A Book, an Idea and a Goat.
From ‘A Book, an Idea and a Goat,’ Andru Volinsky’s weekly newsletter on Substack that is primarily devoted to writing about the national movement for fair school funding and other means of effecting social change. Here’s the link: https://substack.com/@andruvolinsky?utm_source=profile-page
By ANDRU VOLINSKY
Vouchers are all the rage in NH thanks in large part to Education Commissioner Frank Edelblut who promised the cost would be about $3 million in the first two years. It was actually $23 million and 90 percent of that went to parents who were already sending their kids to private or religious schools or homeschooling. Edelblut also promised that the goal of vouchers was to provide choice for low-and-moderate-income families. There is now legislation to make families eligible with incomes up to five times times the poverty level, about $150,000. The next legislature will seek to remove all income limitations.
Vouchers, of course, have a terrible origin. They were used to reimburse parents who sent their kids to all-white academies to avoid Brown v. Board’s desegregation decree. Reimbursement for private academy tuitions was the first use of vouchers but the history isn’t all bad. Vouchers were considered and rejected by the Supreme Court to tear down segregation, presumably because they would have immediately given Black children relief. “With all deliberate speed” was instead the preferred remedy as it provided a more gradual response to Brown. Some state courts have used vouchers to remedy school funding failures as we’ll see below in the story of Texas.
Commissioner Edelblut now says the voucher program can’t be audited. We should just trust the money is going where it is supposed to go.
I don’t trust Commissioner Edelblut.
Do you?
Edelblut says the voucher subsidies are not taxable. Should you believe him?
Whether voucher money is taxable by the IRS is a question of federal law and neither Frank Edelblut or the NH legislature controls how the IRS treats the receipt of voucher payments.
NH, for its part, doesn’t recognize the federal status of non-profits to determine charitable exemptions from state and local property taxes. RSA 72:23-l. Why shouldn’t the IRS make its own determination of whether taxes should be paid on vouchers?
If vouchers aren’t intended to be a “religious schools relief act,” why shouldn’t vouchers be available to defray the cost of public schools?
This could happen in a system where children can attend school in any district as long as they have transportation and their parents pay the average state per pupil cost—less the value of the voucher. Think of a family stuck in a low wealth, highly-challenged school district with a tax cap, like Manchester. Why shouldn’t they be able to send their children to school in Bedford or Amherst? Of course, this is not as good as getting Manchester the resources it sorely needs, but….
Texas: Edgewood School District v. Kirby.
Justice Powell put an end to the federal recognition of an adequate education in the San Antonio Schools case (1973) by heeding the advice of the lawyer for Texas, Prof. Charles Wright, who previously represented Nixon. The two men upheld the Texas system that favored the white and wealthy. Wright, in congratulating Powell, noted that the Texas legislature would soon fix things.
One hopes Powell and Wright were not betting men. Their misplaced wager on the good faith of the Texas legislature condemned another generation of children to dangerous physical facilities and disadvantages that impacted them for the rest of their lives. The Texas legislature ignored the plight of poor and minority students until it was sued, again.
A group of eight property-poor school districts representing one million children sued the state after more than 10 years of waiting for legislative action, The legal team was led by Al Kaufman of the Mexican American Legal Defense and Education Fund (“MALDEF”).
The Intercultural Development Research Association (“IDRA”), a Texas advocacy group led by Dr. Jose Cardenas, the former Edgewood superintendent, was deeply involved in the litigation. IDRA acted as advocate, provided research support and expert testimony, and engaged in extensive community organizing.
The case became known as Edgewood School District v. Kirby.
IDRA helped solve one of the problems encountered in the original San Antonio case by compiling relevant data that were not collected by the state of Texas in the 1960s. The data made things clear.
It’s no wonder that the state in our Rand case and in the ConVal case tries to walk away from its own data. The data show there are big problems and huge inequities.
Judge Haley Clark presided over a three-month-long trial in the Edgewood case. Fun fact: Judge Clark was the former Texas cheerleader who invented “hook-em horns.”
Plaintiffs introduced extensive evidence of inequities caused by unequal funding. The state of Texas and the intervenors, who were like the 26 NH Coalition Communities, defended by claiming the system was “equitable for a majority of districts,” money doesn’t matter, and making the system fair would undermine local control.
These are some of the same defenses raised in the NH cases and in cases around the country.
Judge Clark found that the eight times wealth discrepancy that existed between Edgewood and Alamo Heights in 1967-68 had grown to almost 15 times by 1985-86 because the problems of unequal funding went unaddressed. Problems caused by a lack of resources had grown worse and, in this case, school buildings were a significant concern because the state did not pay for capital expenses like buildings, much like NH.
Judge Clark also concluded that district boundaries, which determined the property wealth available to school districts, had nothing to do with how much money districts needed to educate children. The differences in property wealth were stark. The wealthiest district in Texas had $14 million in taxable property for every child in the district. The poorest district had $20,000 per child. Judge Clark also found it was the poorest districts with the highest needs.
NH’s differences aren’t as stark but they’re pretty bad. The three wealthiest districts with at least 100 students—Lincoln, Moultonborough and Freedom—have an average property wealth of about $12 million per child against which they can levy education taxes. The comparable three school districts with the lowest property wealth—Charlestown, Claremont and Berlin—have an average of about $820 thousand per child, a wealth difference of over 14 to 1.
Judge Clark wrote: “Local control is largely meaningless except to the extent that the wealthy districts are empowered to enrich their educational programs through their local property tax base, a power that is not shared equally by the State’s property poor districts.” Clark also found that a fair and equitable system that helped districts without property wealth would not undermine local control.
The Texas legislature responded to Judge Clark’s thoughtful ruling with calls to amend the Texas state constitution. Texas also appealed Clark’s ruling and the state’s intermediate appellate court reversed Clark by a 2-1 vote. Now it was plaintiffs’ turn to appeal, this time to the Supreme Court of Texas.
The Texas Supreme Court ruled for the poor districts in a unanimous decision incorporating many of the same themes as Judge Clark. The disparities between rich and poor districts were “glaring.” The Texas state foundation aid program underestimated most costs, excluded costs for buildings and did not contribute enough to local school districts to meet even minimum standards.
Sound familiar?
The Texas Court found that money makes a difference and, in an important passage noted the downward spiral caused by the Texas system: “Property-poor districts are trapped in a cycle of poverty from which there is no opportunity to free themselves … The location of new industry and development is strongly influenced by tax rates and the quality of local schools … the property-poor districts with their high tax rates and inferior schools are unable to attract new industry or development and so have little opportunity to improve their tax base.”
The legislature’s response to the ruling was “unhelpful” and eventually, the judge who replaced Judge Clark on his retirement, F. Scott McCown,appointed a group of experts to recommend a remedy before the entire state school system shut down.
The panel of experts produced a viable funding plan within 45-days and were set to present their plan to Judge McCown when Governor William Clements hurriedly announced a press conference at the state capitol to announce his own plan that the legislature quickly passed. That plan was shot down as ineffective by the Texas Supreme Court in Edgewood II.
Texas then passed a plan that mandated tax base-sharing. The plan was immediately challenged by wealthy districts and in Edgewood III the Texas Supreme Court found the plan unconstitutional on technical grounds.
Eventually, the Texas Legislature passed a complicated bill known as SB 7 that provided wealthy districts with options to address the technical concerns. Wealthy districts could choose to:
- share the financial benefits of their valuable property tax bases through formal consolidation with poor districts,
- adopt a voucher approach that accepted students from low-wealth districts, or
- share property wealth through a consolidation of tax bases, with the administration of the schools kept separate.
If the wealthy districts failed to choose, the state was empowered to transfer commercial parcels from wealthy districts to the tax bases of low wealth districts or to require districts to formally consolidate.
IDRA’s Dr. Cardenas noted the difficulty of changing long-standing inequities, the buck-passing of elected officials unwilling to do “what decency, justice, common sense and the best interests of the state demand,” and the ease with which opposition to new taxes can be energized. He also pointed out that equity in facilities should have been part of the fight from the outset.
The problems of inequitable and inadequate funding have been dramatically lessened by the Edgewood litigation. However, there is a need to remain vigilant and to have well-developed, financially stable institutional bases for advocacy in the legislature and before the courts. These efforts must be complimented with continuous, ongoing public engagement backed by strong policy and research centers located in the state.
Advocates must press for progress with all three branches and tell the stories that grab people’s hearts. Every social justice dispute—include school funding—involves the well-heeled and most privileged bringing to bear substantial resources and connections to maintain the status quo. Those who challenge things as they are, must do the same. There must be a consistent presence in the legislatures. Efforts to educate and mobilize grassroots constituencies must be initiated and sustained over time. Fair school funding advocates must be cautious in relying on existing associations that often have conflicting interests within their ranks. Finally, the lawyers’ efforts must be coordinated with those of the citizen-lobbyists and grassroots activists.
Columns express the opinion of the writer. InDepthNH.org welcomes diverse opinions as op-eds by emailing nancywestnews@gmail.com