Uniformity Clauses, School Choice, and Undergrad Musings

Grove City College is just down the road from me, a school that has long enjoyed a reputation for producing excellent engineers as well as being somewhat conservative. I'm talking small-c conservative, the kind of school where young women supposedly went to earn their MRS degree. An activity for decades was to go to the lobby of the womens' dorm and have some room buzzed, then when the co-ed appeared in the lobby, the boys would rate her appearance with Olympic-style score cards. Hilarious. Friends, family, and untold numbers of former students have studied there; I've been the co-op for several student teachers from their program. 

Grove City is heavily endowed (lots of Pew/Sun Oil money there), which allowed it to make one of its few marks on the national scene, the case of Grove City College v. Bell. GCC's point was that since they accepted no federal dollars, they shouldn't have to fill out federal paperwork to show compliance with various policies (e.g. Title IX). The feds said, "Oh no-- since some of your students get federal aid, you fall under our umbrella."

GCC lost the lawsuit, so they simply stopped letting students use federal aid dollars and instead replaced all federal aid dollars with private supplemental $$. The feds passed a law to help plug some of the holes that the case revealed, but GCC was out from under their thumb. That was back in the 1980s. 

Somewhere in the last decade or two, Grove City College because a Conservative college. In 2017, PA Senator Pat Toomey raised a ruckus by adding a carve-out in a tax bill meant to exclude from taxation the endowments of colleges that don't accept federal funds; it was widely seen as a benefit for Hillsdale College (the Very Conservative Religious College beloved by the DeVos family), but of course it also worked for Grove City College as well. 

In 2005, the college set up its own thinky tank, The Center for Vision and Values, but in 2019 they stopped pussyfooting around and renamed it the Institute for Faith and Freedom. Lawrence Reed, a leader at the Mackinac Center, the Foundation for Economic Education, and former State Policy Network president, is a Grove City grad. The college launched its new Center for Faith and Public Life by signing on Distinguishing Visiting Fellow Mike Pence.

In 2009, GCC launched a relative rarity-- a law journal for undergrads. It had three purposes: 

to prepare students to succeed in law school by equipping them to become better readers, writers, and researchers; to expand the influence of Grove City College by distributing a scholarly publication; and to establish relationships among students, staff, faculty, and friends of the College.

The journal has published on a variety of issues, from abortion to the struggle between Libertarianism and Fusionism for control of the GOP. There's even a piece in Vol. 12 by Reed himself, a bit of a history lesson about Thomas Clarkson and William Wilberforce. There are even radical theses, like the piece that argues that Milton Friedman didn't understand the Great Depression at all. 

The newest issue (Vol. 15) includes pieces by folks who are not connected to GCC, including the co-authors of the piece we've finally worked our way around to.

A. Caleb Pirc got his BS in Business Administration: Entrepreneurship from Liberty University, then went on to Regent University School of Law. Lili Pirc graduated from Pusch Ridge Christian Academy, then earned a BA in History from W.A. Franke Honors College (that's University of Arizona) before heading to Regent University School of Law. Regent University is a private Christian school in Virginia Beach, founded in 1996. Sam Alito and John Ashcroft have served on the faculty; Kristen Waggoner, the lead counsel on the Masterpiece Cake Shop, is an alumnus. 

Mr. and Mrs. Pirc both graduated in 2024 (yes, they're married). Now they've produced a "note" about how uniformity clauses might affect school choice programs-- "A Time for Choosing: The Impact of Uniformity Clauses in State Constitutions on School Choice Programs."

The authors posit that, having been frustrated by the Supreme Court's continued demolition of the wall between church and state, choice opponents will turn to "their new tactic to undermine school choice programs: uniformity clauses."

State constitutions use a variety of certain terms (laid out efficiently in this piece from the Education Law Center), including "thorough and efficient," "general," and "uniform." What they all have in common is a certain level of vagueness, and the Pircs' note hinges on that. We'll get there.

Right out of the gate, the authors' scholarship is suspect. The introduction's first sentence asserts that over the part few years there has been a "groundswell of parents concerned about the influence of the education system upon their children." The source? An article by DeVos's favorite voucher evangelist Corey DeAngelis in the right-wing Washington Examiner. They are moved by "the prevalence of harmful ideologies, such as Critical Race Theory and Gender Ideology" plus the "politization" of things like learning to read. No acknowledgement here of how such things came to be such a controversy (like, maybe, because certain privatizers deliberately stirred them up in an effort to sow distrust of public education), nor any data to show exactly how much of the parenting public was actually upset.

The authors dismiss state constitution restrictions on using public funds for religious purposes, saying that Espinoza and Carson "foreclose" this argument, and they may turn out to be right (at least as long as the current SCOTUS is in place). They point to other non-religious arguments made against choice programs, citing "The State Constitutionality of Voucher Programs: Religion is Not the Sole Component" by Preston Green and Peter Moran (Published in the Brigham Young University Education and Law Journal way back in 2010). 

Green and Moran list three non-religious provisions, leading with uniformity provisions "which require states to provide a uniform system of public schools." 

Pirc and Pirc point out, not unfairly, that courts and legislators are a little fuzzy on the whole "uniformity of what" question. Uniformity of funding? School structure? Curriculum?  Pirc and Pirc find that last one particularly scary--what if the state forces private voucher schools to follow the same curriculum that voucherphiles want to escape. I'm enjoying the image of, say, segregation academies forced to let Black folks in. We'd bette4r take a closer look, say the authors.

But first, a history lesson.

The modern school choice movement may date to the 20th century, but the authors assert that "parents’ ability to direct their child’s education existed long before then" and back when the nation was founded, "parents chose where and how to educate their children," which is certainly an interesting read on an era in which education was only available to sons of wealthy white families, or Puritan children who were required to attend the local religious school, and everyone else had no particular choice. This is a historical observation on par with Betsy DeVos's assertion that HBCU's were "pioneers" of school choice. 

It was a complicated time, but it surely didn't resemble a choicers utopia. But there's a footnote here, so there must be some legitimate source for--never mind. They're citing Milton Friedman. Then they claim that this heyday of parental choice was diminished when "the Common Schools movement catalyzed the proliferation of government schools."

They toss out some other examples of fledgling choice programs, then shines a spotlight on the Friedman's and their inspirational intellectual support for so many choice programs. "There are too many examples to list here," say the Pircs, which I suppose is why they complete skip over the post-Brown rise of school vouchers as a tool for reinstituting school segregation. 

The note considers three examples of uniformity clauses in action. 

Wisconsin's courts decided that the uniformity clause just meant that students had to have the opportunity to "attend a public school with uniform character of instruction," therefor charters were okay because students still had an "opportunity" to get that uniform education if they chose to.

Florida's uniformity clauses are more of a ceiling than a floor, say the Pircs, and the courts found that public funds may be used only for public schools. As we all know, Florida has successfully worked around that limitation via vouchers that pass public funds through third party parties. 

Idaho has a uniformity clause, but nobody has used it to challenge choice yet. Idaho's courts have established that there is no fundamental constitutional right to education. Idaho followed Wisconsin in deciding "uniformity" refers to curriculum, not funding. 

The Pircs float a couple of their favorite arguments here. First, "there is no system more uniform than one that gives each parent the same amount of dollars to spend for each child’s education, as a voucher system does." Which is a bit like arguing that if we give everyone in Pennsylvania a voucher amount for housing, everyone in the state will live in the same housing, whether they are rich or poor or live in Pittsburgh or Barkeyville. 

The Pircs also want to use the new SCOTUS appeal to history argument, and their historical argument is that centuries ago, Americans had school choice by parents. They do protest that choice programs "do not aim to turn time back to the pre-common school proverbial dark ages that required families without access to a school to scrounge up an education from the crumbs of the earth for their children" but instead offer parents access to both public and private schools. 

Except that of course they do not. First, private schools retain the right to accept or reject students (or families) based on religion, sexual orientation, or, in some cases, any reason they wish. Even clearing that hurdle, barriers of transportation and cost remain (particularly when private schools increase tuition to match voucher availability). Second, the drain on public schools can erode the public choice that is supposed to be there for all students.

The authors are writing this note ultimately to offer advice to choicers. Take a look at your state's uniformity clause, they say, and find out what the courts think it means, especially if it might mean that choice schools have to match public school curriculum. But they note confidently

For almost all states, the question is not whether school choice programs are constitutional but rather how to write them so that they are so.

 The Pircs also quote a central point from Komer and Neily:

Uniformity clauses, they argue, were designed to ensure that public schools possessed certain minimum characteristics, not to impose a limit on the “educational innovation and creativity” of legislators in executing their constitutional duties. “If a state chooses to go above and beyond that constitutional requirement, a uniformity provision should not be a bar.

There's yet another problem here-- the assumption that choice is somehow "above and beyond" the public system. But research has shown pretty conclusively that vouchers are mostly "below and behind" in their results for students. Nor have choice programs involved any notable innovation or creativity other than finding ways to pander to agenda that, as with those segregation academies, have little to do with education and lots to do with bias and culture wars. 

The Pircs offer one last point-- no system should preclude parents educating their child outside of the government system, and they try to assuage the fears of those choice opponents on the far right who see such programs as extending the power of the government. Do it right and that shouldn't be a problem, say the Pircs, who, I'll remind you, are fresh out of a lifelong education in strictly private Christian environments and so can more easily imagine havens walled off from the government, yet somehow fed with taxpayer dollars for which taxpayers don't want accountability. 

It's a tiny piece in a backwater journal, but we'll see if yet another argument for funneling taxpayer dollars to private institutions has legs.