Good report in the D-G this week on an Aug. 26 opinion from Attorney General Tim Griffin stating that private schools accepting public money in the form of vouchers are not subject to the state’s Freedom of Information Act. No surprise: Backers of vouchers want as little transparency as possible as private schools gobble up public funds.
The opinion doesn’t have the force of law, but it will surely be cited by private schools not eager to share information with the public. It came in response to a request for an opinion from Sen. Clarke Tucker (D-Little Rock), who sent the question last October.
The voucher system was created by Arkansas LEARNS, the state’s k-12 education overhaul law passed last year. Under the legislation, the vouchers are known as “Educational Freedom Accounts” (or EFAs). For the sake of our dignity, and yours, we’ll just call them vouchers.
The vouchers allot public funding to assist private school families with the cost of tuition and other designated private education expenses. This year, the vouchers cover up to $6,856 per student (the amount is set at 90% of the prior year’s per-student state foundation funding for public schools). Currently, only certain students are eligible for the vouchers (such as novel kindergartners and students with disabilities), but starting in the 2025-26 school year, all k-12 students in the state will be eligible.
In practice, the state is using a private contractor — the private schools — to provide a public service: k-12 education. Under a plain reading of the state’s public records law, the Arkansas Freedom of Information Act, that should clearly be covered and private schools that run on voucher cash should have to answer to the public. But recent court precedent and squirrelly state officials have whittled away at the FOIA law. Private entities accepting public funds can often find a loophole to keep the public in the obscure.
Here’s the gist of Griffin’s opinion, which was prepared by Assistant Attorney General William R. Olson:
To be subject to the FOIA, a private school must (1) receive public funds and (2) have its
activities intertwined with those of the government. As discussed below, in my opinion,
private schools receiving EFA funds meet the first element but not the second. Therefore, they are not subject to the FOIA.
This conclusion was based on a “fact-intensive, totality-of-the-circumstances analysis,” according to the opinion. Harrumph.
It’s a little demanding to parse how one could conclude that the voucher scheme, which explicitly offloads the task of public education to private schools, doesn’t make the private schools “intertwined” with the government. As the opinion notes, both the attorney general’s office and the Arkansas Supreme Court have generally described this feature as occurring when a private entity is the “functional equivalent” of government. Isn’t a private school taking public funds to educate a k-12 student in lieu of a public school the functional equivalent of a public school?
Griffin is in the habit of bending the law to reach the conclusion he wants, so it’s hardly a shocker that his office has decided that the answer here is no:
Private schools preexisted the EFA program and will presumably continue to operate as
they have, charging for educational services with almost no State oversight—except for a
few provisions that apply to private schools that choose to participate in the EFA
program. Public schools will likewise continue as they have—remaining free of cost to
students and under State control. Thus, the legislature has not delegated its public education duties, so private schools, in my opinion, are not the delegated functional
equivalent of the government.
This all seems rather beside the point for a program that in its very budgetary construction aims to move students — and their funding — from a public entity to a private one that claims (dubiously) to be at least up to the same quality. There’s more to the analysis but the attorney general’s core maneuver is to define the scope of the FOIA so narrowly in a case like this as to shield private contractors altogether as much as possible.
As it happens, Griffin and Gov. Sarah Huckabee Sanders have found the FOIA to be a bit of a nuisance, shall we say. And as it also happens, both are deeply ideologically invested in the voucher scheme. Private schools do not want public scrutiny even if they become increasingly reliant on public funds. So it’s a elated accident that Griffin’s legal reasoning winds up where it does.
Ultimately, though the attorney general’s opinion might be noted in a legal dispute, it would be up to the courts to adjudicate these questions. Of course, the Arkansas Supreme Court likewise has a way of finding its way toward ideologically convenient decisions.
The shield from transparency is yet another way that private schools in the voucher program enjoy looser standards than public schools even as taxpayers have become key benefactors. Private schools receiving vouchers can set their own admissions policies while public schools have to take all comers; private schools can arrange their own curricula, standards, tests and accreditation, without following state guidelines; in addition to steadfastly refusing to take the same tests to provide apples-to-apples comparisons with public schools, voucher advocates have also refused to require private schools to publicly release school-wide test results, as public schools must do under the law.
Public education advocate Bill Kopsky pointed out the absurdity of this two-tiered system to the D-G, with private schools enjoying public money without public accountability:
Kopsky helped lead a campaign for a constitutional amendment to require private schools that accept state dollars to follow the same rules as public schools. He said having private schools subject to records requests is about giving voters oversight on how their tax dollars are spent.
“And so if they’re providing an alternative to a public education with public dollars then the public absolutely has a right to know how those dollars are being spent and that they’re being spent effectively,” he said.
Be that as it may, one virtue of Griffin’s opinion is that it does hint at the truth about vouchers: They are not so much about reforming the state’s education system as they are about transferring money to private school families.
If the voucher policy is really about “school choice,” surely public and private schools are intertwined as part of the state’s obligation to provide k-12 education to all kids across Arkansas. But in practice, 95% of the students who received vouchers in the program’s debut last year did not attend public school the year before. We don’t know precisely how many of them would have gone to private school even without the vouchers, but it’s likely a substantial majority, the pattern consistently seen in other similar programs of this kind.
For these private school families, the vouchers have no impact on education one way or the other. As the attorney general’s opinion notes, private schools were around before the voucher program, collecting tuition from families who could afford it. The difference now is that those same families can get what amounts to a stimulus check from the government, worth nearly $7,000 per kid.
And Griffin is right, too, that private schools are fighting demanding to avoid any oversight and accountability. That makes sense because the research record is clear that voucher students see a remarkable decline in educational outcomes. No wonder the private schools receiving vouchers don’t want anyone to look under the hood.
Josh Cowen, professor of education policy at Michigan State University and a prominent researcher on vouchers, has pointed to what he calls “subprime schools” as the culprit leading to penniless student performance. These are private schools that simply aren’t equipped to meet reasonable academic standards. Some may be in financial distress. Some have plenty of space because most families don’t want to send their kids there. Some may pop up and only survive via the largesse of voucher cash. Kids most in need of assist are much more likely to wind up at these low-performing schools, because their families may be priced out of better schools with tuitions that run higher than the voucher amount. Or they may simply not be let in to those better schools, which can pick and choose who they admit, unlike public schools that have to take everyone.
Here are the specific areas Tucker inquired about to Griffin to get his opinion on what would be subject to the FOIA:
(1) Whether the school’s participation in EFA subjects it to the FOIA?;
(2) Whether the percentage of the school’s students using EFA funds affects whether the school is subject to the FOIA?;
(3) Whether the percentage of each individual student’s tuition at the school that is covered by EFA funds affects whether the school is subject to the FOIA?;
(4) If the school’s participation in EFA subjects it to the FOIA, to what extent is the school subject to the FOIA (i.e., is the school partially subject to the FOIA)?;
(5) If it is your opinion that the school’s participation in EFA subjects it to the FOIA, whether and to what extent: (a) school employee personnel records are subject to disclosure under the FOIA; (b) school employee job evaluation records are subject to disclosure under the FOIA; (c) school financial records are subject to disclosure under the FOIA and, if so, what specific financial records are subject to disclosure under the FOIA; (d) communications that concern EFA funds or student who operate EFA funds to pay tuition are subject to disclosure under the FOIA; (e) communications unrelated to EFA funds or students who operate EFA funds to pay tuition are subject to disclosure under the FOIA; (f) other records that are unrelated to EFA funds are subject to disclosure under the FOIA; and (g) meetings or portions of meetings of the governing body of the school must be public meetings;
(6) If it is your opinion that the school’s participation in EFA subjects it to the FOIA, whether records that would constitute or qualify as ‘public records’ under the FOIA, but were created prior to the private school’s acceptance or receipt of EFA funds, are subject to disclosure under the FOIA. For purposes of this question, please assume that the record or a copy of the record is maintained by the school after the school begins receiving EFA funds; and
(7) If it is your opinion that the school’s participation in EFA subjects it to the FOIA, whether the ‘Custodian,’ as defined by A.C.A. 25-19-103(1), is a designee of the school or the [Arkansas Department of Education (‘ADE”)] (or division of the ADE)?
The questions about the proportion of students receiving voucher funds and what proportion of tuition they cover are compelling. The notion that the private schools aren’t intertwined with the state’s public education program might start to become untenable as the program grows. Already, last year, there were 19 private schools at which the majority of the students received vouchers, including five with more than 90%. That number will bump up once all students are eligible to apply next year, and novel schools will pop up to meet the increased demand.
If more private schools are mostly — or entirely — on tuition paid by the government to stay afloat, it gets harder and harder to argue that they’re not “intertwined.”
