D.C. voucher proponents have attempted to obscure limitations on “choice” actually available to students in the voucher program
The documents produced to us indicate that proponents of the D.C. voucher program and those in charge of it are well aware of, and apparently have made efforts to obscure, some of the deficiencies in the program. As discussed above, this occurred with respect to such problems as the small number of voucher students from low-performing public schools. It has also taken place concerning the limitations on “choice” truly available to students under the program.
For example, voucher proponents claim that school vouchers provide educational “choice” for parents and students. However, while public schools are required to educate all students, private schools can and do pick and choose. The federal law creating the D.C. voucher program allows them to do so by permitting private schools to impose their normal admissions tests and other admissions requirements on voucher students.44 When WSF submitted to DOE a draft set of “Frequently Asked Questions” for private schools making this clear, DOE raised a red flag. WSF’s draft contained this question and answer:
Q. Can a school apply its own admissions criteria?
A. Yes. Schools will be able to identify which students they deem are admissible by using their standard criteria . . .
On April 23, 2004, DOE e-mailed comments regarding the draft to Sally Sachar of WSF, stating:
Sally, the House Ed Committee has been reluctant to put this answer in writing. Many members are unaware that the schools can in fact pick students . . . I am not sure how to fix the answer but if this document is made public, it may damage their vote count.
E-mail from Nina Rees to Sally Sachar (Apr. 23, 2004) (emphasis added). 45
Another factor that limits student “choice” in the D.C. voucher program is that the voucher law does not prohibit voucher schools where tuition exceeds $7,500 from charging voucher students more than the maximum voucher amount of $7,500.46 WSF attempted to make it appear that the voucher program gives students more “choice” in private schools than it actually does by proposing that it tell private schools participating in the voucher program that they could not charge voucher students more than $7,500 in tuition, when in fact the voucher statute contains no such limitation. (Indeed, as noted above, the Senate rejected an amendment offered by Senator Landrieu that would have capped tuition for voucher students at the voucher amount.) WSF proposed to issue this information as part of guidance given to private schools through a set of responses to “Frequently Asked Questions,” and its draft FAQs dated April 22, 2004 stated:
Q. What if the school charges tuition above $7,500 annually?
A. Schools with tuition in excess of $7,500 may only charge the DC Scholarship family $7,500.
Upon review, DOE changed the draft response to read:
Schools with tuition in excess of $7,500 may charge the DC Scholarship students the same tuition charged to other students and need to provide the DC Scholarship students the same access to the other sources of financial aid as other students.
E-mail from Nina Rees to Sally Sachar (Apr. 23, 2004).
Sachar immediately complained to Rees about DOE’s revision: “[Y]our people changed this answer in a way that is important and I want to circle back with you on it. I thought that we were going to say that schools could not charge more than $7,500 to families. I would like to be able to say that, if that’s okay. There is no way these families can come up with the money anyway so schools will have to absorb the difference.” E-mail from Sally Sachar to Nina Rees (Apr. 23, 2004).
In response, Rees told Sachar “[w]e can’t say that they can’t charge more.” E-mail from Nina Rees to Sally Sachar (Apr. 23, 2004) (emphasis added). Even then Sachar was not satisfied, and she wrote back to Rees: “We cannot say that the schools cannot charge the scholarship family beyond the $7,500? I understand that they can set the tuition as high as they want – for sure – but cannot we say that they cannot charge the FAMILY more than $7,500? Having fun yet?” E-mail from Sachar to Rees (Apr. 23,2004). Rees responded, “But they CAN charge more. It’s up to the family to decide if they can make up the difference. A private program, other than yours, can make up the difference. I think what you should convey in here is that the school will not receive more than $7,500 through this program.” E-mail from Rees to Sachar (Apr, 23, 2004) (emphasis added).
Despite the statute and these unambiguous e-mails from Rees, Sachar still would not give up. In an e-mail dated April 29, 2004 to Rees and Michael Petrilli at DOE she wrote, “I really want to say that the $7,500 is the max amount a school can charge a family. . . Families will simply NOT be able to make up the difference, and if we end up giving WSF scholarships to these families, we have limited our ability to expand choice to many more students. Please confirm that it is okay to put the $7,500 cap out there. I will defend it vigorously and you can say that this was a decision of the administrator!”
On April 30, Petrilli replied: “Here’s what our lawyers had to say: On the issue of telling schools they may not charge scholarship students more than $7,500, WSF can by all means encourage schools not to do so, but I don’t think we or WSF has the authority to tell them they may not do so. In fact our letter to the Archdiocese made clear that they can, but that scholarship students would have to be given the same access to other sources of financial aid as other students. So we’re not comfortable with this.”
As issued by WSF in May 2004 and posted on its web site for the benefit of private schools “interested in participating in” the voucher program and “specifically geared to school leaders,”47 the FAQs do not affirmatively inform private schools with tuition greater than $7,500 that they may charge voucher students the excess, as DOE had suggested in its April 23 revision.48 In fact, the FAQs as issued entirely omitted the separate question “What if the school charges tuition above $7,500 annually?” Instead, information concerning tuition is stated confusingly in response to the question “What charges does the scholarship cover?” The stated answer: “For each participating student, the scholarship covers tuition, fees, and transportation expenses, up to a maximum of $7,500 for any academic year. Schools may not charge scholarship students more than non-scholarship students for tuition or fees, and no student may receive more than $7,500 total.”49
As a general matter, DOE was not particularly keen on having WSF issue a “private school Q and A” in the first place. After WSF submitted the initial draft to DOE, Nina Rees wrote back to Sally Sachar: “Sally, we are editing away but are you sure you want this out in public? The Post will have a ball with it.” E-mail from Nina Rees to Sally Sachar (Apr. 22, 2004). Sachar replied, “Nina . . . I really think we need a document like this that is thorough and comprehensive. I will check carefully to make sure there is not anything there that would raise concern and that we don’t want the press to see . . .” E-mail from Sachar to Rees (Apr. 22, 2004) (emphasis added). Rees cautioned Sachar to let DOE know if WSF decided “not to take some of the edits,” and told Sachar that she was
worried that our answers to questions about whether the school has to fulfill new requirements, or report academic achievement, or can cherry pick students, will all be scrutinized and reported on. Right now it’s written in a very private school-friendly fashion. But the press will make it look like we aren’t going to hold the private schools accountable for anything, and that we’re letting them cream the best kids from DCPS. So we need, in the language, to mitigate that as much as possible.
E-mails from Rees to Sachar (Apr. 22, 2004).