or they may try to demonstrate that few children from wealthy families or communities will qualify for the scholarships. School choice opponents will often claim during the legislative process that school choice proposals are unconstitutional, under a state constitution's religious liberty provisions, its education provisions or another part of the constitution, even when they are not. (In 2002's Zelman v. Simmons Harris, the U.S. Supreme Court made it clear that school choice is constitutional under the federal Constitution, thus removing that argument from opponents' claims.)

Understanding these state constitutional provisions and drafting good legislation that takes them into account is the best defense against these arguments, as well as against potential litigation. Legislators may wish to consult school choice legal experts such as the Institute for Justice.

Conclusion

After carefully reviewing the advantages and disadvantages detailed above, state policy makers can determine whether they wish to advance school choice proposals based upon academic performance or whether they wish use other factors such as income, geography, disability or family stability. (Regarding these latter factors, ALEC has developed six pieces of model legislation1 on school choice for legislators to consider.) For legislators considering offering school choice proposals based upon academic performance, we would recommend they draft their legislation with the following principles in mind:

• Make it simple for families and school administrators to determine eligibility.
• Make student eligibility stable and long term.
• Keep families together.
• Promote systemic reform by providing incentives for public schools to improve.
• Promote systemic reform by ensuring the creation of a thriving market of
  participating schools and eligible students.

Scott Jensen is national director of state projects for the Alliance for School Choice and formerly served as the Speaker of the Wisconsin State Assembly.

1 The following school choice model bills are available by contacting Matt Warner mwarner@alec.org 202-466-3800: Family Education Tax Credit Act, Great Schools Tax Credit Act, Parental Choice Scholarship Act (means-tested and universal eligibility), Special Needs Scholarship Act, and Smart Start Scholarship Act.