School choice regulations

Red Tape
Does red tape really stop some private schools from participating in voucher programs? Or is it a red herring?
Photo by Julia Manzerova

Many proponents of private school choice—both the voucher and tax credit scholarship versions—take for granted that schools won’t (or shouldn’t) participate if government asks too much of them, regulates their practices, requires them to reveal closely held information, or—above all—demands that they be publicly accountable for student achievement. This anxiety is plausible in theory. Part of what’s distinctive and valuable—and often educationally effective—about private schools is their freedom to be different, the fact that they are exempt from most of the heavy regulatory regime that characterizes most of public education. Insofar as they cherish that autonomy, over-regulation by government might well deter them from participating in taxpayer-supported choice programs and thereby block children from benefiting from the education that those private schools offer.

But how big a deal is this concern in the real world? Private schools deciding whether to participate in a voucher or tax credit scholarship program must weigh multiple factors, and well-designed programs will naturally strive for sufficient school participation to enable the program to accomplish its purpose. At the same time, policy makers must be responsible stewards of taxpayer dollars and do their best to ensure that such programs advance the public’s interest in securing a quality education for children in safe, salubrious environments—all of which leads to some degree of regulation.

Policy makers contemplating the creation, revision, or expansion of school-choice programs must therefore balance the impulse to regulate on behalf of the public interest against the need for enough private schools to participate so that the children for whom the programs are intended can, in reality, benefit from them.

But where to set that balance? Is there a regulatory tipping point beyond which most private schools will eschew the program? Are some regulations more off-putting to schools than others? Where is reality?

Fortunately, enough voucher and scholarship programs exist today that it’s possible to answer these questions empirically—that is, to gauge the extent to which regulations (and other factors) actually deter private schools from participating. It’s also possible to examine which kinds of regulation (if any) are particularly vexing to private schools and where some segments of the private-school world are more sensitive to regulation than are others. 

To conduct such an investigation, we at Fordham turned to David Stuit of Basis Policy Research and his colleague Sy Doan to examine closely thirteen extant voucher and tax credit scholarship programs (six of the former, seven of the latter) across eleven states. We asked them to describe the nature, extent, and burdensomeness of their regulations and to determine how many private schools participate in them—and how many do not. We asked them also to survey private schools in communities served by four of the country’s most prominent voucher programs to ascertain how both participating and non-participating schools view those programs and their regulations and how heavily they weigh program requirements (and other constraints) when deciding whether to sign up for and accept the programs’ students.

Here is what they learned:

1) There is enormous variation. Stuit’s “burden scores,” calculated on a scale from zero (least regulated) to 100 (most regulated), range from 8 for Arizona’s “individual” tax credit scholarship program to 76 for the current iteration of Milwaukee’s long-running voucher program.

2) As expected, there is a moderate negative correlation between regulatory burden and private school participation in choice programs. In other words, the more regulations, the less likely schools are to sign up. School participation rates in voucher programs ranged from 29 percent for the newly expanded Louisiana Student Scholarships program to 94 percent for Cleveland’s scholarship program. Analysts estimate that, if a program were to change from least to most regulated, private school participation rates would drop nine percentage points.

3) Yet “regulations” per se aren’t the schools’ foremost concern. Indeed, “not willing to comply” with program rules was cited by just 3 percent of nonparticipants as their foremost reason for shunning the program. Instead, the most-cited reason was a lack of voucher-eligible families in the region.

4) Within the regulatory realm, and contrary to the anti-testing assertions of the libertarian crowd, curricular constraints and testing issues ranked among the less important considerations for private school leaders. Just a quarter of them listed the “requirement to participate in state testing” as “very” or “extremely” important to their decision (and only 17 percent said that about “public reporting of state test results”) versus half or more who were concerned about admissions (“upholding student admissions criteria”) and “allowing students to opt out of religious activities” (a rule found only in Milwaukee).

5) Catholic schools are least likely to have their decisions affected by regulation. Non-sectarian schools are more likely to forego participation when burdened with increased regulations. So are small schools, possibly because they have less space and/or administrative capacity to handle the paperwork.

6) Tax credit scholarship programs—because they employ “taxpayer dollars” that never actually pass through the state treasury—are significantly less subject to additional regulations than voucher programs.

7) The reasons that most school principals gave for participating in the voucher program were to expand their mission in the community (87 percent), “to help voucher eligible families already enrolled in their schools” (75 percent) and “to help needy children in the community” (72 percent).


Choice advocates and policy makers should bear in mind that—simply to exist—private schools must already comply with various state regulations, sometimes including testing. That is to say, participation in a choice program will not be the first time that many schools’ freedom of action is constrained by government demands.

That does not, however, mean that policy makers should burden them with unnecessary regulation. They must seek the bare minimum that enables them to look taxpayers (and choice opponents) in the eye and say, “This program is in the public interest.” The kinds of regulation they should be wariest of are those that bear on student admissions and schools’ religious (and religious-education) practices, as these are significantly more likely to deter schools from taking part in the programs than are requirements pertaining to academic standards, testing, and public disclosure of achievement results.

Especially as “Common Core” standards take effect in states and new, improved assessments (aligned with those standards) come on line—and more so if colleges and employers begin taking those standards and test results seriously—private schools may become even more accepting of those academic standards (for core subjects) and the assessments that accompany them.

In any case, regulation is not the greatest deterrent to private school participation. More consequential are the design of the program itself: how many families are eligible for it and how many of them live within striking distance of a given private school; how well is the program publicized; how burdensome is it for families to qualify and apply; and how adequate is the level of financial assistance that it makes available to students and the schools they attend?

Those considerations apply to tax credit scholarship programs as well as voucher programs, yet another clear takeaway from this research is that, to minimize regulatory burden and maximize school participation (not to mention sidestepping “Blaine Amendment” type barriers in state constitutions), policy-makers ought to opt for the tax-credit approach. They should do so, however, mindful that in minimizing burden and maximizing participation they will also lose a measure of accountability.

For more on school choice regulations, be sure to tune in on February 11 at 4:00 PM EST to watch a panel of experts discuss the study and its implications—or, if you’re in the D.C. area, be there in person!

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