No. 372A14 TENTH DISTRICT

SUPREME COURT OF NORTH CAROLINA

************************************************* ALICE HART, et al.,

Plaintiffs-Appellees, v. STATE OF NORTH CAROLINA and NORTH CAROLINA STATE EDUCATIONAL ASSISTANCE AUTHORITY,

Defendants-Appellants, CYNTHIA PERRY, et al.,

Intervenor-Defendants-Appellants

) ) ) ) ) )))))))))))) )

From Wake County

No. 13-CVS-16771

************************************************* BRIEF FOR THE NATIONAL EDUCATION ASSOCIATION

AS AMICUS CURIAE *************************************************

INDEX

TABLE OF AUTHORITIES ................................................................................... ii

INTRODUCTION AND STATEMENT OF INTEREST ......................................... 1

ARGUMENT ............................................................................................................ 3

I. PRIVATE CHOICES AMONG PRIVATE SCHOOLS ARE NOT AN ADEQUATE SUBSTITUTE FOR PUBLIC ACCOUNTABILITY OVER PUBLIC EDUCATION EXPENDITURES .................................................... 3

A. Under the Voucher Scheme, Parents’ Choices Are Constrained

Because Private Schools Discriminate Against Those Low-Income Children Who Most Need Access To Quality Education ..................... 5

B. Under The Voucher Scheme, Parents’ Choices Are Constrained By The Absence Of Adequate Information On Which To Base Their Decisions ............................................................................................... 8

C. Under the Voucher Scheme, Parents’ Choices Are Constrained Because Low-Income Parents’ Choices Are Influenced By The Indirect Costs Associated With Private School Attendance ............... 13

II. PRIVATE-SCHOOL VOUCHER SCHEMES SUCH AS THE ONE AT ISSUE HERE DO NOT IMPROVE PUBLIC SCHOOLS THROUGH COMPETITION BUT INSTEAD ARE LIKELY TO HARM PUBLIC SCHOOLS ..................................................................................................... 17

CONCLUSION ........................................................................................................ 26

CERTIFICATE OF SERVICE ............................................................................... 27

ii

TABLE OF AUTHORITIES Constitutional Provisions: N.C. Const. Art. V, § 2 .............................................................................................. 2 Statutes: Current Operations and Capital Improvements Appropriations Act of 2013,

N.C. Sess. Law 2013-360, Section 8.29 ............................................................... 2

Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 .............................. 6

N.C. Gen. Stat. § 115C-562.1 .................................................................................... 2

N.C. Gen. Stat. § 115C-562.5(a)(4) ......................................................................... 11

N.C. Gen. Stat. § 115C-562.5(c1). ........................................................................... 11

N.C. Gen. Stat. § 115C-562.5(c1). ............................................................................. 6

Publications: Henry Braun, et al., Comparing Private Schools and Public Schools Using

Hierarchical Linear Modeling, (U.S. Dep’t of Educ., Nat’l Ctr. for Educ. Statistics 2006) ................................................................................................... 12

Robert Bifulco, et al., The Effects of Public School Choice on Those Left Behind: Evidence from Durham, NC, 84 Peabody J. of Educ. 130 (2008) ..................................................................... 24

Lynn Bosetti, Determinants of School Choice: Understanding How Parents Choose Elementary Schools in Alberta, J. of Educ. Policy Vol. 19 No. 4 (2004) ................................................................. 10

Gregory Camilli & Katrina Bulkley, Critique of “An Evaluation of the Florida A-Plus Accountability and School Choice Program,” Educ. Pol’y Analysis Vol. 9 No. 7 (2001) .............................................................................. 21

iii

Matthew Chingos, et al., The Effects of School Vouchers on College Enrollment (Brown Ctr. For Educ. Policy at Brookings & Harvard Kennedy Sch. Program on Educ. Policy and Governance 2012) ............................................................ 23

Shelby Dawkins-Law and Azaria Verdin, Public Charter Schools with Transportation: Increasing Access to Learning Opportunities for All Students (N.C. St. Bd. of Educ. 2013) ............................................................................... 15

Angela K. Dills, Does Cream-Skimming Curdle the Milk? A Study of Peer Effects, 24 Econ. Educ. Rev. 19 (2005) .................................... 24

Greg Forster, A Win-Win Solution: The Empirical Evidence on How Vouchers Affect Public Schools (Friedman Found. for Educ. Choice 2009) ...................................................................................................... 18

Greg Forster, A Win-Win Solution: The Empirical Evidence on School Vouchers (Friedman Found. for Educ. Choice 2d ed. 2011) ............................. 18

Greg Forster, A Win-Win Solution: The Empirical Evidence on School Vouchers (Friedman Found. for Educ. Choice 3d ed. 2013) ......................... 18,19

Brian P. Gill, et al., Rhetoric Versus Reality: What We Know and Need to Know About Vouchers and Charter Schools (RAND Corp. 2d Ed. 2007) ........ 18

Jay Greene, An Evaluation of the Florida A-Plus Accountability and School Choice Program (Manhattan Institute 2001) ..................................................... 21

Douglas N. Harris & Matthew Larsen, What Schools Do Families Want (and Why)? (Educ. Research Alliance for New Orleans 2015) .................. 8,9,14,15,16

Justine S. Hastings & Jeffrey M. Weinstein, Information, School Choice, and Academic Achievement: Evidence from Two Experiments, 123 Quarterly J. of Econ. 1373 (2008) ................................................................ 8,9,14

Chang-Tai Hsieh & Miguel Urquiola, The Effects of Generalized School Choice on Achievement and Stratification: Evidence from Chile’s Voucher Program, 90 J. Pub. Econ. 90 (2006) .................................................. 25

iv

Helen F. Ladd, School Vouchers: A Critical View, 16 J. of Econ. Perspectives 3, 19-21 (2002) ......................................................................... 24,25

Christopher Lubienski, Review of a Win-Win Solution (Nat’l Educ. Policy Ctr. 2009) ............................................................................ 21

Nancy Pindus, et al., Urban and Regional Policy and Its Effects Vol. 3 No. 5 (Brookings Institution 2008) .......................................................... 19

Cecilia E. Rouse & Lisa Barrow, School Vouchers and Student Achievement: Recent Evidence, Remaining Questions (Fed. Reserve Bank of Chicago 2008) ................................................................ 20

Alexandra Usher & Nancy Kober, Keeping Informed about School Vouchers: A Review of Major Developments and Research (Ctr. on Educ. Policy 2011) ................................................................................ 20

Wall Street Journal Editorial Board, Extra Credit, The Wall Street Journal (Sept. 5, 2001) ..................................................................................................... 17

John F. Witte, et al., The MPCP Longitudinal Educational Growth Study Third Year Report (2010) ................................................................................... 19

Patrick Wolf et al. Evaluation of the DC Opportunity Scholarship Program: Final Report (U.S. Dep’t of Educ. 2010) ......................................................... 22

Patrick Wolf, et al., School Vouchers and Student Outcomes: Experimental Evidence from Washington, D.C., 32 Pol’y Analysis & Mgmt 246 (2013). ................................................................................................................. 22

No. 372A14 TENTH DISTRICT

SUPREME COURT OF NORTH CAROLINA

************************************************* ALICE HART, et al.,

Plaintiffs-Appellees, v. STATE OF NORTH CAROLINA and NORTH CAROLINA STATE EDUCATIONAL ASSISTANCE AUTHORITY,

Defendants-Appellants, and CYNTHIA PERRY, et al.,

Intervenor-Defendants-Appellants.

) ) ) ) ) )))))))))))) )

From Wake County

No. 13-CVS-16771

************************************************* BRIEF FOR THE NATIONAL EDUCATION ASSOCIATION

AS AMICUS CURIAE *************************************************

- 1 -

INRODUCTION AND INTEREST OF AMICUS

The National Education Association (“NEA”) is a national organization

representing nearly three million education professionals, the vast majority of

whom are employed by public school districts, colleges, and universities. NEA

believes that public education is the cornerstone of our social, economic, and

political structure—and that students of all backgrounds have the right to quality

public schools. NEA also believes that individuals, at their expense, should be free

to choose to supplement or substitute education in privately supported, non-

segregated, nonpublic schools—but that voucher plans and other funding

arrangements that use tax monies to subsidize private school education can

undermine public education.

In keeping with these principles, NEA submits this brief amicus curiae in

support of Plaintiffs-Appellees Alice Hart, et al., in order to present social science

research rebutting certain empirical claims concerning the effects of private-school

voucher schemes made by Defendants-Appellants State of North Carolina and

North Carolina State Educational Assistance Authority (“State Defendants”), by

Intervenor-Defendants-Appellants Cynthia Perry and Gennell Curry (“Intervenor

Parents”), by Intervenor-Defendants-Appellants Legislative Officers (“Intervenor

Legislators”), and by amicus curiae Pacific Legal Foundation (“PLF”).

- 2 -

This brief focuses on the issue of whether, as the Superior Court concluded,

the private-school voucher scheme established by Section 8.29 of the Current

Operations and Capital Improvements Appropriations Act of 2013, N.C. Sess. Law

2013-360 (codified at N.C. Gen. St. § Stat. § 115C-562.1, et seq.) violates Article

V, Section 2 of the North Carolina Constitution. In their briefs to this Court, State

Defendants, Intervenor Parents, Intervenor Legislators, and amicus PLF all claim

that the operation of private market forces ensure that the voucher scheme at issue

here serves a proper “public purpose” within the intendment of Article V, Section

2(1). This claim is based on two assumptions about the effects of voucher schemes:

(1) the assumption that private decisions by parents in the private-education

marketplace are sufficient to ensure that private-school voucher recipients will

receive high-quality education and are thus an adequate substitute for meaningful

public oversight and accountability in the private-school sector; and (2) the

assumption, offered only by amicus PLF, that diverting public monies for private-

school vouchers will improve public education through competition.

Sound social science research, considered in light of the design of the

voucher scheme, undermines each of these assumptions. In Part I, we show that

private choices by parents among private voucher schools do not ensure that public

education priorities, such as educational quality, are met and are thus not an

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adequate substitute for the public accountability over public education

expenditures contemplated by the North Carolina Constitution. And in Part II, we

show that no sound social science research supports the notion that voucher

schemes improve public education through competition and that, to the contrary,

the social science suggests that such voucher schemes are likely to harm public

education.

ARGUMENT

I. PRIVATE CHOICES BY PARENTS AMONG PRIVATE SCHOOLS ARE NOT AN ADEQUATE SUBSTITUTE FOR PUBLIC ACCOUNTABILITY FOR PUBLIC EDUCATION EXPENDITURES

Private schools participating in the voucher scheme, as compared with

public schools, are subject to very little public oversight or accountability

measures. As the Superior Court found, private schools are not required to be

accredited, are not required to hire licensed teachers (or even teachers with any

particular degree), are not subject to any curriculum requirements, are not required

to provide any minimum instruction time, and are not prohibited from

discriminating on religious grounds. (R p. 993.) These findings are undisputed. See

State Defendants’ Brief at 42 (acknowledging that the Superior Court’s findings as

to the minimal regulation of private schools are “technically correct”); Intervenor

Parents’ Brief at 27 (acknowledging “that North Carolina falls on the more laissez-

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faire end of the spectrum of state regulation of private schools”); Intervenor

Legislators’ Brief at 25, 29 (acknowledging that the Superior Court’s findings “are

correct” and that “North Carolina has always regulated private schools less

restrictively than some other states”).

Nevertheless, State Defendants, Intervenor Parents, Intervenor Legislators,

and amicus PLF urge that the State’s minimal oversight and regulation of private

schools is of no consequence because, in their view, parents’ choices in the private-

school marketplace provide all the accountability necessary to ensure that voucher

schools provide sound education. On this view, such “parental accountability”

allays all constitutional concerns associated with turning public education revenue

over to private hands. See State Defendants’ Brief at 37; Intervenor Parents’ Brief

at 23-24, 28; Intervenor Legislators’ Brief at 30; PLF’s Brief at 12.

That view is fundamentally flawed. Parents’ choices under the voucher

scheme are highly constrained for three reasons: First, North Carolina private

schools turn away students on grounds forbidden to public schools, most notably

by discriminating against those low-income students who have the greatest need

for the quality education that the voucher program is supposed to provide: students

with disabilities, students who are English language learners, students with

behavioral issues, and students who are struggling academically. Second, under the

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voucher scheme, parents are deprived of the most basic necessity for the proper

functioning of a private market: adequate information about the academic

performance of private schools with which to base their choices. And third, school

choice among the low-income parents who are eligible to participate in the voucher

scheme is constrained because their choices are influenced by the indirect costs

associated with private school attendance.

A. Under the Voucher Scheme, Parents’ Choices Are Constrained Because Private Schools Discriminate Against Those Low-Income Children Who Most Need Access To Quality Education

Parental choice in the voucher scheme is markedly constrained, first of all,

by the fact that private schools, not parents, choose which students they will

accept. Indeed, many private schools participating in the voucher scheme

discriminate in their enrollment policies against those students who are in the

greatest need of quality education.

Unlike public schools, which are required to be open to all students residing

within a district, without exception, and are required by federal law to provide

disabled students with special education services appropriate to their individual

needs (see Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§

1400, et. seq. Private schools are not covered by the IDEA, and nothing in the

voucher legislation prohibits voucher schools from discriminating in the admission

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of students on any grounds other than race, color, or national origin. See N.C. Gen.

Stat. § 115C-562.5(c1).

Most importantly for present purposes, private voucher schools in fact

discriminate against students with learning or physical disabilities, against students

who are English language learners, against students who have behavioral

problems, and against students who have academic difficulties. Of the ten private

schools that the Superior Court’s order identified as enrolling the largest numbers

of voucher recipients (R p. 994), half explicitly state in their admissions

applications or handbooks that they restrict enrollment on one or more of these

grounds.1

1 The Tabernacle Christian School states that “is not equipped to handle handicapped children, problem children or learning disabled children in need of special education” and that it “does not admit students who have been expelled or suspended from other public, private or Christian schools.” http://0101.nccdn.net/1_5/377/13c/26d/School-handbook_2014.pdf. The Greensboro Islamic Academy (“GIA”) states that “[c]hildren with emotional and severe learning disabilities may not be accepted at GIA, as necessary programs are not available to meet the needs of these children.” The school also screens students on the basis of English proficiency and states that if an accepted student shows “inadequate familiarity with the English language” the student “may be referred to a recommended ESL program, necessitating transfer out of GIA.” http://giaschool.net/images/GIA_Application_for_Admission_preK_-_G5_2012-2013.doc Al-Iman Middle School states that “[c]hildren with emotional, behavorial [sic] and learning disabilities cannot be accepted at Al-Iman School, as programs are not

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What all this means for the parental-choice-as-accountability rationale is

clear: Not only do private schools’ selective enrollment policies undermine

parental choice as a general matter, but the discriminatory policies explicitly

embraced by many voucher schools further vitiate parental choice by denying

admission to those children most in need of the quality education that the voucher

scheme is supposed to provide access to.

available to meet the needs of these children.” The school also screens applicants for English proficiency and provides that if an admitted student is found to have “inadequate familiarity with the English language,” the student “may be requested to transfer to a school with an ESL program.” http://alimanschool.org/wp-content/uploads/2014/08/FINAL2014-2015StudentHandbookMiddleSchoolWithPBIS.pdf Fayetteville Christian Academy “admits a limited number of students with specific learning differences to include ADHD and learning disabilities” and does so only if “all their other school-age children are also enrolled in the school.” It also provides that “the cost of [special education] services” for such children “will be billed in addition to regular school tuition.” http://www.fayettevillechristian.com/admissions/FCSStudentHandbookRevised%20May%202014.pdf. South Charlotte Baptist Academy denies admission to students who have had “discipline problems at [their] former school[s]” and screens students through an “[a]dministrator interview” which requires the submission of transcripts as well as a “[r]eview of latest achievement test scores and school grades.” http://scbacademy.org/admissions/junior-senior-high-school-admissions/

- 8 -

B. Under The Voucher Scheme, Parents’ Choices Are Constrained By The Absence Of Adequate Information On Which To Base Their Decisions

The central rationale for school-choice schemes—the goal of “increas[ing]

academic outcomes for disadvantaged students by allowing them to attend higher-

performing schools”—rests on the “assum[ption] that disadvantaged families are

fully informed about school academic performance and choose higher-performing

schools when offered the opportunity to do so.”2 Thus, the notion that “parental

accountability” ensures that participants in the voucher scheme here will receive

high-quality education depends, at the most basic level, on the assumption that

voucher recipients have adequate information on which to base decisions—

specifically, information about private schools’ performance that can serve as a

basis for comparing between and among private schools and public schools. That

assumption does not hold true here.

There is wide agreement, even among free-market advocacy organizations

that favor school choice schemes, that accurate, accessible information is critical to

“the market-based logic for school choice.” Empirical studies focusing on public

2 Douglas N. Harris & Matthew Larsen, What Schools Do Families Want (and Why)? at 3, 6 (Educ. Research Alliance for New Orleans 2015) http://educationresearchalliancenola.org/files/publications/Technical-Report-Final-Combined.pdf.

- 9 -

school choice in the Charlotte-Mecklenburg district3 and in New Orleans,

“arguably the most competitive school market ever developed in the United

States,”4 bear this out. The Charlotte-Mecklenburg study demonstrated that lower-

income parents’ access to “direct information on school test scores resulted in

significantly more parents choosing higher-scoring schools.”5 And the New

Orleans study similarly found that the quality and accessibility of information on

schools’ academic performance significantly increased “[t]he demand for academic

quality.”6

Thus, for a school choice program to meet the stated aim of improving

education outcomes for disadvantaged students, it is critical to provide, at the

barest minimum, “sufficient regulations” and “access to information … to ensure

3 Justine Hastings & Jeffrey Weinstein, “Information, School Choice, and Academic Achievement: Evidence from Two Experiments,” 123 Quarterly J. of Econ. 1373, 1412 (2008), available at http://justinehastings.com/images/downloads/HastingsWeinstein_InfoChoiceOutcomes.pdf. 4 Harris & Larsen, supra n. 2 at 5-6. 5 Hastings & Weinstein, supra note 3 at 1375. 6 Harris & Larsen, supra note 2, at 6.

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that parents have the capacity to exercise choice on a level playing field.”7 That

barest minimum is not met with respect to voucher schools in North Carolina.

North Carolina public schools—including public schools of choice such as

charter schools—are required to administer and publish the results of statewide

end-of-grade and end-of-course tests, see N.C. Gen. St. §§ 115C-174.10 through

115C-174.12. These requirements are in place to ensure that “high school

graduates possess those minimum skills and that knowledge thought necessary to

function as a member of society” and that the public education system “is

accountable to the public for results” See N.C. Gen. St. § 115C-174.10. To these

ends, the State Board of Education discloses detailed test-result data, along with

graduation rates and information as to schools have met annual performance

targets, publicly available on its website.8 It also uses statewide test results and

other data to issue “School Report Cards” with detailed, but easy-to-digest,

information not only about student performance at each school, but also about class

size, school safety, and teacher quality.9

7 Lynn Bosetti, Determinants of School Choice: Understanding How Parents Choose Elementary Schools in Alberta, 19-4 J. of Educ. Policy 387, 402 (2004), available at http://193.140.134.6/~gokturk/sbox2/rationalchoicetheory.pdf. 8See http://www.ncpublicschools.org/accountability/reporting/. 9See http://www.ncreportcard.org/src/.

- 11 -

Voucher schools, on the other hand, are not subject to any remotely

comparable accountability measures. Instead of the uniform, statewide end-of-year

and end-of-grade tests required of public schools, private voucher schools are

required only to administer an annual standardized test of their own choosing,

which need only cover English and mathematics. N.C. Gen. Stat. § 115C-

562.5(a)(4). These private-school-chosen tests are not required to measure any

achievement benchmarks, and private schools are not required to meet any student-

growth targets. Voucher schools with at 25 or more voucher recipients are required

to disclose test results only for students who received vouchers—and not for any

other students—and private schools with fewer than 25 voucher recipients are

exempt from test-result disclosure altogether. See N.C. Gen. Stat. § 115C-562.5(c).

Consequently, while North Carolina parents have access to rich data on

public school performance—based on uniform, statewide assessments and other

date—the sub-minimal testing and disclosure requirements for private schools

leave parents with no meaningful academic-achievement information with which

to make informed judgments as to the relative academic performance of private

schools—and thus to make an informed choice whether to send their children to

voucher schools in the first place, or to choose among various voucher schools.

Indeed, Intervenor Parents candidly acknowledge—albeit in a footnote—the reality

- 12 -

that “[b]ecause students in North Carolina public and private schools do not take

the same end-of-year reading and math tests, one cannot compare their

performances directly.” Intervenor Parents’ Brief at 25 n.23.10

As a result, the voucher scheme sets voucher recipients adrift in a largely

opaque private-school market, with little to go on other than what private schools

choose to disclose for their own marketing purposes. Parents with limited

information to draw upon in deciding which school to choose will of course be

10 Intervenors Parents go on to assert that a comparison of average scores on the National Assessment of Education Progress (“NAEP”) nationally demonstrates that private schools “outperform” public schools. Id. Leaving aside the fact that aggregate national statistics say nothing about North Carolina schools in particular, this claim is inaccurate. While it is true that the national average of NAEP scores in reading and mathematics is higher for private schools than for public schools, a head-to-head comparison of average test scores is highly misleading as an indicator of relative performance because private schools have selective admissions, while public schools are required to be open to all students. For this reason, the National Center for Education Statistics, which administers the NAEP, conducted a study comparing average private- and public-school reading and mathematics scores for fourth and eighth graders, controlling for, inter alia, students’ race/ethnicity, disability status, and identification as English language learners. Henry Braun, et al., “Comparing Private Schools and Public Schools Using Hierarchical Linear Modeling,” at iii (U.S. Dep’t of Educ., Nat’l Ctr. for Educ. Statistics 2006), available at http://nces.ed.gov/nationsreportcard/pdf/studies/2006461.pdf. Controlling for those factors, the study found that private and public schools performed essentially the same: In reading, the difference in scores for fourth graders were “near zero and not significant,” while the eighth-grade scores were somewhat higher for private schools. Id. at iii-iv. And in mathematics, scores for fourth graders were higher for public schools while the difference for eighth graders “was nearly zero and not significant.” Id.

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more prone to error, and it is no answer to say that that parents may simply change

schools if they discover they chose poorly (see Intervenor Parents’ Brief at 28),

both because the “the cost of switching schools means that initial poor decisions

due to limited information partially persist into the future”11 and because the lack

of meaningful information on private schools means that switching to another

voucher school is just another roll of the dice.

C. Under the Voucher Scheme, Parents’ Choices Are Constrained Because Low-Income Parents’ Choices Are Influenced By The Indirect Costs Associated With Private School Attendance

Compounding the selective enrollment policies of private voucher schools

and the absence of adequate information on which to choose among schools is the

fact that lower-income parents’ choices also are constrained by the indirect costs of

attending private schools—such as the costs of transportation and after-school care.

School choice studies have consistently shown that lower-income parents,

while concerned about academic achievement, are strongly influenced in their

actual school choices by the proximity of schools and the availability of

extracurricular activities, such as band or team sports programs, that are conducted

11 Harris & Larsen, supra note 2, at 6.

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in the after-school hours.12 This is not to say that low-income parents do not value

academic quality. To the contrary, “While these families prefer academically

stronger schools over weak ones (other things equal), their low incomes pose

constraints in transportation and child care.”13 Low-income parents are “more

reliant on schools to cover the cost of transportation and child care,”14 making their

school choices limited by economic constraints.

With respect to transportation, the data show that “school choice and

information are most effective” for parents generally “when [they] have quality

alternatives within a reasonable distance,”15 but that low-income families are

particularly sensitive to the costs of transportation because they are “less likely to

own automobiles used for many purposes,” thus “increas[ing] the marginal cost …

of sending their children further away.”16 Since transportation costs are not

regularly provided by private schools, low-income parents’ choices within the

voucher scheme will of necessity gravitate toward nearby schools or schools that

offer transportation, irrespective of the academic strength or weakness of those 12 Harris & Larsen, supra note 2, at 5. 13 Id. at 4. 14 Id. at 5. 15 Hastings & Weinstein, supra note 3, at 1412. 16 Harris & Larsen, supra note 2, at 4-5, 27.

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schools. Indeed, the State Board of Education’s Department of Public Instruction

conducted a study of the effect of transportation options on charter school choice,

finding that the lack of transportation “coincides with lower enrollment of low-

income students.”17

Low-income parents’ preference for schools offering after-school extra-

curricular activities follows the same logic. Low-income parents are less able to

pay for after-school child-care services than their wealthier peers, and are often

unavailable to supervise their children after school because they also are unlikely

to have flexible work hours and are often single parents and sole wage earners.18

As a result, low-income families are driven toward schools that offer

extracurricular activities to such an extent that “academics are over-shadowed by

indirect costs and extracurriculars among the lowest-income families.”19

In sum, even if, contrary to reality, low-income parents in North Carolina

had access to adequate information regarding the academic performance of

voucher schools, their school choices would still predictably be constrained by 17Shelby Dawkins-Law & Azaria Verdin, Public Charter Schools with Transportation: Increasing Access to Learning Opportunities for All Students (N.C. St. Bd. of Educ. 2013), available at http://www.dpi.state.nc.us/docs/intern-research/reports/cstransport.pdf. 18 Harris & Larsen, supra note 2, at 27-28 n. 43. 19 Id. at 4-5.

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indirect costs, driving them toward nearby schools and schools that offer after-

school activities, often at the expense of academics. These basic constraints on

low-income families further undermine the assumption that vouchers will improve

the academic achievement of children from low-income families.

* * * *

In sum, there is no substance to the idea that parents’ choices in the private-

school marketplace under the voucher scheme can serve as an adequate substitute

for the public accountability over public education expenditures contemplated by

Article V, Section 2 of the North Carolina Constitution. Because the private-school

marketplace that the voucher scheme subsidizes is woefully under-regulated, low-

income parents’ choices in that marketplace are severely constrained by private

schools’ discrimination against those low-income students with the highest

educational needs, by inadequate information, and by the indirect costs of private-

school attendance.

II. PRIVATE-SCHOOL VOUCHER SCHEMES SUCH AS THE SCHOLARSHIP GRANTS PROGRAM AT ISSUE HERE DO NOT IMPROVE PUBLIC EDUCATION THROUGH COMPETITION BUT ARE INSTEAD LIKELY TO HARM PUBLIC EDUCATION

Taking the misguided idea that the private-school marketplace works as a

constitutional panacea one step further, amicus PLF posits that private school

- 17 -

vouchers will foster competition between private schools and public schools and

thus spur improvements to educational outcomes in the public school system. See

PLF Brief at 14, 20-21. But sound research debunks that speculation as well.

To support the contention that the choice provided by vouchers improves

public schools, PLF relies primarily on advocacy research produced by the

Friedman Foundation for Educational Choice—“the nation’s leading advocate for

vouchers”20—namely, the 2013 version of the Friedman Foundation’s A Win-Win

Solution, by Greg Forster21 (referred to herein as the “Forster Report”). See PLF

Brief at 19-20. Indeed, PLF’s assertion that “[f]or years, commentators have

advanced the commonsense notion” (id. at 19) that school choice will induce

competitive effects that improve schools is only accurate in the sense that the

Friedman Foundation has published three iterations of the same report since

2009.22

20 Editorial Board, Extra Credit, The Wall Street Journal (Sept. 5, 2001), available at http://online.wsj.com/news/articles/SB999644023712952343. 21 Greg Forster A Win-Win Solution: The Empirical Evidence on School Choice (Friedman Found. for Educ. Choice 3d ed. 2013), available at http://www.edchoice.org/CMSModules/EdChoice/FileLibrary/994/A-Win-Win-Solution--The-Empirical-Evidence-on-School-Choice.pdf. 22 See Forster, supra note 22; Greg Forster, A Win-Win Solution: The Empirical Evidence on School Vouchers (Friedman Found. for Educ. Choice 2d ed. 2011), available at http://www.edchoice.org/CMSModules/EdChoice/FileLibrary/656/A-

- 18 -

The Forster Report, first of all, completely ignores widespread disagreement

over the impact of voucher programs—both in terms of whether such programs

increase achievement among participants and whether they improve public schools

through a competition effect—and glibly asserts that the “evidence points clearly

in one direction … consistently show[ing] that choice improves academic

outcomes for participants and public schools.”23

To the contrary, in 2007, the RAND Corporation undertook an “exhaustive

review” of studies on vouchers and concluded that “none of the important

empirical questions”—including the question of whether vouchers even improve

the academic performance of participating students, much less have positive

spillover effects on public schools—“has been answered definitively.24 To the

Win-Win-Solution---The-Empirical-Evidence-on-School-Vouchers.pdf; Greg Forster, A Win-Win Solution: The Empirical Evidence On How Vouchers Affect Public Schools The Empirical Evidence on School Vouchers (Friedman Found. for Educ. Choice 2009) , available at http://www.edchoice.org/CMSModules/EdChoice/FileLibrary/357/A%20Win-Win%20Solution%20-%20The%20Empirical%20Evdence%20on%20How%20Vouchers%20affect%20Public%20Schools.pdf;. 23 Forster Report, supra note 22, at 1. 24 Brian P. Gill, et al., Rhetoric Versus Reality: What We Know and Need to Know About Vouchers and Charter Schools 217 (RAND Corporation 2d Ed. 2007) http://www.rand.org/content/dam/rand/pubs/monograph_reports/2007/RAND_MR1118-1.pdf.

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extent that rigorous studies have been performed on the impact of vouchers, “the

evidence has been inconclusive with no clear consensus that any [voucher

programs] are having strong effects on test scores.”25 A study of Milwaukee’s

voucher program found “no difference” in performance between achievement

gains of private school voucher recipients and a matched sample of public school

students.26 Another study, conducted by the Federal Reserve Bank of Chicago,

concluded that “the best research to date finds relatively small achievement gains

for students offered education vouchers, most of which are not statistically

different from zero.”27

More recently, in 2011, the Center on Education Policy (“CEP”) reviewed

more than 30 voucher studies, reviews of voucher studies (including the 2011

iteration of the Friedman Foundation’s Forster Report), and critiques.28 Based on

25 Nancy Pindus, et al., Urban and Regional Policy and Its Effects Vol 3 No. 5 (Brookings Institution 2008). 26 John F. Witte, et al., The MPCP Longitudinal Educational Growth Study Third Year Report 14, 15(School Choice Demonstration Project, Dep’t of Educ. Reform, Univ. of Ark. 2010), available at http://files.eric.ed.gov/fulltext/ED511697.pdf. 27 Cecilia E. Rouse & Lisa Barrow, School Vouchers and Student Achievement: Recent Evidence, Remaining Questions 20-24 (Fed. Reserve Bank of Chicago 2008) , available at http://www.ncspe.org/publications_files/OP163.pdf. 28 Alexandra Usher & Nancy Kober, Keeping Informed about School Vouchers: A Review of Major Developments and Research, (Ctr. on Educ. Policy 2011), available at http://www.cep-dc.org/displayDocument.cfm?DocumentID=369.

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this comprehensive review, CEP found that “achievement gains for voucher

students are similar to those of their public school peers” of similar mobility, prior

achievement, and minority status, and also found that although there were modest

achievement gains among public schools where voucher programs were instituted

in a few cases, “it is difficult, if not impossible to decisively attribute the causes of

achievement gains” to voucher programs, especially given the number of other

educational policy changes in play.29 “While some studies have found limited test

score gains for voucher students in certain subject areas or grade levels, these

findings are inconsistent among students, and gains are either not statistically

significant, not clearly caused by vouchers, or not sustained in the long run.” 30

Rather than acknowledge the absence of any consensus among independent

academic researchers that vouchers have positive effects on participants or public

schools, the Forster Report, in the words of one reviewer, “selectively reads the

evidence” and relies on studies that were themselves “produced by voucher

advocacy organizations” and that lack “methodology, interpretation, and

generalizability.” 31

29 Id. at 9, 11 30 Id. 31 Christopher Lubienski, Review of a Win-Win Solution at 5 (Nat’l Educ. Policy

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Beyond its reliance on dubious advocacy research, PLF cites studies that do

not address the purported competition effect at all, and it fails to acknowledge

findings that undercut its position. For instance, PLF highlights a U.S. Department

of Education study of Washington, D.C.’s voucher program as supporting its

position that voucher programs help improve student achievement in public

schools. But that study does no such thing. The study did not even address the

purported competition effect of vouchers on public schools but instead focused

Ctr. 2009), available at http://nepc.colorado.edu/thinktank/review-win-win-solution. While this paper reviews the 2009 version of the Forster Report rather than the more recent version cited by PLF, the 2013 version has the same flaws in methodology and analysis as the 2009 version. For example, the Forster Report relies heavily on a study from the Manhattan Institute, a conservative think tank that advocates for school choice, to argue that Florida’s A+ Program produced positive competition effects on public schools. See Forster Report, supra note _, at 19-20 (citing Jay Greene, An Evaluation of the Florida A-Plus Accountability and School Choice Program, (Manhattan Institute 2001)), available at http://www.hks.harvard.edu/var/ezp_site/storage/fckeditor/file/pdfs/centers-programs/centers/taubman/working_papers/greene_01_florida.pdf). That study was thoroughly debunked by peer-reviewed, non-advocacy research, which found its results “implausible” and stated that they “should have been submitted to additional methodological scrutiny.” Gregory Camilli & Katrina Bulkley, Critique of “An Evaluation of the Florida A-Plus Accountability and School Choice Program,” Educ. Pol’y Analysis Vol. 9 No. 7, at 13 (2001), available at http://epaa.asu.edu/ojs/article/view/336/462 (concluding that Greene’s Florida study vastly overstated the competition effect by computing aggregate school gains rather than individual gains, failing to account for an average trend in score growth that had nothing to do with vouchers, and declining to account for the regression to the mean that one statistically expects when observing the extreme low end of the distribution).

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only on the performance of students participating in the voucher program. And,

even so, PLF also fails to acknowledge the key finding of the study that, with

respect to voucher recipients, “[t]here is no conclusive evidence that the [voucher

program] affected student achievement.”32 What PLF does cite is the study’s

finding that the voucher program improved voucher program participants’ chances

of graduating from high school, but that finding says nothing about competition

effects either, and is in any event completely misleading in isolation. That is

because the finding that the voucher program increased participants’ graduation

rates even though “students may not have raised their test scores in reading and

math as a result of the [voucher program,”33 simply suggests that the voucher

schools had more lax graduation criteria than public schools. The other two

publications cited by PLF are similarly unsupportive of its position.34

32 Patrick Wolf et al. Evaluation of the DC Opportunity Scholarship Program: Final Report at xv (U.S. Dep’t of Educ. 2010), available at http://ies.ed.gov/ncee/pubs/20104018/pdf/20104018.pdf. 33 Id. 34 The first, a follow-up study of the Washington, D.C. voucher scheme by the same author, also studied only voucher scheme participants and found no significant improvements in academic performance. See Patrick Wolf, et al., School Vouchers and Student Outcomes: Experimental Evidence from Washington, D.C., 32 Pol’y Analysis & Mgmt 246, 266 (2013). The other study cited by PLF also focused solely on voucher participants and even as to them, only examined graduation rates, not academic performance. See Matthew Chingos, et al., The

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There is, in sum, no merit to PLF’s claim that studies consistently show that

voucher schemes improve public education. Moreover, there is substantial

evidence that voucher schemes may harm public schools. As a consequence of

self-selection by motivated parents, combined with the discriminatory enrollment

practices documented in Part I, the voucher program will likely result in schools

stratified by academic ability and special needs, with low-achieving and special-

needs students concentrated in the public school system (which will have

diminished funding due to declining enrollment), and private schools “cream-

skimming” the higher-performing, non-special-needs students who require fewer

resources to teach.35 Research has demonstrated that the departure of higher-

performing students from a school deprives other students of positive peer effects,

Effects of School Vouchers on College Enrollment at iii-iv (Brown Ctr. For Educ. Policy at Brookings & Harvard Kennedy Sch. Program on Education Policy and Governance 2012). 35 See Helen F. Ladd, School Vouchers: A Critical View, 16 J. of Econ. Perspectives 3, 19-21 (2002) http://fds.duke.edu/db/attachment/265. See also Brian P. Gill, et al., Rhetoric Versus Reality: What We Know and Need to Know About Vouchers and Charter Schools (RAND Corp. 2d ed. 2007), available at http://www.rand.org/content/dam/rand/pubs/monograph_reports/2007/RAND_MR1118-1.pdf (stressing the importance of open admissions among schools of choice because “[s]tratification of students by academic ability and consequent negative peer effects on academic achievement are likely to be greater in a system that permits schools to choose their students”).

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and thus “adversely affects the[] low ability peers remaining behind.”36 Indeed, a

study of the effects of school choice in Durham concluded that “school choice

programs in Durham have allowed higher achieving schools to cream-skim

educationally advantaged students from many neighborhood schools,” and that

“schools with concentrations of disadvantaged students and schools located near

choice schools attractive to high achievers are particularly hard hit by cream-

skimming.”37 This led the authors of the Durham study to conclude that “any

benefits of expanded school choice that accrue to those able to take advantage of it,

might come at the expense of poorer learning environments for those left

behind.”38

Research from other countries that instituted voucher schemes confirms the

risk that voucher programs can harm public education. In Chile for example, the

country’s 1980s experiment in providing per-pupil funds for students choosing to

attend private school allowed private schools to accept or reject whomever they

wished; the result was middle-class flight from public schools, a more stratified

36 Angela K. Dills, Does Cream-Skimming Curdle the Milk? A Study of Peer Effects, 24 Econ. Educ. Rev. 19, 27 (2005) 37 Robert Bifulco, et al., The Effects of Public School Choice on Those Left Behind: Evidence from Durham, NC, 84 Peabody J. of Educ. 130 (2008). 38 Id.

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education system, and an overall decline in student achievement in areas with a

significant private sector presence.39 The same was true for New Zealand’s

voucher program. When that country instituted its universal school choice

program, the highest performing schools rejected at-risk students and “did

everything they could to maintain the mix of students that made them attractive to

parents and students in the first place,” and consequently “exacerbated the

problems of the schools at the bottom of the distribution and reduced the ability of

those schools to provide an adequate education.”40

There is no reason to assume that North Carolina’s voucher program will

function any differently, given its current design and the discriminatory practices

being employed by voucher schools in the state. The voucher scheme will in all

likelihood not only fail to deliver benefits to the public education system, but

instead likely harm the public education system as a whole given the cream-

skimming effect that occurs in school choice schemes that do not require open

39 Chang-Tai Hsieh & Miguel Urquiola, The Effects of Generalized School Choice on Achievement and Stratification: Evidence from Chile’s Voucher Program, 90 J. Pub. Econ. 1477, 1488, 1498-99 (2006), available at http://www.columbia.edu/~msu2101/HsiehUrquiola(2006).pdf. 40 Ladd, supra note 36, at 7-8, 19.

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enrollment among schools of choice. Such effects are the very antithesis of a

“public purpose.”

CONCLUSION

For the foregoing reasons, amicus NEA respectfully submits that the Court

affirm the trial court’s judgment.

Respectfully submitted, this 2d day of Feburary, 2015.

s/Luke Largess Luke Largess Tin Fulton Walker & Owen 301 East Park Avenue Charlotte, NC 28203 (704) 338-1220 LLargess@tinfulton.com Philip Hostak* National Education Association\ 1201 16th Street NW Washington, DC 20036 Tel: 202-8222-7035 Fax: 202-822-7033 Email: phostak@nea.org *pro hac vice application pending

N.C. R. App. P. 33(b) Certification: I certify that all of the attorneys listed

below have authorized me to list their names on this document as if they had personally signed it.

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CERTIFICATE OF SERVICE The undersigned counsel for the National Education Association hereby

certifies that a copy of Brief for the National Education Association as Amicus

Curiae was sent via first class mail, postage prepaid, addressed as follows:

Lauren M. Clemmons North Carolina Department of Justice P.O. Box 629 Raleigh, NC 27602 Noah H. Huffstetler III Stephen D. Martin Nelson Mullins Riley & Scarborough 4140 Parklake Ave., Suite 200 Raleigh, NC 27612 John E. Branch, III Shanahan Law Group, PLLC 128 E. Hargett St., Suite 300 Raleigh, NC 27601

Richard D. Komer Robert Gall Renée Flaherty

Institute for Justice 901 N. Glebe Road, Suite 900 Arlington, VA 22203 Burton Craige 1312 Annapolis Dr., Suite 103 Raleigh, NC 27607 Narendra K. Ghosh Patterson Harkavy LLP 100 Europa Dr., Suite 250 Chapel Hill, NC 27517 Carlene McNulty Christine Bischoff North Carolina Justice Center 224 South Dawson Street Raleigh, NC 27601

This the 2d day of February, 2015.

s/Luke Largess