COMMENTARY: A strong vote for school choice

Primary education in Nevada is in a pitiful state, with no obvious path of exit or reform. Clark County has the fifth-largest school district in the nation and some of the lowest-performing schools. Clearly, some major transformation in educational policy is needed to shake up the system. But instead of meeting the challenge, state and local politics are filled with gridlock and confusion.

The current political debate is trapped between two educational half-measures, both insufficient, but one worse than the other. The preferred alternative would be Education Savings Accounts, which allow parents to divert a portion of the state’s per-pupil funding into an account they may tap for the educational needs of their children, including for private school tuition. But the program, passed in 2015, remains unfunded because of a legislative impasse.

Gov. Brian Sandoval tried to put a happy face on a bad outcome by noting a 2017 legislative compromise did set aside some $46 million in state and private money to fund so-called Opportunity Scholarships, made available to students from families whose income is below 300 percent of the poverty level. Under this program, which has so far supplied about 1,600 scholarships to Nevada students, businesses contribute money to a fund “in lieu” of paying all or part of their state excise taxes. The money is paid over to private scholarship organizations that receive approval from the Nevada Department of Education. The scholarships are tenable at participating private schools. But this oversubscribed program, which is hedged about by all sorts of approvals and limitations, is a drop in the bucket.

What is needed for Nevada is not some additional ad hoc programs that depend on the willingness of private businesses to step up to the plate, but a system of guaranteed public funding allowing private schools of all sorts and descriptions to compete with the public school monopoly that to date has disappointed the parents and children of Nevada.

The correct approach will be stoutly opposed by teachers unions that currently enjoy a stranglehold over the operation of the system. Their argument is always the same. The only way public schools can function is to give them a clientele that has nowhere else to go. No private business could exert such a hammerlock over its preferred clientele. The fact that customers have a powerful exit right imposes a powerful discipline on the operation of these businesses. Customers do not have to tolerate excuses for bad performance. They are entitled to look at the outcome and take their dollars elsewhere when products and services fail. And it is just that threat of exit which keeps managers up at night to devise protocols and products to keep their current customers happy — and provide inducement for new customers to come through their doors.

Unions commonly claim that charter schools will bleed the talented students out from the system, leaving only the weakest students. But that will not happen if funding is set up correctly. Special education programs can be funded through charter schools as well as public schools, and the amount of state support to the charter school can be set higher for these special-needs students, to match in percentage terms their level in the public school system.

The real opposition to charter schools is grounded in the fact that unions well understood the introduction of a systemwide exit option would lead in the short run to a wholesale exodus of Nevada students from their failing public schools. Yet why should the state make any student a prisoner of the public school system if new charters offer them a superior education at a lower cost than the public schools that face no competition?

The difficulty in the educational market stems from the simple point that Nevada, like all other states, has an unshakable commitment to the public funding of education. That, in turn, requires taxation of the citizenry at large. It is therefore the case that any alternative system of education must be able to tap into the same tax revenues in order to achieve competitive balance. One way to deal with this problem is to give vouchers to students, allowing them to use these funds at any public or private school, including religious schools, to cover all or part of the tuition.

A second alternative is to adopt a system of charter schools that operate under government supervision and must meet all basic educational standards. These charter schools can often obtain greater efficiency than traditional public schools because their typically nonunion staff has far greater flexibility in the way in which it organizes its educational program. In effect, the programs are largely self-funding, because the state need set aside only a fraction of the funds for charter school education that it has to spend for inferior public education.

The key to making this system work is to be sure that new entrants do not have to go through endless tests and reviews for initial approval before than can open up shop. One way to do this is to encourage charter school networks that have done well in other states to come to Nevada under a system of expedited review. They should also be given the freedom to pick the students they think will fit best in with their program. Parents will monitor the performance of all charters because they now know they have alternatives. Standardized tests can pick up the slack by measuring student progress in both public and private systems. Indeed, it is quite likely that parents will abandon weak charter schools in droves long before the regulators move in.

In the long run, it is not clear how this new regime will play out. All worthy experiments have risk. But we can be confident that public school teachers and their unions will not stand by idly if they can no longer block the entry of private and charter schools that threaten to siphon off students. Indeed, there is respectable evidence suggesting the introduction of charter school competition will, in the long run, improve the performance of public schools, as measured by test scores. In effect, every aspect of public school education will be transformed once competition is in place. Collective bargaining agreements will change, tenure protections will be reduced, workplace rules will be relaxed, merit pay will become a possibility and so on down the line.

Right now, it is well understood that student demand for private educational opportunities cannot be met by the few educational scholarships currently made available under Nevada law. Excess demand is a sure sign the current system if out of whack. A responsible Legislature should not hesitate to act, given the massive evidence that competitive systems of education funded by the state will promise higher performance for all students.

The current model has failed. It cannot be fixed by tinkering at the margins. A strong dose of reform medicine is needed — and it is needed now.

Richard A. Epstein is a professor at the New York University School of Law, a senior fellow at the Hoover Institution and a distinguished service professor of law emeritus and senior lecturer at the University of Chicago. His Review-Journal column appears monthly.

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