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December 19, 2011, Number 81
S.B. 1 Update: Bill Shelved After Long Debate
By: and , Esquires
In April of 2011, we informed you of the constitutional issues raised by Senate Bill No. 1 (S.B. 1) and encouraged you to contact your legislators. By way of an update, last Wednesday evening, after long debate, the voucher component of S.B. 1 was dropped but the House continued to discuss the charter school and EITC expansion plan. Eventually, they too were defeated. At this moment, we are probably all breathing a sigh of relief. However, the voucher debate, which will likely come around again, raised a number of valid issues. Students living in poverty are likely not getting the same educational opportunities as their wealthier counterparts. Still, this attempt was not adequate to solve the problems brought to light. Here are some of the reasons why S.B. 1 failed.
Amendments Included Education Improvement Tax Credits and Changes To Charter School Law
Before S.B. 1 was referred to the Education Committee, the Senate made several amendments to the detriment of public education. Perhaps most significantly, the Education Improvement Tax Credit (“EITC”) was added to S.B. 1. This amendment proposed increases to the EITC and would have implemented programmatic changes to become effective July 1, 2012. $92 million would have been available to scholarship organizations and so-called “educational improvement” organizations. For pre-kindergarten scholarships, $8 million would have been available.
In addition to the addition of the EITC, S.B. 1 also contained provisions that would amend the current Charter School Law. Most importantly, S.B. 1 would have created a Statewide Advisory Committee to explore charter school and cyber school funding issues and make recommendations to the General Assembly and Governor. It would have also standardized the charter school application and require annual independent audits of charter schools and cyber schools.
Additionally, S.B. 1 would have mandated full disclosure from charter schools including annual public disclosure. The amendments also would have relieved some of the burdens for charter school maintenance and creation, including the conversion of a public school into a charter school with only a majority vote of the school board and an increase in the charter school term with an initial 5-year term followed by 10-year renewal terms.
Myth-busting S.B. 1
As we observed and took part in debates surrounding the legislation of school vouchers, we noticed that voucher-advocates sometimes had incorrect or incomplete information regarding the impact of S.B. 1 on education. Here are some of the most common myths:
(1) MYTH: “S.B. 1 gives parents choice.”
Some voucher advocates created the false sense that S.B. 1 would have provided “parental choice.” The fact is, S.B. 1 vouchers would have only been available to low-income students in low-achieving schools. “Low income” is defined as a household income that does not exceed 185% of the federal poverty line. This represents a small minority of students and excludes many students who would still not otherwise have had access to private-school education. Also, S.B. 1 did not require private schools to accept voucher students, nor would S.B. 1 have had any impact on waiting lists for private and charter school admission. Contrary to the law applicable to public schools, including charter schools, there is no requirement that private schools accept all students. Further, the subsidies that would have been provided under S.B. 1 would have been insufficient to cover the cost of most private schools.
(2) MYTH: “S.B. 1 creates much needed competition to motivate low-performing public schools.”
In almost all cases, the only students eligible for S.B. 1 vouchers would have been those who currently attend over-crowded, under-funded inner city schools populated by low income and transient students. These schools are under-performing due to crowding, poverty, lack of parental availability, and, in many cases, language barriers. These schools need more funding, not competition, to increase their performance. Also, public schools are already hit hard by competition from charter, cyber, and magnet schools, all of which are free and available to students without the need for vouchers.
(3) MYTH: “S.B. 1 will enhance education via access to private schools.”
Private schools do not necessarily provide superior education. Private schools are not held to the academic standards set for public schools by the School Code. There is no provision anywhere in S.B. 1 that would have required full-disclosure and comprehensive information about school performance that would allow parents to make informed decisions. Therefore, the perceived expansion of school options should not and could not become synonymous with enhanced education.
Moreover, unlike public schools, private schools are not required to provide gifted education or individualized programming for special education students.
(4) MYTH: “S.B. 1 will create no additional expense for taxpayers.”
According to the Fiscal Notes released by the Senate, by its fourth year in operation, the S.B. 1 vouchers would have cost the state over $90 million. This figure takes into account any deductions in tax under the provisions of S.B. 1. Also, as explained earlier, the amendments to S.B. 1 included EITC provisions which would significantly have reduced state revenue. This will inevitably be inured to the expense of taxpayers.
(5) MYTH: “Vouchers will keep kids in school.”
While one might argue that leaving an overcrowded public school for a private school might motivate a student to work harder and stay in school, current statistics indicate no change in the drop out rate for schools utlizing a voucher system.
Further, unlike public schools’ requirement to give “due process” before expelling students, private schools are free to drop students from their rolls. S.B. 1 did not establish or require its recipient schools to set procedures for ending students’ enrollment. Therefore, private schools may readily dismiss students where public schools may not.
S.B. 1 Unconstitutional
As we explained in our April 18, 2011 newsletter, regardless of any perceived enhancement of “school choice,” S.B. 1 had, at best, dubious validity under the Pennsylvania Constitution. To reiterate, S.B. 1 would have appropriated funding from public schools in order to pay for private and parochial school education. Specifically, this violates Article III sections 15, 29 and 30 of the Pennsylvania Constitution which prohibits appropriating funding for the benefit of sectarian schools. (See . )
If S.B. 1 had passed, only the Pennsylvania Supreme Court would have had jurisdiction to determine its constitutionality. Because the unconstitutional appropriation of tax funds creates an injury to taxpayers, a taxpayer or a group of taxpayers could have brought a cause of action against the Commonwealth in the Pennsylvania Supreme Court and ask the court to declare that S.B. 1 was unconstitutional.
Bottom Line for Districts
Whether you agree with the motives behind S.B. 1 or not, had the bill passed, it would have proved to be a great disappointment to its supporters by its failure to provide any real “choice.”
S.B. 1 would have had immediate financial consequences for urban school districts, it would have further eroded the public school system, and would not have adequately provided the educational opportunities it was drafted to address.
If you have any questions about this or other education law matters, please contact your solicitor or an attorney in our .
* This School Law Bullet is meant to be informational and does not constitute legal advice.
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