I’m a fair-weather football fan. The only gridiron lore I can recite is based on the two NFL seasons that permeated my fickle consciousness (the same seasons that my home team—the Seattle Seahawks—went to the Super Bowl). More committed football fans will remember the 2014 season as the one in which the New England Patriots won the AFC championship game while fighting off rumors that the team’s storied quarterback ordered the deflation of footballs to gain an unfair advantage against the Indianapolis Colts.

In the same spirit of Mike McShane’s NFL analogy to open his forum essay with me earlier this week, I see the “Deflategate” saga as a reminder that all athletic competitions depend not only on players and referees but on the rules governing fair play. Victory means little if one team is allowed to cheat. Referees exist to ensure the rules are enforced. Is the system perfect? Of course not. Any committed football fan can point to a list of bad calls. But no football fan would suggest the solution to bad calls is to eliminate the rules.

Like an athletic competition, the rules that govern transactions between consumers and producers are integral to whether markets operate efficiently and produce good results for their participants. If you buy groceries, use seatbelts, or put your infant child in a crib, you have benefited from rules designed to promote a safe food supply, reduce fatal injuries in car accidents, and ensure parents don’t have to learn through experience that their crib poses a danger to their sleeping child.

We don’t have to imagine a world without rules like these, for that world existed not very long ago. Upton Sinclair famously documented the consumer hazards of the meat-packing industry before the advent of the Food and Drug Administration in The Jungle. Pioneering consumer advocate Ralph Nader electrified the public with his story of how car companies’ refusal to install seat belts cost thousands of American lives.

Thankfully, the brave advocates and policymakers who fought for these consumer protections during the 20th century didn’t have the leaders of the modern education choice movement whispering in their ears about how regulation is only a “millstone around the neck” of the good people selling their wares. Even if they had, they probably would have ignored them in the face of overwhelming evidence that competition alone would not help consumers secure the things that their health and wellbeing depended on.

Mike and I agree that America has a shortage of good schools and faces serious challenges to addressing this problem. I’ve had a front row seat to these challenges for more than a decade in conversations with parents, teachers, principals, entrepreneurs, and system leaders—all motivated people and most eager to see children succeed. Anyone who suggests these challenges can be solved by “regulation” shouldn’t be taken seriously.

But today’s school choice advocates travel in their own version of this dangerous hyperbole. They pretend that regulation is a recipe for consumer harm, serving only to handcuff the benevolent entrepreneurs who have something to sell. They suggest, without evidence, that any effort to impose common standards or metrics—either to inform consumer decision-making or assess the results of private-education choice initiatives—will only serve to undermine consumers’ pursuit of the very educational benefits that taxpayers and policymakers want to support. They point to the failures of the test-based accountability movement to achieve all its supporters hoped as “proof” that markets can succeed where these efforts failed.

I decided to write about Milwaukee’s story after spending six long months watching (and sometimes debating) the leaders of the modern education choice movement say these things while increasingly worried about how their ideas were playing out in the real world for the children and families they purport to want to help. During my reconnaissance mission, I learned about LifeSkills Academy, the Milwaukee-based private school that closed in the “dead of the night” only to be reincarnated not once but twice in Florida where its owners continue to benefit from taxpayer dollars without evidence of public or private value. I learned that Florida added nearly 900 private schools to its voucher program between 2010 and 2020 (see the reports at the bottom of this page) that no longer exist and that 61 percent of children who participated in that program left in two years or fewer, in some cases returning to the very public schools they had sought to escape.

I was scandalized by these observations not because advocates made, as Mike says, “overly rosy predictions”; to be an advocate is to be hopeful about the future. No, I was scandalized because advocates seemed to be willfully ignorant of the past.

In her 1983 book Sudden Death, civil rights leader Rita Mae Brown coined the now often quoted phrase, “Insanity is doing the same thing over and over again and expecting different results.” My plea to today’s private-education choice advocates and their supporters in states is simple: Don’t repeat Milwaukee’s mistakes, learn from them. Milwaukee’s experiences with private education shows how children and families can be harmed by the unconstrained impulses of entrepreneurs—some of whom lack either the good intent or preparation needed to be in the business of running a school. It also shows that regulation can protect consumers from the most unscrupulous elements of private schooling without quashing opportunities for new, good schools to take root.

But the most important lesson from Milwaukee is not found in its regulatory architecture, which I agree could use improvement; it rests in the humility and problem-solving ethos its leaders brought to their work. This requires breaking free from what economist Arnold Kling deemed the “unproductive” debate about the regulatory state, where “conservatives tend to believe that we could do without the regulatory state . . . while progressives tend to believe that experts know how to solve any problem.” Both sides, Kling suggests, need to “set aside their respective biases toward [regulation] and consider structural reforms that would make it more effective and less prone to abuses of power.”

For anyone brave enough to heed Kling’s advice, here are some ideas that could be part of an effort to make private-education choice more effective for the children and families who take advantage of it:

• Monitor exit data. Exit data are the “canary in the coal mine” for education choice programs—illuminating whether families secure something of value from the private-education marketplace. State policymakers should build data systems capable of tracking publicly funded students’ entry into and exit from private, charter, and public schools and monitor these data at the school and program levels to identify challenges that could be addressed through better program design, including but not limited to regulatory requirements.

Regularly gather input from participating and exiting families to identify and act on unmet needs. Policymakers should require private-education choice program administrators to administer annual surveys to families that participated, including those who have chosen to return to traditional public schools. These surveys could help policymakers make private-education choice programs more user friendly and identify gaps in the education marketplace that either funders or state policymakers could address through targeted grants or incentives.

• Consider requiring private schools to administer and publicly report the results of state achievement tests. While the use of state achievement tests in private-education choice programs is controversial, these tests are not the “poison pill” that choice advocates have made them out to be. Importantly, Milwaukee shows that state testing can provide families with information they value and can act upon without prompting the best private schools to leave publicly financed programs or shutting down options that families otherwise find valuable. State policymakers who are gun shy about incorporating such a mandate could use incentives to encourage private schools to participate—for example, making start-up grants or higher per-pupil funding contingent on administering state tests. States considering testing requirements could also propose testing waivers or alternative accountability requirements for schools designed to serve students with unique needs, including those with disabilities. Finally, if state policymakers believe current tests do not reflect their expectations or those of families for the publicly financed education system, they should change them. To do so, they might take inspiration from the many international examples of pluralistic education systems that manage to effectively balance common expectations with schools’ diverse missions and instructional approaches.

• Empower families with information that helps them act upon their interests and hold providers accountable. Even without common testing and reporting of results, there is much that states could do to empower families with information that enables them to have more success with private-education choice programs. Here are just a few ideas: (1) provide families with remote testing opportunities that allow them to screen their children for reading difficulties or to benchmark their learning to state achievement standards; (2) require schools to disclose foundational elements of their academic programs (e.g., curriculum) and assemble this information in parent-friendly guides; (3) support homeschooling families to separate the wheat from the chaff in the home-curriculum marketplace; (4) take data that private schools are already required to report to the state (e.g., results of norm-referenced assessments in some states) and make them readily available to families; (5) collect and publicly report on exit data—so families can assess just how valuable private schools’ offerings are. None of these ideas would constrain families from choosing a school, tutor, or curriculum of their choice, but they could help them identify whether those vendors are offering something they want and avoid some of the “trial by fire” that characterizes the current marketplace.

• Approach regulatory design as a problem-solving process. Whether states are at the beginning or years into their private-education choice journeys, all regulations—current and proposed—should be judged based on the value they generate to consumers of education and their communities more generally. These assessments should be grounded in empirical data and a fair evaluation of the costs and benefits of new requirements. While history and experience can inform these conversations, the choice in front of policymakers is not limited to the regulatory regimes of yesteryear. Policymakers could, for example, reject high-stakes, sanctions-driven accountability systems while maintaining a commitment to annual assessments and public reporting of state achievement tests. They could also work to protect taxpayers and families from fraud and abuse in a much more open education marketplace while avoiding cumbersome compliance requirements that limit experimentation and innovation in curriculum, pedagogy, and teacher talent. Ultimately, the regulatory architecture that best optimizes the results of private-education choice programs depends on what policymakers, taxpayers, and families desire. Defining these goals is an essential part of establishing any new public program; pretending they don’t exist is a dangerous exercise in moral relativism that suggests a “good education” means whatever you make of it.

Admittedly, these ideas sound less snappy than those offered by ideologues on either side of the choice debate. Problem-solving is not for the vain or faint of heart; it involves admitting failure as much as it does celebrating success. But what it lacks in superficial shine is more than compensated for by the real-world results that many people are counting on.

Ashley Jochim is an independent researcher and consulting principal at the Center on Reinventing Public Education at Arizona State University.