Policy Documents

Texas Taxpayers’ Savings Grants: Q&A No. 5 - Regulation of Private Schools

August 24, 2012

Taxpayer Savings Grant Program
Questions and Answers

by Joseph L. Bast
President, The Heartland Institute
Last Updated: August 2012

Q5: Would TSGP impose new regulations on private schools?

Answer in brief: No. The only regulations on participating schools that would be enforced under the Taxpayer Savings Grant Program (TSGP) would be those already in effect for accredited private schools in Texas.

The longer answer: TSGP imposes no new regulations on participating schools. Regulatory authority is given to the state Comptroller rather than the Texas Education Agency, to avoid the latter’s pro-public school bias. Schools that participate in school choice programs are not subject to public school mandates, such as the Individuals with Disabilities Education Act (IDEA). The real barrier to regulation of private schools is the vigilance of parents and private school leaders.

Background and Analysis

1. TSGP could increase private-school enrollment by approximately 350,000 in the program’s second year, and more in subsequent years.

The version of the Taxpayer Savings Grant Program (TSGP) introduced in 2011 as HB33 read,

Any parent or legal guardian of a school-age child who resides in Texas and is entering kindergarten or attended a public school for all of the academic year prior to their participation in this program ... may receive reimbursement from the state for tuition paid for enrollment of said child at a private school in the amount of actual tuition or sixty percent of the state average per-pupil maintenance and operations expenditure, whichever is less....

The Heartland Institute has calculated that the savings grant would be a maximum of $5,280, and approximately 350,000 students would use savings grants to enroll in private schools in the second year of the program.

2.  Unlike many voucher and tax credit plans, TSGP imposes no new regulations on participating schools. 

Unlike many voucher and tax credit plans, the TSGP erects no new rules or regulations applying to schools that accept students using publicly financed tuition grants. For example, admission need not be by lottery, and school administrators need not inquire about the income of a student’s family or even where they live.

An amended version of HB33 specified that private schools may participate in the program only if they are accredited or have applied for accreditation to “any accrediting association recognized by the commissioner to accredit nongovernmental schools in this state.” This means every accredited school currently operating in Texas is eligible to participate.

The Texas Private School Accreditation Commission (TPSAC) is authorized by the state commissioner of education to accredit private schools. The Commission’s governing board is composed of a representative/commissioner from each association of private schools in the state plus a representative/liaison appointed by the Texas Commissioner of Education.

Associations with the authority to certify schools must set forth standards covering a variety of school policies and functions specified in the TPSAC’s “Policy Book,” including “adequate financial resources and demonstrated professional management of its resources,” facilities that “comply with applicable state, county, and municipal health, fire, safety, and sanitation codes,” and administration of a nationally normed achievement test approved by the accrediting agency.

This system of private accreditation has worked well for Texas for many years. There is no reason to believe it would not work just as well under the TSGP.

3.  Regulatory authority is given to the state Comptroller. 

The TSGP gives the state Comptroller, not the Texas Education Agency (TEA), authority to adopt rules to implement the program, “including rules to prevent fraud in financial transactions under the program and to determine the net savings resulting from implementation of the program.” This choice was made to avoid the latter’s pro-public school bias. This has been a problem with other school choice programs, where administrators hostile to private schools have tried to handicap the programs.

The Comptroller would be authorized only to adopt policies to provide for speedy and efficient reimbursement of tuition payments made by parents to accredited schools and to prevent fraud. The Comptroller’s office has already given thought to how it would implement the plan, and made an early estimate of its annual cost to be $4.8 million, a tiny fraction of the savings the program would generate.

4.  The federal government has ruled that private schools that participate in school choice programs are not subject to federal public school mandates, such as the Individuals with Disabilities Education Act (IDEA). 

Concerns have been expressed that the TSGP would require participating schools to comply with the Individuals with Disabilities Education Act (IDEA), a law that could require schools to make expensive accommodations for students with physical or learning disabilities. But this is not true.

Dick Komer, currently a Senior Attorney with the Institute for Justice and previously Deputy Assistant Secretary for Civil Rights at the U.S. Department of Education, recently recounted how he personally helped determine the department’s policy on this issue when it was raised by opponents of the Milwaukee Parental Choice Program. He wrote:

I prepared a memorandum concluding that no federal funds were used for the Program and that any participating schools were thus not recipients of federal financial assistance directly subject to the laws enforced by OCR [Office of Civil Rights]. That memo also concluded that the schools remained private schools, and that the children were “parentally-placed private school students” under the IDEA, which meant that they were not entitled to a free and appropriate public education in their private schools.

Komer reports that the issue came up again after Florida passed its McKay program, which provides vouchers to children with disabilities, meaning they would be eligible for an Individualized Education Program (IEP) if enrolled in public schools.  He wrote,
The question was again asked of OCR whether such students should be considered as public school students because they receive vouchers and the answer was again given that they were not, and that they were classified the same as if their parents placed them in private schools with their own money exclusively.

5.  The real barrier to regulation of private schools is the vigilance of parents and private education leaders, not the absence of public funding.

The State of Texas already has the power to regulate private schools heavily, with or without the “cash nexus” created by school vouchers or tax credits. The same U.S. Supreme Court decision that recognized the right of parents to enroll their children in private schools also recognized the right of states to regulate schools for the public benefit.

Religiously affiliated schools are protected by the First Amendment against federal or state regulations that would interfere with their freedom of religion. But they and other schools are protected from over-regulation mainly by the vigilance of parents, teachers, and private school administrators. That will not change.

What would change under the TSGP is that the number of parents, teachers, and school administrators with a stake in protecting the autonomy of private schools would increase by more than 100 percent in the first year alone and by multiples of that number in subsequent years. This should strengthen the political coalition in favor of free and unregulated private schooling, which currently fights against huge odds against a public school establishment that enrolls some 94 out of 100 K-12 students. Consequently, the odds of preserving the independence of private schools improve with TSGP, rather than being diminished.

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All of the following sources are available online at www.heartland.org/ideas/taxpayer-savings-grants:

John Merrifield and Joseph L. Bast, “Budget Impact of the Texas Taxpayers’ Savings Grant Program,” Policy Brief, E.G. West Institute for Effective Schooling and The Heartland Institute, April 2011.

Joseph L. Bast, “Corrections to Fiscal Note for Taxpayers’ Savings Grants Programs,” Policy Brief, The Heartland Institute, June 8, 2011.

Joseph L. Bast, “Making Texas Public Education More Efficient: Taxpayer Savings Grant Program,” Testimony to the Texas Senate Committee on Education, August 24, 2012.

Dick Komer, “Q6: Do vouchers destroy private school freedom?” The Heartland Institute, June 16, 2011.

For more information, contact Joseph Bast, Joy Pullmann, or John Nothdurft, The Heartland Is Institute, at 312/377-4000 or by email at jbast@heartland.org, jpullmann@heartland.org, or jnothdurft@heartland.org.