Referendum Losses Are No Mandate against School Choice

But there are strong forces militating against adopting choice through referenda, including the fact that people whose livelihoods come from the current system are more motivated and easily organized than those who want change, and fear of loss is a more powerful emotion than the pleasure of gain.

Yet even with all these forces arrayed against choice, no fewer than 1‑in‑3 voters supported it, showing many people very much want more than just public schools.

Of course, the devil is in the details for any ballot measure, and in Colorado, the devilish details might have been most important. Voters faced a ballot question asking if the state constitution should be amended to establish “the right to school choice” for children. But the full amendment had several issues that made even many choice supporters hesitant to endorse it.

First, parents nationwide already have the right to direct the education of their children, enshrined by the U.S. Supreme Court nearly 100 years ago in Pierce v. Society of Sisters. This does not include a right to funding, but neither did the failed amendment. Second, the amendment specified that children, not parents, have the right to choice, which could lead to disputes within families and put the government in the role of mediator. Moreover, the amendment stated that children have a right to “a quality education,” which sounds wonderful. But who would define quality? Almost certainly government, through regulation of private schools and homeschoolers.

The proposed constitutional amendment in Kentucky was more straightforward: “The General Assembly may provide financial support for the education of students outside the system of common schools.” It also included language to make it clear that the current constitutional prohibition against such funding would not apply.

Here, some of the natural disadvantages of choice-through-referendum were at work. Voters were bombarded with messages for and against the amendment, with the two sides each raising about the same amount: $8 million. But school districts, the Kentucky School Boards Association, and teachers unions lobbied heavily against the measure, warning that the amendment – which would not itself have created any choice – would destroy public schooling. Indeed, in response to school district website and social media posts urging a “No” vote, the Kentucky attorney general issued an advisory reminding them of state law: “Local, state, and federal tax dollars shall not be used to advocate, in partial terms, for or against any public question that appears on the ballot.”

In Nebraska, the education establishment likewise waged an intense campaign against choice. There, the question on the ballot was whether to repeal the school voucher plan passed this year. Choice opponents outspent supporters nearly four to one, with most of the funds coming from teachers unions. The National Education Association contributed $3.6 million and the Nebraska State Education Association chipped in another $1.7 million.

Fear was a popular weapon in Nebraska, with choice opponents running an especially strident ad showing mean men in suits wrecking children’s recess while messages like “cuts to public schools” appeared on the screen. It also claimed a cost of $100 million, but only by multiplying the tiny $10 million program by ten years, and assuming every available voucher would be utilized by families who wanted an option other than their assigned public school.

Here again, the details are important, including the convoluted process leading to this point. Last year, the legislature created a tax credit scholarship program, and opponents ran a campaign to get a repeal on the ballot. Supporters replaced the tax credit with a voucher in hopes of thwarting the repeal because a voucher was, arguably, a “revenue-setting law,” and, hence, not touchable by referendum. Choice supporters lost that argument in court while opponents collected enough signatures to get a new repeal measure before voters.

It is not clear that choice supporters in the state were particularly enthusiastic about the change. Neither the tax credit nor the voucher program was very large, but the credit was $25 million. A $10 million voucher program was a big drop even from the low credit level.

Families who were hoping for access to new educational options are no doubt disappointed in the aftermath of these elections. Things look bleakest in Kentucky, where all immediate roads to choice appear blocked. The outlook is brighter in Nebraska, where state government political control is the same as when the voucher was passed. And in Colorado, it is not clear that the effort would have done any good, and it may well have done harm.

Ultimately, education choices should not be based on majority rule. It is simply wrong to compel families to pay for, and de facto attend, government schools – places intended to do nothing less than shape human minds – that they find subpar, or even morally unacceptable, even if the majority is okay with them.

The fight will go on.