In an effort to push back against the mounting criticisms over the credentials of schools that qualified for Louisiana’s experimental school voucher program, Education Superintendent John White recently announced a “more detailed account… to revamp the way Louisiana approves private schools that want public funding.” Quoting from The Times-Picayune:
White laid out three different tiers of scrutiny for private schools that want state approval, based primarily on whether they’ve already been through a third-party accrediting process. Getting state approval gives private schools access to state money for textbooks and transportation services from their local public school district, but now also serves as their first bar to clear for participating in the voucher program, which provides tuition for any student from a low-income family in Louisiana attending a public school rated C or below.
White said private schools will win an automatic, five-year state approval if they already maintain an annual accreditation from either the Southern Association of Colleges and Schools or another third-party accrediting body approved by the National Association of Independent Schools.
On the surface, this may sound like a step in the right direction. It even won praise from Leslie Jacobs, a former BESE member who, in 2009, dropped out of the race for New Orleans mayor shortly after Mitch Landrieu announced his candidacy.
“This is unequivocally a better process,” said former BESE member Leslie Jacobs, a frequent critic of the pilot voucher program in New Orleans and plans for expanding it statewide. “The process that BESE had before was really a joke.”
With all respect to Ms. Jacobs, Superintendent White’s plan to ensure a “more detailed account” of the schools that qualify for taxpayer subsidization is, unfortunately, nothing more than a gimmick, a smoke and mirrors parlor trick that belies his department’s and the Jindal administration’s interpretation of the law.
Last month, Louisiana Public Broadcasting aired this report:
Louisiana Progress and others have rightfully focused on the private school curriculum standards prescribed by the Louisiana Department of Education. Quoting from the Southern Education Desk:
Louisiana Department of Education policy on the curricula to be used by non-public schools is contained in Bulletin 741, put out by the Division of Curriculum Standards. It states that “only nonpublic schools that meet and maintain a sustained curriculum or specialized course of study of quality that is at least equal to that prescribed for similar public schools are eligible for state approval, and thus state funding.” The Department of Education does not review a non-public school’s curriculum, but the bulletin does state that religious studies and electives combined are not to exceed 25-percent of the daily instruction. Textbooks put out by A.C.E., Answers in Genesis and Bob Jones University Press all weave Biblical teachings through what is generally considered “secular” coursework, i.e., science, history, and social studies.
This is, without question, a legitimate criticism: Many of the schools admitted into the Louisiana voucher program are, very obviously, failing to provide students with a “quality of study that is at least equal to” public schools, a requirement that is not only stated in Bulletin 741 but one that is also enshrined in Article 8, Section 4 of the Louisiana State Constitution.
But here’s where it gets tricky and potentially perilous for Superintendent White and defenders of Louisiana’s voucher program: While they are likely embarrassed by reports of voucher schools teaching, among other things, that the Loch Ness monster is real and disproves evolution (schools that reject the overwhelming fossil record in favor of a mythical ancient dinosaur that still lives under a lake in Scotland), Superintendent White and voucher advocates are also inconveniently and ironically constrained by their own interpretation of the Establishment Clause of the First Amendment. Again, quoting from the Southern Education Desk (which is quoting from the LPB report) (bold mine):
We asked Louisiana Superintendent of Education John White about the controversial curricula, and whether the voucher program would prompt greater scrutiny of these materials. Here’s his answer:
“Well, the law is very clear about—in private schools that receive no public funding, in private schools that receive some public funding, and then private schools that receive a more significant amount of public funding—what can be reviewed and—on the other hand—where schools have discretion to do what they want to do,” says White. “We’re going to follow the law.”
But White has also announced that the regulations for licensing private schools in Louisiana are being revised, and will be presented to the Board of Elementary and Secondary Education at their October meeting. He is adamant that the process won’t be delving into the curricula private schools are offering.
First and most importantly, Superintendent White seeks to have it both ways: He suggests that the law is “very clear” on this issue and implies that schools that receive a “more significant amount of funding” may be subject to greater scrutiny, and then, almost in the same breath, he adamantly opposes “delving into the curricula private schools are offering.” There is a reason that Superintendent White is being so ambiguous and disingenuous. He seems to argue that he does have the authority to determine the quality of curricula offered in private voucher schools, but he then immediately abdicates this authority.
Here’s why: Back in the early 1990s, a group of public school students sued the Louisiana Board of Elementary and Secondary Education. See Rankins v. Louisiana State Board of Elementary and Secondary Education. Because these students had failed the Graduate Exit Exam (the GEE), they were not awarded diplomas, even though they passed the requisite coursework. Their complaint was simple and compelling: They were denied their state-issued high school diplomas because they had failed the GEE, even though private school students were able to receive state-issued diplomas without ever taking the GEE. The case only made it to Louisiana’s First Circuit, and in what must have seemed like a major victory for religious conservatives, a single judge ruled against the students, holding that the State could require the GEE for public schools while waiving the requirement for private schools. But the judge wasn’t only concerned with the GEE. Despite over two decades of Attorney General opinions and despite the plain language of the Louisiana State Constitution, the judge also wrote that the State had no authority to evaluate the “content” of curriculum. Curriculum, he suggested, should not be measured by content; it should, instead, be measured entirely by the amount of time a student sits behind a desk, the controversial “Carnegie unit” of measurement. If BESE were allowed to evaluate the “content” of curricula offered in private schools, then, in this one judge’s opinion, they would be violating the Establishment Clause.
To be sure, most rational, literate people recognize that “curriculum,” by its very definition, means content, and this judge’s opinion is not mandatory authority in Louisiana. But, even though it seems to completely contradict the plain language meaning of the Louisiana State Constitution, it nonetheless provides the blueprint of an escape hatch for Superintendent John White, a way for him to justify his uneven equivocations on his own actions and authority.
Nationally, voucher advocates point to the 2002 United States Supreme Court decision in Zelman v. Simmons-Harris, which narrowly held that the voucher program in Cleveland, Ohio passed constitutional muster. But in its 5-4 decision, the Court ruled that Cleveland’s program was legal because it met the following criteria, most of which is not present in Louisiana’s voucher program:
Under the Private Choice Test developed by the court, for a voucher program to be constitutional it must meet all of the following criteria:
- the program must have a valid secular purpose,
- aid must go to parents and not to the schools,
- a broad class of beneficiaries must be covered,
- the program must be neutral with respect to religion, and
- there must be adequate nonreligious options.
There may be a legitimate argument about whether Louisiana’s program has a “valid secular purpose,” whether it covers a “broad class of beneficiaries,” and whether it is “neutral with respect to religion.” But, in my opinion, Louisiana’s program was not designed around parents; it was designed around private schools. Private schools have completely determined the construction and the composition of this program; they set the number of voucher “slots,” and the “aid” provided by the program does not “go to parents;” it goes to these schools, in the form of a government check written on “behalf” of parents.
And even if you reject this criticism of Louisiana’s program, you must acknowledge that Louisiana’s voucher program does not offer “adequate nonreligious options.” For the Zelman court, the determinative factor wasn’t the percentage of religiously-affiliated schools in the Cleveland program; it was whether students had the opportunity to attend a nonreligious school in an adjacent district. Clearly, Louisiana’s program does not afford students the same opportunity; in the overwhelming majority of the State, the program can only be accessed by students attending religious schools. Outside of New Orleans, there are no nonreligious options.
The truth is: Superintendent John White has the authority to determine the content of curricula offered in Louisiana’s voucher schools, and he also has the legal responsibility of ensuring that the program offers adequate “nonreligious options.” He has continually failed to do either of these things; he has equivocated and ducked for cover; he has, most recently, attempted to assert that he’s “increasing” accountability, even though he’s actually, for all intents and purposes, doing nothing. Louisiana should not be misled by Superintendent White’s parlor trick: He’s not actually providing a more thorough process for reviewing the qualifications and curricula of voucher schools. That’s not what he said. He’s merely giving a “more detailed account” of an already-flawed process.