Smart regulations? Why didn’t you say so!

Over-regulation and under-regulation of school choice are two sides of the same bad coin

If you meet one person who is a dyed-in-the-wool ideologue, they are probably a dyed-in-the-wool ideologue. But if everyone you meet is a dyed-in-the-wool ideologue, maybe you’re the dyed-in-the-wool ideologue.

That was my reaction to reading both Ashley Jochim’s essay (“Unfettered Choice Has Not Delivered on Promises to Milwaukee Families”) for the Education Next forum on Milwaukee’s Parental Choice Program (MPCP) and her response to mine (“The Problem with School Choice in Milwaukee Is There’s Not Enough”). While repeatedly casting those who disagree with her as being blinded by ideology and refusing to deal with the facts, she evinces the very same problem.

As a quick reminder, I tried to make four points about the lessons we could draw from Milwaukee’s three-and-a-half-decade experiment with private school choice.

First, I’m more sanguine than Ashley about the overall performance of the Milwaukee program. While falling short of many of its boosters’ lofty rhetoric, Milwaukee with the MPCP is a far better place than Milwaukee without it. Multiple studies have shown positive effects of the program.

Second, I argued that the focus on regulation is a distraction. I used the analogy of players and referees to illustrate that markets need a balance between builders and regulators. If we have too many builders and too few regulators, that is a problem. If we have too many regulators and too few builders, that is a problem, too. I see the central obstacle to education choice (in Milwaukee and elsewhere) as the lack of builders, so having more regulators isn’t going to fix that. As I argue in the forum, we could develop the perfect regulatory regime that outlaws every behavior we hate and does not accidentally sweep up good behaviors we want to promote, and that would still not create one single seat for one single student. Creating seats is what I think we should be focusing on.

Third, I argued that regulators (and those calling for more regulation) need to be a lot humbler than they are. I summarized research showing that we don’t actually have a great idea, ex ante, which schools will succeed and which will fail, and that should make anyone seeking to create front-end screens on potential schools think twice. It is also true that many of the regulations that regulators want to impose on private schools and school choice programs (like taking state standardized tests) already exist in the public sector and do not do a great job promoting education excellence or avoiding some really scandalous behavior on the part of public school employees. This should also give pro-regulation people pause.

Fourth, I argued that there are appropriate levels and kinds of regulation on private schooling and school choice. To borrow from Milton Friedman, whom I quoted in the essay, there are ways to improve the invisible hand without substituting the dead hand of bureaucracy. I used the example of Delaware as a place that seems to strike a good balance between protecting students and families while still allowing innovation and differentiation in schooling options. Delaware warns parents when they are leaving the public system for a private one and that private schools don’t follow the same rules as public schools. Delaware makes students and schools legible, with some of the best reporting of homeschooling data in the country. It also has robust child protection regulations, like requiring mandatory reporting of suspected neglect or abuse.

If you read all that and think, as Ashley apparently does, that I have the mindset of some Gilded Age meat baron trying to bulk up sausages with the fingers of working-class children, I don’t know if I can help you.


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Ashley states that she has been “scandalized” by the behavior of some private schools in Milwaukee. That’s fair enough; their behavior was scandalous. I understand the desire to do something.

But just as there are horror stories in non-education sectors of underregulated markets, so too are there frightful tales of overregulated markets. People who can’t get homes because of land-use and construction regulations. People who can’t get healthcare because of everything from certificate-of-need laws preventing the creation of medical facilities to overly cautious federal regulators dragging their heels on approving potentially life-saving treatments. People who can’t get jobs because of occupational licensing. The list goes on and on.

The problem is that the victims of over-regulation are less obvious than the victims of under-regulation. One person taking a pill and then violently convulsing is more shocking than a person oblivious to the existence of such a pill to treat their illness and quietly passing away. And the same is true in education. The fly-by-night school that runs off with voucher dollars and leaves children in the lurch is more jarring than hundreds of children stuck in a school that is dangerous, isn’t teaching them to read, or both. The latter may not get the same attention, but it is every bit as scandalous as the former.

Is my recognizing that reality and calling it out just the rant of a blind ideologue? I don’t think so. Everyone thinks their regulations are smart, targeted, and reasonable, and then become shocked when no houses are getting built.

If you think, as I do, the problem is that there are too few good schools, then limiting the number of participants—again, with criteria that have no evidence behind them—seems unwise.

Feel free to disagree, I won’t call you an ideologue for it.

Michael Q. McShane is director of national research at EdChoice and an adjunct fellow in education policy studies at the American Enterprise Institute.

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