Does "for-profit" mean "re-failing" students?

Journal of Law and Education, Apr 2003 by Zirkel, Perry A

In the April 2002 issue of the JOURNAL,1 Kathleen Conn, who is a school district curriculum supervisor, traced the "privatization of public schools"2 in terms of state takeover subcontracts with and charter schools by for-profit school management companies, such as Edison Schools Inc.3 According to Conn, these activities to date have not been effective in terms of either student achievement gains or shareholder profits.4 The educational evil, whether reaching the Bush-like status of an "axis," is the share-holder-wealth maximization paradigm.5 The results are the "hidden" or "reciprocal costs" to school districts in terms of reallocated resources and litigation expenses6 and the corresponding costs to students in terms of high teacher turnover and a "cookie-cutter" curriculum.7 Finally, in light of the general ineffectiveness of "other constituency" statutes to date8 and the similarly political futility of her first choice, which is a strict prohibition against for-profit companies' managing public schools,9 she rather briefly suggested the following possible solutions for solving the inherent conflict between shareholder and student interests: 1) state constructive-trust legislation that requires achievement-based escrow provisions, and 2) a limited, special cause of action for educational malpractice.10

In the accompanying Counterpoint, attorney David Walk, who has represented Collegium Charter School in litigation with Conn's school district and Mosaica Education, Inc., in litigation with the Pennsylvania Department of Education, argues that the interests of for-profit educational management companies are inherently compatible rather than in conflict with interests of students to achieve; simply stated, if such schools do not serve students well, their parents will exercise their choice to enroll elsewhere or otherwise jeopardize the company's charter or contract." Walk provides a more complex and cogent elaboration than this simple statement of his argument, including analogies to the opposing yet overlapping and potentially mutual interests of students and taxpayers, but the readers will benefit from moving directly to the following pages for their own assessment.

In considering the pros (and prose) verses cons (and Conn[s]) of both sides,12 the readers need to consider whether or when each side is addressing 1) for-profit, as compared with nonprofit, enterprises and 2) charter, as compared with takeover, situations. The goal, which both sides share with the readership, is an appropriate level of legal regulation and remedies for the public interest in effective schools. The need for this policy consideration is particularly acute in light of the No Child Left Behind Act,13 which requires school districts in specified circumstances, inter alia, to provide parents with the options of transferring their students to other schools, including public charter schools, and selecting tutoring and other "supplemental educational services" from a state-approved provider with a demonstrated record of effectiveness.