Rethinking Educational Regulations

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By: Mike McShane , Contributor, Forbes

I study K-12 education, including entrepreneurship and school choice.

I spend a lot of my time traveling around the country talking about school choice. Almost like clockwork, when I finish speaking and the crowd disperses, someone will come up to me and say, “I’m a public school teacher and if we were freed from the same regulations that charter schools and private schools are, we’d be just as good as them.”

This seems eminently reasonable. I just want good schools for kids and if nonsensical rules and regulations are getting in the way of providing quality education, in any sector, we should try and get rid of them.

Deregulation, or as I call it in my new paper Rethinking Regulation, does not have to be the province of one political party or one faction of the education reform debate. Traditional public school teachers and principals often feel constrained by onerous and even contradictory mandates from the various bodies—national, state, and local—that oversee them. Charter and private school leaders who are participating (or thinking about participating) in school choice programs feel micromanaged as well. Here is a rare place for some common ground.

Lucky for us, deregulation has been studied, examined, studied again and reexamined. In fact, two of the best resources that we have regarding regulation are more than 30 years old: Alfred Kahn’s The Economics of Regulation and Stephen Breyer’s Regulation and its Reform.

In my paper, I work to apply the arguments that Kahn and Breyer make about smarter regulation to schooling, both traditional public schools and schools of choice. Three key takeaways are worth mentioning:

1. We need to reform the standard-setting process. State academic standards are not chiseled in stone tablets and passed down from on high. The cut scores that define some students as “proficient” and some students as failing to demonstrate proficiency are not created by some disinterested researchers attempting to divine exactly what it is a fourth grader is supposed to know. All of these processes are political, and all are subject to the biases and ideologies that the stakeholders who are consulted in the process bring to the table. There is nothing inherently wrong with this approach, but it should yield a bit more humility when it comes to the kinds of consequential decisions that are made based on these standards and these assessments. Other people might prioritize other things, and in a pluralistic system that values individual rights, they should have some leeway in acting on those preferences.

We still want to know if taxpayer dollars are actually leading to student learning, and we want families to know if their children are attending schools that are teaching them necessary information, so one possible solution to this problem is to rewrite rules and regulations so as to allow schools the option of taking state standardized tests or choosing from a list of nationally-normed referenced tests. Both would give the information that parents and taxpayers want, both would hold schools accountable for their performance, and the choice would give more flexibility to educators to find a test that matches with their instructional program.

2. Regulations are crude tools. Breyer argues that regulations are “a crude weapon of government intervention, a blunderbuss, not a rifle.” Regulations are great for preventing bad things, but they are not great at fostering good things. For example, regulations are great at preventing a soda company from polluting rivers with the runoff of their canning process and making sure that the sweeteners that they use don’t cause cancer. They are not good at making soda taste good or be healthy. Attempts to use regulation to not just prevent harm but to drive quality often fall short.

Regulators of education at the federal, state and local level would be prudent to refocus their regulatory desires on harm reduction, not micromanagement. Charter authorization, for example, in too many places has moved from trying to keep out bad actors to trying to ensure that every school is above average. The problem is that ex-ante, authorizers are bad at predicting who is going to be good. If they focused on the essentials, working to ferret out schools that have clear red flags, and then allowed families the option to vote with their feet, they might meet with more success.

3. Regulatory capture is real and troubling. Large, complex regulatory systems privilege large, wealthy, incumbent actors. A school district of 50,000 students has the staff and resources to meet regulations in ways that a school district of 500 students might struggle mightily to do. Similarly, large networks of charter schools have teams of professionals to submit applications to authorizers while small groups of educators looking to start a new school have to do everything themselves. In both cases, the good of the larger groups is more likely to be served than the good of the smaller groups. But even beyond that, large, wealthy, incumbent actors can actually start to influence the ways that legislation or regulations are written in order to stifle their competition. Traditional teacher preparation programs can lobby states to write regulations that make alternative certification paths more difficult. Charter school networks can advocate for regulations with which their smaller competitors struggle to comply.

The way to prevent this is to have fewer, simpler regulations that are easy to follow but hard to distort. State legislators and state education agencies need to take a hard look at existing regulations on the books and delete what is onerous, cumbersome, and doesn’t help kids, and new systems that are trying to be better (like charter schools and private school choice programs) should work to not fall victim to the same problems.

There is much more in the paper, and I’m interested in what others have to say about my argument and recommendations. Feel free to send your thoughts my way.

My new volume Failure Up Close: What Happens, Why It Happens, and What We Can Learn from it (edited with Jay Greene), is available here.

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