All politics is local, someone once said. That person probably never witnessed 2016. Nevertheless, in the spirit of continuing to plod along on the innumerable issues still facing our country, our states, and our cities—most especially Philadelphia—I offer the following thoughts on Professor DeJarnatt’s recent piece in these pages.
Professor DeJarnatt has been perhaps the fiercest and most effective critic of school reform efforts in Philadelphia. For example, in a recent law review article,[1] Professor DeJarnatt argued persuasively that “today’s education reformers[, by] treat[ing] public education as a private good,” impose significant costs on the communities in which school reform is taking place. Professor DeJarnatt identified three costs:
First is the cost to community and the loss of voice of parents and taxpayers in the community for any say in their schools. Second is the economic cost of these reforms, in particular the costs imposed on the students who remain in traditional public schools. Third is the cost of lost opportunity—the opportunity to improve the system of public education while still considering it a public good that exists to prepare students for their participation as citizens.[2]
Moreover, Professor DeJarnatt’s main contribution may well be rhetorical, with my first sentence serving as violator-in-chief. What is being opposed is not the goal of reforming schools—reform in this sense used as a synonym of improve—but that “school reform” is a smoke-screen for a more sinister, ideologically-driven approach to public education. “The education reform world is full of proposals . . . premised on a belief that all change is good and that the ‘status quo’ is completely bad [and that] [a]nyone who resists the alternatives . . . want[s] failure, want[s] to hold kids back in ‘failing schools.’”[3] Before law school, I spent three fruitful years in this “education reform world,” in an organization—the Philadelphia School Partnership—at which Professor DeJarnatt often directed her polemical bow. And, while our organization did some very good work, Professor DeJarnatt’s criticism is, unfortunately, true.
Professor DeJarnatt has repeated and expanded these arguments in numerous media since. She not only writes law review articles, she also testifies at school board hearings, writes editorials, marches in demonstrations, vocally supports political candidates, and sits for interviews. Almost all her work is focused on how these issues impact the public education system in Philadelphia. The range and interplay of Professor DeJarnatt’s oeuvre lends truth to the maxim that the whole is greater than the sum of the component parts.
Professor DeJarnatt’s recent article in these pages focuses on the investigation of two schools managed by Nicholas Trombetta. Trombetta recently pled guilty to federal charges that he stole $8 million in public funds through various accounting, tax, and legal maneuvers. Part of the investigation was the audit of two schools founded by Trombetta—PA Cyber Charter School and Lincoln Park Performing Charter School—and the Charter Management Organization (“CMO”) which ran them both. Professor DeJarnatt describes the staggering results of the audit:
This audit notes that PA Cyber paid the CMO 12% of its revenues as a management fee—for very ill-defined management services. This fee amounted to $153.8 million for the three years covered by the audit. The school also paid the CMO $110 million under a curriculum contract that had no terms or conditions initially. In 2015-2016, the school entered into a new curriculum contract with the CMO which provided for a nonperformance penalty. But the school’s board waived the $4.2 million in penalties that the CMO owed for missing three of the four deadlines under the agreement. . . . PA Cyber gets tuition money from 484 different Pennsylvania school districts. Those districts have no control or supervisory authority over the school or its CMO despite their financial “contributions.”
[The] audit of the Lincoln Park Performing Arts Charter School adds to the concerns. LPPACS also has a management agreement with the same CMO as PA Cyber—a 12% fee of all tuition received by LPPACs for management and a 10% fee for curriculum. Those costs amounted to over $3 million for the years 2011 to 2015. Again the fees had no clear connection to actual costs and the contract lacked any real accountability requirements.
Professor DeJarnatt argues that these “audits and [the] guilty plea show strong evidence of the need for reform of Pennsylvania’s charter law to provide for more effective oversight of the substantial public money going to the charter sector.” Maybe so. But her claim is objectionable on a foundational level, concerning the framework for understanding and implementing school reform.
In my view, school reform is best understood as a device for regulating, and minimizing, educational risks.[4] Central to the claim that risk regulation may serve as the conceptual framework for understanding and implementing school reform is not that it offers another school reform theory, one that should compete with all the others (like community schools, stronger unions, or more (or less) charters). Rather, a risk-regulation framework can include and subsume all other valuable theories. It is not that we have no good theories how best to accomplish public schooling—Professor DeJarnatt having articulated and defended several of them—it is that we have too many. We have an irreducible plurality of valuable theories of public schooling, an irreducible plurality of public school goods. Given this, it is inevitable that irreconcilable conflicts, tensions, and tradeoffs exist.
For example, the crucial debate in Philadelphia over the past several years has been whether to expand the charter school sector, the topic of Professor DeJarnatt’s article. Governor Tom Wolf, Teacher’s Union President Jerry Jordan, and many others have been on record as wanting to approve no new charter seats in Philadelphia, arguing that doing so risks financial and educational collapse of the traditional public school district. So-called school reform organizations (such as the Philadelphia School Partnership, where I worked, but also PennCAN and others) counter that (and I’m simplifying) protecting the solvency of one branch of the school system while hindering the strategic growth in another will cause long-term consequences far greater than the risks identified by Jordan and Governor Wolf. Both sides have merit, and both sides have downsides.
Assuming a risk regulation framework, then, these tradeoffs not only can be balanced; they can be optimized. “Optimizing school reform” can best be defined by reference to its target, its antonym, which lurks in Professor DeJarnatt’s piece: “precautionary school reform.”[5]
Adrian Vermeule, in The Constitution of Risk, discusses the distinction between “optimizing” and “precautionary” in terms that can easily be adapted to the school reform debate. On the one hand, precautionary school reform (or precautionary constitutionalism in Vermeule’s case) has certain advantages. For one, proceeding precautiously often avoids the worst cases. A fear of Professor DeJarnatt is that school reformers will implement harmful educational programs and thus the public needs to impose a prescription to restrict official power ex ante, before the worst can happen.
But, as Vermeule argues in his book in discussing the problems with precautionary constitutionalism, there are four general problems with a precautionary approach.
First, precautions may prove futile because they may not align with the incentives of the actors in the system, like an actor’s desire to reach higher political office. Bill Green, a current Commissioner on the school board is one example, as his apparent desire to seek higher office (the Mayor’s, as did his father) may have encouraged him to promote too many risky reform ideas. Another good example is when the school board canceled the teacher union’s contract. Up until that point, the contract served as an important check on official power. But, once the Commission observed sufficient political cover—in the form of a sympathetic legislature, governor, and Supreme Court—they ripped the contract to shreds. The teacher’s union has been operating contract-less for three years.
The second problem with precautions is that they can be excessively expensive and thus jeopardize other important values. As stated, common ground on issues of public school reform is often so difficult to find because there is an irreducible plurality of public school goods. Suppose it costs $2 to prevent $1 worth of fraud, fraud which itself causes another $0.50 in collateral, long-term damage. An optimized school system might accept the fraud, as preventing the fraud is more expensive to the system in the long-run.
This highlights a crucial point: The optimal level of abuse of power or fraud within the public school system probably is non-zero. Thus, even the criminal activity cited by Professor DeJarnatt might be taken not as a bug of the school system, but a feature. It could be that the best solution is not to design an ex ante precaution but wait to see if the threat materializes and then have an ex post remedy. The ex ante precautions needed to prevent fraud, like onerous new reporting requirements or the total prohibition of CMOs, may well be more expensive to the system (all costs considered) than robust ex post remedies, like sufficient jail time for violators.
Moreover, it is confusing that an audit revealing waste and fraud, and a resulting felony guilty plea, would be sufficient evidence to prove Professor DeJarnatt’s central claim that there is “need for reform of Pennsylvania’s charter law to provide for more effective oversight of the substantial money going to the charter sector.” The audit and guilty plea seem to show only that the oversight systems are effective, and that waste, fraud, and abuse in fact exist.
Third, and finally, the precautions might exacerbate the very values they seek to promote. Here again charter schools serve as an example. Professor DeJarnatt has previously endorsed a moratorium on the granting of any new charter, regardless of quality.[6] She has done so for good reason, as many in education circles have concluded that the granting of each new seat in a charter school not only takes that money from the traditional public school system, but also produces a deadweight loss. This deadweight loss is due, in the main, to the inability of the public school system to shed costs proportional to each student lost, something a large public school system cannot avoid.
For example, a public school classroom of 30 students requires one teacher, as does one with only 29. If that last student had left to go to a charter school, the public school system would lose the revenue attached to that student—one-thirtieth of the total—without being able to reduce costs commensurately. But a question looms: What if the benefit to the system from charter expansion is greater than the deadweight loss? Deadweight losses have been estimated at $2,500 to $7,000 per new charter seat; if the benefits to the system are greater than those losses, should not an optimized system support charter expansion?
In closing, I don’t know how much of the above will lead to different results than those that Professor DeJarnatt has been proposing over the last several years or might propose in the future. Indeed, Professor DeJarnatt’s piece in Voices identifies only a “need for reform of Pennsylvania’s charter law to provide for more effective oversight of the substantial public money going to the charter sector.” I call only for the position that the decision maker should take all relevant risks into account, including risks of the precautions themselves.
__________________________________________________________
[1] Susan L. DeJarnatt, Community Losses: The Costs of Education Reform, 45 Tol. L. Rev. 579 (2014).
[2] Id.
[3] Id.
[4] In viewing school reform through a risk-regulation framework, I borrow heavily from ideas put forward by Adrian Vermeule in The Constitution of Risk (2014).
[5] Here again I borrow from Vermeule in understanding the distinction between “optimization” and “precautionary.”
[6] See, e.g., Susan L. DeJarnatt, SRC plan to privatize 3 Philly schools a gross overreach, inconsistent, http://www.newsworks.org/index.php/local/featured-speak-easy/90869-src-plan-to-privatize-3-philly-schools-a-gross-overreach-inconsistent (last visited November 9, 2016). I say “essential quality” because, in her piece, Professor DeJarnatt does argue that the schools eligible for charter conversion are no worse than the charter operators seeking to do the converting. But Professor DeJarnatt’s main supporting evidence is test scores, a premise she has often rejected.
