ALEC’s latest attack on Virginia’s public schools

Written by Larry Meadows:

Eighteen House Delegates and four State Senators are patroning a bill, HB 2238, in the General Assembly designed to unravel Virginia’s vaunted public education system. Ten of HB 2238’s patrons are confirmed members of the American Legislative Exchange Council (ALEC). Three–Delegates Steven Landes (R-25), Kirk Cox (R-66), and Mark Cole (R-88)–serve on ALEC’s Education Task Force. It should come as no surprise, then, that HB 2238 is eerily similar to model legislation featured on ALEC’s website.

ALEC explains that the legislation would “allow parents to use funds that would have been allocated to their child at their resident school district for an education program of their parents’ choosing.” If enacted, the state would disperse funds to parents via Education Savings Accounts (ESAs), in which the state would deposit 90% of the funds it would have spent educating a student within the public school system in a given school year. Stephanie Simon at Politico reports:

parents can use those funds–the amount ranges from $5,000 to more than $30,000 a year–to pay for personal tutors, homeschooling workbooks, online classes, sports team fees and many types of therapy, including horseback riding lessons for children with disabilities. They can also spend the money on private school tuition or save some of it for college.

Allowing parents to opt for private school educations at taxpayers’ expense could create significant problems because HB 2238 would not establish ESAs as a means tested program. Therefore, HB 2238 would empower parents already paying for private school educations out of their own pockets to subsidize their costs by defunding Virginia’s public schools. Initially, HB 2238 would empower parents of lesser means to follow suit. In the long run, however, HB 2238 would likely exacerbate family-income-linked inequality in educational attainment because of how the private school market would react to increased demand catalyzed by ESAs.

Increased demand for private school educations will trigger price increases in the private school market, as there are a limited number of seats in private school classrooms. ESA advocates will counter that greater demand will encourage educators to found new private schools, eventually tempering price increases. The rush to do so, however, is likely to create a tiered system in which high-income parents can afford to send their kids to more established and prestigious schools than low-income parents. Only the low-income parents’ education budgets would be constrained by the funds in their children’s ESAs. And so low-income parents are likely to have to settle for new, untested, cheaper private schools. Such schools are unlikely to recruit quality educators because they cannot offer salaries competitive with those of more established private schools; they may even decide to relax teacher recruitment standards. Thus, when the private school market reaches its new, ESA equilibrium, it would recreate and exacerbate the class disparities that already exist in the private and public school systems, but at a higher price.

In addition to the market inefficiencies that recreate and exacerbate systemic societal ills that harm our students, allowing parents to use ESAs to fund private school educations could, in some circumstances, violate the United States’ and Virginia’s respective constitutions. In 1947, the Supreme Court of the United States ruled in Everson v. Board of Education:

The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another […] No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

The Everson case, then, clearly forbids directing public school funds, derived from the state’s collection of various taxes, toward parochial schools as they are institutions that “teach or practice religion.” Furthermore, Virginia’s constitution includes a “Blaine Amendment“–Article IV, Section 16–which also prohibits public financing of parochial schools. Virginia’s Blaine Amendment reads:

The General Assembly shall not make any appropriation of public funds, personal property, or real estate to any church or sectarian society, or any association or institution of any kind whatever which is entirely or partly, directly or indirectly, controlled by any church or sectarian society.

Although the Virginia and United States constitutions both prohibit using public funds to subsidize parochial educations, HB 2238 blatantly encourages parents to use ESAs to pay for tuition at institutions that teach or practice religion. HB 2238 provides a definition of “qualified school,” that delineates the types of schools at which parents may direct ESA funds. According to HB 2238, a “‘qualified school’ means a private, sectarian or nonsectarian elementary or secondary school or preschool for students that is located in the Commonwealth and does not discriminate on the basis of race, color, or national origin.” Thus, HB 2238 directly challenges and violates state and federal constitutional precedents.

HB 2238’s unconstitutionality is not an innocent mistake committed by its ALEC patrons. ALEC knows constitutional precedents at the national and state level forbid public funding of religious schools. ALEC, in conjunction with the Institute for Justice, published a report titled “School Choice and State Constitutions: A Guide to Designing School Choice Programs” in which it cites Virginia’s Blaine Amendment as a roadblock to its plan to unravel the state’s public schools. The report states:

Virginia’s Constitution contains an express provision allowing publicly funded vouchers at private, non-religious schools. However, the Institute for Justice regards excluding the choice of religious schools as questionable constitutionally under the First Amendment and Equal Protection Clauses.

Including the constitutionally questionable “right to choose” religious schools in HB 2238, then, now reads like an ALEC attempt to find a way to challenge both Virginia’s and the United States’ constitutions. ALEC may be trying to find a way to take the issue into the court system. It certainly would not be the first time it did so.

Though it does not resolve HB 2238’s constitutional conundrums by any means, ESA advocates will point out HB 2238 would allow parents to choose cheaper, non-parochial alternatives to brick-and-mortar (private) schools, such as the virtual education programs ALEC’s corporate sponsors provide. K12 Inc. is one such sponsor. One that would likely see a surge in profits if Virginia adopted HB 2238. Stephanie Saul profiled K12 Inc. for the New York Times three years ago. Saul’s profile should raise fears about allowing parents to choose a K12 education for their children.

Although K12 is a remarkable success by Wall Street standards, Saul found that K12’s educational standards, or lack thereof, leave much to be desired. Instead of a company intent on providing students the full opportunity of a quality education, “a portrait [emerged] of a company that tries to squeeze profits from public school dollars by raising enrollment, increasing teacher workload and lowering standards.” K12’s students reflect that portrait of a successful-but-failing company. Many of K12’s students are passing by the company’s standards, but are failing by any other reasonable standard. Saul cites “an analysis by the Carroll County Public School District in Virginia,” that showed that, “students in the virtual program there performed worse than the regular students in 19 of 26 categories on the state assessment test.” Thus, in Virginia, the results already indicate that ESA funds directed toward “education opportunities” like K12 would be a significant waste of taxpayers’ money, not to mention students’ time and potential.

Despite allowing parents to spend ESA funds on a wide range of “educational” resources, services, and activities, HB 2238 does not establish concrete standards by which to assess the quality of the education provided. Parents would thus have a difficult time assessing their students’ performance and educational development. This would disproportionately hurt lower-income parents who are less likely than high-income parents to have the time and fiscal resources to guarantee their students a quality education in the decentralized and privatized education system HB 2238 is meant to engender. Such an education system makes it much more difficult for parents to organize themselves to demand changes to widespread problems that occur within such a system. However, such a system does make it easier for private hands to turn risk-free profits at taxpayers’ expense, which probably does not dismay ALEC’s education-sector supporters.

HB 2238’s patrons and its supporters beyond the General Assembly’s halls will contend that HB 2238 will not lead to such a system because few people are eligible for ESA under the legislation in its current form. At the moment, the only students eligible are those with recognized disabilities or those receiving special services from a school division. This allows HB 2238’s supporters to frame their support of ESAs, as Del. LaRock does, as an attempt to “empower students with special and unique needs to get the full opportunity that a quality education provides.” Under current Virginia law, however, ESAs are solving a problem for which the state already provides a solution. State law already provides that if a public school can’t provide adequate resources for a disabled child, they have to pay for private schooling. That Virginia already provides children with special needs with the resources to opt for private schooling if their local public schools cannot meet their needs belies the purported motives of establishing ESAs. It suggests an ulterior motive is guiding HB 2238 through Virginia’s General Assembly. Del. LaRock hinted at an ulterior motive when Politico asked him to comment on his push for an ESA program in Virginia. “As outcomes are demonstrated,” Del. LaRock said, “it can grow.”

History indicates that such programs do indeed grow. In 2011, Arizona passed legislation, HB 2238’s inspiration, that also limited ESAs to students with documented disabilities. Since introducing ESAs, Arizona’s expanded the program such that twenty-percent of the state’s students are eligible to participate. Arizona expanded the program despite research showing that students using ESAs to fund alternate educations perform worse than when they were enrolled in public schools. Given that ALEC legislators pushed the program in Arizona, it is not hard to imagine our ALEC legislators following suit.

History, Virginia’s already established provisions for providing students with special needs, and Del. LaRock’s comments are not the only things hinting at HB 2238’s ulterior motives. A clause within the legislation indicates it is an attempt to slowly usher in the conditions necessary to create the privatized, unaccountable education system described earlier. Not only would the bill fund ESAs by siphoning off funds from Virginia’s public schools, but it would also prevent parents from re-enrolling their students in Virginia public schools “in the school year for which the [ESA] application or renewal applies” should they be dissatisfied with the alternate educations they try out. HB 2238 would leave students in that situation “stranded,” as the Virginia Education Association (VEA) put it. By allowing for this possibility, it becomes clear that HB 2238’s supporters are not concerned with students’ educations. Rather, their sole concern is to do their best to deprive Virginia public schools of funds they are already hurting for. The VEA notes that, “when inflation is considered, funding for our public schools is 16 percent below 2009 levels.”


Virginians cannot afford to bankrupt their potentially unconstitutional privatization experiment in education that will harm Virginia’s students and make it more difficult to guarantee that they receive the education opportunities they deserve. ALEC, ALEC’s Education Task Force, and the ESA legislation they support will only deny students the right to realize their potential. To help students realize their potential, we must continue to improve our vaunted public education system, not eradicate it.