Throughout most of human history and in most societies, parents and the local communities in which they live have been primarily responsible for ensuring children were properly reared and educated.

For obvious reasons, parents have a great deal more vested interest in the welfare of their children than does any other person or entity. Children are vessels for the parents’ DNA. The biological impulse to eternal survival, common to all life and necessary for its continuation, must necessarily be, in humans, expressed through children. (Having and treating a dog or other pet like a child won’t get one’s DNA into the next generation, no matter how desperately pet owners might like to otherwise believe).

The local community also has an interest in the welfare and education of its children, but one that is more diffuse than that of the parents’. The community needs to replace and replenish its population if it is to survive, so has an interest in the rearing and educating of its children in aggregate, but not of any one child in particular. The interest becomes more diffuse the larger is the community, but there are offsetting efficiency gains to size.

Eventually, the idea of a community with an interest in its children’s education expanded to include whole states and territories (and lately, even the federal government). At some point along the way, however, the efficiency gains evaporated into a cloud of diminishing marginal returns. A state’s interest in the education of any one child is quite diffuse. Yet, by about the middle of the twentieth century, and mostly by accident, court rulings, or the relentless inertia of efficiency, the states assumed more or less full responsibility for ensuring each child within their borders received a proper rearing and education.

But most states, Alabama included, recognized the benefits of pushing the authority for education back down to the local level, where parents and the communities in which they lived could more readily partner with each other to see that their vested, concentrated interests were protected. Alabama encouraged and allowed the formation of local school districts, most of which were tied to the local municipalities in which they existed, and for which the state provided a portion of funding through taxes collected statewide. The local districts could also collect taxes (again, usually through the municipality), and the wealthier school districts often provided over half of the funds spent on education in their districts.

But the delegation of authority did not work out so well in some instances. Some school districts treated the state’s funding as a boondoggle, forgetting the purposes for which they were organized to become what amounted to a jobs program for local residents. As parents who cared about their children’s education fled the districts operating as boondoggles, those districts were left with marginal students and a cost structure unsupportable with the declining revenue that fewer students implied, sometimes leading to a downward spiral yielding the ultimate failure, or near failure, of the district. In some particularly egregious cases, the state was forced to assume operational control over the district, reorganizing it for efficiency, and redirecting its priorities towards educating the students.

While Alabama has readily delegated authority to local school districts, responsibility is not delegable. When the delegation of authority hasn’t worked out as hoped, and school districts have failed, it has been the state’s problem to fix. It is to this non-delegable responsibility that the Alabama Accountability Act of 2013, recently passed by the legislature and signed into law by the Governor, is directed. Instead of assuming direct responsibility for failing districts, or for schools that are failing the students, the state has decided to allow parents and students of failing districts and schools to chip away slices of failing district authority through the simple expedient of being encouraged to leave.

The parents of students at any school deemed to be failing have been afforded a tax credit (or, where no taxes are owed, what amounts to a tuition voucher) in the amount of roughly $3,500 per year (at present, according to the formula used for calculating the amount) for use in either attending another non-failing public school, or in attending a private school (which is accredited, or has been in operation for at least three years). While the districts are not directly targeted, the schools within them are, and for those that fail, the districts stand to lose the tax revenue represented by the kids encouraged to leave (schools are funded by the state according to pupil headcount).

Alabama has long recognized and reaped the fruits of delegating authority for educating children to the level where the interest is most concentrated. In most cases, doing so has worked well, even splendidly. In others, the state has now decided upon a strategy of punishing failures among its schools and districts by allowing the “customers” to choose to go elsewhere, attempting to impose a new competitive model upon what had been a government supplied, but never monopolized, market.

There are a number of potential problems with the strategy. First, is in determining whether the kids are allowed to attend any other public school of their choosing once their school is deemed to have failed, or if the alternative school district has the authority to reject them. The language in the Act is vague, from Subdivision 5:

(5) The parent of a student enrolled in or assigned to a school that has been designated as a failing school, as an alternative to paragraph b. of subdivision (4)[allowing transfer to another school in the same district that isn’t failing], may choose to enroll the student in and transport the student to a nonfailing public school that has available space in any other local school system in the state, and that local school system is willing to accept the student on whatever terms and conditions the system establishes and report the student for purposes of the local school system’s funding pursuant to the Foundation Program.

The state has ultimate responsibility for the school districts. It can decree for them whatever it pleases. If the state decides that “available space in any other local school system in the state” essentially means that the district must accept students from failing schools, then the districts have no choice but to accept them.

And if the state (or if a judge) decrees that non-failing schools in other districts are required to accept students from failing schools, then the State has effectively punished successful school districts (along with failing ones), retrieving a major portion of the authority it had successfully delegated (e.g., that of school districts limiting enrollment to only those who reside in the district, and of using the tax dollars collected in its district only for the benefit of its resident children).

In fact, allowing wholesale school choice in such a manner would create a perverse incentive whereby families with children would have the incentive to live in failing districts (with usually much cheaper property values and thereby property taxes) so they could free-ride their kids into successful school districts.

The attractiveness of living in school districts where schools are failing might help property values in neighborhoods zoned for those schools, but it would do so at the expense of property values elsewhere. Instead of improving schools through competition, the exact opposite might obtain, as parents competed to have their school decreed a failure, so they could be paid to send their children elsewhere.

Apparently in recognition that the state retrieved a good bit of what had been delegated of its authority for education from the local districts, the Act provides for each school district to submit an innovation plan, if it wishes, explaining how it no longer wants to abide by state-promulgated rules and laws concerning its operation, as follows, from the Act:

Section 6. (a) The innovation plan of a local school system shall include, at a minimum, all of the following:

(1) The school year that the local school system expects the school flexibility contract to begin.
(2) The list of state laws, regulations, and policies, including rules, regulations, and policies promulgated by the State Board of Education and the State Department of Education, that the local school system is seeking to waive in its school flexibility contract.
(3) A list of schools included in the innovation plan of the local school system.

What the state taketh away, the state giveth. The question arises, would the school district be allowed to include as a portion of its flexibility plan that the law it sought to waive was operation of the Alabama Accountability Act of 2013?

The Act seems a bit like trying to kill a fly with a hammer. It is directed at imposing a more capitalistic, i.e., competitive regime upon public schools in Alabama, but there already is competition. School systems that fail their students and parents routinely lose them to systems that do a better job, by either losing residents to better districts, or by losing students to private and parochial schools. The Act might create an unintended boondoggle for existing private schools, many of which were formed in response to desegregation initiatives during the Civil Rights era. It might also throw out the baby with the bath water, punishing successful school districts by requiring them to take on anyone who wants to attend, effectively confiscating for its own use the extra money and effort (in addition to state funds) that was expended in making districts successful.  And instead of helping failing school districts and schools improve, it might send them into a downward spiral from which there would be no recovery without state takeover, the very thing the state sought implicitly to end with the Act’s passage. 

The state legislature and Governor Bentley might have considered the possible consequences of the Alabama Accountability Act of 2013 a bit more carefully before using Republican control of the statehouse to rush the legislation through.  The midnight, voice-vote passage of the bill along straight party lines recalls another very unpopular measure that was foisted on the public during the Democrats brief control of both the Executive and Legislative branches of the federal government during Obama’s first two years.  Will the Alabama Accountability Act of 2013 prove as controversial and unpopular as Obamacare?