Education Certificate Act Exposed

The Education Certificate Act is listed under ALEC's Education Task Force and was included in the 1995 ALEC Sourcebook of American State Legislation. ALEC has attempted to distance itself from this piece of legislation after the launch of ALECexposed.org in 2011, but it has done nothing to get it repealed in the states where it previously pushed for it to be made into law.

ALEC Bill Text

Summary

The purpose of this bill is to maintain and improve the quality of elementary and secondary education by providing to parents the opportunity for the exercise of parental choice in the selection of schools for the children. Parental choice fundamentally alters the dynamics of the educational system by allowing parents the right to decide what is best for their children. The Education Certificate Act requires the Department of Education to establish a program whereby children with educational certificates, requested by parents, may be admitted to public or private schools participating in the program.

Model Legislation

Section 1. {Title.}

Section 2.

(A) The {insert legislative body] finds and declares that:

(1) elementary and secondary education in the state is in crisis as evidenced by the following:

(a) many school children are performing significantly below relevant national standards;

(b) other school children are dropping out of school before completing the ordinary course of secondary education; and

(c) a substantial number of the state’s young people are leaving school without the basic skills and knowledge that will enable them to find and hold a job or otherwise function in society.

(2) Some schools are providing a better elementary and secondary education than others:

(a) students in these schools are performing near or above relevant national standards;

(b) students in these schools tend to remain in school until they complete the ordinary course of their secondary education; and

(c) students leave these schools with the basic skills and knowledge that will enable them to find and hold jobs and otherwise function as productive members of society.

(3) Parents of school age children are frequently unable to enroll their children in schools that will provide them with a quality education. This inability is caused by:

(a) laws and regulations that limit parents freedom to select schools that they believe can provide their children with a quality education;

(b) parents’ lack of influence over the educational policies and procedures of their children’s schools; and

(c) parents lack of funds to pay for a quality education.

(4) An educational choice program would;

(a) enable parents to select schools they believe will provide a quality education for their children;

(b) empower parents to influence educational policies and procedures of the schools their children attend;

(c) provide parents with a portion of the funds necessary to pay for a quality education; and

(d) better assist children in the state to become productive members of society.

Section 3. {Purpose.}

It is the purpose of this Act to maintain and improve the quality of elementary and secondary education in all schools in the state by providing to all parents in the state enhanced opportunity for the exercise of parental choice in the education of their school-age children.

Section 4. {Definitions.}

(A) “Parent” means the natural or adoptive parent or legal guardian of a dependent child.

(B) “Participating school” means a public or private school located in the state that enters into an agreement with the district school board in accordance with the provisions of Section 8.

(C) “Private school” means a school that is not maintained with public funds, that charges tuition or fees for the services it provides, and that is in compliance with the laws of the state.

(D) “Public school” means a school that is administered by a state or local public agency.

(E) “Resident school district” means a geographical area surrounding a public school from which students are assigned.

(F) “School” means a school that is authorized to provide elementary and/or secondary education under state law.

(G) “Eligible private school” means:

(1) a private school that has been operating for at least two years and meets certification standards pursuant to Section 8; or

(2) a private school operating for less than two years that meets certification standards pursuant to Section 8 and obtains a letter of credit or bond for one-third of the total amount of funds to be received through acceptance of certificates provided for in this Act. The letter of credit or bond shall, in the event of nonperformance, be payable to the district school board.

Section 5.

In order to achieve the purpose described in Section 3, the Department of Education shall initiate and carry out a program in which the parent of each school-age child receives from the [insert district school board] [insert state board of education], on request, a certificate that may be used for educational services at a participating school selected by the child’s parent in accordance with the provisions of this act.

Section 6.

(A) Each public school in the state shall become a participating school. The responsible officials for each eligible private school shall decide whether that school shall become a participating school.

(B) Subject to the provisions of Subsection (C), a participating school shall admit children with certificates who apply, up to the limit of the school’s capacity, after reserving places for children admitted in accordance with the school’s regular admissions practices.

(1) A participating school shall establish criteria for the admission of children with certificates that are consistent with the admissions criteria that it regularly applies.

(2) In the case of a participating public school, the [district school board] [state board of education] shall establish criteria for the equitable allocation of places for children with certificates if there are insufficient places to serve all such children requesting such places.

Section 7.

A participating school shall enter into an agreement with the [district school board] [state board of education]. Such agreement shall provide that the participating school shall furnish a child who is accepted in the school and who tenders a certificate under the provision of this Act, and, if applicable, a supplementary tuition payment required to satisfy any remainder of a participating school’s tuition, an education equivalent to that provided to all other children in the school. All or part of the funds for such supplementary tuition payment may be secured from the individual student’s personal education account established pursuant to Section 14. Such agreement shall also provide that the participating school shall meet the standards listed in Section 8. Schools that agree to meet the standards listed in Section 8 shall be certified as participating schools.

Section 8.

(A) Participating schools shall:

(1) provide a curriculum that includes five core subjects: English, mathematics, science, history, and geography;

(2) meet minimum health and safety standards with which private school must currently comply;

(3) disclose teacher credentials to parents.

(B) The [district school board] [state board of education] shall require each public school and each certificate-redeeming school to choose to administer tests reflecting national standards for the purpose of measuring individual academic improvement. Such tests shall be scored by independent parties. Each school’s composite results for each grade level shall be released to the public. Individual results shall be released only to the school and the child’s parents.

(C) Participating schools shall provide to the district school board’s Choice Information Center [as established in Section 13 (A)] information regarding:

(1) its participation in the certificate program;

(2) its program of instruction;

(3) achievement data regarding students attending the school, which data may be stated in the aggregate;

(4) the incidence of illegal drug use;

(5) school discipline and safety;

(6) other matters to be specified by the legislature.

Section 9.

Participating private schools shall provide a summary report to the district school board on the allocation of funds. Such report shall be for the purpose of demonstrating that no funds generated through the acceptance of the certificates, provided for in this Act, are used for classes in religious instruction, and in no way constitute aid to any church, sect, or religious denomination or are in aid of any sectarian institution which is prohibited by state law.

(Section 9 is an optional provision of the ALEC certificate bill, the inclusion of which depends on the requirements of the state ‘s constitution. The central issue surrounding this section is the “establishment clause ” of the First Amendment, and whether the section violates the Supreme Court’s “excessive entanglement ” test.)

Section 10.

A parent of a child with a certificate may use the certificate for educational services at a participating school only if the child is admitted to the participating school.

Section 11.

The value of a certificate, for any individual student, shall be set at 80 percent of the level of the appropriate Education Finance Program expenditure, but no certificate may be redeemed for more than the amount of the tuition and fees regularly charged by the participating school providing the educational services.

Section 12.

(A) The purpose of this section is to grant to low-income families an equal opportunity of educational choices by making private schools a feasible option.

(B) Any student in kindergarten through grade 12 who is eligible to participate in the free lunch program, pursuant to the state constitution, or is a low-income student pursuant to a subsequent definition by the legislature, shall be an eligible low-income student, entitled to the enhanced tuition allowances as set forth in Section 14.

Section 13.

(A) The district school board shall establish and maintain a Choice Information Center to provide information and assistance to parents in selecting a school. The Choice Information Center shall provide information on all participating schools and shall include all information obtained pursuant to Section 8(C).

(B) The district school board shall publish and make available to all parents in the local school district a list of all participating schools.

Designation of Certificate Value:

Certificate legislation that sets a specific dollar value on the state funds awarded to families of private school students is often criticized for not providing adequate dollars to cover expenses for all families hoping to use the certificate option. ALEC’s revised certificate bill would not designate a specific dollar amount; instead the value of the certificate will be set at 80 percent of the appropriate state Education Finance Program expenditure (or designated individual per pupil expenditure). Under this formula, the value of the certificate for an educationally or physically challenged child would be greater than the value of the certificate for the average child in the system. The intent of this provision is to provide financial incentives for schools to accept students with special needs.

For instance, in Florida’s 1990-1991 school year the basic expenditure per child in grades 4 to 8 is $3,25 1. If the Florida legislation had passed, a child choosing to attend a non-government school would be allocated 80 percent of this $3,251 to cover the cost of tuition. The designated expenditure for a physically handicapped child in the same grade is $10,840, a difference of $7,589 from the basic rate, while the cost to educate a visually impaired child is $14,289, a difference of $11,038. A low-income child with such a handicap would be eligible for the full state expenditure, making access to a quality education a greater reality for this student.

Phase-In Implementation of the Plan:

The legislation provides that the certificate plan be phased in over five years. In the first year the certificate - would be limited to 60 percent of its full value (80 percent of the Education Finance Program Expenditure). In each subsequent year, the percentage of the full value of the certificate would increase 10 percent, that is, 70 percent, 80 percent, 90 percent, until the percentage equals 100 percent of the designated certificate amount. For an eligible low-income student, the certificate would be valued at 100 percent of its designated value (80 percent of the Education Finance Program Expenditure) for the first three years of the program. In each subsequent year the value of the certificate would be increased by 10 percent until it equaled 120 percent of the certificate value (or 100 percent of the appropriate state Education Finance Program Expenditure).

Section 14.

A parent of a child with a certificate shall present the certificate to the participating school that the child attends. The participating school shall present the certificate for payment or redemption to the [district school board].

(A) A participating public school shall:

(1) receive, in addition to its regular budget, funds equal to the full value of a certificate for each student who transfers into the respective participating public school upon presentation of such certificates to the [district school board] [state board of education].

(2) lose funds equal to the full value of a certificate for each resident school district student who transfers from the respective participating public school.

(B)

(1) For the first school year after the effective date of this Act, participating private schools shall receive 60 percent of the full value of a certificate, pursuant to Section 10, for each certificate presented by the respective participating private school. Each subsequent year, the percentage of the full value of a certificate received by a participating private school, pursuant to Section 10, for each certificate presented shall increase 10 percent, that is, 70 percent, 80 percent, 90 percent, until the percentage equals 100 percent.

(2) For the first school year after the effective date of this Act, a participating private school shall receive 100 percent of the full value of the certificate for the redemption of the certificate tendered by an eligible low-income student, pursuant to section 12(b). The value of the certificate shall increase by 10 percent for each consecutive year after the effective date of the Act, up to the third consecutive year, when the value will reach 120 percent of the original value of the certificate and remain as such thereafter, for such students.

Personal Education Account:

The legislation designates the establishment of a personal education account in the student’s name in the event that a participating private school charges tuition less than the maximum certificate value for each individual student. The intent is to provide incentives for parents to encourage Jiscal responsibility on the part of private schools through comparative selection, not regulation.

Section 15.

In the event that a participating private school charges tuition less than the maximum certificate value for each individual student, the [district school board] [state board of education] shall hold half of the balance of the certificate value amount in a personal education account in that student’s name, to be used to supplement later kindergarten through grade 12 tuition, or to defray the cost of postsecondary education. The remaining half of the balance of the certificate value amount shall be deposited into the [district school board’s] [state board of education’s] general operating fund to be spent in accordance with the desires of the [district school board] [state board of education].

Section 16.

District school boards may establish independent “Public Schools of Excellence” and may adopt specific admission requirements, without regard to student residence, for such schools, so long as the district school board, in addition, maintains a uniform system of free public schools for all children within the school district, in accordance with the state constitution. Section 17.

(A) Except in the case of Subsection (B), a participating school shall not be obligated to provide transportation for a child residing outside of the participating school’s resident school district. However, such school may provide transportation as a service.

(B) The district school board shall provide transportation for all eligible low-income students, pursuant to section 12(B), admitted to a “Public School of Excellence” pursuant to Section 16.

Section 18.

Private schools shall be accorded maximum flexibility to educate their students and shall be free from unnecessary, burdensome, or onerous regulation. No regulation of private schools, certificate redeeming or not, beyond that required by this legislation and which applied to private schools on [insert date] shall be issued or enacted, unless approved by three-fourths vote of the legislature or, alternatively, as to any regulation pertaining to health, safety, or land use imposed by any county, city, district, or subdivision of the state, a majority vote of qualified electors within the affected jurisdiction. In any legal proceeding challenging such a regulation as inconsistent with this Section, the governmental body issuing or enacting it shall have the burden of establishing that the regulation:

(A) is essential to ensure the health, safety, or education of students;

(B) does not unduly burden private schools or the parents of students therein; and

(C) will not harass, impede, injure, or suppress private schools.

Section 19. {Severability clause.}

Section 20. {Repealer clause.}

Section 21. {Effective date.}

Constitutionality of ALEC’s Model Certificate Bill

The following is a memorandum from Clint Bolick, the lead attorney for the successful defense of the Milwaukee Parental Choice Program, on the constitutionality of portions of ALEC’s model bill. Section 9 of the proposed model school choice bill, reads as follows: Participating private schools shall provide a summary report to the district school board on the allocation of fimds. Such report shall be for the purpose of demonstrating that no finds generated through the acceptance of certificates, provided for in this Act, are used in classes in religious instruction, and in no way constitute aid to any church, sect, or religious domination or are in aid of any sectarian institution which is prohibited by state law.

Public funds that flow ultimately to religiously affiliated schools trigger constitutional provisions in the United States and state constitutions. The “establishment clause” of the First Amendment provides that “Congress shall make no law respecting an establishment of religion,” which is applied to the states through the 14th Amendment. State constitutions vary widely. Provisions encompass restrictions similar to the establishment clause, prohibitions on aid to churches and/or religious schools of instruction, and prohibitions on aid to private schools. The scope of these provisions varies depending upon how broadly or narrowly state courts have interpreted them.

It would be difficult to draft an ideal model bill that would satisfy the specific requirements of every state constitution. However, this proposed language easily meets First Amendment requirements and should satisfy most state constitutions_ as well.

The United States Supreme Court for two decades has applied the so-called “Lemon test” to determine compliance with the establishment clause.’ Under this test, challenged legislation must satisfy three requirements:

1. it must serve a valid secular purpose.

2. its “primary effect” must be neither to advance nor inhibit religion,

3. it must not foster an “excessive entanglement” with religion.

Choice programs including religiously affiliated schools easily satisfy the first requirement. The second and third requirements are more difficult to satisfy: the program cannot overtly advance religion under the second prong, but the state cannot establish a pervasive presence within religiously affiliated schools without violating the third prong.2

The Supreme Court’s jurisprudence in this area is murky, but the precedents suggest that a choice program will survive scrutiny if it satisfies the following standards3:

1. the program does not discriminate in favor of religiously affiliated schools.

2. the program places the decision of where the funds are used in the hands of individual students and parents.4

3. the program does not create a permanent and pervasive state influence in religiously affiliated schools.

The Supreme Court appears ready to dispense with the test, and if it does so, it likely will replace it with a standard that is easier for choice plans to satisfy than the current test. Nonetheless, even under the current test, most well drafted choice plans should survive scrutiny. The recent Wisconsin Supreme Court decision upholding the Milwaukee Parental Choice Plan does not address establishment clause issues since it involves only nonsectarian schools.5 However, its discussion of the purposes and benefits of choice should assist in meeting the second prong of the Lemon test by demonstrating that the “primary effect” of choice is not to advance religion, but to expand educational opportunities.

With respect to the establishment clause, Section 9 of the proposed model bill appears consistent with constitutional obligations but is not required. The Mueller and Witters precedents recognize that a portion of the instruction in religiously affiliated schools will be religious in nature. Moreover, choice proponents should be careful not to create a pervasive or ongoing state presence in the schools, both as a matter of policy and in order to steer clear of the third prong of the test. But since Section 9 is merely a reporting and perhaps an accounting requirement which is largely self-monitored, it would not likely be viewed as creating an excessive entanglement between church and state.

Where Section 9 is most useful is in states whose constitutions contain religion provisions more restrictive than the United States Constitution. These provisions often prohibit aid to religious schools or instruction. In this regard, Section 9 is well-crafted to demonstrate that the choice plan is aimed toward providing basic educational opportunities rather than subsidizing religious schools.

As a consequence, I encourage you to retain Section 9, at least as an option, in your model bill.

A few concluding thoughts. I am very pleased that ALEC and its members are carefully considering legal issues in the planning stages of choice legislation.6 Choice proponents should canvass their own state constitutions and statutes, as well as case law applying those provisions, before determining exactly how to frame their proposals. Regardless of how carefully crafted, choice programs that include private schools will definitely be challenged in court.

Nonetheless, choice proponents should not allow an excess of caution to undermine the underlying objectives of opportunity and parental choice. The Wisconsin experience demonstrates that thoughtful choice programs can successfully be defended, even against the most powerful special interest lobby, if the parents’ interests are represented. We stand prepared to assist choice proponents by providing counsel on their proposals and defending them when they are enacted.