Students who receive any kind of financial assistance from the government cannot attend Hillsdale College. That's because Hillsdale refuses to obey federal affirmative-action guidelines. When the Department of Housing, Education, and Welfare in 1975 declared the school a "recipient institution" of federal funding—not because it had ever accepted a penny of such money (it hadn't), but because some of its students used government loans and grants to pay for their tuition—HEW demanded that Hillsdale obey its edicts regarding student body composition.
A series of court battles erupted, and in 1985 the school's administration found itself defeated. Rather than surrender, however, it decided to maintain its independence, ignore the affirmative-action order, and forego all further government "aid." Even Hillsdale students who qualify for the G.I. Bill now must turn down the money.
So when President George Bush last July introduced his "G.I. Bill for Children"—a $500-million private-school choice plan—he raised eyebrows among the wary. His proposal, which would fully fund several school-choice demonstration sites, sounded like an invitation for the government to turn private schools into a chain of "recipient institutions." Private schools that innocently accepted students with "G.I." vouchers could become immediately vulnerable to legislators salivating for the opportunity to micromanage education policy.
With Bush's defeat, it's not likely that private-school choice will receive much support from Washington. The campaign to reform education will now move to individual states (where it belongs any way), and local organizers will have to understand the differences between good and bad choice laws.
The first lesson that every private-school choice advocate needs to learn is that government monies rarely come without strings attached. What's interesting is that most already understand this to some degree—they know that public schools have become top-heavy with the politicized burdens of bureaucracy, social work, curriculum standards, and complicated teacher-certification requirements. Yet proponents often fail to see how a voucher program, which at least indirectly subsidizes private education, could eventually turn private schools into semi-public entities. Experiences from both the United States and abroad suggest that a private-school choice plan would not necessarily resemble the free-market panacea envisioned by many of its supporters.
The United States is one of the few industrialized nations that does not heavily subsidize its private schools, although many U.S. schools can claim special nonprofit tax status. Yet in the absence of direct financial support, the government has already established a considerable amount of authority over private schools. In a 1925 case, Pierce v. Society of Sisters, the U.S. Supreme Court found both the right of parents to educate their children outside of the public school system and the right of the state "to regulate, to inspect, supervise, and examine [private schools, as well as] their teachers and pupils." The ruling also guaranteed the state's right to probe teacher patriotism and ensure "that nothing be taught which is manifestly inimical to the public welfare."
Since that decision, private schools have managed to survive without too much oversight, but they have occasionally had to resist the attempts of the state to encroach upon their affairs. One of the most notable clashes arose in 1981, when a school operated by the fundamentalist Faith Baptist Church, located in Louisville, Nebraska, battled the state board of education. The school refused to complete a license application, arguing that it should not have to submit its religious convictions for approval.
The application itself insisted that teachers receive state certification and that the curriculum meet certain expectations—requirements with which the school did not comply. The curriculum, for example, emphasized Bible study and neglected the state's sex-ed lessons. The Nebraska Supreme Court called the regulations on the school reasonable, and the state soon threatened to close schools that failed to follow its rules.
Pressure from activists and public outrage prompted a newly elected Gov. Bob Kerrey to reverse the state's position, and now private schools need not ask for permission to open their doors each September (although they still file an annual, nondemanding report). The court decision has nonetheless served as something of a national precedent regarding the extent to which private schools can be regulated.
A comprehensive private-school choice plan would undoubtedly make such episodes more frequent, and not all of them would have happy endings. If public schools exist primarily for the social good, then why should private schools be able to operate outside of well-established boundaries that define that social good? The question in some sense misses the whole point of private-school choice, but that will not prevent it from being asked. As Frank R. Kemerer, a professor of education law at the University of North Texas, has persuasively argued, a publicly supported private-school choice program would increase the number of demands placed on schools that are valued precisely because they don't have to satisfy countless demands.
Since no appropriately large private-school voucher program exists in the United States, one must leave its borders in order to find a model for judging the impact of mixing government support with private education. Economist Estelle James of the State University of New York at Stony Brook has revealed how state subsidies often reduce the autonomy of private schools.
In her recent study of Australia, which financially assists many of its private schools, James argues that regulations are slowly affecting the way private schools conduct their business. In 1984, for example, the government insisted that schools begin reporting their staff levels, criteria for enrollment, test scores, and other figures. Other policies have encouraged private schools to form syndicates for their negotiations with the government. These organizations now influence curricular content through their teacher-training courses, appoint principals, and bargain with unions. Private schools maintain a good amount of freedom, but independence seems to be quietly eroding and will likely continue.
And in a study sponsored by the U.S. Department of Education, Charles Glenn details how Belgium, Britain, the Netherlands, and the former West Germany have all attempted in various degrees to regulate the curricula and student-body composition of subsidized private schools. No country in Glenn's study, however, can match the turbulent education debate in France after the Socialist party came to power in 1981, a tale that Glenn recounts at some length.
During the election campaign, Socialist Party leader Francois Mitterand endorsed "a great national public education service, unified and secular." Mitterand and other reformers leaned on a tradition dating back to the Revolution that children belong more to the state than the parent. They also claimed that since the government directly assisted private (mainly religious) schools, the state should have a great deal of influence over what occurs in the classroom. The new government then intensified a long-standing effort to gain power over private schooling.
Popular opposition to the move forced a strategic withdrawal, and the government had to repackage its agenda by ostensibly making room for different ideological and religious convictions within the public system. The Socialists, however, continued to demand the power to appoint principals and teachers, train teachers, and control attendance. More than 1 million protesters poured onto the streets of Paris to oppose these measures in June 1984, forcing the minister of education to resign the next month and ending the Socialists' overt attempts to regulate private schools.
These actions helped defeat the Socialists in the 1986 elections, but their persistent efforts to gain state control of private education took their toll. Recent polls suggest that teachers in public and private schools maintain very few ideological or religious differences. Many private schools have lost their uniqueness after years of assault, and a poorly constructed private-school choice law could do similar damage in the United States.
None of this suggests that restrictive laws are inevitable under any private-school choice program. Rather, it demonstrates that any such law must be carefully constructed to avoid the phenomenon of creeping regulation. The solution appears to lie in California and that state's voter initiative. The proposal, which would have appeared on the state ballot last November had it not encountered interference from teacher unions and arcane petition counting rules, would create a broad private-school choice program while preventing new regulations from latching onto schools that accept voucher students.
The initiative would simply freeze all existing private-school regulations and prohibit new ones that do not attain either a steep three-quarters majority in the state legislature or a two-thirds majority of a local governing body followed by a majority of all persons registered to vote in an election. This mechanism allows for the mutual coexistence of government-financed vouchers and private-school autonomy. California voters will finally get a chance to approve it in June 1994.
The first highly publicized debate over choice appears to have ended in defeat for private-school choice advocates, with Bush's loss to Bill Clinton, the teacher unions' candidate. Moreover, a proposal in Colorado that would have created the nation's largest private-school choice program failed by a 2-to-1 margin. New state-level battlefields will continue to emerge over the next several years as disgruntled parents realize that genuine education reform will require an education revolution. These local boosters, however, must understand the strengths and weaknesses of previous attempts at legislation. Many children will benefit from private-school choice, but only if the plan allows these schools to operate as they always have.
John J. Miller is associate director of the Manhattan Institute's Center for the New American Community.