COLUMN -- charter schools should be seen as complements, not threats

Thursday, March 29, 2007


A scribe writing for the venture-capital asset across the river took recent delight in goring the "sacred cow" of charter schools. The Minnesota Senate's education budget bill, which caps public charter schools at 150 (the current level plus those scheduled to open in the fall), logically makes sense, he wrote. The "experiment" is out of control. With Manichean paranoia he warns:

"The charter-school movement has been hijacked by people driven by ideological beliefs. For too many, charter schools are accomplishing the cherished goal of dismantling the state system of public education."

Casting the charter school cap as a battle between good and evil reveals a visceral, and, I fear, all-too-common attitude. Some policymakers think "public education" is exclusively the state-district run system. Charter schools, private schools, religious schools and home schools are feared as threats rather than befriended as valid and valuable complements to that system.

For some, distrust of charter schools reflects a distrust of private choice, and the notion of marketplace decisions motivating the fast growth of charter schools is uncomfortable. Nonetheless, reasonable people concerned about providing the best education for Minnesota children raise questions about charters that, if given some thought, tend to support encouraging, not discouraging, charter schools.

*Are charter schools handling their finances in a responsible manner?

Some charters have run into financial problems. According to Commissioner of Education Alice Seagren, the Education Department has taken steps to reduce recurrence of the problems. As part of its approval process for charter schools, the department now requires charter school board members and sponsors to attend seminars on school finance. The state's effort is a good step, but the best check on charter schools is the vested interest of parents and teachers who sit on charter school boards.

Charter schools are funded much differently than traditional schools. District funding is determined using a complex formula that yields a deceptively precise "per pupil unit" funding amount. Money flows from the state through the local district to individual schools, which ultimately have little discretionary authority over their budgets. Charter school funding flows from the state to specific schools. Charter school administrators are accountable for how funds are spent. Charter boards have instant and direct access to financial information. Charter budgets and expenses are discrete, transparent and independent of one another. Financial problems, if they exist, are limited to individual schools; they do not indicate a systemic problem.

* Are charter schools producing increased student performance?

Comparisons of student performance among district schools are always couched in caveats about students' social baggage, positive intangibles not measured by test scores, appropriateness of standardized tests and the like. In that context, how do those questioning the performance of charter school students propose to measure it when traditional schools haven't figured that out?

Like all public school students, charter school students take standardized state tests. Results show some charters perform better than others, some better than district schools, some not as well. The more interesting comparison is how might students have fared had they remained in their assigned district schools. Charter enrollment is voluntary, and families seek out charters looking for better performance. Ultimately, a school that meets and exceeds parental expectations is a good measure of how the school is doing at the job of educating children.

That brings us to perhaps the most important questions that might seem to justify a cap on charter schools:

* Are charter schools hurting district schools? Are they doing more harm than good to the overall education system?

Increasing enrollment in charters compared to decreasing enrollment in some district schools, most notably Minneapolis, indicates charters might lure students (and consequently funding) away from district schools. Clearly, that's not good for the affected district schools. But should we be looking at what is best for traditional schools or what is best for kids?

Charter school enrollment is voluntary and increasing. That some charters have waiting lists upward of 100 indicates they are doing something right. If students are migrating from schools that aren't meeting their needs to schools that offer alternatives, why does the Senate want to cap the movement instead of looking at why it is occurring? Is the problem that charter schools are too successful or, perhaps, that the narrowly defined system is not successful enough?

Charter schools create opportunities that a single-system monopoly simply can't offer. Innovation is risky and will not always succeed. Some charters are bound to fail - which is a buyer-beware disclaimer for families considering charter schools. But overall, charter alternatives enhance education in Minnesota. Rather than questioning the motives of those supporting, founding and sending their children to charter schools, Minnesota is better served by acknowledging the value and encouraging the charter school movement.

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COLUMN -- Treating too many divorced dads like deadbeat dads

Wednesday March 14, 2007


Molly Olson, volunteer executive director of the Center for Parental Responsibility, has hammered away for seven years at reforming family law policy and divorce practice that discourages both parents from being fully involved in the lives of their children. Most often, she is on the side of noncustodial dads who want, both financially and emotionally, to be a part of their children's lives but instead find themselves battling a bureaucracy more oriented to chasing down "deadbeat dads" than encouraging equal parental responsibility.

No one is opposed to wringing child support payments out of deadbeat dads, Olson says. But a family law process that treats all noncustodial parents as if they were deadbeats is counter to the best interests of children. It makes children the "prize" in custody battles and creates a winner and loser where cooperation ought to be the objective. Sometimes government's best role is staying out of the way … but not always.

Ramsey County Attorney Susan Gaertner oversees the front line of federal, state and Ramsey County child support collection and enforcement. She has spent 14 years associated with child support collection and enforcement. She is emphatic and unapologetic in her respect for county employees who collect court-ordered child support. She has seen the positive difference that effort has made for many families. Child support collection is fundamental to getting families off welfare and keeping them off welfare. It is, Gaertner says, a major factor in reducing crime. Sometimes government's best role is being aggressive … but not always.

Olson and Gaertner are both passionate. They both want parents actively involved with their children. But they bicker like a divorced couple over what is best for "the children." The apple of their discord is Title IV-D of the Social Security Act.

The original 1935 Title IV legislation provided grants to states to serve "needy" families with children and provide "child-welfare services." By 1974, Title IV was busting the budget. Through Title IV-D, Congress sought to reduce welfare expenditures by enforcing child support collection from absent parents, usually dads, who abandoned their families. Through cost avoidance and cost recovery, it was the government that was to benefit. Any benefit to children and families was incidental, not considered an entitlement.

In 1996 the feds said if states wanted certain welfare funding, they had to have a federally acceptable child-support enforcement program.

The new strain of Title IV-D included some tough enforcement powers and incentives for the states. A change in language altered the focus of Title IV-D from "absent" parents who abandoned their families to "noncustodial" parents, regardless of whether they were actually "absent" from their children's lives.

In essence, Title IV-D collection and enforcement services were suddenly available to any custodial parent who wanted them. Title IV-D agencies grabbed the opportunity to attract more federal money. They expanded collection services beyond "needy" families to middle-class and even well-to-do families — even where there hadn't been problems with collecting child support. If a little collection does good, they reasoned, then more collection must do more good.

That brings us back to the crux of the discord.

Olson looks at Title IV-D and sees "program creep" — expansion well beyond congressional intent and legitimate federal authority. Gaertner sees Ramsey County collecting court-ordered child support payments, helping needy families, and asks, "Where's the harm?"

If there is harm, Gaertner says, it lies in the "devastating" federal cuts to the Title IV-D program. She supports a proposed $8 million state appropriation to make up the federal shortfall. Olson opposes the appropriation, claiming Title IV-D has morphed into a middle-class child-support program that lets government intrude where it has no financial interest and costs taxpayers millions in unnecessary expense.

The harm, Olson says, comes from applying harsh measures aimed at fathers who have abandoned their children to fathers who, despite divorce or separation, have never been absent from their children's lives. The characteristics of the Title IV-D program that help Gaertner collect child support from absent fathers disrupt the relationship between children and loving and caring fathers who were never intended to be part of the program.

Enter constitutional lawyer Marshall Tanick of the law firm of Mansfield, Tanick & Cohen. In support of Olson's position, he's preparing for possible constitutional and statutory challenges to the Title IV-D program that would refocus Title IV-D on welfare recipients and those in danger of slipping onto public assistance. It might also provide needed precedent for setting elusive limits on government's "spending power" — the practice of making federal funds contingent upon state actions.

Title IV-D as originally intended is an effective tool for getting needy families off and keeping them off welfare; but expanding Title IV-D beyond its original role of cost recovery and cost avoidance is to risk Lord Acton's corruption by power. Olson is right that Title IV-D needs reform. Seeing not the dangers of its excess but only its benefits, Gaertner's interest lies in wielding Title IV-D power, not curtailing it. That is a challenge for others. Tanick appears ready to take it on. I wish him well.

COLUMN -- Get rational about when the state should pre-empt local decisions

Thursday March 1, 2007

Pre-emption — a legislative clause prohibiting communities from passing ordinances that are stricter than state law — has been ricocheting through committee hearings on the statewide smoking ban like a bounding football. Rule of law, as opposed to whim of men, demands a consistent application of pre-emption. Pre-emption is not just a loophole to be opened or closed.

As readers of this column know, I oppose a statewide smoking ban extended to bars and restaurants. I don't believe the science on secondhand smoke warrants it, and a reasonable person can protect himself from exposure in privately owned bars and restaurants by not patronizing them or choosing not to be employed in them. The danger of exposure to secondhand smoke doesn't rise to a level that requires government to trump fundamental property rights.

The concept of pre-emption figures prominently in the statewide smoking ban debate. Anything less than a comprehensive statewide ban with no exceptions raises this question: "Should local jurisdictions be pre-empted by state law from enforcing smoking bans stricter than the state might impose?"

Ban supporters will say "no," ban opponents, "yes" — both positions reflecting the whim of men.

However, there is a broader question, one that has to do with the rule of law: "When is it legitimate, necessary and proper for the state to pre-empt local decisions?" — not just smoking-ban ordinances, but any decision that is the expression of local will.

Questioning the limits of government is important regardless of one's position on the smoking ban. It is important to identify the principles necessary to find limits all can agree to.

Under Minnesota law, local jurisdictions are creatures of the state. So the state grants or denies municipalities the authority to impose ordinances stricter than state law. So pre-emption may be legitimate, but that doesn't always make it necessary and proper.

How might we judge when pre-emption is necessary and proper, as well as legal? By reverting to the principle of government's role in protecting fundamental rights. If the state determines a fundamental right is at stake, municipalities shouldn't have the authority to violate it. If the state punts on making that decision, it becomes the responsibility of municipalities to decide the question of fundamental rights.

Here's how that concept plays out in the statewide smoking ban debate.

Besides a comprehensive ban with no exceptions, the two most likely scenarios for a statewide smoking ban are these: 1) no new law — the status quo — a statewide ban that excludes bars and restaurants; or 2) a ban that extends to bars and restaurants but allows for exceptions if specified requirements are met — installation of ventilation equipment, for example.

Pre-emption — prohibiting a stricter local ordinance — can dramatically change the intent and purpose of the Legislature in each of these scenarios.

Take the first possibility — the status quo: A new statewide smoking ban is not passed. In that case, absent a clear legislative stand on the private property issue, municipalities should have the authority (and, it can be argued, the responsibility) to impose stricter smoking rules than the state to protect citizen health. Each city must weigh the science and the economic and social consequences and make its own call.

The second possibility is a statewide ban that includes bars and restaurants but allows exemptions for establishments that install ventilation equipment and maintain an air quality standard — an approach that seeks to balance the perceived health risk of secondhand smoke with private property rights and individual choice. In that case, should the state allow local municipalities to pass stricter ordinances? Many local jurisdictions already have comprehensive smoking bans in place, including St. Paul.

I would argue "no" in that instance. The Legislature is saying that, having weighed the evidence, the danger of secondhand smoke does not rise to the level where it is necessary to trump personal property rights and individual choice. The state would have taken a stand to protect the fundamental right of a property owner to determine what legal activities he will allow on his property. It would not then be proper to allow municipalities to curtail that fundamental right.

Although the focus of the smoking ban debate is on the "yeas" and "nays," it raises broader issues that should not be ignored. "When does public health trump fundamental rights?" and "For what reasons do we prevent local people from making local decisions?" The debate challenges legislators' willingness to be rational about the reach of government power and to be consistent with the principle of using the least restrictive means to achieve state interests.

How the Legislature approaches the broader issues raised by the smoking ban debate says a lot about the society we are becoming. Are we listening?