Constitution Watch: Outcome-Biased Education?

While Goals 2000’s effort to impose federal controls on local public schools may seem an instance of the blind trying to lead the blind, a recent event in Ohio is an example of the blind trying to lead the 20/20s.

There a troubled public educational establishment has undertaken to impose on private schools in Ohio a regulatory program designed to ensure that the private schools are “up to public school quality.” The device is a statute annually requiring all ninth-grade pupils in chartered private schools to pass a state-constructed “proficiency test.”

Most private schools in Ohio have long held state-granted charters. Chartering, prior to 1992, involved no intrusive state regulating, but had created a cooperative relationship between school and state, involving observance of certain minimal standards and proffering of such helps as access to state educational resources. Having a state charter had seemed attractive to hundreds of competent private schools in Ohio, which eagerly sought the state’s cachet. Chartering also meant that the state would lend the schools’ children secular textbooks, provide them speech and hearing diagnostic services, various health services, busing, guidance and counseling services, loans of computer software and various items of instructional equipment. Thus matters stood at the opening of 1992. A proficiency testing requirement had been imposed on Ohio’s public schools in 1987 in plain response to the widely perceived crisis in public education that had been described in the famed 1983 study, “A Nation At Risk.” But no evidence had been presented in Ohio that private education was a contributor to the “risk.”

Yet in 1992, thanks to intense lobbying by the State Board of Education, proficiency testing by the state was extended to pupils in the private chartered schools. The penalties for refusal by a school to allow the test were severe. Its charter would be revoked, and it could not henceforth issue diplomas. Its students would thus have difficulty entering college. Teaching in a nonchartered school would no longer count as credit toward a teacher certificate. The flow of benefits (textbooks, etc.) would be cut off. Parents sending their children to a nonchartered school could face criminal sanctions. Bottom line: the schools would face closure. The legislative record in 1992, however, is devoid of the slightest hint that Ohio’s private schools were paralleling the public schools in failure to impart sound education in the basics or in the forming of the virtuous and peaceable citizen. The observable opposite was the case. Still, what had the private schools to lose by going along with the state’s testing their pupils simply for “proficiency”? Indeed, might not the tests produce positive gains for both schools and children? To find out the answers requires going beneath the plausible surface of the state board’s broad plea, “Test all children to assure they are getting good education!”

At the threshold of those inquiries is the question of whether, or to what extent, government may dictate the education of the young. The Vatican II Declaration on Christian Education envisions a limited role of government, emphasizing “the principle of subsidiarity, so that no kind of school monopoly arises.” The declaration, stressing parental rights and religious liberty, does not see the state as the supreme educator. The facts of educational life in the USA today do not disclose the state as even a superior educator. It is surprising that the state would venture into private schools to test their proficiency. What would justify such regulation? In Ohio the aforementioned financially valuable benefits accompany chartering. Thus is presented the problem posed in Stacy Mattingly’s article in the March Crisis: May not the state regulate what it subsidizes? Indeed it may, but constitutionally (as the Supreme Court has held as recently as 1993) the benefits that go with the chartering are to be seen primarily as benefits to children (and hence to their taxpayer parents) and only as attenuated support of institutions. State regulation of a specific benefit (e.g., bus transportation) gives no ground for the state’s regulating of the whole educational process.

In October the Ohio Association of Independent Schools, representing thirty private secular academies in Ohio and conscious of their high quality, filed suit in federal court to bar enforcement of the testing program on private schools. The Ohio Association said that imposition of the test on nonpublic schools “does not advance any state interest” since most of their students graduate and almost 100% matriculate to college. The association denounced the testing program as “overly intrusive” in requiring its schools to “revise curriculum to the specific subjects and areas covered by the tests.” Since nonpublic schools would then lose the ability to craft their curricula to meet the needs of their constituency (their students and parents), their role in providing an alternative to public education would be extinguished.

Meanwhile, the chartered religious schools in Ohio have also reacted to the program. Initially opposing the program in principle, the Ohio Catholic Conference then withdrew its opposition, reportedly because the state benefits would be lost for refusal to go along. The reaction of many evangelical Christian schools in Ohio has been the opposite. They support the position of the Ohio Association but warn that the state program also poses a serious threat to the religious liberty of all religious schools in Ohio. In public statements and in protracted labors with the state board to seek exemption from the program, they have centered their objection on factors well worth the attention of all friends of educational freedom.

First, the evangelicals fully share the view of the Ohio Association that the public school establishment has no business coming into successful private schools to test their students for what that establishment deems competency. The religious schools are provably successful in the marketplace as the choice, not of ignoramuses misguided by religious fanatics, but predominantly of people sacrificially dedicated as parents and successful in their personal lives. They are revolted at the audacity of the state in its threat to shut down the schools that their money, enterprise, and religious concerns have created.

Second, is the testing process itself. The new law mandates testing for reading, writing, mathematics, science, and citizenship—all matters for which the private schools already test, evangelical schools using the well-regarded Stanford Achievement Test. Ohio disregards Stanford, which tests students’ knowledge of particular basic subjects, and grades their performances. Under the Ohio scheme, grading is not involved. Instead, children are to be measured by judging whether they have achieved certain loosely stated “outcomes” deemed desirable by the state, in the five testing areas. The tests are scored, not by the child’s teacher but by unseen and unreachable governmental reviewers. It is they, not the child’s teacher, who determine whether the child’s “learning outcomes” permit graduation. Moreover, experience now shows that the outcomes correlate only in part with the evangelical schools’ curricula, thus confirming the Ohio Association’s complaint that the schools will have to amend their curricula and “teach to the test.” The outcomes indeed go way outside what would ordinarily be considered as related to the five above categories. And the outcomes are changed from year to year. The content of the outcomes causes particular concern to the resisting schools because representing a governmental judgment as to what is important.

Inquiries teach, and that is especially important where government, with its power and prestige, is the interrogator and the person questioned is a child. Here, the power of suggestion is highly significant. Some outcomes emphasize cultural (including gender) diversity, centering on differences and conflicts within our society. Others reflect a materialist view of society, in, for example, an unbalanced environmental theme, presenting the physical environment as more important than any other concerns. Religion’s unimportance is stressed by its total absence.

One outcome to be measured for relates to identification of major economic systems. Here Communism appears as “the final stage of Socialism, in which there are no social classes, cooperation replacing competition, everyone’s needs being met.” A bias appears in favor of a material evolution of unknown origin and indefinite duration. Other outcome areas give a disproportionate picture of non-traditional family structure, woman being often presented as a career person or woman at work. There are negative portrayals of children’s perspectives on their home life.

Worse, in the view of the evangelicals, are questions that ask the student to share feelings on sensitive personal and family matters. The testing statute does not prohibit the state from sharing students’ individual responses with other parties, including research data banks. “What is the proficiency,” the evangelicals ask, “which the state seeks to measure in these areas of the affective? Why does the state even touch upon the children’s values and attitudes?” The questions are disturbing. As we await the result of the Ohio Association’s lawsuit, we must realize that the challenged proficiency testing program gives the state total power over the education of children, power most dangerous in the area of values. It may be hoped that religious schools will not leave it up to secular schools to stand alone in challenging this amazing intrusion.

At Palisades, New York, yet another summit was convened in March to respond to “the national educational crisis.” The flood of hortatory expression from the summit leaders decried the crisis and presented a kaleidoscope of sure-fire solutions—increasing responsibility for the states, spending more money, upping “standards” (undefined) and stressing “assessment” (by methods to be devised by the failing state educational bureaucracies). President Clinton has joined in the chorus by predictably calling for proficiency testing. The summiteers again are missing what’s on the public’s mind: (a) that the crisis has to do with public education, not private education, (b) that public education’s failure to equip kids as once it did, to read, write, compute, and have passable familiarity with the traditional branches of learning, is both incredible and, by the simplest means, remediable. Summit leaders need but look to private education to find out how. But the blind continue to lead the blind.


William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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