WILL Comments on Accountability Bill

Yesterday, certain legislators circulated a proposed bill designed to impose more robust “accountability” measures on schools in Wisconsin, including those participating in the school choice program.  While accountability in education is a worthy goal, the proposed legislation strengthens the state Department of Public Instruction’s grip on school choice – expanding both its power and the discretion with which it can exercise that power.  By history and design, DPI has always been hostile to school choice.  You do not strengthen a program by placing it in the hands of its enemy.  “At the end of the day, I don’t see how anyone who supports school choice could vote for this bill.  It needs to be fixed,” says WILL President Rick Esenberg.

In December, WILL released a report on the existing state accountability laws, “Let’s Begin By Understanding Where We Are.”  We concluded that the current state accountability laws and regulations on private schools in the choice program are at least as rigorous as those imposed on public schools.  We also noted that DPI is interpreting the laws in ways that deviate from the statutory language, making it more demanding than originally intended by the Legislature.  While outcome-based accountability for both public schools and the choice program may well be warranted, we cautioned policymakers about giving more power over school choice to the DPI.

The latest accountability bill moves the ball backwards.  It creates an “Academic Review Board” to determine and oversee the implementation of the accountability regulations, select the tests to be used by schools, and impose sanctions on failing schools.  However, a majority of the Boards’ members will likely be against school choice.  Essentially, the state Superintendent of Public Instruction (or his designee) will serve on the board and the SPI will also select an additional six members, giving him control over a majority of the 13 member board.  With the minority leaders in the Assembly and Senate also having appointments – in addition to the governor and majority leaders – it is likely that this Board will be composed of a supermajority of members who do not support school choice.  The Board should be an objective, independent board able to modify and update the statewide report card.  This bill would create something very different.

DPI should be given less discretionary authority over the choice program – not more.  In 2011, the DPI Superintendent Tony Evers said the expansion of vouchers to low-income children was “morally wrong.”  But the problem goes beyond that.  Wisconsin’s Superintendent of Public Instruction is almost guaranteed to be highly vulnerable to “regulatory capture,” i.e., controlled by those interests over whom he asserts power.  The SPI is elected in low-turnout spring elections in “off years” that are almost certainly guaranteed to be disproportionately influenced by those most affected by his or her actions.  Historically, that has been the state’s teachers unions.  As a result, DPI has traditionally been hostile to school choice, a policy that the unions adamantly oppose.

After interviews with numerous private school leaders, a report by WILL and Education Action Group (EAG) concluded that the DPI was using its auditing powers in ways to harass choice schools.  According to one private school administrator, “DPI has gone out of its way in almost every instance possible to make our program hard to manage.”  DPI also releases data in ways to make school choice appear inferior to public schools.  For example, in 2013, DPI released test score data for the Milwaukee Parental Choice Program and MPS that did not include data for low-income students at MPS, making “apples” to “apples” comparisons more difficult.  In 2014, the DPI made inaccurate comparisons to conclude that MPS was outperforming the choice program.

This is not to say that there should not be strong accountability measures for the choice program. There already are audits and accreditation.  We have previously said that the best accountability policies are the ones that provide families with enough information and flexibility to identify the best education for their children and give them the financial ability to choose the best school – whether traditional public school, public charter school, or private school in the choice program.  Perhaps one would combine this with some form of sanctions for underperforming schools.

But doing so does not require increasing DPI’s discretionary authority schools participating in the choice program.  Indeed, there is no constitutional reason that DPI must administer the school choice program at all.  Whether or not the State Superintendent must control an entity such as the Academic Review Board for public schools (we believe that, properly understood, the constitution permits the legislature to prescribe another body for that specific task), there is no requirement that the Superintendent controls the administration of such standards for private schools participating in the choice program.  In Davis v. Grover, 166 Wis.2d 501, 538 (1992), the Wisconsin Supreme Court held that such schools are not “district schools.”

Nor is it necessary that the development of standards be accompanied by agency rule-making or left to agency discretion.  It is certainly possible for standards – and consequences – to be clearly delineated in the statutes themselves.

Finally, accountability is not synonymous with uniformity.  The value of school choice is not that private schools are “better” than public schools (some may be and some may not be), but that they are different and that these differences may result in a “better outcome” for certain students.  This suggests that, within limits, accountability standards must also be diverse reflecting the differing weights that parents put on various measures of school performance.

We applaud the legislature’s commitment to school choice and to excellence in education for all students.  But, because the stakes are so high, getting it right is more important than doing it fast. We recently saw what can happen when the legislature tries to do something – anything – to address a perceived problem. The creation of the Government Accountability Board may have solved some problems, but it created other – and more serious – difficulties.  A careful and comprehensive debate about accountability and the structure of any accountability measures is in order.

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