Don’t overregulate choice

October 22, 2019

Greg Forster, Ph.D.

It’s easy to strangle the golden goose—a lot easier than it might seem. As Oklahoma looks at options for growing school choice, it’s important to design those programs well. Recent proposals in Oklahoma have suggested tightening restrictions on the ability of choice programs to serve students. These are solutions in search of a problem. The ever-growing national track record of school choice clearly indicates that there is much more danger of overregulating these programs than of underregulating them.

In 2010, Oklahoma joined the majority of states that have private school choice programs. In all, 30 states and two territories (the District of Columbia and Puerto Rico) have private school choice. These programs serve well over half a million students.

Since then, Oklahoma has expanded choice by enacting a second program. That makes Oklahoma one of 18 states to have multiple private school choice programs. Oklahoma’s two programs currently serve about 3,300 students.

Recent proposals have suggested imposing new burdens on these programs in Oklahoma. One of the most common approaches is to demand that schools compile and turn over to the state extensive personal data on every participating student. This raises important student-privacy concerns. But lawmakers should also be asking what this or other proposed regulations has to do with helping parents hold their schools accountable. More power for regulators is less power for parents.

Each individual regulation, by itself, was not a dealbreaker. The problem was the accumulated weight of many intrusive regulations, whose combined burden was far greater than expected.

The track record of school choice programs is clearly positive. My colleagues at EdChoice recently counted up all the empirical research ever published. They found that 15 of 22 studies on academic outcomes for choice participants are positive, while 24 of 26 studies on how private choice affects academic outcomes in public schools are positive. Research on choice is also positive for fiscal effects, ethnic integration, and civic values and practices.

What about the minority of studies that are negative? This is where we see that the danger for school choice isn’t in underregulating the programs. It’s in overregulating them, taking away their ability to serve students well.

The only failed example of school choice in U.S. history is school vouchers in Louisiana. Test score effects in multiple studies of that program came back negative. What happened? Regulators with bright ideas outsmarted themselves.

In every state other than Louisiana, private school participation in choice programs is high. While a few private schools may choose not to participate, huge majorities of private schools typically elect to do so. Except in Louisiana, where participation rates by private schools were catastrophically low—fewer than one-third participated in the program’s first year. The only schools willing to join the program were the lowest-performing schools, looking for a lifeline.

Private schools cited overregulation of the program as the reason they didn’t want to participate. Survey research by the program’s evaluators found that regulation was the number-one reason cited by private-school leaders.

Here’s an especially important thing to notice. The problem was not any one obviously bad regulation. There was no “poison pill.” Each individual regulation, by itself, was not a dealbreaker.

The problem was the accumulated weight of many intrusive regulations, whose combined burden was far greater than expected. One important aspect of that was the clear signals that the schools got from the government that more regulations would be coming in the future. Private schools told the program’s evaluators that they didn’t want to sign up to be subject to unpredictable future creation of regulatory liabilities.

Other examples likewise point to the danger of overregulation. A voucher program for students in underperforming schools in Florida was strangled because the state’s education department created a process for signing up that was too difficult for parents. Participation in the program was kept low by barriers to entry.

Meanwhile, we have not seen instances of school-choice failure due to underregulation. Ever since the modern choice movement began with school choice in Milwaukee in 1990, we have heard horror stories of all the lurid failures we could expect from allegedly underregulated schools. Where are the failures? Where are the kids who didn’t get a better education—except in Louisiana, where overregulation was the problem? Where are all the “jihad schools” that we were endlessly promised we would inevitably see? If you’ve heard of any, send the news reports my way. I haven’t seen them.

The bottom line is that there is no real need to regulate private schools, in choice programs or otherwise, for anything other than health and safety. Parents are the real accountability system. When we give parents choice, we give them power. They do tons better than distant politicians and bureaucrats at making sure their schools serve their kids well.

Lawmakers should bear all this in mind when they hear what may at first be reasonable-sounding proposals to require choice schools to compile and turn over extensive personal data on every participating student, or other regulations that increase the school’s burden without increasing the parents’ power. In addition to raising student privacy concerns—an important issue in itself—these requirements would be a drag on the quality of education, and make no positive contribution to parents’ ability to hold schools accountable.

Parental power is the real accountability for schools. Common sense and the track record of available evidence both support great caution in adopting any regulation on private schools beyond the needs of health and safety. Put parents in charge and let them do their jobs.