Heritage Foundation Leadership for America

Background/Footnotes: In the early 1970s, New York lawmakers passed legislation assisting private and religious schools serving low-income students with facility maintenance. Lawmakers also created tax deductions and tuition reimbursements for low-income parents who sent their children to non-public schools. The laws were, in part, an effort to prevent overcrowding in public schools by helping poor students attend private school. In 1973, the Supreme Court of the United States ruled against this early form of school choice in Committee for Public Education v. Nyquist. The Court found that, because most of the schools involved in the New York choice program were religious schools, the state or district-funded assistance promoted religion--therefore violating the First Amendment. Future attempts to create public aid for private schools would have to be clearly "neutral" in nature.[1]

New York legislators created a weak interdistrict enrollment provision in 1993. The law was strengthened after the federal No Child Left Behind Act was passed in 2002, but for the first nine years under the law, few students transferred out of low-performing schools.[2] In 2000, a New York Post study found that many parents were not informed of their options and that the availability of bus services for transferring students was limited. With schools already overcrowded, districts rejected 40 percent of transfer requests in 2000. At that time, nearly one-third (338) of the state's elementary schools were rated as "low performing."[3]

Founded in 1995, The BISON Scholarship Fund offers low-income Buffalo students privately funded scholarships by lottery to students who meet income qualifications. The program has grown from 200 children in the first year to nearly 1,500 in 2003.[4]

Legislators have been unsuccessful in their attempts to pass legislation on education tax credits. In 1997, Senate 7832 would have provided an investment tax credit worth up to 50 percent of a contribution to a public school, private school, or scholarship organization. The bill died in Senate committee.[5] In 1999, S. 7832 was reintroduced as S. 4176 and again died in Senate committee. Assembly 9644 and S. 6693, introduced in 1999, would have created the Educational Tax Incentives Act to provide income tax credits of up to $500 for donations made in a variety of areas, including contributions to public school districts and tuition scholarship organizations or purchases made for home schooling. Both bills died in committee.[6] A. 3216, introduced in the 2001 session, would have provided tax credits of up to $200 for purchases related to public-school extracurricular activities and tax credits of up to $500 for donations to private-school scholarship funds.[7]

The School Choice Scholarships Foundation began offering scholarships in 1997. Students who qualify for the federal free and reduced-priced lunch program are eligible.[8] Recipients, chosen by lottery, were awarded scholarships worth up to $1,400 each.[9] In 1997, the foundation selected 1,300 scholarship recipients from 20,000 applicants.[10] A study conducted in 1998 found that recipients improved in both math and reading, with students in 4th and 5th grades making the largest gains.[11] In addition, parents of scholarship students reported a high level of satisfaction with their child's school.

In 1997, the Albany-based A Better Choice (ABC) scholarship program offered vouchers to all students of the Giffen Memorial Elementary School, and more than 150 students accepted them. Giffen was selected because of its high poverty rate (96 percent of the students qualified for the federal free-lunch program) and low performance (more than 50 percent of the students could not read at a "minimum competency" level).[12] While the scholarship program allowed students to transfer to a school of choice, Giffen made significant improvements: By 2000 a new principal and 12 new teachers were hired and a mentoring program for new teachers was initiated. A study by Seton Hall reported that changes made at Giffen helped improve the school for the students who remained. Between 1999 and 2000, Giffen's students' scores on the 4th grade language arts exam improved by 14 percent.[13]

Advocates of school choice won an important legal victory in 1997 when the U.S. Supreme Court ruled in Agostini v. Felton that public school teachers can provide "remedial" services to private or parochial school students without violating the Establishment Clause of the First Amendment--a ruling that overturned the Court's own 1985 decision in Aguilar v. Felton.[14] Before Aguilar v. Felton, public school teachers had offered tutoring services for students in private and religious schools who were underperforming by state standards. Because the aid took place at the school, the Supreme Court had ruled that the practice was unconstitutional because the potential existed for using public funds to promote religion. As a result of that decision, it was necessary either to transport students to a neutral site for tutoring or to create additional facilities that were not a part of the school. The board of a religious New York school asked the Court to reverse its decision in Aguilar because it presented a burden for students seeking tutoring. In Agostini, the Court ruled that remedial services could take place within a private or religious school because the assistance was available to all eligible students, regardless of their school, and was not used to promote any specific religion.[15]

Governor George Pataki signed New York's charter school law in December 1998.[16] The law allows the formation of up to 100 new schools and the conversion of an unlimited number of public schools to charter status.[17] The State Board of Regents and the State University of New York (SUNY) may grant up to 50 new school charters.[18]

Then-New York City Mayor Giuliani promoted vouchers and charter schools. In 1999, he proposed an experimental voucher program for one city school district, to be modeled after Milwaukee's program.[19] The plan was not approved for the 1999 budget. However, in August 2000, a Hunter College survey found that 75 percent of respondents who reported understanding how vouchers work said vouchers should be made available. The survey also revealed strong support for vouchers among minorities: More than 80 percent of African-Americans, Asians, and Hispanics surveyed were in favor of them.[20]

Voucher legislation introduced in the legislature in 2001 included A. 7239 and S. 3725, which would have established the Elementary and Secondary Education Improvement Act. The legislation would have given parents "parental choice certificates" for use at a public or private school of choice. Neither bill was enacted.[21]

In compliance with the No Child Left Behind Act, New York City must allocate at least 5 percent of its federal Title I funds for tutoring services. Students in high-poverty areas whose schools have not shown improvement over three years are eligible for tutoring.[22] Due to logistical problems, Chancellor Joel Klein extended the program's 2002 sign-up deadline until the end of November so that more of the 240,000 eligible students could participate.[23] In October, the chancellor disbursed $10 million in tutoring funds to 27 providers.[24] Earlier in the year, State Attorney General Eliot Spitzer drafted a legal opinion supporting the use of public funds to tutor parochial school students. Specifically, Spitzer said that students in religious schools who were struggling with the state's standardized math and reading tests should be offered government-sponsored tutoring services.[25]

In January 2003, parents from Albany and New York City filed a class-action lawsuit against their local school systems, charging that requests for transfers and tutoring requests made in accordance with the No Child Left Behind Act had been unlawfully denied.[26] A federal district court dismissed the suit on the grounds that "Congress did not intend to create individually enforceable rights with respect to the notice, transfer or [supplemental educational services] provisions contained in NCLBA."

Several legislative items were carried over into the 2002 session. A. 3216, proposing $200 tax credits for purchases made for extracurricular activities and $500 tax credits for donations to scholarships, was still with an Assembly committee in early 2002, as were A. 7239 and S. 3725, both of which had been introduced in 2001 to create "parental choice certificates" or vouchers. Neither bill was enacted.[27]

Tax credit legislation was introduced in early 2003. S. 154, would have provided a tax credit for tuition and textbook expenses.[28] Another bill, A.3590, the Educational Tax Incentives Act, would have offered tax credits for donations made to public schools, including charter schools. The credit was capped at $250 for individuals and $25,000 for businesses. Neither bill was enacted.[29]

Assembly bill 5253 and S. 3355 would have established a tax credit for education expenses. The amount would vary depending on income. Parents earning less than $40,000 a year could take the maximum credit at $1,500 per child up to $3,000 a year. Taxpayers earning $75,000 - $99,000 could take a maximum of $500 per student up to $1,000 per year. The bills would have also established a credit for teachers for classroom expenditures. Both bills died in committee.[30]

Senate bill S.1665 and A. 3590 were introduced to provide individuals a tax credit of up to $250 for contributions made to public schools or to tuition scholarship organizations. Both bills died in committee.[31]

As of fall 2003, parents of pre-kindergarten, kindergarten, and 1st grade students in Buffalo can choose any public school for their child. The new school choice options are part of a larger initiative by Buffalo school officials to improve their school system and respond to opinion polls indicating that parents want their children to attend school closer to home. The first phase of the plan began in the 2002-2003 school year and allowed 9th grade students to attend a public school of choice.[32]

In December 2003 the Buffalo Board of Education voted 8 - 0 to increase the number of district-sponsored charter schools operating in the city. In 2003, there are over 3,000 students attending the 11 charter schools in Buffalo.[33] Less than a year later, the Board voted 5-4 to impose a one-year moratorium on the approval of new district-sponsored charter schools.[34]

A class action suit representing New York City students was filed on October 15, 2004 against the New York City Department of Education for denying public school choice options under the No Child Left Behind Act (NCLB). In 2004, 328 of the city's 1,200 failed to meet the standard for academic improvement. Under the NCLB, the school district must offer students in these schools the option of transferring to a higher performing school. Of the 26,4000 eligible students, 6,800 took advantage of the transfer option last year. This year, however, the district restricted high school students at the behest of the receiving schools.[35]

The Senate passed the Homeschool Freedom Bill, S. 2060, which would have eliminated many of the administrative requirements for homeschooling families. The bill, however, was not taken up in the Assembly.[36]

State Senator Martin Golden (R-Brooklyn) introduced S. 1939 in February 2005. The bill would create a tax credit for educational expenditures (including tuition) for parents of kindergarteners.[37] Among the bill's supporters is Cardinal Edward M. Egan, Archbishop of New York.

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